Misdemeanor Murder!

Average Americans think of murder as the cold-blooded crime among all crimes, and the one that mandates sending the offender away for a long, long time.

They are partly right; some murders are planned in detail and committed in cold-eyed pursuance of the object of the planning. People who commit that sort of crime are truly dangerous people and, what’s more, can be counted on to commit murder or other serious criminal activity the very next time the opportunity presents itself. These people do need to be locked up and have the key thrown away.

The truth is, however, such murders are rare outside organized crime. Drug dealers and others who get up every day and go out and commit crime as part of an ongoing enterprise dispatch one another with cold premeditation on a regular basis, but most murders occur in the heat of passion, with no planning whatsoever.

The rate of recidivism among murderers of this type is among the lowest for any type of crime; they kill once, in a fit of passion, and are otherwise near-model citizens for the rest of their lives.

These murders tend to involve a murderer and victim who know one another and are the culmination, in many cases, of long-standing “bad blood” between them. Alcohol seems almost invariably to be involved.

Around San Antonio, this kind of murder seems to take place in two primary locations—neighborhood bars and birthday parties at someone’s home. Both kinds of cases present real nightmares for the police.

In the bar shootings, the basic problem is that nobody will acknowledge having seen anything.

There may be 40 people in the bar, but each will claim to have been in the men’s room when the shooting came down, notwithstanding the men’s room is a four foot by seven foot one-holer.

In these cases, though those involved in the shooting—the shooter and the shootee—may have known one another, the others in the bar don’t know either one, don’t care, and don’t want to get involved.

It’s not unheard of for the bartender to drag the body out in the street and swear the shooting took place out there, secure in the knowledge that all the patrons will either scatter before the police get there or swear they were in the bathroom when it happened. The bartender’s motive? To keep his job. Too much violence in a place will get the liquor license lifted.

In the birthday party shootings, the problem can be just the opposite. Though the party was in every room of the house, the front yard and the back yard and spilled over into the neighbor’s yards on both sides, everybody will claim to have seen just what happened. In these cases virtually everyone at the party was a friend of either the victim or the shooter.

There usually are several people who actually see what happens, simply because so many people are present. However, after “getting your laundry back” on several of these cases, you begin to realize that there are always two stories being told after the event, one by the friends of the deceased (making it a cold-blooded murder) and one by the friends of the accused (making it a clear-cut case of self-defense).

The friends of the victim never saw the gun/knife/tire tool (fill in the blank) in the victim’s hand, while the friends of the defendant invariably did. If no such object is found by the police, it is because it didn’t exist (say decedent’s friends) or because unnamed friends of the deceased carried it away (defendant’s friends).

In all events, the deceased most assuredly accompanied a very clear assaultive gesture (the “hip pocket move,” which made it appear he was going for a weapon, or the like) with strong language conveying a clear intent to engage in assaultive behavior, according to approximately one-half of the witnesses.

These birthday parties and bar shootings have over the years begun to be called “misdemeanor murders” by some people in the system. It is not because such murders are viewed as not being serious, but because of the frequent outcome of such cases when they are tried to a jury.

Whereas the seasoned prosecutor or defense lawyer will have heard a substantially similar story on several prior occasions, this will be the one and only time the average juror will.

Not surprisingly, when confronted with a similar number of witnesses on each side, all with approximately equal credibility, telling stories which are absolutely inconsistent, jurors are not quite sure who or what they should believe. Often as not, they will resolve their dilemma by holding against the defendant on his self-defense theory (thus convicting the defendant) and then assessing a low punishment (thereby crediting him and his witnesses with some degree of credibility, as well).

This combination of serious crime and low punishment explain the denotation “misdemeanor murder,” perhaps, but they don’t really justify the term’s connotation of a not-very-serious murder. For that reason, and because I know the term is misunderstood by those outside the system, I avoid using it. Besides, “barroom shooting” and “birthday party shooting” convey the same impressions to system insiders without shocking everybody else.

When I was a rather young lawyer, it was my good fortune to “second chair” (i.e., sit behind and assist) a first-rate lawyer, the late Charlie Butts. (Charlie’s beautiful wife, Shirley, is now a retired appellate judge, and she called him Charles, but he’ll always been Charlie to me.)

Charlie, in a long and illustrious career, had been First Assistant District Attorney in a couple of counties, a crackerjack personal injury lawyer, and, more to the point here, one of the best criminal defense lawyers in the state.

Our facts were very similar to what I have described, except that two separate altercations were involved.

In the first altercation, which took place while our client was at home, minding his own business, his brother was set upon by several at the party, with the now-deceased as the instigator and chief antagonist, and the brother’s leg was broken.

When this story got to our client, in the language then applicable to the law of self-defense, he armed himself with a .410 shotgun (with which to defend himself in the event of an unprovoked attack upon him) and went to “seek a peaceable explanation.” (No. None of this jibes with current law.)

The deceased was shot in the living room at a distance of less than 10 feet. Predictably, there were more witnesses than would fit in the room, and they were divided, unfavorably to the defense, with about one-third who saw the deceased lunge for the defendant with a broken beer bottle and two-thirds who swore that never occurred.

Tom Even (also no longer with us, demonstrating again my advancing years) was still in law school at the time, and was signed up for a clinic-style course that allowed him to obtain credit for assisting in the investigation of criminal cases. He signed on, too.

I had spent the last three of four years in law school (I went part time, at night) working as an independent claims adjuster, and fancied myself as something of an investigator. I was delighted to have Tom on board, not only for the independent investigation he would do, but also because that meant I could participate directly in the investigation without ending up by disqualifying myself as a lawyer on the case (since he could be called, rather than me).

We did rather a lot of investigation, but the really significant investigation centered around a 15-year-old named Elvira.

Elvira had given a statement to the police that indicated our client had shot the deceased without provocation. The statement was short, however, and we were interviewing all the witnesses, favorable and unfavorable, so we could evaluate their credibility for ourselves. Further, since Elvira’s statement was quite short, we wanted to flesh her story out a bit.

After a couple of trips to her home without locating her, we were advised by another of the witnesses that she had been picked up for some sort of offense and was in the Juvenile Detention Center.

We contacted her there and learned that she was willing to speak with us. We spoke with her probation officer, who agreed to be present at our interview, both to see to it that the girl was not over-reached and so that she, the probation officer, could hear the story too, as Elvira had up to that time refused to talk to her about the murder case (which, after all, was unrelated to her own more recent problem and detention).

We began by assuring Elvira several times that we weren’t asking her to say anything in particular, that we simply wanted her to tell us the truth, whatever the truth might be, whether it hurt our client or not. She said she understood.

We then asked her to simply tell us in her own words what had happened, explaining that if we had questions we would interrupt or ask them after she was finished. She agreed, and began to tell us her story.

To our surprise, she was telling very much the same version of the events as had been given to us by our client.

I interrupted after she gave us the basic story, explaining that I had read the statement she had given to the police, and that I knew that what she had told them was very different from what she was telling us—that she had pretty much described an unprovoked shooting in her statement to the police.

She readily acknowledged that she had given a very different statement to the police, but explained that she had done so because the friends of the deceased, who had given similar statements, had told her that she’d better tell the story that way or they would hurt her.

We pressed again and again for the truth. The probation officer emphasized the importance of her being truthful. She stuck by her guns; it was self-defense, and she had only told the other story initially out of fear of the state’s witnesses.

I even explained to her that giving two statements under oath, both of which cannot be true, is a misdemeanor, and the prosecutor doesn’t even have to prove which statement is false. If he can prove which statement is false, it’s a felony. She still stuck by her guns.

The beauty of this situation was this: When the prosecutor tried to impeach Elvira with her prior statement, she would have a response that not only explained away her prior statement in terms of her own credibility but which blew all the prosecution witnesses out of the water.

It’s one of the very few times I can remember being in a position of looking forward to having a witness questioned about a prior inconsistent statement by the other side. The case went to trial several weeks later. The prosecution witnesses told it pretty much like they had told it to the police.

Charlie Butts had made some mileage on cross-examination, but when the State rested, the case looked pretty much like an assassination in response to the assault that broke the defendant’s brother’s leg. The deceased may not have looked too good to the jury, since he had led a gang assault on the brother, but at least the brother had not been killed.

Two or three witnesses in to our side of the case, Charlie announced that our next witness would be Elvira. The bailiff headed to the witness room to get her, but I knew she was out in the hall with the probation officer, so I went in that direction to get her.

When I got outside, I found myself confronted with a probation officer who was extremely distraught.

“What’s the matter,” I asked. “Isn’t she willing to testify now?”

“That’s not it,” she said. “She’s changed her story again. Now she says that what she told the police was the truth and what she told you was a lie.”

Elvira stared at the floor, refusing to even look at me, much less respond to my questions, and I knew that what the probation officer was saying was true.

I confess; I panicked. Elvira was to have been our star witness, and now she said she had been lying to us.

A jumble of different issues crashed together in my brain. A lawyer can’t call a witness he knows is lying. . . . You can’t claim surprise if a witness has told you before going on the witness stand that’s what he’s going to say. . . . But wait, she was going to tell what she says is the truth. . . . But, that story hurts us. . . . What the hell is the truth in this case, anyway?

I remembered that the jury was waiting with some anticipation for Elvira to take the witness stand. I scurried back into the courtroom and up to Charlie Butts.

“Charlie,” I tried to whisper but practically shouted in his ear. “She changed her story. She now says that she lied to us and what she told the police is the truth.”

Charlie paused, turned his head slowly toward my ear, and whispered in his very West Texas drawl: “Don’t let the jury see that you’re upset. We’ll just go on with another witness. Have a seat and calm down.”

With that, Charlie called the next witness.

We called our one-third who told it our way, and the defendant himself testified pretty well, but we just didn’t have the horses; the jury convicted the client. At punishment, Charlie delivered an argument that I swear had the judge’s eyes glistening, much less the jury’s.

Ten years, they said, but several of them told Charlie later that they had wanted to grant probation, but just couldn’t muster the votes.

Misdemeanor murder, birthday party shooting, call it what you will. This (then) young lawyer learned a lot about lawyering sitting behind Charlie Butts in this trial. He should have charged me a bundle for the lessons.

Judge Wayne Patrick Priest
Judge Wayne Patrick Priest
Judge Wayne Patrick “Pat” Priest was a founding director of TCDLA. He received his JD from St. Mary’s University, where he served as an adjunct professor of Criminal Law, Criminal Procedure, and Trial Advocacy at its School of Law from 1979 through 1999. He has been on the bench since November 1980. As the senior District Judge of Bexar County in semi-retired status, he is called upon to preside over some big cases—including the Tom DeLay campaign finance trial, among others.

Judge Wayne Patrick “Pat” Priest was a founding director of TCDLA. He received his JD from St. Mary’s University, where he served as an adjunct professor of Criminal Law, Criminal Procedure, and Trial Advocacy at its School of Law from 1979 through 1999. He has been on the bench since November 1980. As the senior District Judge of Bexar County in semi-retired status, he is called upon to preside over some big cases—including the Tom DeLay campaign finance trial, among others.

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