The instant it was announced that Dallas Police officer Amber Guyger would be slapped with a manslaughter charge, the loud cry went up: Why not murder? The story that Guyger told of stumbling into a wrong apartment after a long shift, and then mistakenly gunning down Botham Jean thinking he was an intruder is by now well known. The story is bizarre, wild, and, too say the least, tough to swallow.
But it's the official story and explanation for the slaying. It almost certainly will be the story that Guyger's defense attorneys will try to sell a judge and jury. That's the problem for prosecutors. She's a cop, and judges and juries are almost reflexively pro police when it comes to convicting cops on any charge. The number of police charged in dubious shootings, no matter how outrageous, are almost nil. The few that wind up in a court docket almost always walk. The built-in bias among judges and juries toward police is near impossible to overcome. True, in Guyger's case, it's a hard tug not to demand Dallas County DA Faith Johnson and the grand jury nail her with a murder charge given the justifiable fury at the snuffing out of an innocent man's life for absolutely no reason.
Johnson has said that she is open to exploring the possibility of a harsher charger; presumably that means murder. However, that was more likely said to placate the crowd demanding a murder charge. However, if murder is the charge against her the already tough slog the DA has to try and convict Guyger will be that much tougher.
Texas law is pretty clear. For a murder charge to stick, an assailant must knowingly intend to cause death or bodily harm to their victim. Guyger's claim of mistakenly thinking she was in a wrong apartment no matter how incredible that sounds, pretty much knocks the intent requisite out the legal window. The only way it could be brought back through the window is if there is credible evidence that she knew Jean. And, for whatever reason, knowingly went to his apartment with the aim of gunning him down. Just where such evidence will come from is anybody's guess. Certainly, it won't come from Guyger. Some witnesses reportedly said they heard her banging on the door and that it wasn't open as she claimed. Defense attorneys will dismiss that as hearsay and unproveable in the absence of a video to corroborate that.
Then isn't at least second-degree murder a possibility? Though it doesn't require proving specific intent to kill, the bar is high on that. It would require the DA to prove that she willfully intended to kill Jean and that she had no other option short of the use of lethal force to protect herself from what she considered a threat to her life.
The claim that the officer feared for their life is a near impossible hurdle for prosecutors to jump in police killings of unarmed civilians. This is the ace card in cop shootings. It's a claim that's automatically made and just as automatically accepted almost without question by judges and juries. The reason for that is simple. It's a judgement call that police make or hide behind because the Supreme Court made it possible in a 1989 case The court ruled that the, "use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." It went further and warned that police must make "split second" decisions in "tense situations" in which their lives could depend on making that right decision.
The decision is a godsend to police departments and a nightmare for prosecutors. DA's now have one more impediment to grapple with in trying to determine whether to prosecute cops who wantonly kill. How to get a judge and jury to buy the argument that a cop really wasn't in danger? And to find that he or she didn't really have to make that "split second" decision in a tense situation? Or, that the situation really wasn't tense to begin with? The answer has been: almost no prosecutions. And in the handful that are prosecuted: almost no convictions.
While a murder charge isn't likely in the cards for Guyger, there's still the manslaughter charge. Though there's no need to prove intent, the DA will still have to get around the by now well-honed narrative, that the killing was all a mistake, tragic and heart retching, yes, but nonetheless a mistake. It will require a lot of heavy legal lifting to knock that one down and show that mistake or not, killing an innocent civilian in their own apartment where there is no allegation or suspicion of a crime is still an unlawful killing.
Jean's slaying is that. But you still got to prove it. Officer Guyger and her police backers hold as many legal cards as the prosecutors. They will play every one of them to get an acquittal. If the charge was murder, it would almost certainly be a winning hand for them.
Earl Ofari Hutchinson is an author and political analyst. He is the author of Why Black Lives Do Matter (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.