Difficult shooting case in Texas on trial right now

[Deaf Smith]

"Authorities say when Terry Graham returned home to his farm, there was a car he didn't recognize. The door to his home had been kicked open. That's when he and a ranch-hand found Josh Chambers. At the time, Chambers was an alleged cocaine addict on probation for a previous burglary. Chambers was able to make it to his car outside of Graham's home with a stolen bag packed with cash, guns and a bottle of alcohol. But, Chambers would not make it out of the driveway alive."

The owner shot the thief in the head. DRT right there.

Now in Texas, with the Castle Doctrine, if someone is inside your house you are presumed in danger and can use lethal force. The bad guy and his relatives cannot sue. BUT, outside your house it ain't like that. Now you can use lethal force to retreive property you feel cannot be retreived any way else. BUT.. again, you still can be sued for 'wrongful death'. In this case below, the owner is being sued for just that!

http://www.kltv.com/Global/story.asp?S=10765354

Notice the "ex-wife's" lawyer is saying all kinds of awful things about the owner and how the poor old crack head didn't need killing. Like, "There's no death penalty in Texas for burglary or for being a drug addict".

Just to let you guys know and understand that while I'm actually in favor of protecting property as needed, you can still get your self in a world of hurt.

I'll keep on this trial and see just how it ends, then post it here.

[Deaf Smith]

More on the trial. The poor ex-wife says he was not a violent man... but when she divorced him she stated he was a 'unpredictable and violent man'. Ops.....

http://www.tylerpaper.com/apps/pbcs....50/0/FRONTPAGE


Ex-Wife Testifies In Wrongful Death Case

By REGIS L. ROBERTS
Staff Writer

"Amanda Whitsell Wednesday testified that her former husband, Joshua Chambers, was not a violent man.

However, in a petition for divorce filed by Mrs. Whitsell against her husband she described him as unpredictable and violent."
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"When Crawford asked her to explain the difference between the two statements regarding Chambers' capacity for violence, Mrs. Whitsell said, "At the time I signed that, I believed it to be true," and that she was fearful that he could be violent.

Judge Randall Lee Rogers excused the jury and reminded Mrs. Whitsell that she had a Constitutional right not to incriminate herself by saying things that may be used against her in perjury charges."

[Deaf Smith]

And more...

http://www.tylerpaper.com/apps/pbcs....52/0/FRONTPAGE

"Contention came from determining whether Chambers was trying to flee in his white Ford Taurus or trying to run Graham over. When Crawford asked Graham why he shot Chambers as he was driving away, Graham said, "I wanted him stopped; I wanted him arrested; and I wanted my property back."


Graham said when asked the same question later on, "I was afraid of my life and the life of my employee."


He was referring to Guy Osborn, whom Graham employed as a ranch hand on his property in Bullard."

*********

Now this is one reason after you are involved in a shooting, YOU SHUT UP TILL YOU TALK TO A LAWYER. I have no doubt he was very upset and shocked. He could have shot the thief for many reasons, both to get his property back AND to keep him from running over his employee.

But by blabbing away at the first opportunity, he got himself into a world of trouble.

[csmsss]

Anyone can sue anyone, and in some circumstances prevail regardless of the facts or the law. I think your first statement, that Graham should have shut the hell up until he talked with an attorney, was spot on. Shootings necessarily involve potential criminal AND civil liability, and before you say word one to anyone about one you're involved in, you should obtain the advice of competent counsel. They can't hold what you don't say against you.

[csmsss]

I just realized that is in Tyler (in east Texas, and not terribly far from where I live). Mr. Graham shouldn't have too much difficulty with a jury from east Texas.

[WeedWacker]

Chambers was able to make it to his car outside of Graham's home with a stolen bag packed with cash, guns

I think it was a good thing the man was stopped. The stolen firearms could have been sold on the street or traded for drugs. Or Chambers could have used them to commit another crime for his addiction. He would have created more danger to the public had Graham allowed him to leave.

[Jmarshall]

Jury is in

http://www.kltv.com/Global/story.asp?S=10782274

[Lee Lapin]

Yep- cleared criminally, then cleared civilly as well.

Anyone want to find out how much his legal costs for the two trials were?

lpl

[csmsss]

Anyone want to find out how much his legal costs for the two trials were?

There was no criminal trial.

[hogdogs]

The civil ruling mirrors the result of the prior criminal proceedings.

There was no criminal trial.

Okay who here is correct?
Brent

[rduckwor]

I thought Texas law included the protection of property as well as life and limb.

[pax]

Guys,

I'm going to bump this one down to L&CR, since from this point on it's going to be a discussion of legal concerns rather than tactical ones.

Thanks,

pax

[Doc Intrepid]

Originally Posted by hotdogs

"Okay who here is correct?"

Its in the last sentence: The grand jury declined to bring charges in the criminal proceedings: "The civil ruling mirrors the result of the prior criminal proceedings. In that case, a Smith County grand jury refused to indict Terry Graham for Chamber's death."

Its sometimes difficult to weigh right and wrong for some folks, but one thing for sure is that after being shot in the head Josh Chambers hasn't broken into and robbed anyone else's homes, cars, or businesses. That's likely a win/win situation for all concerned.

[Spade Cooley]

Graham did the world a favor. Lets all remember how to act responsible when we are on jury duty. This dirt bag is now where he belongs, six feet under.

[thallub]

The gene pool is cleaner and the family of the deceased perp lost the civil suit.

OK law has an edge on TX. The OK prosecutor is not required to take a righteous shoot to the grand jury. In OK the family of the late perp is not allowed to sue in civil court in a righteous shooting case.

[Tennessee Gentleman]

Originally Posted by Lee Lapin

Anyone want to find out how much his legal costs for the two trials were?

Lee, Technically based on the reports he was never "tried" in criminal court but his case was taken to the Grand Jury. I am sure he hired a lawyer to represent him thru that process and probably had to pay that out of his pocket.

Based on what Deaf said based on the fact that the perp was shot outside the home for stealing then I guess Texas Law does not bar civil suit (strange law) so Ms. Whitsell went dialing for dollars.

Depending on his homeowners policy Mr. Graham may have been covered for defense costs there. So, he couldn't sue to recover those costs from Whitsell.

My uneducated speculation is that Graham at most had to pay for a criminal lawyer to counsel him thru the Grand Jury process but that is only a SWAG.

I suspect if Graham had fallen under the protection of what many states call "the Good Samaritan Law" Whitsell would have been barred from suit but Graham may still have incurred costs with a criminal defense lawyer for the grand jury process.

I am not sure how you can prudently avoid hiring a lawyer for advice if you ever shoot someone no matter how righteous the shoot if for only advice and someone to talk for you to the cops. Of course that is a personal preference.

[Yellowfin]

Good for him that this happened in a good state and ended well. Elsewhere it probably would not have been so.

[stija]

I am not sure how you can prudently avoid hiring a lawyer for advice if you ever shoot someone no matter how righteous the shoot if for only advice and someone to talk for you to the cops. Of course that is a personal preference.

First you have to make sure that the bad guy cannot testify against you.

Then you say: "I was afraid for my life and I shot back, I have nothing more to say".*

It is that simple. No need for a lawyer unless they decide to indict you, but with a statement like that they really have nothing on you. And best of all, no witnesses.

*Not legal advice, readers of these forums assume complete, exclusive, and personal responsibilty for all of their choices and actions in this hypothetical scenario.

[Mas Ayoob]

It's my understanding that Terry Graham had to pay his own legal expenses. The plaintiff alleged an intentional tort, not a negligence theory, and that gave the homeowner's liability insurance carrier an out.

The civil jury in my opinion delivered a proper and just verdict, and the grand jury before them came to the right conclusion, too.

[Tennessee Gentleman]

Originally Posted by Mas Ayoob

The plaintiff alleged an intentional tort, not a negligence theory, and that gave the homeowner's liability insurance carrier an out.

Mas, actually I have since learned another thread on here that some insurance carriers WILL cover you for CIVIL costs associated with legal shootings. However, generally that is contained in the Umbrella policy. My carrier is USAA and they WOULD cover me (I asked) thru the umbrella for only the civil suit. They also cover slander and liable.

However, I realize that many other policies do not cover such. Folks would be prudent to ask your agent about them and get an umbrella (they are typically cheap) if need be.

Most state laws prohibit coverage of criminal acts however.

[csmsss]

It's hard to know what Graham's legal costs were. In the possible criminal case, which went only as far as the grand jury, there is no discoverable evidence provided to the prospective defendant and therefore little basis for which a defense attorney could draw fees. I wouldn't expect the criminal defense fees to be terribly substantial.

As far as the civil trial fees, it's even harder to know, because there are a lot of variables we simply don't know. For one, we don't really know how vigorous the case presented by the plaintiffs was. From what little was in the news clip above, the plaintiffs' case seems to have consisted of a few character witnesses and possibly one forensic expert (though we don't know if the forensic expert testified for the plaintiffs or the defense). In all honesty, it doesn't sound like the plaintiffs were represented by terribly effective or competent counsel, and this would help keep Graham's legal expenses to a minimum. If you aren't engaged in a duel of expen$ive experts and tons of discovery materials going in each direction, the legal costs might not range into the staggering range.

[Cosmic Zamboni]

All I can say is, I love Texas.

[OldMarksman]

[From stija]: First you have to make sure that the bad guy cannot testify against you....And best of all, no witnesses.

Wow! Nothing like creating something permanent and discoverable that could be used by a prosecutor to establish state of mind.

Then you say: "I was afraid for my life and I shot back, I have nothing more to say"....It is that simple. No need for a lawyer unless they decide to indict you, but with a statement like that they really have nothing on you.

Not quite that simple. They will have evidence that you shot someone. Absent anything else, that's evidence that you committed a crime.

Not only that, if you choose to mount a claim of self defense, they also have your own admission that you did the deed.

It's then a matter of whether the shooting was justified under the law, and it's up to you to produce evidence of justifiability, and up to you and your defense counsel to convincingly present that evidence to the charging authority and should it come to that, to a grand jury if your state has them, and if necessary, to a trial court jury.

Of course, the evidence favorable to your defense could be pretty strong--perhaps strong enough to result in no charges being filed at all--or rather weak.

Having "no witnesses" could work against you. Witnesses who corroborate your claim of justifiable self-defense could prove very important to you indeed, depending on what other evidence exists.

The prosecution will be assembling evidence also. Best not to give them any help in the form of statements they could user to try to show that you were predisposed to killing.

And the deceased? He can still bear witness through forensic evidence. May help you, or it may just hurt.

[stija]

The following is a hypothetical scenario.

Wow! Nothing like creating something permanent and discoverable that could be used by a prosecutor to establish state of mind.

As opposed to wounding the guy and that being not only permanent and discoverable evidence, but then his word against yours. Perhaps, according to intruder, he decided to retreat and wait for cops but you, the bad guy with the gun in your hand, decided to shoot him anyway.

And what state of mind do you speak of? Being scared for his life because of a possibly armed robber inside his house?

Also please understand that I am not advocating the killing of any intruder. It is up to the individual to choose wether to pull that trigger or not, however in the above post I was describing what to say in a hypothetical scenario where the homeowner decided to shoot and the intruder ends up getting shot.

They will have evidence that you shot someone. Absent anything else, that's evidence that you committed a crime.

Pardon me? Evidence that someone committed a crime?? There is only evidence, according to the shooters testimony, that there was an intruder that caused the shooter to be afraid for his life which made him shoot in self defense. What crime are you talking about? Perhaps the attemted robbery/assualt by the intruder?

Not only that, if you choose to mount a claim of self defense, they also have your own admission that you did the deed.

Exactly! How is this detrimental to the shooter?
According to the testimony of the only witness, and corroborated by the scene at the shooting, there was an intruder who made the shooter fear for his life and shoot in self defense.
Are you suggesting the shooter has a better option than self defense? I am all ears.

It's then a matter of whether the shooting was justified under the law, and it's up to you to produce evidence of justifiability, and up to you and your defense counsel to convincingly present that evidence to the charging authority....

The shooter did claim justification by claiming self defense. The ball is in their court to prove the opposite. If it comes to to trial it is up to prosecutors to prove your intent to kill and not the claimed self defense. Hard to do without a witness unless you shot the guy in the back, then walked up behind him while he was on the ground and shot him execution style in the head.

The prosecution will be assembling evidence also. Best not to give them any help in the form of statements they could user to try to show that you were predisposed to killing.

I am not sure I follow. How does the shooter's statement that he feared for his life and shot back become evidence that the shooter was predisposed to kill?

It is clear that people do not understand their rights. The most important of all is the right to not incriminate yourself. There is no reason to get a lawyer and cooperate with police. "Anything you say can and will be used against you in a court of law....". The best policy is not to say more than you have to.

[OldMarksman]

what state of mind do you speak of?

The shooter's state of mind--mens rea. If the defendent has ever done, said, or writtten something to indicate that he might have been predisposed to killing, thought killing would be to his advantage, thought killing to be a good idea, it will not work to his advantage in a defense of justifiability. Unless the facts of the case are clearly supportive of the shooter's claim (empty cases all over from the decedent's weapon, for example), the prosecutor will be looking for anything that might indicate a criminal state of mind on the part of the shooter.

How does the shooter's statement that he feared for his life and shot back become evidence that the shooter was predisposed to kill?

It does not, not at all. However, statements such as "first you have to make sure that the bad guy cannot testify against you....And best of all, no witnesses" could sure sound pretty bad to the charging authority, grand jury if there is one, and/or trial court jury. That could be the determining factor for the defendant.

What crime are you talking about? Perhaps the attempted robbery/assualt by the intruder?

No, the crime of murder, probably manslaughter, committed by the shooter. The shooter has shot someone. Ordinarily that would be a crime. It is only if he can successfully mount an affirmative defense showing that the shooting was legally justified, that he will not be considered guilty of a crime.

How is this [(your admission that you did the deed)] detrimental to the shooter?

It denies you the defense of trying to argue that you did not do it, or that it was an accident, and puts all of the stakes on a defense of justifiability.

The shooter did claim justification by claiming self defense. The ball is in their court to prove the opposite. If it comes to to trial it is up to prosecutors to prove your intent to kill and not the claimed self defense.

Close, but no cigar.

Think for a moment. If a shooter's claim were sufficient, how many homicides would ever be successfully prosecuted? Do you think "I feared for my life" will suffice?

Here's something written by attorney for attorneys who may have to take on a self defense case (there aren't that many who would know where to start):

http://www.nacdl.org/public.nsf/01c1...ocument&Click=

Study it all.

Here are some excerpts.

Yes, the burden of proof is on the prosecution. But the client is not home free:

Many assumptions about trial tactics are inverted in a self-defense case. If the defendant presents some evidence on each of the elements of self-defense, then he or she is entitled to a jury instruction on the issue, which places the burden of proof squarely on the prosecutor to disprove self-defense beyond a reasonable doubt. If the prosecution fails to disprove self-defense, the client is acquitted. In practice, however, the defense attorney has a great deal of work to do in order to convince the jurors that the client’s conduct fell within the common law of self-defense or within applicable state statutes.

I spoke of the need for evidence for the defense:

At a minimum, the defense must include some evidence, generally viewed in the light most favorable to the defense, on each of these factors in order to receive an appropriate jury instruction:

The client had reasonable grounds to believe he or she was in imminent danger of death or serious bodily harm. Heated words, vague threats, and the possibility of future harm are not enough. The harm must be serious and imminent.

The client actually believed that he or she, or a third person, was in such imminent danger. Establishing this subjective belief often requires the client to testify.

The danger was such that the client could only save himself or herself by the use of deadly force. Some states do not require the defendant to retreat, even if he or she can do so safely.

The client had to use no more force than was necessary in all the circumstances of the case.

Given that, one more time, do you really think that simply saying "I feared for my life" and letting it go at that will suffice?

I also mentioned evidence that the prosecution will likely bring to bear:

Once the attorney has settled on a self-defense strategy, he or she will need to think about what facts should be established and challenged in order to successfully defend the case. There will be some facts which the prosecution and police investigators believe are inconsistent with self-defense. Counsel will have to wrestle with these facts and be able to explain to the jury why they do not disqualify the client from self-defense.

There will be the forensic evidence, indicating, for example the distance at which the shots were taken, and perhaps witness testimony that does not seem to support the defendant's story. Hopefully, there will be no internet postings to the effect that a shooter would be better off with the decedent out of the way and unable to testify.