Appropriate use of deadly force Texas style

[JRH6856]

However a change limiting the defense to those who are not engaged in criminal activity at the time would be generally sufficient.

I agree the law needs such a chage, but how would that have changed the outcome of this case?

If there had been sufficient evidence to charge prostitution or solicitation of prostitution, the charge would have been brought. Without evidence, all there is is speculation. Speculation is not sufficient to bring charges. If the defendant was not charged with another crime, then the preclusion you seek would not apply and the result would be the same.

 

[zincwarrior]

He was in the act of solicitation, therefore, the defense would be out.

We don't know if he was charged/convicted or not (well I didn't see anything on that). In that instance, charge them with solicitation first....

Of course by taking the stand he admitted the act. he would have to actually or else its straight attempted murder. Once he admits it, its no longer a defense.

 

[JRH6856]

Of course by taking the stand he admitted the act. he would have to actually or else its straight attempted murder. Once he admits it, its no longer a defense.

I haven't read the transcript. Did he actually admit to solicitation of prostitution? If he was just paying for "companionship" for a period of time, that is not a chargeable crime, even if "everyone knows" what "companionship" really means. There are any number of non criminal services he could have been paying her for. There was no need for him to admit to solicitation to establish the theft.

An even if he did admit to solicitation on the stand in this case, if the preclusion had been in place, he would not have done so (self incrimination) and there would still have been no precluding criminal activity.

 

[zincwarrior]

He would have had to no?
He would have had to take the stand to explain why he started popping rounds with an AK. Ok technically no but I don't see how the defense could be supported otherwise. Once he was on the stand he could be cross examined as to why he was there.

Remember he was not alleging companionship. The key argument is that he didn't get his "service" and as they were leaving with his money he started shooting to prevent them from leaving.

 

[JRH6856]

He would have had to no?

No.

You keep saying he was solicting. Maybe, maybe not. If the crime is not charged, it does not really exist as a precluding crime. We may speculate all we want, but unless tried and convicted, he is innocent of the speculated act. Even if the judge allows the speculation of criminal activity, the defense can use the lack of a charge as a rebuttal.

I used to manage a restaurant near an area heavily worked by prostitutes. We did all we could to get them off the streets, but it was difficult because the police are at a real disadvantage. Solicitation of prostitution is difficult to prove. Generally, it has to be witnessed by a police officer, and he must witness money being exchanged specifically for a sex act. Talking to a known prostitute in a location she is known to work, may get you questioned, but not charged unless you admit to the crime. It is not illegal to pay for time, conversation, entertainment (dance). He may pay for body lotion (expensive body lotion) and then ask her to apply it. If a sex act subsequently occurs, it must be proven that it was part of the initial contract and not simply a result of mutual attraction between two consenting adults. Generally the only way an officer can prove prostitution is in a sting.

And without admission of guilt and a resulting charge, there is no precluding crime, while the failure to deliver any of the promised legal services mentioned could be fraud as I previously described.

 

[MLeake]

Spats, I think you meant to say people normally would say, "I meant to shoot her," not, "I meant to kill her."

While killing in self-defense (or to stop certain crimes) may be justifiable, the intent is supposed to be to stop the threat or crime. Killing is incidental.

Killing for the sake of killing is another matter.

 

[Spats McGee]

MLeake, you are absolutely correct.

 

[Tom Servo]

I seem to recall reading somewhere that the shooter in this case testified that he "didn't mean to kill her."

"I didn't mean it" is one of the worst things one can say when making a self-defense claim, as it opens the door to a wrongful-death suit.

Did he actually admit to solicitation of prostitution?

Yes. According to the article, he answered an ad for an escort on Craigslist, and he told the court he assumed that, um, adult touching was part of the $150. When he found out otherwise, he shot the victim while she was trying to leave.

Ms. Frago died because Mr. Gilbert felt she had been inaccurate in a Craigslist advertisement.

 

[Spats McGee]

"I didn't mean it" is one of the worst things one can say when making a self-defense claim, as it opens the door to a wrongful-death suit.

That's exactly what I was getting at, though I might not have been that successful in doing so.

 

[zincwarrior]

Ms. Frago died because Mr. Gilbert felt she had been inaccurate in a Craigslist advertisement.

And that is the essential absurdity of this case.

 

[zincwarrior]

No.

You keep saying he was solicting. Maybe, maybe not. If the crime is not charged, it does not really exist as a precluding crime. We may speculate all we want, but unless tried and convicted, he is innocent of the speculated act. Even if the judge allows the speculation of criminal activity, the defense can use the lack of a charge as a rebuttal.

Its a question of proof. How does he prove all points of his defense without it?

*night time. ok thats easy.
*they had $150. Do we have proof there's $150. Do we have proof it was his money before? How did they get the money? Why were they there?
*why was he trying to stop them?

How would you introduce sufficient evidence to successfully argue you meet all prongs of this defense?

 

[JRH6856]

"I didn't mean it" is one of the worst things one can say when making a self-defense claim, as it opens the door to a wrongful-death suit.

Of course, there was never any claim of self-defense and none was required under the law applied in this case. But the door is open for a wrongful death suit in any event and there is nothing in the law that precludes such a suit.

Yes. According to the article, he answered an ad for an escort on Craigslist, and he told the court he assumed that, um, adult touching was part of the $150. When he found out otherwise, he shot the victim while she was trying to leave.

Ms. Frago died because Mr. Gilbert felt she had been inaccurate in a Craigslist advertisement.

I think the jury decided she died because she was committing theft at night. According the several articles, I read, Gilbert paid for her companionship for a period of time and only assumed sex was included. He shot her when she attempted to leave with his money after failing to deliver either the full time or the sex.

The law should include the same preclusion of justification as exists in the self-defense law. It doesn't, and the defense took advantage of that oversight.

The jury reached a verdict that appears to defy common sense but appears to make good legal sense (insofar as it follows the existing law). But we would have to read the trial transcript to see how they got there. Trying to figure out how they got there from news articles really makes no sense at all.

 

[zincwarrior]

The law should include the same preclusion of justification as exists in the self-defense law. It doesn't, and the defense took advantage of that oversight.

Agreed, hence my desire to tweek the law to be inline with the relevant self defense statutes.

 

[allaroundhunter]

Its a question of proof. How does he prove all points of his defense without it?

*night time. ok thats easy.
*they had $150. Do we have proof there's $150. Do we have proof it was his money before? How did they get the money? Why were they there?
*why was he trying to stop them?

How would you introduce sufficient evidence to successfully argue you meet all prongs of this defense?

Burden of proof is not on the defendant, it is on the prosecution. The defendant does not have to prove that he was not soliciting, it is the prosecution that mist prove that he was. As has been said before, unless a police officer was present, that is a very hard case to prosecute.

And "escort" does not mean prostitute (not legally anyways). Again, the defense could just as easily answered a prosecutors questions by saying it was for companionship and the woman had not stayed with the man long enough to fulfill the "contract". They don't even have to bring sex into play here. And until the defendant is charged with solicitation, that cannot be used by the prosecution to argue that he is guilty of more serious charges.

Now, if he had been convicted of solicitation prior to this court case then yes, the prosecution could use that as a selling point as to why he was guilty of the more serious charges.

 

[JRH6856]

Its a question of proof. How does he prove all points of his defense without it?

*night time. ok thats easy.
*they had $150. Do we have proof there's $150. Do we have proof it was his money before? How did they get the money? Why were they there?
*why was he trying to stop them?

How would you introduce sufficient evidence to successfully argue you meet all prongs of this defense?

As I have said before, by stating that the payment was for a legal service that was not provided, an adequate defense easily can be presented without admitting to criminal activity. In this case, because there is no criminal activity preclusion, he did not have to avoid an admission of criminal activity. That, I think, is what bothers many people about this case.

If he had contracted for the delivery of some other item he found on Craigslist, say a chair, and the seller arrived, took his money, then jumped in his car and started to drive off without unloading the chair, would this story have made national news? Would it even have made local news?

 

[zincwarrior]

How would that be stated if he doesn't testify?

 

[JRH6856]

How would that be stated if he doesn't testify?

Obviously, it wouldn't be. But what's your point?

 

[Evan Thomas]

Enough with the hypotheticals.

We're wandering a very long way from the facts in this case, which are that Mr. Gilbert testified under oath that he believed he was paying for sex. From one of the articles linked in the OP:

Gilbert's defense team conceded the shooting did occur but said the intent wasn't to kill. Gilbert's actions were justified, they argued, because he was trying to retrieve stolen property: the $150 he paid Frago. It became theft when she refused to have sex with him or give the money back, they said.

Gilbert testified earlier Tuesday that he had found Frago's escort ad on Craigslist and believed sex was included in her $150 fee.​

Let's stick to the facts of the case, rather than inventing scenarios about what Mr. Gilbert might have believed or claimed.

 

[JRH6856]

And that is the point, Vanya. Whether he did or did not testify to the expectation of sex is irrelevant under current law. And I doubt he would have so testified if it were relevant.

We all seem to agree that being engaged in criminal activity should be relevant and the law needs to be changed, but I'm not sure it would have made a difference in this case without Gilbert being charged with the underlying crime.

And even under current law, if the case had not involved an underlying crime, I doubt the case would have received so much attention.

 

[Evan Thomas]

And that is the point, Vanya. Whether he did or did not testify to the expectation of sex is irrelevant under current law.

Not so. His testimony that he thought he was paying for sex was necessary to prove that a theft had taken place: he paid for a service that wasn't provided. Had he testified that he was paying for a legal service (the escort's time), that would have weakened his case: she did spend some time with him, and that would have allowed the prosecution to question how much was "enough."

Also, under current law, deadly force may be used to recover property only if there is no other recourse. Admitting that he was committing an illegal act (solicitation) would have strengthened that part of his defense: he could hardly have gone to the police. (Thanks to JohnKSa, who pointed this out.)

Under the current law, the fact that he was soliciting prostitution would have been irrelevant to the outcome of the murder trial whether he was charged with it or not.

There's nothing to be gained by speculating about what the outcome of the case might have been if the law were different -- it is what it is. Nor is there any point to speculating about why he wasn't charged with soliciting; apparently he wasn't, and that's all we know.