As seen in the Statesman:
Section 29.03 of the Texas Penal Code defines “aggravated robbery”:
Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.
(b) An offense under this section is a felony of the first degree.
(c) In this section, "disabled person" means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.
Seems mostly clear, right? Except: what constitutes “a deadly weapon”?
Is “a pellet gun” a deadly weapon?
Dustin Clark and two other men are suspected in a string of convenience store robberies in Travis County. They were stopped by the Lakeway PD in December of 2015, shortly after allegedly robbing a store in Spicewood, holding “pellet guns” to the clerk’s head, and threatening to kill him. The police found the pellet guns, money, ski masks, other identifying clothing, and a pack of Starburst allegedly stolen by Clark in the car. (The police also found “two deer rifles” in the trunk. I have seen contradictory reports about whether these were airsoft guns or real rifles. However, the “deer rifles” were not used in the robbery, and were not part of the criminal case as best as I can tell.)
Mr. Clark went on trial this week. There seems to have been little doubt about his guilt: his own attorney conceded that it was his client on the surveillance video from the store. The main legal issue was is it plain old robbery, or aggravated robbery?
Mr. Clark was offered a plea deal of 40 years before trial. The maximum for plain old robbery is 20 years, and 99 years for aggravated robbery. I don’t know enough about Mr. Clark’s background to be able to estimate what the likely sentences would have been.
Mr. Clark turned down the 40-year deal and chose to go to trial. His attorney moved to include robbery as a lesser charge for the jury to to consider, but the Travis County DA successfully fought that motion. So the only charge the jury was allowed to consider against Mr. Clark was aggravated robbery.
But the jury could consider only one charge — aggravated robbery — and after more than six hours of discussion they finally united and ruled that the pellet guns the men used to scare two employees are not deadly weapons. Therefore, several of them told the American-Statesman, they had to acquit Clark. About half of the 12-person jury granted an interview request saying they wish they had the option to convict Clark of the lesser charge.
They said there was no proof the guns contained pellets or the CO2 cartridges that power them at the time of the robbery.
I personally wonder how the clerk was supposed to know that. I’d also really like to see photos of the pellet guns. And I wonder what else this means, legally? Not that I would, but if take the firing pin and cartridges out of a Smith and go hold up a Stop’N’Rob, is it just robbery? The gun can’t fire, right? So it’s not a deadly weapon, at least if I understand the logic here correctly.
[Travis County Assistant DA Amy] Meredith added she still believes aggravated robbery “was the appropriate charge.” State district Judge David Crain denied the defense’s motion to include the robbery charge after taking a break in chambers to research the law. Prosecutors had made Crain aware of a ruling from a case 11 years ago in which pellet guns had been found to be deadly.
I don’t feel too bad for ADA Meredith. Even though she didn’t get a conviction in this case, she did make an interesting legal point. I don’t think this rises to the level of precedent because Judge Crain’s ruling hasn’t been reviewed by a higher court, but perhaps this is something the Texas legislature could offer some additional guidance on. Also, Mr. Clark is still facing charges in six other robberies, so it isn’t like the TCDA whiffed on their only chance to convict him.
I thought about blogging this when the first story appeared Tuesday, but didn’t get to it (this is a busy week). But RoadRich emailed the print version of the story yesterday, which led to a lively discussion between him, myself, Mike the Musicologist, and Lawrence.
MtM observed that he recalls one of the northern states changing the law some years back so that if you brandish a fake weapon with the intent of making your victims think it is real, you get treated like it was real. Spray paint the end of that airsoft gun black and use it to hold up a liquor store? Big boy rules apply.
I think both MtM and I are on the same side of the divide when it comes to the increased tendency to criminalize everything and sweep up more people in the web. But I also think we’re both in agreement that this is the kind of “play stupid games, win stupid prizes” law that we could get behind.
(On a related side note, I’m halfway tempted to start a podcast with the four of us sitting around eating dinner and talking about legal issues. I even have a name for it: “I’m Not A Lawyer, But…”. I figure it should be easy to get sponsorship from SquareSpace, at least. If it proves popular enough, I might even offer to fly Ken and/or Patrick in as special guests for barbecue. That is, if their heads haven’t already exploded. Episode 1 is going to called “Rule of Parties be damned”.)
A 50-page, 23-count indictment accused Mr. Williams of accepting lavish gifts — including trips to a Dominican resort, Burberry accessories, checks for thousands of dollars and a custom sofa worth $3,212 — from businessmen for whom he was willing to do favors. The indictment also accused Mr. Williams of diverting money from a relative’s pension and Social Security for his personal use.
Philly.com reports that relative was his mother.
No wonder Williams was “cash-strapped”. What do you think the repair bills are on a 20-year-old Jaguar?
He has complained of his inability to pay alimony stemming from a 2011 divorce and private-school tuition for his daughters, despite his salary of $175,572 a year.
In January, the Philadelphia Board of Ethics assessed the largest fine in its 10-year history for Williams’ failure to report for years more than $175,000 in gifts he had accepted including a new roof, luxury vacations, Eagles sidelines passes, and use of a defense attorney’s home in Florida.
I don’t see any evidence of hookers or blow yet. However, Philly.com does mention that hr was known to hang out in cigar bars; that seems to have replaced call girls and Bolivian marching powder in the affections of many corrupt politicians these days. I really ought to start keeping a tally.
Chuck Barris, “Gong Show” host and noted CIA assassin, has passed away.
Or has he? You know, a conspiracy to fake his own death and go on one last mission for The Company is exactly the kind of thing that would appeal to Mr. Barris…
Colin Dexter, mystery writer. I haven’t read any of the Inspector Morse novels yet, though they are on my big list to read someday, so I can’t offer much about Mr. Dexter. However, The Rap Sheet has a good round-up and I would expect more tributes there as time goes by.
I don’t want to seem like I’m making light of this story: it’s awful, and I hope the victims are able to achieve some level of peace.
But when you see a headline like
Vegas jury convicts War Machine of 29 counts
on the Entertainment and Sports Programming Network’s website, it gets your attention.
“War Machine”, in this case, is Jonathan Paul Koppenhaver.
The jury deadlocked on attempted murder charges, but found him guilty of the other crimes. It isn’t clear to me if those include the eight counts of “domestic battery” that his lawyer conceded to.
And I hope he does every damn day of it.
[The female victim – DB] testified that Koppenhaver attacked her after [the male victim – DB] left. The jury saw photos of [the female victim] with a broken nose, missing teeth, fractured eye socket and leg injuries. She also suffered a lacerated liver.
In other words, he beat the shit out of them both. But he apparently reserved special attention for her.
On what I hope is at least a slightly less depressing note, here’s something I stumbled across in my reading over the weekend, but haven’t had time to dig into in depth: Taylorology. This apparently started out as a zine in the old pre-Internet/”Factsheet Five” days, but eventually migrated online.
What’s it all about? Quoting the introduction:
TAYLOROLOGY is a newsletter focusing on the life and death of William Desmond Taylor, a top Paramount film director in early Hollywood who was shot to death on February 1, 1922. His unsolved murder was one of Hollywood’s major scandals. This newsletter will deal with: (a) The facts of Taylor’s life; (b) The facts and rumors of Taylor’s murder; (c) The impact of the Taylor murder on Hollywood and the nation; (d) Taylor’s associates and the Hollywood silent film industry in which Taylor worked. Primary emphasis will be given on reprinting, referencing and analyzing source material, and sifting it for accuracy.
The Taylor murder is one of those great unsolved Hollywood mysteries that everyone seems to have a theory about; some of those theories may even have an element of truth to them. Bruce Long, who runs Taylorology, has collected a great deal of archival material related to the Taylor case. And he’s a man after my own heart: he mentions in the biographical information on his site that he first became interested in the case when he was nine.
When I have some spare time (mumble years from now, the way things are going) I’d like to dig deeper into this site. One thing I can give Mr. Long credit for: he’s steered me away from purchasing one of the more famous books on the case. (Actually, I stumbled across Taylorology by reading another book on the case that references the website. Apologies for being elliptical, but I may do a brief review of the second book in the near future.)
After the death in 1979 of his older brother Nelson A. Rockefeller, the former vice president and four-time governor of New York, David Rockefeller stood almost alone as the remaining family member with an outsize national profile. Only Jay Rockefeller, a great-grandson of John D. Rockefeller, had earned prominence as a governor and United States senator from West Virginia. No one from the family’s younger generations has attained or perhaps aspired to David Rockefeller’s stature.
The guy who killed two people and injured a third near Lakeway?
Randall Burrows, 54, shot himself in the head just outside of Summit, Miss., after a short chase with Mississippi highway patrol, Travis County sheriff’s officials said. He was taken to a hospital, and he was pronounced dead soon after 5 p.m., roughly 15 minutes after the U.S. Marshals had found him and the chase began, Travis County sheriff’s Capt. Craig Smith said.
Bob Bruce. Mr. Bruce joined the Colt .45s in 1962 (he’d previously been with the Detroit Tigers) and pitched for them, winning 15 games during the 1964 season.
Of greater historical significance: when the Astrodome opened and the Colt .45s became the Houston Astros, Mr. Bruce was the starting pitcher for their opening game in the Astrodome.
Royal Robbins, noted climber. He was most famous for his advocacy of “clean” (“leave no trace”) climbing.
“I think that we were drawn to our ethical stance because it was harder that way, frankly, and I think whatever’s harder has to be better,” Robbins told Outside magazine in 2010. “That’s why I have so much respect for free soloists these days.”
I’m not sure that I buy the “whatever’s harder has to be better” philosophy, but there is a certain resonance to the meta-idea:
The past few days have been busy ones for law enforcement in and around Austin, and not just because of South By So What. Here’s a quick survey of some things that I’ve found interesting.
There’s a new plan for the APD DNA lab: get Texas DPS to run it.
Under a proposed contract, the city of Austin will pay the Texas Department of Public Safety $800,000 a year to manage all aspects of the lab, including procedures for analyzing forensic evidence and the oversight of employees hired by the DPS to work there.
The newly named Department of Public Safety Capital Area Regional Lab will focus exclusively on Austin police cases, Assistant Police Chief Troy Gay said.
I suppose this is better than nothing, or the current state of affairs. And $800,000 sounds like a reasonable amount of money if the new management from DPS is going to fix all the problems and claw through the backlog. But I still think we’d be better off with an independent lab like Houston’s, or making the existing lab am arm of the courts.
Speaking of the DNA lab, here’s a story I haven’t seen reported anywhere else:
In the first legislation of its kind, the lawmaker, State Representative Victoria Neave, a Democrat from Dallas, introduced the bill in February to solicit donations of $1 or more from people when they renew or apply for driver’s licenses. The money would underwrite a grant for the Department of Public Safety to test what are commonly called “rape kits,” which consist of evidence samples including hair, semen, fabric fibers and skin cells.
(Note that the paper of record characterizes this as “crowdfunding”, which I find a bit misleading.)
If adopted, it could generate an estimated $1 million a year, based on similar donations collected for veterans from driver’s license applications, according to a legislative budget document. When administrative costs are deducted, that would leave more than $800,000 every fiscal year that local governments could tap to push through testing of evidence collected from the victims of sexual assault during a physical examination that can take four to six hours.
Where have I heard $800,000 recently? Oh, yeah.
The donations are intended to supplement rather than replace a budget for the testing, which can cost $1,000 to $1,500 for each kit. The Legislature, which is now in budget talks, is also considering allocating $4 million to fund the process, said Rebecca Acuna, Ms. Neave’s chief of staff.
You know what I’d really like to see? A breakdown of where that “$1,000 to $1,500 for each kit” goes. I’m not against rape kit testing – quite the opposite – but I’m curious why it costs that much. I’m also curious if this cost has increased or decreased over time, with improved technology. And are there possibly better, faster, and cheaper ways of testing rape kits without sacrificing accuracy?
If you look at the Stateman‘s handy Google map, you’ll see this took place not terribly far from the Lake Travis High School/Education Center complex. My mother and I were down there last night with a bunch of other people….attending the Lakeway Police Department’s Citzens Police Academy class. As a matter of fact, right around the time of the shooting, we were out in the parking lot looking at the Lakeway PD patrol cars (Chevy Tahoes. This led someone to ask, “Why the switch to SUVs?” I suspect most of my readers know the answer already, but in case you don’t: “Because Ford stopped making the Crown Vic, the greatest patrol car ever given to us by God.”) and the Lakeway PD police motorcycles (Harley Davidsons). I don’t recall hearing any shots or even the Starflight helicopter.
Even better, we had just finished listening to a presentation from one of the people who does the Lakeway PD statistical analysis about how safe Lakeway was, how many calls for service/stops/arrests there were year to year, and what the major categories were. “Homicide” didn’t even register. (Technically, it’s probably still true that Lakeway is relatively safe, even though the shooter is at large: I believe the shooting happened near, but outside of, the Lakeway city limits, so it would be chalked up as “unincorporated Travis County”.)
The first we knew about it was when we were breaking up for the night: the second in command of the department (who also runs the classes, and who usually jokes around a lot) came in and said “I want everyone to listen to me very closely. Two people have been shot near here and the shooter is still at large. We are going to walk everyone to the parking lot and make sure you all get into your cars safely. I need for you to leave the area as quickly as you possibly can.” That will put some spring in your step.
Reports are that this was “an isolated incident”, possibly a “disgruntled contractor” who shot these people because he didn’t get paid. Which is just stupid: if you shoot people, they can’t pay you.
And speaking of the Lakeway CPA, for reasons: a interesting and contrarian point of view from Grits For Breakfast in opposition to a statewide ban on “texting and driving”.
The LAT has gotten really obnoxious about viewing articles on their site with ad-blockers enabled (or disabled) so I haven’t been keeping up as well as I should with goings-on in the banana republic of California.
For example, I totally missed that Lee Baca was being re-tried. (You may remember his first trial ended in a mistrial.)
And even better:
Lee Baca, the once powerful and popular sheriff of Los Angeles County, was found guilty Wednesday of obstructing a federal investigation into abuses in county jails and lying to cover up the interference.
Let me just remind folks:
To get to Baca, prosecutors methodically worked their way up the ranks of a group of sheriff’s officials who were accused of conceiving and carrying out a scheme to impede the FBI jail inquiry. In all, 10 people — from low-level deputies to Baca and his former second in command — have been convicted or pleaded guilty. Several other deputies have been found guilty of civil rights violations for beating inmates and a visitor in the jails.
Dumber than a bag of hair. But I digress. The NYT claims he “could face up to 20 years in federal prison”. As we all know, claims like this should be taken on good quality rice with some soy sauce and wasabi. My totally outsider speculation, as someone who isn’t a lawyer and hasn’t practiced in federal court: I’ll be surprised if Baca gets any prison time, given his age and alleged Alzheimer’s. I expect a long probated sentence.
Once again, I’ve bet Lawrence $5 that Gonzaga will win the NCAA men’s basketball tournament.
This year, though, I did it grudgingly.
It isn’t that I don’t think Gonzaga has a chance: they probably have their best chance in years. It isn’t that I didn’t want to take Lawrence’s money again, after already taking $5 from him when the Cubs won. After all, I should give Lawrence a fair chance to win his money back. And I would feel stupid if Gonzaga did win this year, and I didn’t bet.
So what’s my grudge?
Last fall, Gonzaga hired Melissa Click. Yes, that Melissa Click.
I’d be willing to agree that everyone deserves a shot at redemption. But not on my dime, and not necessarily with my active support. Also, I think part of deserving a shot at redemption involves atonement for your actions, and I haven’t seen any evidence of that from Ms. Click.
On the other hand, it wasn’t the basketball team that hired her, and should I punish them (and Lawrence) for the actions of Gonzaga’s administration? That seems unfair.
So, grudgingly, I am preparing myself to lose $5 betting on a team I can’t quite bring myself to cheer for. Life is suffering.