Appropriate use of deadly force Texas style

[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]

Originally Posted by zincwarrior

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.

[Tom Servo]

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.

Absolutely right. All we know is that a woman is dead over $150 and that statute was twisted enough to let her killer walk free.

A couple more incidents like this, and we may very well see calls to change Texas law.

[JRH6856]

A couple more incidents like this, and we may very well see calls to change Texas law.

Oh, I think we are already seeing the calls. But mostly from people in other states.

[JRH6856]

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 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.)

And that is also just so much speculation. But I'll stop if you will.

[csmsss]

Just speculating here, but isn't it quite possible he made a statement to the police which was entered into evidence by the prosecution?

[allaroundhunter]

Originally Posted by csmsss

Just speculating here, but isn't it quite possible he made a statement to the police which was entered into evidence by the prosecution?

I highly doubt that he let slip to the police that he paid this woman for sex. He probably left it at, "she was stealing $150 from me." But heck, there's some more speculation.

[JohnKSa]

Are we sure he wasn't prosecuted for soliciting? I never saw a source for that information.

[allaroundhunter]

Originally Posted by JohnKSa

Are we sure he wasn't prosecuted for soliciting? I never saw a source for that information.

I haven't seen a source one way or the other.

[Evan Thomas]

My assumption is that if he had been, it would have been reported by the media, but I haven't been able to find any mention of such a thing... and I've done some looking.

[JRH6856]

I have looked as well and can find no report or record of a charge of prostitution or solicitation of prostitution filed against Gilbert.

There is only several reports that he testified that he paid for time and expected sex.

§ 43.02. PROSTITUTION. (a) A person commits an offense
if he knowingly:
(1) offers to engage, agrees to engage, or engages in
sexual conduct for a fee; or
(2) solicits another in a public place to engage with
him in sexual conduct for hire.
(b) An offense is established under Subsection (a)(1)
whether the actor is to receive or pay a fee. An offense is
established under Subsection (a)(2) whether the actor solicits a
person to hire him or offers to hire the person solicited.
(c) An offense under this section is a Class B misdemeanor,
unless the actor has previously been convicted one or two times of
an offense under this section, in which event it is a Class A
misdemeanor. If the actor has previously been convicted three or
more times of an offense under this section, the offense is a state
jail felony.

I don't think an expectation that existed in his mind can be construed to be an offer or agreement or engagement in sexual conduct for hire. And for solicitation to be charged, it would have to happen in a public place, not in his home.

[Tom Servo]

OK, we're off the reservation here. Prostitution and solicitation aren't issues for this forum, and warnings have been given. This one's run its course.