Only crime and the criminal…confront us with the perplexity of radical evil; but only the hypocrite is really rotten to the core. – Hannah Arendt
Most of you probably heard about this on Thursday:
A [San Antonio, Texas] jury…acquitted Ezekiel Gilbert of murder in the death of a 23-year-old Craigslist escort…Lenora Ivie Frago…died about seven months after she was shot in the neck and paralyzed on Christmas Eve 2009. Gilbert admitted shooting Frago…but said the intent wasn’t to kill. Gilbert’s actions were justified, [his lawyers] 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…Frago walked around his apartment and after about 20 minutes left, saying she had to give the money to her driver…[who] was [allegedly] Frago’s pimp and her partner in the theft scheme. The Texas law that allows people to use deadly force to recover property during a nighttime theft was put in place for “law-abiding” citizens, prosecutors…countered. It’s not intended for someone trying to force another person into an illegal act such as prostitution…
That article, which was reasonably objective by the low standards of modern American journalism, was not the one which was bruited about the most, however; that honor went to Gawker‘s “Texas Says It’s OK to Shoot an Escort If She Won’t Have Sex With You”, whose inflammatory headline masked its essentially-similar content. Jezebel’s take on the matter, “How an Insane Texas Law Made It Legal for a Man to Kill a Prostitute”, carried it another step farther away from the real issue at hand, but Huffington Post won the obfuscation hat trick with “Ezekiel Gilbert Acquitted Of Murdering Woman Who Wouldn’t Have Sex”, a headline which almost completely obscures the real point. But before we expose the moral putrefaction which made this deplorable outcome possible, let’s dispense with a few other distractions.
One: This is not about Texas per se, no matter how much regionalists are trying to make it so; nor is it about “American gun culture” or any other such crap. Pretending it’s about that is an unhelpful distraction from the real issues at hand, and therefore NOT A WELCOME TOPIC FOR DISCUSSION IN THE COMMENT THREAD. Nearly every place in the world would excuse behavior not materially different from Gilbert’s as long as “authorized” people are shooting at those designated as criminals, and arguing about which specific circumstances justify it is a red herring.
Two: I don’t really feel comfortable with using a woman who at first glance appears to be either an extortionist or a really inept cash-and-dash artist as a poster child for violence against sex workers. No, petty theft doesn’t deserve death, but at the same time it’s really stupid, dangerous and unethical to go into a strange place alone with a strange man and attempt to cheat him (if Gilbert is telling the truth, which is by no means certain). This is not “victim blaming”; it’s insisting that discussions be grounded in reality rather than some imaginary Utopia where life is fair.
Three: To those who insists that Gilbert was essentially trying to rape Frago, because escorting is a legal business and it says right there in the ad that “money exchanged is for time and companionship only” and “this is not an offer of prostitution”: Please shut the fuck up. You are an idiot, you’re not helping, and you need to reread the last line in the item above and then get a life.
Four: No, it really doesn’t matter that she had a vagina and he had a penis; the advantage of a gun is that it removes physical size and strength from the equation. The core issues here would be exactly the same if a female drug user had shot a male drug dealer for selling her a bag of cornstarch for $150 instead of the heroin she was promised.
That last conveniently introduces the real issue here, the rotten core of this whole rotten situation. In Texas (as in most of the United States), the exchange of money for sex is illegal in and of itself. I’ll clarify that for international readers: in the US, just talking about something or agreeing to do something completely legal suddenly becomes illegal if certain taboo magic words are spoken or even implied. Let that sink in: no evidence of any kind is necessary, just the cop’s accusation. And it swings equally both ways: a policewoman can accuse a man of soliciting her just as easily as a male cop can accuse a woman, and the chosen victim will be arrested and “named and shamed” with no due process whatsoever, just on a cop’s say-so. Furthermore, in Texas and ten other states, prostitution can be a felony (i.e. the same class of crime as assault, rape, grand theft, manslaughter, etc); under rapidly-spreading “end demand” and “sex trafficking” laws, hiring a hooker can be as well (with a potential for decades in prison and other serious consequences). In Craigslist-style hooking, there’s no screening in either direction; both parties know the other could be a cop, and that makes both of them understandably nervous…possibly nervous enough to walk around for twenty minutes and then lose one’s nerve, and possibly nervous enough to get trigger-happy.
And that’s just the beginning of the rot. Consider that the prohibitionists have been spreading anti-whore lies for a very long time; we’ve been “degenerates” or “monsters” for centuries, “criminals” for one century and the victims of brutal “pimps” (who may also be international gangsters) for over a decade now (there was an alleged “pimp” right outside, remember?) Which of these overlapping myths did the jurors believe? The law used by Gilbert’s defense was enacted to allow homeowners to defend themselves against robbery, which Texas law pretends is no worse a crime than compensated sex. The defense portrayed Gilbert as a man facing a “criminal” defined by Texas law as being at least as anti-social as a burglar, whom neofeminist prohibitionists have painted as being desperate, emotionally crippled and dominated by brutes. Prosecutors like to select jurors who display strong “law and order” attitudes; it appears to me that this time, they succeeded better than they had hoped because the jurors simply refused to see the “criminal” Frago as a victim. But before you condemn them as sociopaths, let’s try a thought experiment: go back to number four above. Can you imagine a big outcry in that situation? If both participants in that incident were black, can you even imagine it becoming a national news story, let alone a source of outrage? And if Gilbert had been wearing a certain blue costume, and his victim had been young and male, and the so-called “crime” had involved buying drugs rather than buying sex, it might never have made it into the San Antonio Express-News as anything other than a line item under the heading “police reports”.
This is the putrid heart of the whole stinking business. Though we may disagree on the particulars (such as allowed levels of provocation and lethality), most people will agree that individuals have the right to defend themselves against criminals. But when “authorities” and other dangerous busybodies stretch the definition of “criminal” to include people engaged in voluntary transactions, then spread propaganda in order to convince the populace that individuals so engaged are criminals in a true and meaningful sense rather than a merely arbitrary one, and then pass laws so dangerous and repressive that those individuals fear for their safety and actual criminals are drawn into the resulting black market, is anyone surprised when twelve ignorant people with no personal interest in the matter can be swayed by whichever of two important-looking men makes a more convincing argument? Because that’s exactly what happened here, folks: in matters of great complexity, when neither of the sides seems terribly sympathetic, our legal system is on exactly the same moral level as trial by combat; the contest is decided by the relative skill of the opponents rather than the salient facts of the question to be decided. As long as we allow and even encourage our governments to criminalize private, consensual behaviors with no clear victim and no actual corpus delicti, lots more people are going to be senselessly killed and lots of senseless killers are going to get away with it. And no hypocrite who supports such a system has any business whatsoever complaining about that inevitable and highly-predictable outcome.
Do you think at all Maggie that the way the jury ruled was influenced by the information they were given on top of what you mention here as to the illegality of the business? I really wonder about that, I mean……..you can only judge on what you see or hear right? If you don’t have enough proof to where you can properly convict someone you’re not liable to do it you know?
I can definitely see though that said that the profession she was in could have easily made her out to be the bad person in the situation, and as such would be much easier to be sympathetic to the guy as much as one could be under the circumstances. I mean she could just about be portrayed as the stereotypical prostitute here really, if it went down as has been said or even it didn’t it would be pretty easy to label her like most others are labeled and make it less likely that she would be defended by the jury here even if she had been innocent.
Anyway, what do you think?
She was a prostitute which is a crime and he was a client which is also a crime so why shouldn’t the jury look down on him. If you want to real most sex workers do it for the money and they take care of themselves and often times their families whereas many clients are married so they are taking money from the family to pay (not what I believe but for arguments sake) so who is the bad guy here? (But taking into account that she could possibly have taken the money and provided nothing).
So two people were involved in a crime. If they had been bank robbers and someone got killed, even one of the robhers, the other participants get charged with murder. Even if they were shot by a cop. So my take is he was involved in a crime and should be charged. I can’t believe that law. Nobody knows what happened but he is allowed to kill someone for property? His life not being in jeapordy and a jury thinks that is ok. And this is a jury of our peers. People really bug me but I didnt think that so many were idiots.
http://www.thepetitionsite.com/638/189/498/texas-shooting-women-for-refusing-sex-is-a-crime/?z00m=20572598#taf -please sign this petition in regards to the horrible verdict (the type that should never happen) in this case. Thanks in advance for your help.
I don’t blame the law here – it wasn’t crafted to persecute prostitutes and I think you make that point here very well.
The problem is the legal system from law enforcement to judges.
I work with a lot of engineers – the going joke is that none of them will ever get selected for jury duty because they are too “logical”. Indeed – NONE have. I was called in for duty and dismissed after I rated police integrity as a “7” – which, I probably would rate my own integrity as a “7” – but only the folks who rated them a perfect “10” were selected for the jury. In my parish, they call in 40 people just to be able to select 12 for a jury. This is bullshit – if you can’t call in 20 and find 12 good peeps – then your case is shit.
And then there is this … “Judge Honky Bitch” … the QUEEN of the courtroom …
There are different versions of the jury system but the English and Us jury systems are hopeless. Nobody knows how the jury arrives at it verdicts, although in the case I think they got it right. But here’s a good indication of a jury’s thinking in the recent Vicky Pryce Perversion of justice case before an English court. http://www.bbc.co.uk/news/uk-21521460 would you want these idiots sitting in judgement of you?
Juries, at least in the UK, sometimes bring in a verdict where the accused is clearly guilty of some “crime”, yet the circumstances are so extenuating, or the “crime” is trivial, or not something that a right-thinking person would think of as a “crime”.
Sorry, juries bring in a not guilty verdict in these circumstances.
It’s called jury nullification, I’m sure it happens but nobody knows how English juries come to their conclusion because their deliberations are held behind closed doors and they’re not allowed to discuss them afterwards.
In the US jury deliberations are behind closed doors, and they can talk about them afterwards if they want. They don’t have to, but they can.
I know and I think that is even more problematic because not only do we not know what was said because there is no public record and accounts often differ. Moreover, there is a huge incentive for the jurors to lie. There is no point in having a trial in open court when the verdict is reached in a second closed trial.
It is true that we have no way of knowing that what the jurors tell us is true.
I’m not sure how to improve on it, though. Having a record made, but the fear is that this would stifle debate.
The jurors could make their deliberations in private if they gave a reasoned verdict, but there is no need for a jury. I know lots of American have had it drummed into that this is an important counterbalance to the power of the State but that is utter rubbish: America incarcerates more of it’s population per capita than any other nation on Earth. It also has the highest number of lifers and is the only Western democracy to still execute people (it’s fifth in the world in number of executions). The Federal government boasts that it has a conviction rate of over 90%.
Whoa! You’re mistaking the show juries we have now with the actual juries intended by the Founding Fathers and drawn from English common law, which had the power to judge not only the crime but the law itself. The problem is NOT in the concept of a jury; it’s in the way the injustice system has been allowed to remake the jury into the prosecutor’s attack dogs. Fortunately, that would be the easiest reform of the system to implement, but eliminating the jury altogether would do exactly the opposite.
Thanks Maggie. You said it before I could, and better than I likely would have.
The easy reform is that judges stop lying to jurors.
Whatever you may think the American FF envisaged, the truth is that all they actually did was simply import the English jury system lock, stock and barrel. They may have eulogised the jury system but it has to be remembered that only a handful of the FF were trained at the Inns of Court, most of them who had any legal training were scribblers, and there wasn’t a great legal mind amongst them.
The system that they imported suffers from the same inherent failings as the current system. You say the problem is the way that the system has been allowed to turn juries into prosecutors attack dogs but that was the case in the C18th as well.
For a start, when you choose a jury whose main qualification is ignorance of law, it’s hardly fair to blame them for being too ignorant to understand the case before them. It’s also incredibly naive to think that you can select a jury of impartial, objective and intelligent people. As a general rule, anyone who is too stupid to get out of jury service is too stupid to be on a jury, and one who wants to be on a jury, you don’t want on a jury.
Lots of Americans still believe that they have the best CJS in the world, notwithstanding that by any objective test it’s actually the worst. So what I don’t understand is the resistance to alternatives too or alternative forms of the jury system. The world best CJS are in Europe, and the jury systems are significantly different. For example, juries are rarely used in Spain but when they are they are required to give a brief reasoned written verdict.
I’m an avvocato, abogada, and registered European lawyer in numerous countries, including England (I’m entitled to register as a barrister should I so wish), so I do understand the concept of the English jury system but I’m also familiar with other jury systems and non jury systems too.
There are changes that could made to the jury system, like adopting academic requirements and fluency in the native language, and require that they give a reasoned verdict. They could also be invited to ask questions of witnesses. This is how European juries operate.
I wouldn’t be opposed to looking at reform of the jury system. But the main thing is that the jurors don’t have a dog in the fight; they don’t get to run for higher office by showing that they’re tough on crime; they don’t get promoted based on what the verdict is, etc. They don’t have to be experts in law; that’s the lawyers’ and the judge’s job. They need to be able to look at evidence and decide whether or not it proves guilt. They can also nullify a law if it’s being applied in a stupid, mendacious, or generally fucked up way. Most of them don’t know that they can do that, and this is where reform should start.
The not having a dog in the fight is not necessarily true, look at the Zimmerman trial, how many idiots wanted to get on that trial to convict? And despite the fact that the defence won the case, it took 16 hrs and 20 mins to return a verdict that admittedly should never have gone to the jury but nevertheless, every juror should have returned a not guilty verdict on the first vote.
The point you make about higher office is not an argument in favour of jury trial but an argument in favour of not have elected judges or prosecutors. In Europe, a judge doesn’t want to be overturned on appeal. so there is an incentive to stay within the law. Obviously not all of them do but I think that more a case of stupidity, and those case are easy to appeal.
I’m not a fan of the Spanish jury system but I prefer it to the English system because at least you get to know when they haven’t decided the case of the evidence, and you can appeal. One of the problems with the American system is that you have too many idiots sitting on the jury who don’t decide innocence or guilt on the evidence. One of the jurors on the Zimmerman case initially wanted to convict of murder — she’s either biased or stupid.
I’m going to avoid commenting on the Zimmerman trial directly, and agree with you that judges and prosecutors shouldn’t be elected. Maggie has suggested that prosecutors and public defenders should be the same people, that they should alternate, and I’d go for that.
This should have been treated as if he had dated a woman and then shot her because she wouldn’t “put out”. Yes, she was a prostitute. Yes, escorts are almost certainly prostitutes. But if The Law is going to accept an absurdity (that “escorting” is a legitimate business that The State can collect taxes on, but prostitution isn’t), then it must continue to accept it the whole way. It doesn’t get to change its mind just because some twit has decided to use that absurdity to bilk some guy, who then went postal and murdered her.
Shooting a girlfriend stealing money seems legitimate, though generally it’s more convenient to have the legal system recover the money, assuming you know her identity.
BY LAW he turned over money to buy a date. It’s an absurdity, but the law frequently is. He may have EXPECTED sex, but because the law is absurd on this point he had no legal right to it nor to a refund.
Mark you; I’m not saying she wasn’t running a con. I’m not saying that she wasn’t a crook IN INTENTION. I’m saying that by granting legal recognition to “escorts” while denying it to prostitutes, the Law has specifically made that type of Badger Game legal. Having done that, the LAw doesn’t get to change the rules in mid stream. Bozo hired somebody to provide a service. He may have EXPECTED that person to break the law to provide something else, but he doesn’t get to shoot them if they don’t. And if the woman in the equation is, in spirit, a cheat, then her accomplice is the Law.
NOBODY comes out of this looking good. The man is clearly a violent jerk. The woman is a con artist. And legal system, by getting cute about a distinction between “Escorts” and “Prostitutes” set up this mess.
If prostitution was legal; the woman would have to explicitly promise sex for money, and the jerk would have slightly more justification. Or, putting the absolutely best possible light on her motives, she would know she had to make her decision up front, or return the money if she decided at the last moment that he was too creepy, dangerous, or whatever to boink.
The best anyone can hope for is that the john is prosecuted and convicted for engaging in prostitution plus he receives the most severe punishment for it. I know this sounds FUCKED UP from the Floor up to high heavens, but I think it’s true. He already admitted that he was attempting to engage in prostitution in a court room so there is evidence and if he lies about that in another trial then he could be in a lot of trouble because although you have a right to remain silent in a court so as to not incriminate yourself, you do not have the right to lie so as to not incriminate yourself in the USA. It’s the only way I see any semblance of justice being done even though I know prostitution prohibition is wrong, and because of prostitution prohibition this tragedy occurred and this whore, escort, is dead.
Yet another reason is shown as to why prostitution prohibition is ridiculous and sometimes deadly. It should have been decriminalized and sanely but lightly regulated and taxed decades ago in my country, the USA. As it stands only a few counties in Nevada have legalized it in the USA, and it is overly regulated, overly taxed and overly under political cronyism to such an extent that at 70% of Nevada whores do not work legally and the legal prostitution industry of Nevada as noted by Maggie McNeill is struggling to survive. Senior Senator from Nevada,Democratic Party member and U.S. Senate Majority leader Harry Reid has called for prostitution prohibition in Nevada, his home state as well to add to their woes. I don’t blame the whores nor the brothel owners nor anyone who works for the legal brothel owners for the mess in Nevada, but I do blame the politicians and the majority public whom are idiots who supports them and the idiotic politicians ideas regarding prostitution laws as they currently exist in the USA. I’m sure the brothel owners and whores of Nevada would love to have more reasonable laws, taxes and regulations, but they are stuck.
I said it here on this blog in different articles to watch narcotics specificly marijuana be decriminalized and legalized in more states than prostitution. Thus far prostitution is only legal in part not all of Nevada, while Washington and Colorado have legalized marijuana. It’s insane. Prostitution should have been decriminalized at the same time or before marijuana. Why? Sex per se never really hurt anyone in this world. Alcohol and Marijuana etc. damages one’s brain among other bad things. As far as the next world is concerned, I fail to see how fornication and adultry are worse sins against God than intoxication. both are equally bad in my book. Spare me the diseases nonsense as since the invention of the latex condom, whores are less likely to pass around diseases than amatuers. Maggie’s link about the Swedish model of prostitution prohibition and Sweden being the Venereal disease capital of Europe two days ago should have informed you.
Maggie McNeill wrote one of her best articles if not her best thus far on this one. I rarely see men who argue as well and as logicly. This is the first time I’ve seen a woman do it. I’m not saying there aren’t women just as logical and good at arguing as her, but I haven’t seen it or don’t remember it.
The Double Jeopardy Clause in the Fifth Amendment precludes a second trial on the same evidence.
The concept of Double Jeopardy was abolished in the UK fairly recently for serious crimes such as murder and rape.
For example, a current re-trial for alleged rape is here:
http://www.bbc.co.uk/news/uk-england-london-22861794
He can not be tried again for murdering her. He might be tried for prostitution if he hasn’t already be tried for it yet. If he hasn’t been tried for prostitution, then there is a chance he will and be convicted as well as punished.
The supreme court ruled that you can’t be tried on the evidence introduced as an element in the first case, even if it is evidence of a lesser crime. The evidence that he paid for the services of a prostitute was introduced in the first trial. Therefore it would be unconstitutional for him to be charged with any offence pertaining to that. So no, there is no chance.
I didn’t know that. Well, he’s free to walk then. Don’t be surprised if District attorneys and police try to get him on something else though. It would be best if he moved and maintained a low profile.
If he had a history of violence against women then maybe, but if this was an isolated incident why would the cops care?
@stefi —
Regarding double jeopardy: Long established judicial doctrine of dual sovereignty which permits federal or other jurisdictions to which a defendant is subject to all prosecute the defendant for the same crime.
There is a saying I heard years ago in law school, “Never rob a federally insured bank on an Indian reservation.” You can be prosecuted by the state, the feds and the tribal authorities, all three, no matter what the outcome of any trial in any of the other jurisdictions.
Limiting dual sovereignty doctrine to some extent, there is also a longstanding policy within the federal Department of Justice against such dual prosecutions except in particular circumstances.
In this case, I expect that the DOJ would not prosecute, given current policy. They tend to regard state jury verdicts as vindicating any federal interest, subject to certain exceptions.
Yeah, that’s true because where there is dual sovereignty the defendant wouldn’t have been placed in jeopardy in the second jurisdiction, it would be the defendant first trial, but like you I think the DOJ wouldn’t try to prosecute for Federal murder 2 because there is no justifiable reason to do so and therefore Texas might feel compelled to fight the extradition.
Just a minor nit on this:
Federal prosecution would not require extradition, unless defendant has fled to somewhere outside fed territorial jurisdiction, ie: some other country.
If the feds want to prosecute, they can prosecute in federal courts in the state where the crime was committed.
Of course, some folks believe Texas is another country. ;^)
That’s a debatable point. Rhode Island fought US jurisdiction in the Jason Pleau capital murder case in 2011. They lost but the application can be made. Like you said Texans are less inclined to be told what to do by Washington than some other states. Jurisdictional issues are often as political as they are legal and nobody would be too surprised if Texas doesn’t have battle plans already drawn up ready for secession. 🙂
A very special case. Because Pleau was in RI custody, RI refused a fed request for temporary custody (which would have had the effect of the feds then trying him with a death penalty possible, and RI has no DP).
The 1st Circuit USCA viewed it as a question of the Constitution’s supremacy clause and the Interstate Agreement on Detainers (IAD). Basically RI exercised its right under the IAD to contest the 1st Circuit court’s habeas corpus order to deliver Pleau to fed custody, appealed to the 1st USCA and lost. Then SCOTUS declined to hear RI’s appeal.
Extradition or a habeas order based on supremacy clause and the IAD?
I haven’t practiced in decades, so I’ll just say Toe-MAY-toe, toe-MAH-toe, po-TAY-toe, po-TAH-toe.
I’m certain of one thing. If Pleau was in RI, but not in RI custody, the feds could arrest and try him, with no extradition necessary.
As for TX, I do know that TX is unusual in many ways. Many would use stronger and more colorful adjectives.
That’s a good point. However, I think still think the Pleau case is relevant. Admittedly he was in RI custody but Texas could take Gilbert into protective custody if they have notice of an imminent arrest.The Feds blatantly sought to try Pleau for a capital murder because RI doesn’t have the death penalty, which RI saw as encroaching on their democratic state rights. The same principle would apply here: they would be trying Gilbert for no other reason than not liking Texas’ laws. I think TX would react to that. RI did and Pleau is a far less sympathetic defendant than Gilbert, and they have a lot less political clout than TX. Now of course if the Feds had TX consent that might be different.
True dat.
If it happens, I want the popcorn concession.
That’s a date 🙂
Your tie-in to a dishonorable illicit drug transaction was excellent. Mapping this onto prostitution is complicated due to historical context. I can’t help but think that the property issue was conflated onto the woman. Women have been the property of man for most of human history (and are still treated as such in some parts of the world). Prohibitionists are adamant that women are bought as property. It was not that the money and no-service was out the door, but she, as property, was also gone. This is the prohibitionist debate with sex workers – the buy vs hire. I would counter that while ‘buy a woman as slave’ might be a fantasy of a few men, that fantasy, however real to the men or the prohibitionists, is not the reality, legally or practically for sex workers. I am thinking the prohibitionist’s fantasy of woman owned (escaped slave?) played a role in the jury’s minds.
Great post, Maggie!
I actually wondered if the “prostitute as sub-human” narrative played into the jury’s mind, but it’s impossible to know without talking to them. (Incidentally, whatever they say, prohibitionists push that idea, that prostitutes are less than human.)
You’re right – we would have to interview the jury to know for sure. But I am just wondering if acquittal would have happened if this were a drug transaction gone south?
A dealer could have used a craig’s list add with all the euphemisms for coke et al to make the add ‘read clean’ to the uninitiated. Then he/she might get shot/killed if it got messy. But acquittal? I can see acquittal if there were issues of self-defense. Since when does theft meet the criteria for lethal self defense?
Like Krulac said – shooting her was disproportional to the theft. The woman’s mythologized status (“prostitute as sub-human”) had everything to do with a twisted outcome. It proves the power of myth is alive, well, and dangerous.
Ok, I’m probably one of the people who should “Please shut the fuck up,” but I’m going to try to avoid your wrath in this comment. The rip off racket has happened to me, and for considerably more that $150, when I was young, naive and horny. It’s incredibly humiliating when it happens, above and beyond losing your money. Indeed, you have to tamp down your shame (yes, it’s actually degrading when it happens) and your anger. Of course, in my case, I would merely have let loose with some sharp words. However, I didn’t even do that. Why?
Hiring an escort is a perfect example of a working anarchic system. It operates with no laws, people’s word is supposed to be their bond, and contracts cannot use the courts for enforcement. If Gilbert had done what he would do if his dry cleaner had handed him back dirty clothes, and taken the escort to small claims court, he would have been laughed at and possibly arrested. It’s basically a handshake contract, if one party is dishonorable and breaks her word, the other party is screwed because the service being contracted for is illegal. In my case and Gilbert’s, the letter of the agreement was followed because an explicit agreement opens the escort up to arrest (and is unenforceable anyway).
Now, given that, a crazy man might act like Gilbert, and respond in a way totally out of proportion to the breach of contract. Much like above, instead of taking my dry cleaner to court, I could shoot him and take back the money I paid him. I really hope that the jury’s sympathies would not have been with me in that case. Also, does anyone doubt that if the escort had had sex with him, and he refused to pay, and she shot him that she would get off with “preventing a nighttime theft?” I expect she’d be in the death house about now.
I don’t think you need to shut up at all; the ones to whom that were directed were those (and they’re out there) who are saying that the guy had no reasonable expectation of sex because it says so right there in her ad.
Also, I sympathize with guys who’ve been ripped off; obviously I don’t think it should be a shooting offense, but a person who’s cheated should certainly be able to take the service provider who cheated him – whatever the service – to small-claims court.
What I struggle with is that, BY LAW he doesn’t have any expectation of sex. That’s ridiculous. That sets up her scam. So he was scammed by her AND BY THE LAW. Society is saying “Oh, ESCORTS are legal (nudge, nudge, wink, wink)”.
He should have shot society.
Further refinement of thought;
OK, society sets the law up so that he scam is specifically legal. This jerk overreacts and kills her. Society reacts by saying “Oh, no, of COURSE we didn’t mean that “Escorts” only provide companionship, even though the other is specifically illegal. We aren’t guilty of setting you up to get ripped off!”
Society of guilty of the woman’s murder.
I try not to overthink this. Was the response proportional? No – it wasn’t. I don’t think she was a physical threat to him – and by the “reasonable man” standard – he should be in jail.
I have to deal with this kind of thing all the time as a bouncer. Proportional response. You don’t just blow out a guy’s knee for a little shove. If he’s in the process of committing a serious felony against someone else – then yeah, if that’s the only way.
This jury must have been a bunch of idiots to go along with this – no matter what the law said … Maggie is spot on in that it was twisted and forced to bring about this outcome in a case it really shouldn’t have applied to.
Indeed, but when you are behaving as an outlaw, you unfortunately have to behave according to outlaw rules. As an outlaw, the courts, the cops, and the authorities in general are your enemies, and need to be treated as such. You can’t go to small claims court, because the small claims court is run by your enemies, any more than Robin Hood could appeal a crime to the Sheriff of Nottingham.
(I know the term outlaw sounds like a bit of romantic melodrama but really, that’s what a person who routinely breaks the law is. Even if it’s an evil law. Ask those poor clients in Nassau county how much fun being an outlaw in real life is. Or any escort who’s been targeted by the police. Or, well, yourself, but I expect you don’t actually need to ask.)
There is one positive to being an outlaw though, you have the ultimate in personal responsibility. That’s why the term outlaw still has positive connotations in our society (and why I prefer it to the word criminal for consensual crimes).
I think this is a brilliant post. I agree with nearly all that you said although I don’t think the fact the fact that the “victim” was a “prostitute” (I would say she was neither) was the reason that he was acquitted. I think prosecutors Matt Lovell and Jessica Schulze were hopelessly incompetent..
The law is remarkable clear, and the defence argument followed it to the letter: under Texas Penal Code Section 9.41 Gilbert had the right to try and recover his money that he was dispossessed of by Frago by fraud. Moreover, under Section 9.42 he had the right to use deadly force to recover that money because the offence was committed at night.
Lovell and Schulze, argued 9.41 wasn’t intended to apply when both parties are engaging in an illegal transaction, which of course is complete nonsense since it is possible to defraud someone by offering them an illegal product. The second even more hopeless argument was that the law didn’t allow Gilbert to compel Frago to perform any services, and this is where they went off on the feminist rape mantra bullshit. In the process, they seem to haven forgotten that Frago wasn’t raped or threatened at gunpoint to preform any service. She was shot because she stole money!
Okay now my head hurts.
I guess I missed that … the Texas law allows anyone to use deadly force to recover property if it’s taken from them at night?
And there’s no “reasonable man” standard attached to that?
Color me amazed.
What’s the big fuckin’ deal about it happening at night? I don’t get that. Oh well …
You’re thinking of this as self-defence, rather than legitimate use of force, which are two different things. Proportionality is based on what is necessary to prevent the felon from fleeing.
So in Texas S9.41 permits you to use force that you reasonably believe to be immediately necessary to remove an intruder from your property, protect yourself or recover anything stolen from your your property if someone has broken into your home. Effectively you can shoot one at any time of the day under this provision, if you could not have prevented them from fleeing by other means.
Whereas at night time, because the threat is greater i.e. you might be at home with your family in bed S9.42 comes to play, which specifically allow the use of deadly force on most trespass related offences, including fleeing with your property. Here however there is another important addition, you can use deadly force if you feel that you might be at risk of injury if you tried to recover your property by other means.
I interpret this as effectively allowing the home occupier to shoot to kill, shoot a fleeing felon in the back and to shoot him on the street as he’s fleeing.
Stefi,
I saw your post after I posted mine and you did make the point I should have about the nightime issue involving a great likelihood of a “hot” burglary.
pws, I’m actually surprised the jury bought the defense so I suspect there is something we’re not told in the story. I grew up in Bexas County and their juries are not very liberal on the civil side and very conservative on the criminal side, which is why i’d like to know more about the facts.
That would be Bexar County. Proofreading is our friend.
I’m not at all surprised as to the juries verdict, if they were reasonably intelligent and at all conscientious they would have acquitted. This was a grifter robbing a man at night, and section 9.42 leaves no ambiguity as to what it means. He was allowed to shoot. The prosecution really blew there case with this attempted rape nonsense. There recently been a case in which Ralph Wald was acquitted for murdering his wife’s lover when he found them in bed. The prosecutor’s closing argument practically invited jury nullification. The prosecutors in both these cases were hugely incompetent.
Stefi, you seem familiar with the statute. Does S 9.42 give any clarity to the proportion of force? Is the section a carte blanche for lethal force that might turn out to be cruel and unusual punishment for the thief, absolving the shooter of manslaughter?
And yes, the lawyers use of the prohibitionist argument that all prostitutes are raped (potential) was set aside. Then what was the other side of the coin? It is troubling.
Great insights – thanks for the commentary…
Thank you. I’m an Italian avvocato not a Texas attorney, so I’m not familiar with Texas state law, but I’ve read it and I specialise in this area and have defending clients in various EU countries, so it’s pretty easy to interpret.
If you look at 3 A and B are an open invitation to the use of lethal force. if you shot someone and they were lying prone on the floor you wouldn’t be able to shoot them again but shooting someone in the back of the head as they try to flee is fine.
“Is the section a carte blanche for lethal force that might turn out to be cruel and unusual punishment for the thief, absolving the shooter of manslaughter?”
It’s not cruel an unusual punishment because it’s not summary justice, it’s using lethal in a pursuit, in the same way that cops shoot at armed robbers. However, it would be easy to use it as a defence for extra-judicial killing. If you shoot someone in the back as they are fleeing then shoot them in the head you could argue they were getting up and you thought they would escape.
The case is troubling, here’s a man who killed a woman for ripping him off for a very small sum of money but if he punched her to try and stop her leaving and she shot him it would be even more troubling. My view on this is that anyone who sets foot in someone else home for the purpose of committing a crime can have no complaints. An interesting point is that in Italy where prostitution is legal, it’s rape to not pay a prostitute for the agreed sum.
I admit that the law was problematic, but I still don’t see how they could successfully spin this as a theft.
I’ll liken this to pachinko parlors in Japan. The Japanese love to gamble on pachinko, but gambling on pachinko for money is illegal. So, the way it works is, you gamble on pachinko in a Yakuza owned pachinko parlor, if you get the big prize, the Yakuza owner gives you an item. You then take that item to a nearby Yakuza owned pawnshop, where it turns out to be worth a surprisingly large amount of money. Now, supposing you brought your item to the pawn shop, and they just offered you the normal price for a used prize.
Well, you’d be mad. You were cheated. However, you certainly can’t accuse anyone of theft.
The simple answer to your question is because it’s still a fraud.The fact that it may have been an illegal arrangement, but it’s one she solicited, and she took money off him on a false premise knowing that she had no intention of providing the services she was selling. When she left with that money she was stealing it.
Your example is not comparable, you would be trading an item for cash so caveat venditor!
Krulac
Uncolor yourself. Yes force or deadly force can be used to recover property stolen in the nightime, but only to the extenct the person reasonalby believes it is necessary to recover the property immediatly after or during the theft. So, yes there is a reasonableness standard. The reason for the nightime issue is a holdover from Texas’ more rural times when it was felt that you were less likely to have other citizens or officials available to help you deal with a situation. It is still one of the more liberal allowances for use of force, but again is a holdover from times just a few decades ago when many residents were far from official help and so needed broad self help remedies as offical ones were practically non-existent.
An amusing aside, until the mid-80s it was a complete defense to murder (not just a reduction to manslaughter) if a husband killed his wife or her lover when he caught them in flagrante. When a court ruled that the same defense had to be extended to wives, the overwhelmingly male legislature, noted for their frequent use of certain special establishments in south Austin, decided to just eliminate the defense.
A completely different take on this:
No, Texas Law Does Not Say You Can Shoot an Escort Who Refuses to Have Sex
“The much more plausible reason for the verdict is that the jury believed the defendant’s claim that he didn’t intend to shoot the victim.”
Great extra read and compliment to Maggie’s post. Its an example of scarce good reporting: the author called out the poor journalism on this case a well. Also heard from the defense lawyer on what he thinks swayed the jury.
Interesting and valuable article. It’s worth noting that unless the jurors talk to the press, we don’t have any direct evidence of what actually worked to convince them there was reasonable doubt. However, this article shows that there were other reasons to acquit than the one the media are generally latching onto.
The prosecution appears substandard, which is likely a big part of why. Thing is: prosecutors aren’t necessarily all that great in the courtroom. What they’re mostly good at is bullying defendants into guilty pleas. A good defense lawyer can win against them.
In the Strand, London, there is a large gothic building called “The Royal Courts of Justice”, complete with a statue of Justicia with sword and scales.
But, a trivial experience of the courts in the UK shows you that you don’t get “justice”, you get “law”.
I have to agree with Maggie, Stefi, and the jury.
One of the biggest downsides to laws against consensual “crimes” is that they make the police the enemies of everyone involved, so if you are threatened with any kind of real wrong — even petty theft — your only choices are to put up with it or use force — and probably greater force than the police would need to use for the same purpose if they had been available to help you.
So I’m saying that if his story was true, then he was, barely, justified. (Like Maggie I have my doubts about the story, but it does seem likely enough to create a “reasonable doubt” on the murder charge and make me vote not-guilty.)
This may be a day late and a dollar short, and I hope all of you understand this. Even if Texas allowed prostitution, this tragedy could have happened. It could have happened in reverse where the whore shot the john for not paying for sexual services performed or for not paying a fee for her to show up and be dismissed before she could even begin to perform sexual services because he didn’t like her appearance or demeanor etc.
I know Maggie McNeill seems to like escorting more than brothels. However there is good and bad to both. Escorting allows for more anonymity and less interference from authorities as it would be more difficult to track escorts. However, it is dangerous to be an escort as you never know what you are walking into and the renter or the owner of the place you’re walking into have more presumption of innocence as a rule rom police, judges and juries than the one who visits no matter how false this is. Whores are generally speaking safer in brothels where as workers or owners of the place, they are presumed to be more innocent than the visiting john as a rule. Security is easier to provide a whore in a brothel too for various reasons. That’s why one should avoiding entering homes or businesses where the owners, occupents or workers are hostile to you as it is essentially a no win situation for you the visitor. If you find yourself in a bad place, the best thing to do is leave immediately.
The thing is, even if his version of events is true down to the last jot and tittle, she wasn’t robbing him, she was cheating him. Your example of cornstarch for heroin is a good one, but it needs another, legal, example to be complete. So…
She’s selling him a diamond ring. As she’s leaving he discovers that the “diamond” is glass. He demands his money, she says no and continues to leave. He shoots her dead.
I don’t think he would’ve been acquitted in that case. Because she wasn’t robbing him, she was cheating him, and the proper response to cheating is to sue her. But of course you can’t sue a hooker, a drug dealer, etc. because then you’re confessing to a crime and will face prosecution yourself. In the underworld, the way to respond to cheating is through physical violence. So, between this law, the lack of non-violent methods to recover his money, and the tendency to think that hookers “get what they deserve,” he basically got away with murder.