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Old 9th September 2019, 11:03 AM   #801
plague311
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Originally Posted by Thermal View Post
Right, but when you are not on your toes for details, you could easily not pay attention to painted and lit up numberings. The red mat is much tougher to miss. Strains credibility, even. As I read the descriptions earlier, the walks were structurally identical.

As I see it, she made one small mistake: driving one too many floors in a presumably corkscrew garage. Walking on autopilot, not seeing signs. I mean, I can't remember the last time I looked at my house numbers or street signs.

But when you draw and shoot, you have no excuses.
Ok.
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Old 9th September 2019, 12:36 PM   #802
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Originally Posted by Thermal View Post
Right, but when you are not on your toes for details, you could easily not pay attention to painted and lit up numberings. The red mat is much tougher to miss. Strains credibility, even. As I read the descriptions earlier, the walks were structurally identical.

As I see it, she made one small mistake: driving one too many floors in a presumably corkscrew garage. Walking on autopilot, not seeing signs. I mean, I can't remember the last time I looked at my house numbers or street signs.

But when you draw and shoot, you have no excuses.
The red mat is not a big deal for the defense. She was tired, walking to her apartment ready to go to bed.

Defense: In your expert opinion, would it be normal for someone suffering from severe sleep deprivation, to not notice something like a mat on the floor?

Expert: The only thing on her mind would have been to get into bed and go to sleep.
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Old 9th September 2019, 12:38 PM   #803
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Originally Posted by Drewbot View Post
The red mat is not a big deal for the defense. She was tired, walking to her apartment ready to go to bed.

Defense: In your expert opinion, would it be normal for someone suffering from severe sleep deprivation, to not notice something like a mat on the floor?

Expert: The only thing on her mind would have been to get into bed and go to sleep.
Anything at all to show that the hilited is true?
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Old 9th September 2019, 12:39 PM   #804
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I would add, that I know that the mat wouldn't matter to someone who is sleep deprived, in the same way that Detectives know that they can get people to confess to crimes if they keep them up.

No sleep until you confess buddy.
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Old 9th September 2019, 12:41 PM   #805
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Originally Posted by plague311 View Post
Anything at all to show that the hilited is true?
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4776459/

A little more noticeable than a red mat.

Quote:
False confession is a major contributor to the problem of wrongful convictions in the United States. Here, we provide direct evidence linking sleep deprivation and false confessions. In a procedure adapted from Kassin and Kiechel [(1996) Psychol Sci 7(3):125–128], participants completed computer tasks across multiple sessions and repeatedly received warnings that pressing the “Escape” key on their keyboard would cause the loss of study data. In their final session, participants either slept all night in laboratory bedrooms or remained awake all night. In the morning, all participants were asked to sign a statement, which summarized their activities in the laboratory and falsely alleged that they pressed the Escape key during an earlier session. After a single request, the odds of signing were 4.5 times higher for the sleep-deprived participants than for the rested participants. These findings have important implications and highlight the need for further research on factors affecting true and false confessions.
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Old 9th September 2019, 12:45 PM   #806
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Originally Posted by Drewbot View Post
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4776459/

A little more noticeable than a red mat.
Neat.

Is there evidence she was sleep deprived?
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Old 9th September 2019, 12:57 PM   #807
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Originally Posted by Drewbot View Post
The red mat is not a big deal for the defense. She was tired, walking to her apartment ready to go to bed.

Defense: In your expert opinion, would it be normal for someone suffering from severe sleep deprivation, to not notice something like a mat on the floor?

Expert: The only thing on her mind would have been to get into bed and go to sleep.
Unless she had to go to the bathroom really bad.

Do you think she would even have mentioned something like that ?
" I had to piss like a racehorse, and rushed to [my] door as quick as I could "

Killing someone because you really had to pee might be so embarrassing that you would rather take a prison sentence than bring it up.
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Old 9th September 2019, 12:58 PM   #808
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Originally Posted by Drewbot View Post
The red mat is not a big deal for the defense. She was tired, walking to her apartment ready to go to bed.

Defense: In your expert opinion, would it be normal for someone suffering from severe sleep deprivation, to not notice something like a mat on the floor?

Expert: The only thing on her mind would have been to get into bed and go to sleep.
If I were the prosecutor I'd punch the sleep expert in the face and go "Sorry I've been up all day." I would repeat this until he shut up.

I'd also ask the sleep expert how many black people who shot cops during no knock warrants in the middle of the night he had defended in court.

I'd then ask him how literally anyone on the planet is still alive if society turns into the Purge after we've been awake for "a normal day."
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Old 9th September 2019, 12:59 PM   #809
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We don't know how long she was awake for, but if she worked a 16 hour shift, she was sleep deprived.

We also don't know what stressors she had during her previous shift.

We do know that police departments are aware of the effects of sleep deprivation.

https://www.ncjrs.gov/pdffiles1/nij/225762.pdf

We know that the likelihood of driving a police car into a telephone pole goes up with regard to sleep deprivation, so missing a red mat on the floor isn't going to be an issue.
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Old 9th September 2019, 01:01 PM   #810
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Originally Posted by Drewbot View Post
We don't know how long she was awake for, but if she worked a 16 hour shift, she was sleep deprived.
Then literally all of humanity is sleep deprived most of the time.

16 hour shift my achin' ass. I've worked 36 hours straight and THEN told to go stand an armed watch and I managed not to blunder into any innocent people's homes and shoot them.

You aren't given a license to kill when you don't clock out exactly at 8 hours.
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Old 9th September 2019, 01:18 PM   #811
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Originally Posted by JoeMorgue View Post
Then literally all of humanity is sleep deprived most of the time.

16 hour shift my achin' ass. I've worked 36 hours straight and THEN told to go stand an armed watch and I managed not to blunder into any innocent people's homes and shoot them.

You aren't given a license to kill when you don't clock out exactly at 8 hours.
The recommended amount of sleep for an adult is 7-9 hours. A 16 hour day still leaves 8 hours of it unaccounted for that could have been filled with sleep. Leaving her not sleep deprived at all. Who knows what she did the day before, but sleep deprivation sounds like a stretch.
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Old 9th September 2019, 01:23 PM   #812
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Originally Posted by JoeMorgue View Post
Then literally all of humanity is sleep deprived most of the time.
yes.


Originally Posted by JoeMorgue View Post
16 hour shift my achin' ass. I've worked 36 hours straight and THEN told to go stand an armed watch and I managed not to blunder into any innocent people's homes and shoot them.

You aren't given a license to kill when you don't clock out exactly at 8 hours.
750,000 police officers in the U.S. many of them are sleep deprived, many have fallen asleep while driving, this was bound to happen. I am glad you don't suffer from sleep deprivation. You are truly something to behold.
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Old 9th September 2019, 01:24 PM   #813
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Originally Posted by Drewbot View Post
yes.
THEN YOUR POINT IS MEANINGLESS BECAUSE WE'RE NOT ALL KILLING EACH OTHER AND GETTING AWAY WITH MURDER!

Darat, stay up for 16 hours and 1 minute and then ban this guy. //That was sarcasm before you get butthurt//
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Old 9th September 2019, 01:26 PM   #814
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Originally Posted by JoeMorgue View Post
THEN YOUR POINT IS MEANINGLESS BECAUSE WE'RE NOT ALL KILLING EACH OTHER AND GETTING AWAY WITH MURDER!

Darat, stay up for 16 hours and 1 minute and then ban this guy.
Only one person did it, that's why we are talking about it.

Why are you making up imaginary stories in your head about all of us killing each other.

If it happened all the time, this wouldn't be a topic.
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Old 9th September 2019, 01:39 PM   #815
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Originally Posted by Drewbot View Post
Only one person did it, that's why we are talking about it.

Why are you making up imaginary stories in your head about all of us killing each other.

If it happened all the time, this wouldn't be a topic.
His point is that if all society is sleep deprived, and we have millions of guns out there, and only this one instance happened. Then perhaps you're mistaken about the effects or ability to use it as an excuse.
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Old 9th September 2019, 02:13 PM   #816
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I really cannot think of comparable life and death decisions where "being tired" is considered any kind of defense. It sometimes is part of an explanation of "why" something happened, but not a defense or excuse that makes it okay in the eyes of society or the law. "Gee I killed my patient under surgery but Hey, I was really tired at the time." "Sure I crashed the airplane but..." Yes, I blew through that stop sign at 90 mph and killed the kid on a bicycle but..."

This still applies even in regard to a "misunderstanding of the facts." The doctor was so tired he honestly thought he was cutting a vein not an artery. The pilot honestly misunderstood their altitude. The driver the shape of the sign. None of these things suddenly would make the lethal error okay.

I don't see how being tired and mistaking someone else's apartment for their own can be found to justify walking into a stranger's home and blowing away an innocent guy. Not ever by anyone. Even worse for the law enforcement profession. The very central core of a cop's job, responsibility, and training is to not do this.

Being tired might help at the sentencing stage but it shouldn't be relevant at all at the stages of being charged or tried.
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Old 9th September 2019, 02:39 PM   #817
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Originally Posted by Giordano View Post
I really cannot think of comparable life and death decisions where "being tired" is considered any kind of defense. It sometimes is part of an explanation of "why" something happened, but not a defense or excuse that makes it okay in the eyes of society or the law. "Gee I killed my patient under surgery but Hey, I was really tired at the time." "Sure I crashed the airplane but..." Yes, I blew through that stop sign at 90 mph and killed the kid on a bicycle but..."

This still applies even in regard to a "misunderstanding of the facts." The doctor was so tired he honestly thought he was cutting a vein not an artery. The pilot honestly misunderstood their altitude. The driver the shape of the sign. None of these things suddenly would make the lethal error okay.

I don't see how being tired and mistaking someone else's apartment for their own can be found to justify walking into a stranger's home and blowing away an innocent guy. Not ever by anyone. Even worse for the law enforcement profession. The very central core of a cop's job, responsibility, and training is to not do this.

Being tired might help at the sentencing stage but it shouldn't be relevant at all at the stages of being charged or tried.
Your examples (doctor, pilot, and driver) all involve doing things that have a minimal level of attentiveness built in. It's why one cannot perform surgery, fly a plane, or operate a car whilst drunk without facing criminal repercussions.

Making your way home from work does not have any minimal standard of attentiveness that it is considered criminal not to display. (With the obvious exception of the driving itself)
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Old 9th September 2019, 04:51 PM   #818
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Originally Posted by JoeMorgue View Post
Then literally all of humanity is sleep deprived most of the time.

.
As someone mentioned, new parents laugh at the suggestion that sleep deprivation is is an excuse to shoot someone.
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Old 9th September 2019, 05:25 PM   #819
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Originally Posted by Drewbot View Post
We don't know how long she was awake for, but if she worked a 16 hour shift, she was sleep deprived.
According to the civil lawsuit, Merritt says she said she had worked a 13 hour shift. There have been various news reports of 12 to 16 hours. I think the 13 hours is the most reliable figure we have at this point.

Originally Posted by Drewbot View Post
We also don't know what stressors she had during her previous shift.
Her job was serving warrants. That mostly means arresting people all day. I think it likely she had plenty of stressors, in a general sense. We don't know if there was something in particular that day that may have set her mind adrift as she was going home.

Originally Posted by Drewbot View Post
We know that the likelihood of driving a police car into a telephone pole goes up with regard to sleep deprivation, so missing a red mat on the floor isn't going to be an issue.
Here's another word to ponder: "prudent"

Texas Penal Code 1.07 defines reasonable belief as follows:

“Reasonable belief” means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.

Was Guyger's belief a belief that a prudent man would have held?

It is an interesting question in how to interpret that word. For a reasonable belief, we generally would conclude that a belief was truly held, or the person is lying, or the person was insane. I don't think anybody will argue that Guyger was insane. The evidence suggests that she is not lying. Can the jury conclude that it was an honest but unreasonable belief? Would that go against the premise that we only criminalize moral failures (with the possible exception of limited liability laws)?

Much will come down to how the court instructs the jury on these issues. I bet the prosecution is going to hammer the heck out of that word "prudent".
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Old 9th September 2019, 06:01 PM   #820
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Originally Posted by Giordano View Post
I really cannot think of comparable life and death decisions where "being tired" is considered any kind of defense.
Being tired isn't the defense. The defense is self-defense. Specifically, the castle law.

But there are a couple of issues with the castle law in this case:

1) It wasn't Guyger's house. But the castle law only requires that Guyger prove that she "had reason to believe that [Jean] unlawfully and with force entered [her apartment]". To establish that it was a reasonable belief, Guyger will have to provide convincing evidence that she really thought she was in her apartment.

1) The castle law doesn't apply if the person was "otherwise engaged in criminal activity" (other than a traffic violation). Guyger committed a crime when she entered Jean's apartment. But that could be nullified due to mistake of fact. Guyger didn't know she was committing a crime. She though she was going into her own apartment. She made a mistake of fact.

(Note that the law only says that a mistake of fact prevents prosecution. The will likely rule that it also negates the clause in the castle law about committing a crime. But that isn't a given.)

So Guyger has two reasons to need to prove that she thought she was in her apartment. In order to support that claim, Guyger may provide evidence that she made that mistake because she was tired. She doesn't have to. She could rely on the weight of other evidence to support her claim, which itself seems convincing that she really did think she was in her own apartment. (But since she said over and over on the 911 call how tired she was, it's going to come up at trial.)

If the defense were simply that she was tired, there would be no case. But it is not as simple as that.
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Old 9th September 2019, 08:33 PM   #821
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Originally Posted by Distracted1 View Post
Your examples (doctor, pilot, and driver) all involve doing things that have a minimal level of attentiveness built in. It's why one cannot perform surgery, fly a plane, or operate a car whilst drunk without facing criminal repercussions.

Making your way home from work does not have any minimal standard of attentiveness that it is considered criminal not to display. (With the obvious exception of the driving itself)
Possessing and using a lethal weapon, one assigned to you as a trained LEO, does not have any minimal standard of attentiveness, while simply driving a car does? Are you sure?
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Old 9th September 2019, 08:41 PM   #822
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Originally Posted by Distracted1 View Post
Your examples (doctor, pilot, and driver) all involve doing things that have a minimal level of attentiveness built in. It's why one cannot perform surgery, fly a plane, or operate a car whilst drunk without facing criminal repercussions.

Making your way home from work does not have any minimal standard of attentiveness that it is considered criminal not to display. (With the obvious exception of the driving itself)
You know, I think firing a gun at someone in apartment might have a minimum standard of attentiveness built in.

I mean, if the others have a minimum standard inherent because they might kill someone, then maybe intentionally killing someone, you know...

eta'd by G
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Old 10th September 2019, 01:36 AM   #823
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Originally Posted by JoeMorgue View Post
Maybe because it's insane and stupid to even consider?

I get what you're doing now. You're going to demand I give you an example of this exact scenario, when my entire point is this entire scenario is so absurd that of course the law bloody never had a precedent for it.
Until last April, I lived on the fourth floor of a block of flats. I tried to enter what I thought was my own home. The key wouldn't open the door, so I tried another. Eventually, the door did open - because it was opened from the inside... by the owner. I was trying to get into a flat on the sixth floor. It happens. You don't consider your surroundings until something happens to snap you out of 'robot mode'.

JoeMorgue, no one is excusing anything, in this thread in my opinion. They're wondering how the **** did this happen. The fan fiction stuff is all your own projection. Some Americans' willingness to kill each other and trigger happy paranoid police officers are important here, I think.
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Old 10th September 2019, 01:44 AM   #824
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Originally Posted by plague311 View Post
If you have never once in this thread defended the "mistake of fact", then I will absolutely apologize. I'll dig through the thread, since I've got some time today, just for S's and G's. The mistake of fact premise is based on her being tired, and having a long day at work of at least 16 hours.



He shouldn't have ******* had to respond to any commands. She also never said, "Police Officer", and this also is counter to what you're claiming. He can't have been a threat if he were stoned off his ass, and had delayed movement as you implied.

Also, per this article, I don't think her defense is going to work all that well. It was actually the Grand Jury that upgraded the charges in this case, not the DA.



I would bet that there is something we're missing.
I am beginning to hate the phrase "mistake of fact". No matter. Mistakes of fact - aka "Whoops! I drove down the wrong road" or "I thought you said the party was this week" - don't have to be linked to a lack of sleep.
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Old 10th September 2019, 01:51 AM   #825
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Originally Posted by plague311 View Post
The **** are you talking about? Did you read the quoted passage I was responding too? Perhaps spend a moment doing that, then come back. I'll take you just rescinding this comment when you're ready. Thanks.



So your claim is that she wasn't tired, she wasn't distracted, she just parked on the wrong floor, walked by multiple floor # signs, went to an apartment that has a bright red doormat that she didn't have, didn't look at the lit up sign next to the door, barged in and started shooting because of that mistake?
Not everything in the world is a claim or counterclaim. What is wrong with just being distracted or not paying attention? I cannot believe that you have never been in a situation where you thought you were in one place or talking to one person (whatever) but found out later that you were wrong. The door signs, the red mat etc are ignored in this sort of situation: they're blanked out. They only become of interest when you go "hang on, where am I?"
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Old 10th September 2019, 02:04 AM   #826
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Originally Posted by plague311 View Post
I wholeheartedly agree with this. I only brought up because Drewbot spoke definitively. I think it's in question as well, for sure. The only part that would make it even kind of plausible for me is:
  • Guyger gets done with work
  • Parks on the 4th floor because she intended to talk to Jean about his music knowing that she had a long day at work, it was later and night and wanted to ensure a good nights sleep
  • She goes to his door, knocks on it a few times, and so on...

I have absolutely nothing at all to back up any of that, just an alternate scenario.



I have the gift of hindsight, but the moment the I noticed the door was open I would have taken in my surroundings. The floor mat, the light, etc.



Which is why I agreed with Darat with regards to the mistake of fact getting her to the door. As he said, once she's there she deliberately took each step from that point forward. Even her mistake of fact to get her to the door doesn't allow her to enter the home without permission.
Re the bold bit: How do you know this? This goes to the heart of the "mistake of fact". You assume you'd not be so unaware of your surroundings. What makes you special?
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Old 10th September 2019, 03:41 AM   #827
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Originally Posted by Distracted1 View Post
Your examples (doctor, pilot, and driver) all involve doing things that have a minimal level of attentiveness built in. It's why one cannot perform surgery, fly a plane, or operate a car whilst drunk without facing criminal repercussions.
Thankfully untrue of firearms. Be as drunk as you want with them.
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Old 10th September 2019, 03:56 AM   #828
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Originally Posted by The Common Potato View Post
Not everything in the world is a claim or counterclaim. What is wrong with just being distracted or not paying attention? I cannot believe that you have never been in a situation where you thought you were in one place or talking to one person (whatever) but found out later that you were wrong. The door signs, the red mat etc are ignored in this sort of situation: they're blanked out. They only become of interest when you go "hang on, where am I?"
My take as well.
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Old 10th September 2019, 04:08 AM   #829
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Originally Posted by ponderingturtle View Post
Thankfully untrue of firearms. Be as drunk as you want with them.
In Texas it is illegal to carry a handgun while intoxicated (Penal Code 46.035(d)).
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Old 10th September 2019, 07:11 AM   #830
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Originally Posted by The Common Potato View Post
Not everything in the world is a claim or counterclaim. What is wrong with just being distracted or not paying attention? I cannot believe that you have never been in a situation where you thought you were in one place or talking to one person (whatever) but found out later that you were wrong. The door signs, the red mat etc are ignored in this sort of situation: they're blanked out. They only become of interest when you go "hang on, where am I?"
And not everything in the world can be dismissed with "mistake of fact". At some point you, as an individual, have to take responsibility for your actions. The difference is whenever I'm mistaken it doesn't cause me to take out a gun and shoot at the people closest to my location simply because I, myself, have made the error. That's never happened. My confusion has never caused a death.

Originally Posted by The Common Potato View Post
Re the bold bit: How do you know this? This goes to the heart of the "mistake of fact". You assume you'd not be so unaware of your surroundings. What makes you special?
I'm not special, nor do I think taking in your surroundings when you find your door open at a time you don't expect it to be particularly special or out of the ordinary. In fact, I would call it perfectly within the realm of possibility. If I came home and my door was unlocked and opened when it a) physically closes by itself b) locks automatically upon closing and c) takes a special keyfob to open it that blinks green or red. It would cause me to step back a moment. Meanwhile, you're staring down at your keys\the door knob where's there's a red mat that doesn't belong to you.

Again, mistake of fact isn't some catchall that allows her to do whatever the **** she wants because she's a brain dead idiot. Actions have consequences, and you've provided nothing here that's against the norm of the defenders of Amber or the ones claiming to know how the law goes.
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Old 10th September 2019, 08:21 AM   #831
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An OP-ED about the racism in the announcement that DPD is not allowing time off during the Guyger Trial. https://www.dallasobserver.com/news/...trial-11749330


Quote:
But here is what I can un-weave, and I think you can, too, if you take the time. In this trial, heavily freighted with race, a public announcement that the police department is on red alert is a powerful message that there may be racial trouble if Guyger gets off. And that fear is about black people.

Yeah, OK, tell me I’m wrong. City officials are really worried about the white folks rioting. Tell you what. I don’t very much think so. And neither do you.

Assuming someone at City Hall truly believes there is a threat of public discord related to this trial, surely the same person can see the powerful message that a public announcement sends to jurors: “If you let her off, the black people will riot.”
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Old 10th September 2019, 08:37 AM   #832
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Originally Posted by Drewbot View Post
An OP-ED about the racism in the announcement that DPD is not allowing time off during the Guyger Trial. https://www.dallasobserver.com/news/...trial-11749330
The article asks:

Quote:
And let me ask you something else. Why did city officials have to tell us? Why did they publicly announce the no-time-off policy for cops? Couldn’t they just have done it? Isn’t this a personnel matter? How did it become a public issue that needed to be announced? What’s the public part?
I cannot find any evidence of a public announcement. It was handled internally through memos and email to personal that were leaked to the press. It was only after the press published information from the memos that the police department made a public statement on the matter.
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Old 10th September 2019, 09:22 AM   #833
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yes DA, that sounds correct.

Unless, the original email was 'leaked', and not actually leaked.

As in, the DPD routinely gets public information out to the public by 'leaking' an email to a member of the media or something.

I asked the author to clarify.
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Old 10th September 2019, 11:59 AM   #834
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Originally Posted by DevilsAdvocate View Post
The article asks:

I cannot find any evidence of a public announcement. It was handled internally through memos and email to personal that were leaked to the press. It was only after the press published information from the memos that the police department made a public statement on the matter.
I don't know if "leaked" is the right word here. Even if there was no official announcement, it's not some kind of state secret. Every police officer and civilian employee would have been notified about the policy. That's thousands of people. It's a safe bet that many of them aren't happy about the policy, and some of those are acquainted with reporters. Something like that would be sure to be made more public; it was never really not public.
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Old 10th September 2019, 08:39 PM   #835
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Originally Posted by Bob001 View Post
I don't know if "leaked" is the right word here. Even if there was no official announcement, it's not some kind of state secret. Every police officer and civilian employee would have been notified about the policy. That's thousands of people. It's a safe bet that many of them aren't happy about the policy, and some of those are acquainted with reporters. Something like that would be sure to be made more public; it was never really not public.
I didn't want to use the word "leaked" but I couldn't think of a better word. The point is, they did not do what the op-ed writer accused them of doing and did do what the op-ed writer accused them of not doing. No public announcement. Internal memos.

If the police department had tried to keep it secret, it would have gotten out to the press and then people would have complained about transparency and some other shenanigans.

Of course the police are worried about a possible riot. This is a controversial case.
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Old 16th September 2019, 05:59 AM   #836
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They have found a jury.

https://www.dallasnews.com/news/crim...f-botham-jean/
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Old 16th September 2019, 06:44 AM   #837
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Originally Posted by Drewbot View Post
That's good, that means she won't be able to get the case moved to a more friendly district.

Quote:
Juror 46 couldn't convict Guyger of murder no matter what the evidence said. Neither could jurors 6, 10, 53, 88, 92, 119 and 181. Juror 14 said he was biased in favor of the police. Juror 179 said she couldn't sit in judgment of someone.
This part blows my mind. How can you be so bias as to not be able to convict someone of murder? Damn we have some complete morons in this nation. Being a cop doesn't put you above the law.
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Last edited by plague311; 16th September 2019 at 06:51 AM.
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Old 16th September 2019, 07:49 AM   #838
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Originally Posted by plague311 View Post
Being a cop doesn't put you above the law.
All too many of them think it does.
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Old 16th September 2019, 07:57 AM   #839
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Half the people active in this thread think the chick should walk, either directly and personally or because "that's what the law says."

Can't imagine what's shocking about any halfway competent attorney being able to find 2 or 3 people to put on a jury who think the same.
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Old 16th September 2019, 08:03 AM   #840
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I think there are one or two who think maaaaybe she should walk. With a pool of hundreds of potential jurors, the juror vetting will need to be good by the prosecution. Not insurmountable
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