Analysis Violence

No, Texas Law Does Not Say You Can Shoot an Escort Who Refuses to Have Sex

Bridgette Dunlap

A misreading of the verdict in an upsetting Texas case has gone viral, since Gawker claimed: “Texas Says It's OK to Shoot an Escort If She Won't Have Sex With You.” Texas law does not say that, and the jury didn’t either. This story looks very different depending on if you are looking at the law or the reporting.

A misreading of the verdict in a strange and upsetting Texas case has gone viral, since Gawker claimed: “Texas Says It’s OK to Shoot an Escort If She Won’t Have Sex With You.” Texas law does not say that, and the jury didn’t say that either. Pushing the idea that an “Insane Texas Law Made it Legal for a Man to Kill a Prostitute” is irresponsible; it misinforms the public and sends a terrible message to violent misogynists.

It is not in dispute that the defendant, Ezekiel Gilbert, paid the victim, Lenora Frago, $150 for 30 minutes of escort services advertised on Craigslist. After Frago refused to have sex with him, the defendant shot her. Frago was paralyzed and the defendant was charged with aggravated assault.  When she died seven months later Gilbert was indicted for murder instead.

At trial, defense attorneys made the shocking argument that Gilbert was justified in shooting Frago because she had stolen from him and Texas law permits the use of deadly force to defend one’s property at night. That a defense was raised in this case based on Texas’ awful defense of property law is certainly newsworthy and even more reason to reform that law. But there is no evidence that the jury acquitted based on the defense of property law in the first place.

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. Per Texas’ homicide statute, the prosecution needed to prove that Gilbert “intentionally or knowingly” killed Frago or intended to cause her “serious bodily injury.” The defense argued that Gilbert lacked the requisite intent for murder because when he shot at the car as Frago and the owner of the escort service drove away, he was aiming for the tire. The bullet hit the tire and a fragment, “literally the size of your fingernail,” according to Defense Attorney Bobby Barrera, hit Frago. Barrera does not believe the jury acquitted because of the defense of property law. He believes they acquitted because they believed Gilbert didn’t mean to shoot her.

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Unless someone has interviewed a juror or can read minds, they cannot claim the jury agreed the killing was justified. And the juries do not “cite” laws. They find facts and decide “guilty” or “not guilty.” And it isn’t accurate to call Frago a “prostitute.” Witnesses for the prosecution testified she was an escort who never agreed to have sex. Rather than siding with the killer’s characterization, writers should at least say “alleged.”

One would expect the jury to find that shooting at a car with an AK-47 is at least “reckless,” in which case he could have been convicted of manslaughter. But the prosecution didn’t charge him with manslaughter, only murder. Manslaughter is a “lesser included offense” of murder and the judge is entitled to instruct the jury if the evidence supports that charge, but it appears she did not. The jury can’t convict on a charge that isn’t before them.

I think Texas’s defense of property law is abhorrent and my gut reaction was that it was a reprehensible defense. This reaction suggests, that you should think twice before hiring me as your defense attorney, sadly. As Professor Michael W. Martin of Fordham Law’s Federal Litigation Clinic reminded me: “If the law allows the defense, the lawyer must use it, if it is viable, unless there is a good strategic reason not to. Otherwise, it is ineffective assistance of counsel. If the lawyer feels like he is ethically barred from using a legal, viable defense, he should ask to be relieved.”

This story looks very different depending on whether you are looking at the law or at the reporting. Remember reporting? People used to get paid to go find facts and tell the public about them. That happens a lot less now. With many commentators and too few reporters, an alarmist story can have a long life in the echo chamber. But there are still some reporters, and a number of them, though probably stretched pretty thin, have engaged in that old-fashioned practice of going to court, making phone calls, interviewing people and checking facts for this very case. The San Antonio Express-News did not just start covering this case last week, that’s where to start if you want to follow this story as it develops.

This is a terrible story, a woman was killed and no one is going to prison. It is reasonable to be suspicious that prejudice based on her gender, race, or occupation led to that injustice. But all we know thus far is that the defendant received due process and a zealous defense. We don’t know that Texas’s terrible defense of property law had anything to do with him getting off. The vilification of this jury isn’t justified—we should give them the benefit of the doubt that they spent those 11 hours deliberating in good faith and did what they thought the law required. And in our concern for women and victims of violence, we must remember that even admitted killers still have rights.

Commentary Race

An Open Letter to Police Officers Who Shoot First

Larry Fellows III

This is an open letter to any police officer who may not understand what I and so many others are fighting for.

Dear uncomfortable officer of the law:

Today is December 3, 2014. It is now 117 days since the murder of Mike Brown. It’s also 59 years and 98 days since the murder of Emmett Till, whose death represented a pivotal moment for civil rights activists. I bring up this fact because almost 60 years have passed since Till’s racially motivated murder, and Black men are still being lynched.

You might ask: How can I classify Brown’s murder as a lynching? Well, let’s start with how his body was left on the hot pavement for four-and-a-half hours; it would stain Canfield Drive for many days after he was finally carried away into an unmarked black SUV. A nurse who lives in the area attempted to check the pulse of Brown while he lay out there but was turned away by police officers on scene. The image of his neglected body is now ingrained into the minds of all Canfield Green residents, in the same way that bodies of lynched Black men were decades ago.

Many of those residents who came out on the streets after the killing, shocked that Brown had been shot for walking in the middle of the street, took pictures and video of the scene. Some of us hoped that footage would lead to justice, but it seems nothing was enough to charge Brown’s killer in this case.

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Some of the witnesses who came forward after the shooting told investigators they were too afraid to show up for future proceedings out of fear for their lives. As Tina Susman reported for the Los Angeles Times, “In testifying before the Ferguson grand jury, witnesses were fearful—of police, neighbors, the KKK.” Some witnesses, Susman added, were “so distrustful of police that they did not offer information until investigators knocked on their doors.” At the same time, the officer claimed to be afraid of Michael Brown, which is why he shot him. But then he referred to the unarmed 18-year-old in a televised interview as a “monster,” even calling him “it.”

Why would he refer to Mike Brown as such? To play the victim? But he killed someone’s son, cousin, grandson, friend, and brother. How is the armed officer the victim?

The fear of Black people in this country is much different from the fear Officer Wilson claimed as his defense, in that it’s an everyday fear of being killed, or having family killed, at the hands of so-called law enforcers. It’s an oppressive, overwhelming feeling officers like Wilson will never have the privilege of experiencing.

In 2004, when I was 18, I was graduating high school and thinking about attending college. When I think about Mike Brown, I think about all the opportunities I saw before my eyes at graduation that Mike and so many other young men murdered by police officers will never have the opportunity to see. I think about my young cousins, who are under 21; some of them are currently attending college. What will their futures hold?

Many of us on the front lines in Ferguson realize how Mike could have been one of us or one of our siblings, our cousins, or one of our friends. For others, this could have easily been their child. Many protesters have young children whom they would like to see reach the age of 18, 25, and even 50. This movement was created based on the fundamental right to be treated and respected as human beings, as first-class citizens of the United States. We want to walk down the street without harassment, and be able to drive down the freeway without harassment. We want to live our lives just like you do, and to do so feeling respected and valued as citizens.

And yet, on Monday, November 24, the St. Louis County Grand Jury decided not to indict Mike Brown’s killer, showing us that in some people’s eyes Black lives don’t matter.

How is it okay for someone not to be punished for unjustly killing another human being? Those people who see the actions taken by Darren Wilson as just are missing the patterns of police behavior that have made it legal to kill innocent Black menwomen, and children in our country.

If you’re thinking, “Well, you aren’t like Mike Brown,” I will have to strongly disagree with you. For starters, I am a Black man. I am also young—not as young as Mike Brown, but young. And I walk many streets of St. Louis County and city with friends or alone. Growing up, my parents had “the talk” with me about what I should do when pulled over by the police. It’s incredibly unfortunate that Black parents are still having this talk with their kids. Why has nothing been done? Why are Black men, women, and children seen as such a threat to white officers?

When you look at me, standing 5’7″ and thin in build, what could possibly cross your mind? Does my brown skin intimidate you? Is it envy, or disgust, or do you not know? To make it easy on yourself, as soon as you find a reason to, you will kill me at gunpoint. What would happen if instead you took the time to really know and understand who I am? Or who Keijime Powell was? Or Mike Brown? Vonderrit Myers? Eric Garner? Amadou Diallo? Oscar Grant? Ezell Ford? Tanisha Anderson? Tamir Rice?

You don’t properly take the time to assess how you might deescalate an otherwise typical situation. You don’t think about how your reaction might mean taking a life, and what that death might mean to so many people. Or what it should mean to you.

Do you stop to even think: “Oh, what if this was my child, sibling, partner, mate, or friend—would I react this way?”

It is no longer responsible for you to become the judge, the jury, and the executioner. It is no longer acceptable for you to walk away and wash not only your hands but your conscience clean. It is unjust for you to enforce laws but not live by them.

I have friends who are officers of the law whom I respect and love. I hold them accountable to serve and protect their communities. I hold them accountable for their actions when they proudly display their badge.

You owe it to the communities you serve to make better decisions when approaching someone who is unarmed, whether it is a Black man, woman, or child. You owe it to the country to stop the cycle of police brutality, to stop abusing the power you have been given. You owe an apology to the families of slain victims. And I deserve respect, along with my Black brothers and sisters. We are citizens of this country; we are Americans.

I will continue to fight for justice until that is understood.

Thank you for your time,
Larry Fellows III