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March 13, 2014

Capital murder charges in mix for SXSW killer drunk driver

Regular readers know that I am eager for persons involved in dangerous drunk driving incidents to be subject to significant punishment.  Consequently, I was pleased to see this new report emerging from Austin suggesting Texas justice may be severe for a deadly drunk driving incident.  The piece is headlined "Killeen man facing capital murder charges in fatal SXSW crash," and here are excerpts:

A suspect who police say killed two people when he mowed down a festival crowd at Thursday's South by Southwest festival has been identified as a 21-year-old Killeen man. Rashad Charjuan Owens is expected to be charged with two counts of capital murder and 23 counts of aggravated assault with a vehicle, according to a police source.

Owens is suspected of driving drunk and has been booked but not yet formally charged. He remained in police custody while being treated at a local hospital and was released to officers, officials said. Two festival-goers, including a woman from Austin and a man from The Netherlands, were killed and 23 more were injured early Thursday after the suspected drunken driver rammed through a police barricade in downtown Austin.

According to reports, Owens fled from police after an attempted traffic stop at a gas station about three blocks from where the crowd was standing outside a music venue....

Austin Police Chief Art Acevedo described a large crowd on the street, in line for a concert at The Mohawk on 10th and Red River Street. Many festival attendees also had just left another show at nearby Stubb's minutes before. Hundreds of pedestrians were still on the street at the time, as rapper Tyler the Creator was due to perform....

The incident, which lasted for just a minute, began at 12:30 a.m. when an APD officer attempted to pull over a suspected drunken driver into a downtown gas station, just off Interstate 35, Acevedo said. The suspect fled, weaving through traffic at the gas station, then drove the wrong way down a one-way street, Ninth Street, before turning onto a crowded Red River Street. An officer at the Red River barricade had to jump out of the way. The suspect continued north, through two blocks of pedestrian traffic, before hitting the moped, a taxi, a parked van, and running into a curb, according to Acevedo. The driver attempted to run away when a police officer shocked him with a stun gun.

The Austin Police Department reported 966 DWI incidents citywide this year through February, down 10 percent from the same time period last year. Police reported 585 DWI incidents citywide during March 2013, up 3 percent from March 2012....

According to the Austin Police Department's last annual report, dated 2012, the city had 22 fatal crashes that year involving an alcohol-impaired driver, up from 10 the year before. That amounts to 29 percent of all fatal crashes, up from 21 percent the year before. By contrast, the San Antonio Police Department reported a total of 60 alcohol-related traffic fatalities last year and 48 in 2012.

March 13, 2014 at 04:48 PM | Permalink

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I have always opposed the mens rea requirement in criminal charges. I have proposed making all crime strict liability crime to end the lawless mind reading requirement, copied word for word from the Catechism, and misinterpreted by the pro-criminal lawyer. Even the Medieval Church held its faithful belief that God would read one's mind and intent before Judgment Day. That is their faith, and I respect it. Not even the Medieval Church believed men could read minds, as the lawyer dumbass does. So this driver should be death eligible on the basis of the harm he caused and his objective conduct after the crime. The defense will claim the mens rea for capital murder is missing. Not even the defendant could read his own mind, since he was so besotted.

I have argued that mental impairment should be an aggravating factor, not a mitigating factor, as it is in the upside down, Twilight zone world of the layer dumbass. So his alcohol problem, means he should be rushed to execution.

I have argued that the death penalty is not a punishment covered by the Eighth Amendment. It is an expulsion after one has used up one's justification to remain on earth. I have made the formula a third grade math word problem, within the range of lawyer math. 123D. The count on this defendant reaches 1,2,3....25. He is death eligible.

I have argued, that if it is learned that 1 and 2 counts of violent crime, beginning at age 14, had occurred prior to this incident, and that a lawyer had shielded him from prison or incapacitation, the lawyer should pay the victims from his personal assets because of the foreseeability of this incident as if one were predicting the sun would rise in the East tomorrow. Judges should pay, defense lawyers should pay, prosecutors not exercising discretion to prosecute in negligent failure to prosecute, and jurors should pay, as all the rest of us must when our carelessness harms another. If they refuse to pay, or hide behind false Supreme Court decisions making them falsely immune, lash them. To deter. Repeat the process until they pay.


Posted by: Supremacy Claus | Mar 13, 2014 9:08:04 PM

Severe punishment is warranted for the horrible misconduct resulting in this tragedy.

But capital punishment? Really? For unintended homicides?

Doesn't Kennedy v. Louisiana bar the death penalty for offenses that don't involve murder and/or intent to commit murder?

Unless the clown involved in this case attempted to mow down the people involved, this can't be and shouldn't be a capital case.

Posted by: J. Preston | Mar 14, 2014 10:45:54 AM

J. Preston --

Gross, reckless, wanton disregard for human life legally stands in the shoes of intent.

Posted by: Bill Otis | Mar 14, 2014 11:23:28 AM

If Texas wants to charge everyone with capital murder or something similar for DUI fatalities or increase sentences for everyone in drunk driving cases, that would be laudable perhaps and needs to apply across the board. But, most people who cause fatalities due to impaired driving do not get charged with capital murder. There is no reason to overcharge in this case just because he evaded police allegedly (there is a separae crime for that) or because it was immediately rendered high profile due to a festival and press coverage.

The true irony here is that the Travis County DA was just the focal point in 2003 for her arrest for DUI, which involved some demanding "evasion" and "resistance" with the police (so much so that they had o restrain her, for better or worse) that was highlighted on video,

Posted by: Mashup | Mar 14, 2014 11:53:10 AM

2013, I mean.

Posted by: Mashup | Mar 14, 2014 11:55:08 AM

J. Preston,

Texas doesn't have a specific intent requirement for capital murder like many other states. Putting the statutory definitions of murder and capital murder together, you can be convicted of capital murder if you knowingly kill two people. And here, the guy knowingly drove through a crowd of people--this isn't your more typical DUI homicide case where someone loses control and hits another car or person.

Arguably both elements are met, and there was a lot of outrage about the crime...so the charge doesn't surprise me that much.

Posted by: Res ipsa | Mar 14, 2014 12:01:47 PM

Also, Brandon Grunewald, as an ADA in the travis county DA's office, was arrested for DUI in august of last year (subsequent to the DA's DWI arrest) after causing a minor accident on a Sunday afternoon in austin. At the time, the Travis county DA said she had never terminated an employee for a first offense DWI. Hmmm.

Posted by: Mashup | Mar 14, 2014 12:30:06 PM

Mashup --

"If Texas wants to charge everyone with capital murder or something similar for DUI fatalities or increase sentences for everyone in drunk driving cases, that would be laudable perhaps and needs to apply across the board."

No, it does not need to apply across the board. Prosecutors legitimately have discretion to use the most serious charges against the most aggravated behavior. That's all that's going on here.

If the prosecutor is charging some element the facts do not establish, the defense lawyer need only point that out at trial, and Mr. Nicey will get acquitted (indeed, he'll get a directed verdict).

Posted by: Bill Otis | Mar 14, 2014 1:46:55 PM

I understand your comment, but that "discretion" is not unlimited and boundless, esp under rules of ethics. Further, ill-informed and unwise charging decisions can waste resources and undermine justice, ie, hung juries, undeserved NG verdicts, etc.

Posted by: Mashup | Mar 14, 2014 2:45:26 PM

Mashup --

"...'discretion' is not unlimited and boundless, esp under rules of ethics."

What ethical rule do you think this charge violates? Has the killer's lawyer even alleged an ethical violation?

"Further, ill-informed and unwise charging decisions can waste resources and undermine justice, ie, hung juries, undeserved NG verdicts, etc."

The charge will very likely embrace lesser included offenses upon which the jury can convict, rather than hang or acquit. But for however that may be, uncertainty is part of litigation, and not just in marginal cases. Casey Anthony got a windfall acquittal from a brain-dead jury, but that doesn't mean the murder charge was unwarranted.

Posted by: Bill Otis | Mar 14, 2014 3:04:53 PM

I didn't say it violated any ethical rules. I was merely commenting on your broad statement that prosecutors have discretion to use the most serious charges against the most aggravated behavior. Your statement implies that the discretion is unfettered. It is not, even in texas.

Posted by: Mashup | Mar 14, 2014 3:38:24 PM

Mashup --

"I didn't say it violated any ethical rules. I was merely commenting on your broad statement that prosecutors have discretion to use the most serious charges against the most aggravated behavior. Your statement implies that the discretion is unfettered."

It implies no such thing.

Your statement, however, most certainly did imply that there was at least an arguable ethics violation in bringing a capital charge on these facts. I'm glad to see you've given that up.

Posted by: Bill Otis | Mar 14, 2014 5:15:44 PM

Good grief, Bill. You cannot control how I read and process your statements.

Posted by: Mashup | Mar 14, 2014 6:42:56 PM

Mashup --

Whether my statement that prosecutors have discretion to bring a capital murder charge implies, as you claim, that prosecutors' discretion is unfettered, has nothing to do with how you "read and process" my statements.

It has to do with the plain meaning of words -- a matter settled not by your private "processes," but by the dictionary.

Posted by: Bill Otis | Mar 14, 2014 7:09:40 PM

Bill,

Your self-awareness and insights about the provable, objective clarity of your own statements are so logical and indisputable. I stand corrected.

Posted by: Mashup | Mar 14, 2014 8:11:24 PM

Reminds me of a hypothetical from my criminal law professor, Philip Johnson, (yes, believe it or not, I do remember it even though its been more than 30 years)--and I think I posed this years ago to Kent: Man goes to the top of the empire state building with a big rock. He goes to the edge. He prays (and honestly and fervently hopes) that the rock will not hit anyone. He drops the rock, and it kills four people and maims 2 others as it crashes below. Question: at common law has the act been committed been "malice aforethought" Under the current law of California, can the death penalty be imposed?

So now apply it here: Man drinks like crazy and drives into a crowd of people. Assume he prays and honestly and fervently believes and hopes that he hits no one. He kills several persons and maims others. Malice aforethought?

Posted by: Michael R. Levine | Mar 14, 2014 8:39:50 PM

Interesting to think how the entire nature of this case could change (for the prosec and defense) depending on the toxicology report, i.e., if the results show little impairment or none.

Posted by: Mashup | Mar 14, 2014 9:01:52 PM

Mashup --

"Your self-awareness and insights about the provable, objective clarity of your own statements are so logical and indisputable. I stand corrected."

It has nothing to do with my self-awareness or any other internal process. The meaning of words is not a subjective phenomenon; indeed, the whole point of language is to make communication possible, and that can only happen if words have a COMMON meaning, not an individual meaning that varies from person to person.

If I'm wrong about that, I'd love to hear from you how verbal communication is possible if words can mean X to one person but D to someone else (and N to yet someone beyond that, etc.).

To return to the present example, how, specifically, can my simple statement that prosecutors have discretion to bring a capital charge in this case be transmogrified into an assertion that prosecutors have UNFETTERED discretion, in this or any other case?

Posted by: Bill Otis | Mar 15, 2014 7:27:20 AM

Michael R. Levine --

There is a venerable and thoroughly correct jury instruction, applicable in this case, that "the members of the jury may infer that a person intends the natural and probable consequences of his acts."

Posted by: Bill Otis | Mar 15, 2014 7:30:08 AM

capital punishment for a 21 year old? on DWI related homocide? Really???????

his life expectancy is another 60 years, 3x wht he has already lived over again.

Not to mention that alcohol ads flutter around above our highways

If this man is remorseful, isn't a short prison sentence coupled with his participation long term in treamnent ad educational services so other people don't make his mistkes a better useof everyone'slife?

Posted by: girllawyer | Mar 27, 2014 3:13:31 PM


IT System Administrator


DEFINITION OF CAPITOL MURDER-

IS WHEN YOU ARE COMMITTING A CRIME AND KILL SOMEONE IN THE PROCESS THIS ALSO MEANS IF YOU KILL TWO INDIVIDUALS AT THE SAME TIME MAKING IT A MURDER AND ANOTHER ANOTHER CRIME AT THE SAME TIME. USUALLY TO ACTUALLY GET CHARGED WITH CAPITOL MURDER YOU MUST KILL SOMEONE AND COMMIT 2 OTHER SIMULTANEOUS FELONIES. Now all that being said lets revue for those of you who think this to be over extending the law and think this is going to far by charging this man with capitol murder in fact they are taking it easy considering by law he qualifys for immediate execution. First man evades police : felony up to 5 years ! Second man is drunk while evading police : felony up to 10 years minimum ! third man kills two people on scene with motor vehicle with no regard to human life: capitol murder of up to life in prison and possibly the death penalty ! man gets arrested two more die in jail due to his actions at a peaceful event tacking the death toll now to 4 : since this was unplanned and an act of stupidity the law state that he would be charged with 4 counts of first degree murder with a motor vehicle ! what could have happened he pulled over got a dui/dwi cooporated and owe a big fine and some jail time but nope now hes gonna die or die in prison no way out of it !

SO TO SUM IT ALL UP HE DID IN FACT COMMIT CAPITOL MURDER AND EVEN IF WAS CHARGED WITH 4 COUNTS OF MURDER IN THE FIRST DEGREE I DOUBT HIS CHANCES WILL BE MUCH BETTER AND THE COMMENT ABOUT THE STATE CHARGING HIM TOO HARSHLY, READ FOR YOURSELF THE CRIMES INDIVIDUALLY AND BE HONEST WITH YOURSELF PLUS IT DOES MATTER IF SOMEONE IS KILLED AT A PEACEFUL GATHERING AND LAST I CHECKED SXSW WAS A PEACEFUL GATHERING WITH A VERY CLEAN HISTORY AND RECORD. SO THERE WILL BE SOME VERY UPSET PEOPLE IN AUSTIN AS I AM AN AUSTINITE AND AM SAD FOR THE PEOPLE WHO DIED AND THE YOUNG TEEN THAT HAS ALSO LOST HER LIFE AND WILL NEVER EXPERIENCE BEING AN ADULT OR WILL NEVER MAKE AN IMPACT ON THE WORLD WHICH ARE THINGS PEOPLE DON'T THINK ABOUT. FOR ALL OF YOU WHO GO OUT TO HAVE A GOOD TIME REMEMBER JUST BECAUSE YOUR DRUNK OR HAVING A BLAST AT A PARTY DOES NOT MEAN THE REST OF THE WORLD ISN'T RIGHT IN FRONT OF YOU AND ONE WRONG DRUNKEN MISTAKE COULD MEAN YOU WILL END UP IN PRISON IN BOX FOREVER OR KILL SOMEONES BABY GIRL, SAD ALL BECAUSE YOU DIDN'T HAVE SELF CONTROLL AND JSUT STOP AND THINK.


RIP

LOVE YOU ATX

Posted by: Jamie | Apr 2, 2014 10:06:28 PM

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