Defense attorneys made the shocking argument

According to Reality Check, the Texas case didn’t happen the way it was described.

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.

It’s a horrible defense, Bridgette Dunlap agrees, but that doesn’t mean the defense shouldn’t use it.

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.”

That’s how an adversarial system works, hence all those rape trials where the defense tries hard to discredit the victim.

The problem is that the law does allow the defense.


  1. says

    The case, and acquittal, not happening as described basically just means that we don’t actually know why the jury acquitted? I suppose it’s pretty true that just because the defendant put forward a defense that doesn’t mean that’s what persuaded the jury.

  2. Claire Ramsey says

    Well what the hell DID cause the jury to acquit on then, if it wasn’t that terrible “defense of property” business? Is the $150 the “property” he was defending when he shot her? Or was his wish to have sex with her the property he was defending, that is, his yearning penis? Yuck.

    Inquiring minds want to know . . .

  3. Claire Ramsey says

    OK I put on my Big Girl Sixth Grade Reading Level pants and read the link. He was acquitted b/c he didn’t intend to kill her. Sorry Ophelia, for my jerky knee reaction. . .

    But really. . . Anyone who packs heat and uses it needs to keep in mind that guns kill people, even unintentionally. That is the first rule of owning a gun. . . my cautious and conservative gun owning friends have told me over and over.

  4. Barefoot Bree says

    Another variation of the “stand your ground” kind of law. Welcome to the Wild West! You only thought it was history.

    I do agree that without definite information from the jury, we can’t conclude that they acquitted him based on that particular line of defense. I served on a jury once in an assault case. There was no question that the defendant had assaulted the victim, but the devil is in the details, and we agreed that the defense attorney had poked enough holes in the prosecution’s case that we couldn’t justify a first-degree conviction. We did get him for second-degree assault, but that was poor consolation for my conscience.

  5. Eristae says

    “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.”

    . . . yes, because it’s good strategy to encourage unethical behavior within our legal system.

  6. says

    That is quite all right, Claire. I myself forgot to put on my Big Girl Checking Pants when I posted about the story yesterday. (I owe you an email! Haven’t forgotten, just swamped a bit at the moment.)

  7. says

    Eristae – well an adversarial legal system does that. That’s a bad thing about that kind of system. There are bad things about others kinds of systems, too. I have a feeling there is no perfect solution to this.

  8. slc1 says

    That’s how an adversarial system works, hence all those rape trials where the defense tries hard to discredit the victim.

    Many, if not most jurisdictions have rape shield laws that limit the negative evidence that the defense can bring in. For instance, in the infamous Kobe Bryant case in Colorado, the judge limited the defense to the 72 hours prior to the examination by the SAND nurses. Thus, had a trial taken place, the defense would not have been allowed to put on witnesses showing that the complainant, Kate Faber, had had more sexual partners at age 18 then Bryant had had at age 24.

    Another example, although not a rape, is the upcoming Zimmerman trial in Florida, where the judge has excluded a ton of negative information about Trayon Martin.

  9. DEKH says

    Thank-you Ophelia for noting that the defense attorney was legally obligated to make an ethically questionable argument. So many times when I see stories like this, the media glosses over an attorney’s duties to defend their clients. But I’d like to add my 2 cents as an attorney.

    While it is true that our legal system does create circumstances where defense attorneys are obligated to make arguments that outside of their professional capacity would be ethically questionable, our Courts and our Legislatures also have the ability to reform the laws when cases like this demonstrate that morally/ethically objectionable arguments have gone too far.

    Look at the continuously evolving set of laws controlling sex crimes, offender and victims: Rule 412 of the Federal Rules of Evidence was put in place to prevent defense attorneys from using victim shaming as a defense tactic. (Take a look at the comments they’re pretty interesting.)

    The courts go the other way as well. For example, rule 404(b) of FRE was designed to keep a defendant’s crimes or other bad acts from being admitted solely as character evidence. However, over time, many states, including MN, have changed the rule so that in sex-crime prosecutions, the defendant’s sex crime convictions have a much easier time getting in than for example, evidence of a defendant’s previous burglary conviction.

    We all have every right to feel outraged about the permissibility of certain legal tactics and should consider lobbying our legislatures about the permissibility of certain questionable legal tactics.

  10. lochaber says

    So, instead of “it’s ok to kill a sex worker in Texas, so long as you wait till dark” we now have “It’s ok to kill a sex worker (maybe anyone?) in Texas, so long as you say you didn’t mean to”

    Not really much of an improvement. I don’t see how you can fire a gun at someone without intending them harm, but I guess that’s another problem with the gun lobby/NRA

  11. hypatiasdaughter says

    There are jurisdictions (where one is permitted to wound or kill in self-defense, but where guns are not worshiped) that pulling a gun on an unarmed person who has not threatened you and shooting them in the head region would considered de facto evidence that one intended to kill them. Just sayin’.

  12. says

    I do wonder how she got shot in the neck if he wasn’t shooting to kill. Did he claim he shot the floor and it ricocheted in to her neck? It seems like it would have to be a strange circumstance where a shot is going anywhere near the neck without an attempt to kill.

  13. lochaber says

    I think the version I read claimed a bit of metal/shrapnel ricocheted off of the vehicle and struck her.

    Not sure on the specifics, but I heard someone trying to down play it by stating it was about fingernail-sized.

    The actual projectile fired out of most firearms are pretty small.

  14. Robert B. says

    O.o That’s better, but not a lot better. He was either trying to make her have sex with him, or give him money, by firing a lethal weapon. IANAL, but I think where I live that would be called either attempted armed robbery or attempted rape, and the killing then becomes felony murder even without intent.

    I don’t know if it was the law or the judge or the prosecutor or what, but something is rotten in the state of Texas…

  15. says

    as i said in the previous post, “didn’t mean to” is bullshit when you’re firing an AK 47 at a car. those things aren’t exactly known for precision.

  16. says

    or to put it differently: when you’re shooting such an inaccurate weapon in the general direction of a person, you’re at least quite ok with causing serious harm in addition to whatever you “meant to” hit.

  17. says

    Lawyers will always think of ways to be ahead of the other party. Even the lamest argument can win trials as long as it is presented well. People are wondering what really happened and it is very interesting to know what the judges will rule on this.

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