The facts are simple. The ethics are not.
Near Shiner, Texas, a father arrived home to find a 47-year old man sexually molesting his 4-year-old daughter. So the father beat him to death, apparently in the process of stopping him.
Assuming that the father has no criminal record or history of violence, and that this is really what happened—and ignoring the fact that the incident occurred in Texas—your Ethics Quiz is this: If you were the local prosecutor, would you seek to prosecute the father?
The crime would presumably be involuntary manslaughter, or perhaps just manslaughter. I know there are many defenses, including heat of passion, defense of a child, and temporary insanity. Let’s assume, however, that the father says, simply, “I saw the man trying to rape my daughter, I heard my daughter screaming, so I killed the bastard. And I’m glad. And I’d do it again.”
My answer (I think) would be yes, I have to prosecute him, though I wouldn’t want to. I would assume that he might be acquitted “A Time to Kill” style, and if he were convicted, I would ask for a suspended sentence.
We don’t have rule of law if we allow citizens to take the law into their own hands, or look the other way when they do. On the other hand, does it make sense to go through the time and expense of a trial when, as a prosecutor, you don’t believe that the defendant should be punished? If you, and virtually everyone else in the community, feels that what the father did is, if not justified, so mitigated by the circumstances that he shouldn’t be made to suffer for it, is it right and just to make him suffer through a trial?
Now you’re the prosecutor. What do you do?
UPDATE: More about the case here.
Facts: Victoria Advocate
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at email@example.com.
88 thoughts on “Ethics Quiz: You’re the Prosecutor!”
I would not prosecute. Not because what he did is or is not a crime, but because DAs and Prosecutors have to use their judgment to weigh what cases they can actually win. Discretion is allowed in law enforcement.
And using discretion, I would see that no jury will find this man guilty. So I would not prosecute.
Ah HA! You have fallen into my devilish trap!
So if another man knocked on the door of a law-abiding man roundly hated in the community for his greed and cruelty, and shot him dead with a single gunshot to the forehead as his loving wife and 8 children watched, you would still not prosecute knowing that jury nullification was a certainty, and the man would be found not guilty by a jury filled with people who would have liked to have shot him themselves, but didn’t have the guts?
I’ve seen more convincing traps, Jack. Talk about apples and oranges. The father is reacting to a crime in progress – the sexual assault. The shooter is clearly engaged in a premeditated act, potentially seeking revenge, but NOT acting within the confines of defense of self or family.
We’ll leave out any discussion of whether a man “roundly hated in the community for his greed and cruelty” would actually have a loving wife and 8 children watching.
The first sentence of yours is irrelevant to the trap, Arthur. The reason for not prosecuting stated was that the jury would never convict. My point is that assuming the jury won’t do its duty is a lousy, and invalid, reason not to prosecute.
I’m sure with a little thought you can come up with a good list of horrible, widely-detested people with loving families. John Edwards kids still seem to be pretty loyal, for example.
And the reason the jury would never convict is because the dude was killed while sexually assaulting a child.
Irrelevant. The prosecutor is supposed to decide whether there is sufficient evidence to prove guilt. The jury does what the jury does. In extreme cases, and this may be one, prudence over-rides principle.
And unless evidences comes up that contradicts the father’s story, there is no evidence that proves guilt.
I don’t necessarily disagree, Michael, but you are excessively certain of your position. He beat a man to death with his fists. In all likelihood, there was a point where the rapist was subdued and still alive, and no threat at all. At that point, there is a legitimate claim of excessive force and involuntary manslaughter. It would sustain an arrest, and also a conviction.
Could you reasonably expect the father of a four year old daughter to be in control of himself when he finds a man attempting to molest her? We’re talking about the ultimate crime, here. If this monster was capable of coming into a man’s home, accepting his hospitality and then attempting to perform such an act of utter perversion upon an innocent little girl, what else would he have been capable of? What else might he have done later… and what has he, in all likelihood, done before?
Some would talk about prosecution and say (of course) that hypothetical crimes are not a factor. For a crime like this, I’d say differently. According to news statements, the father is said to “feel remorse”. Perhaps that’s a normal reaction after such an incident. I very much doubt, though, that I’d be feeling any in his place. He did a father’s duty. And more- he purged that small town (well known among Texans) of a terrible menace to its children.
Prosecute? He should have a statue in the town square.
What about the case of Ken McElroy? He wasnt a lawabidding person and shot and killed by at least three gunmen in front of a crowd of over 30 people and no one was ever prosecuted for the shooting.
That happens more than we like to think. Obviously, that’s wrong. No quiz challenge there!
I’d submit that there’s no analogy here, Bill. The McElroy slaying was an insane overreaction by professional lawmen who acted with mindblowing unprofessionalism by killing a solid and thoroughly innocent citizen. They then put themselves further in the hole by legally manuevering themselves out of responsibility. There was nothing innocent about this molester- caught redhanded in the act- and the father was no cop.
I think the fact that it takes place in HIS house changes it a bit. Even if he could just grab her and run, where to?
I still think he should be prosecuted, if for no other reason that it should be on his record AND his claim should be investigated. The just thing would appear to be prosecuting him and suspending the sentence, but wasn’t that what happened at the end of Oklahoma (a show I hated)?
That is not a good enough reason to prosecute.
If, for example, there was evidence contradicting the father’s statement, then prosecution would be justified.
This is no more a case of taking the law into his own hands, any more than the police shooting Charles Whitman was a case of taking the law into their own hands.
In addition, Texas has a Castle Doctrine, and the molester was clearly an intruder into an occupied dwelling. Not even Charles Whitman was breaking into a house.
Hmmm… I think I agree.
Uh-uh-uh!! Remember, I said that you had to forget that this was Texas!
You don’t have to kill the guy to stop him from molesting your daughter. The facts are minimal, but if he stops when you shout at him or pull him away, as he presumably would, then killing him is excessive force. Whitman was shooting people and wasn’t going to stop. That’s not a good comparison.
In this case, no amount of force is too excessive.
You don’t kill a guy to stop them from molesting your daughter. You kill a guy to stop him from molesting anyone ever again.
Ethical? Hell no. Understandable? Sure.
Jack; name one loving father who wouldn’t AT LEAST have beaten his little girl’s molester senseless? I’d submit that the only reason this criminal was not shot to pieces on the spot is because the father didn’t have the time to retrieve a firearm, his daughter being in imminent peril. I’d further submit that there can be no “excessive force” under such circumstances.
I’m not Jack, but I’ll say that my father wouldn’t have done that. Anyone who can control their emotions and isn’t a psychopath SHOULD be able to not do that.
The police officer CAN shoot a person dead who is in the process of killing and wounding people several hundred feet away.
Arrested under suspicion, released pending investigation. Assuming the truth above is what the investigation confirms, I’d still “bring charges” for the purposes of getting a settlement along the lines of acknowledgment, recognizance, and professional counseling. Depending on my case load, this one would get less of my attention.
…and I’m just looking at this from an “ethics” perspective. From a legal perspective, if there are laws that are an active defense against charges being filed, and their burden has been met, then as a prosecutor, I wouldn’t bring charges. If his defenses are applicable to court proceedings, I think the charges have to be brought so he can use the defenses properly.
That would violate professional ethics.
As long as the prosecutor has a good faith belief that he is guilty and there is sufficient evidence it can’t be a professional ethics violation to bring the case no matter what the prosecutor’s ultimate motives may be. Ethics in general? That’s another story.
The problem is that, taking the father’s word as true, no crime was committed by the father.
The case is being referred to a Grand Jury. I’d fully expect that no indictment will be handed down.
If it happened at the molester’s house, I would only prosecute for home invasion. And I’d pursue the minimum sentence on him. Since it happened in the father’s house; the home invasion is being committed by the molester. Therefore, right to defense of homestead from predators factors in. So I’d give the father a slap on the wrist and let him go.
The money saved on not prosecuting him for “murder” can go towards counseling for the rape victim, and on investigating the molester’s past to check for any other victims that may have slipped the law’s notice.
If his story is true I wouldnt prosecute.
I am honestly not sure what I would do if I were in that situation. What bothers me most about such scenarios and real life cases is that the father who killed the child molester would probably end up behind bars for a lot longer than the child molester would if his case went to trial. I think this, along with the primal instinct to protect, is what leads people to take the laws into their own hands.
It does help the father that the nithing was at the father’s home, and was in the process of sexually assaulting a child.
No. I would commend him for his actions. This countries justice system has proven to be an abysmal.failure when it comes to protecting children from.sexual predators and so this responsibly falls to the parents, whos primary job must be the protection of our children. No law on earth out ways that duty.
I would investigate to determine that he really needed to kill the man to stop the molestation when he could have just knocked him out and have the police take it from there.
I think he should be charged for manslaughter because he needs to show that he HAD to kill the man to stop it otherwise it was flat out murder on his part.
It is not murder, not by any means.
I’d have to be really, really sure of the initial circumstances. Default is to go to trial.
1) Can we be 100% certain that the child was being molested?
2) Was it certain “to a reasonable man” that this was apparent?
3) Was the death accidental, or deliberate?
I’d take it to trial.
But say we *can* be sure that the child was definitely being attacked. So what would have been ethical here?
My contention is that a man who sees his 4 year old daughter cannot be expected to behave reasonably. “Not guilty due to temporary insanity”, or “unbearable provocation” etc. But I’m not a juror, I’m a prosecutor here, and it would be up to the jury to decide.
If resources are thin, I’d let it go on pragmatic grounds – jury unlikely to convict (and if I was on the jury, there’d be more than just reasonable doubt here, I’d go for acquittal).
Otherwise I think he deserves a day in court, to clear himself. I’d try to make a case for negligent manslaughter, and leave it up to a jury. That then gets us into the area of cost of legal representation, disruption of life…an unjust imposition on him (even if guilty).
My attitude is based on the idea that a prosecutor is there to help get a just outcome. That’s the reason for his job. To this end, they must in an adversarial justice system prosecute to the fullest extent of their abilities, whole ensuring the defence is given equal advantage too.
Anything that goes against the reason for the job existing is by definition wrong.
“Winning” a case by suppressing evidence, introducing evidence known to be false, and using various dirty tricks to win for the sake of winning, even when you know that the result will be unjust, should result in the most severe criminal penalties.
It’s hard to be 100% sure in any case without video proof, but unless you’re suggesting a massive frame-up, any sexual contact between the molester and the girl is pretty easily found by a rape examination. And unlike the serious issue today of false rape accusations, being such a young child means any sexual contact/evidence of any kind is molestation period, no interpretation required.
As for whether death was accidental or deliberate, that can be hard to tell with physical blows. A single accidental blow to the solar plexus has killed people before, while professional boxers take abuse that a Chevy Suburban would fall apart under. That would also be partially answered by if the father has training in martial arts/police/military background. A trained user of force is more likely to be able to gauge it.
An untrained, enraged father, however, has almost no ability to gauge the force being dealt, except by the standard of “Is he still moving?”
Regardless of whether a jury would convict or not, I would not prosecute. Assuming that the fathers story is 100%, then no way was this murder. The father defended his 4 yo child who was not capable of defending herself. In the process of defending her the perpetrator expired. I’m sure the world is NOT worse off with this pervert gone.
-Although it can only be speculated and is NOT necessarily likely, it IS possible that this perpetrator might have killed the child after the molestation had the father not intervened.
-It is likely that this was not this perverts first time of doing this. It is very likely that he has a history of it, which may come out in any subsequent investigation.
-If he had gotten away with it, it is safe to assume that he would have continued on molesting more children.
-If he had been caught and subdued without dying, then it would just be one more case of some sicko in prison being supported by taxpayer dollars. At least until fellow prisoners killed him.
-This cannot be considered an individual or isolated incident. It has far-reaching implications. If I was going to weigh justice and mercy on the same scale then I would have to first add up everyone, both near and far who is affected by such a heinous crime. The second and third order consequences; the short- and long-term affects on society as a whole. Not just how it affects the 4 year old victim and her father. At that point, the merits of “mercy” seem to wane considerably.
Agreed… right down the line. There’s another factor that’s been introduced just recently. The perpetrator’s name is not being released by by authorities because of difficulty in tracking down his relatives, who are now being sought IN MEXICO. This doesn’t mean, of course, that he’s an illegal immigrant, but it opens wide not only that possibility but the introduction of the immigration issue and the racial can-of-worms into the debate as well.
All of that is unrelated to the ethics of this case.
The ethical burden on the prosecutor is to bring charges when there is evidence to prove the charged offense “beyond a reasonable doubt and to a moral certainty.” He (or she) must actually believe that they have the evidence to convince a jury to return a verdict of guilty. If there are potential viable defenses that will make that an impossible burden and those defenses cannot be rationally countered, no charges should be filed.
Jury nullification is not a viable defense; defense attorneys are not allowed to suggest or argue it, so that is not something the prosecutor has to overcome, even though it might generate a significant number of sleepless nights.
Given the facts of the death of the molester as originally put forth I would not file charges. Being the sensitive, compassionate fellow that I am, I would probably buy a ticket to the appreciation dinner, but might not attend as it could be misconstrued.
Depends on the locality that we’re in. If there’s a legal affirmative defense in my jurisdiction and I believed the father met the requirements for said affirmative defense, I wouldn’t prosecute. Otherwise I would. Whether I agree with what the father did should be irrelevant to prosecution, but would factor in to sentencing in the unlikely event that it got that far.
No prosecutor could give a better answer, tgt. If you need a recommendation for law school, just ask. Perfect response to a difficult question. I did predict it, though, because I know how you deplore selective prosecution.
Yes, it’s arguable that, once rendered incapacitated, the father’s continued assault was excessive. Granted. 1st degree (premeditated) was never an issue; 2nd degree is arguable. 3rd isn’t – someone died. So yeah, you could probably bring negligent homicide charges, and maybe even make them stick.
But coming back to a prosecutor’s good judgment, I would also think that the immediate defense to *that* is a temporary insanity plea. NOBODY will argue that a father is in his right mind when confronted with a man molesting his little girl.
Which leads me, again, to say that a sensible prosecutor (assuming that the facts presented are, in fact, true) would look at this and dismiss any idea of charges/trial as a pointless exercise.
Pragmatically, what will a trial do? Remove from the streets a dangerous father who kills people who molest his prepubescent daughter? And at what cost financial? At what burden to the system?
Again, all of this hinges on the idea that the facts of the case are as presented. If there is any doubt, then yes, take it to trial. But if not, save the time and money and use them to prosecute real criminals.
Dave, someone who kills an attempted rapist after he has been subdued and is presenting no further threat in a nation that doesn’t execute convicted papists IS a real criminal in the eyes of the law. Nor is keeping him off the street the only purpose of the penal system. People need to know that they can’t get away with murder, just because they only kill really bad people who may well deserve it.
Thing is, I don’t disagree with you. What I wanted to write in my very first post was that, while I wouldn’t prosecute him, I DO want to find a way to penalize/encourage him never to do it again.
For a rational person to kill someone once they’re no longer offering a threat IS criminal. I don’t disagree. What I do believe is that, in the heat of the moment when he first saw red and started beating the guy, it’s quite likely that he didn’t stop until the guy wasn’t moving anymore and the adrenaline calmed down – when his rational brain reasserted itself.
Do I know this for a fact? No. But it’s a fairly normal human condition. And what he did? I would argue a fairly typical, if irrational, response.
This is why I argued for temporary insanity.
Because I also have to look at the father. Let’s say you can convict him of manslaughter. What is the impact on HIM? We fail to realize just how badly a single felony can ruin peoples’ lives – and what this man did, though illegal, is not wholly unethical. To ruin a man’s life – to incarcerate him in prison, spoil his job chances, separate him from his daughter, all because he overzealously pummeled a rapist molesting her?
That may be the letter of the law, but it isn’t the spirit, and it certainly isn’t justice. Show me that he willfully, consciously went over the line of submission into execution and I’ll vote to convict him myself. But absent mens rea, a guilty mind, I will go for a punishment that doesn’t wreck his life.
Maybe charge him with 1st degree misdemeanor battery or something, sure put some jail time or fines or something on it. But homicide – negligent or not – is a stain that the facts *as presented* suggest he doesn’t deserve.
One last thought. If he had entered the barn, seen his daughter being molested, drew a firearm and put a single bullet through his brain, killing the molester instantly, we’d not be having this conversation, would we? That would be completely legal.
Yet, I’ve heard legal arguments that if he emptied a whole magazine into the guy, that would also be “excessive force”.
Where is the sane dividing line?
If the nithing was outside of the house and fleeing, that would be the dividing line.
That’s obvious and off-topic. Someone outside and running away poses little if any threat – shooting would be wrong under just about all circumstances. But when does force cross the line from justified to excessive?
No amount of force is too excessive in this case.
Yes, I would prosecute. This is a horrible story and definitely a sad case. But we cannot have it both ways, if you committ a crime (even if the entire world feels that he was justfied in doing so) it is the prosecuters duty to enforce the law. I believe there is enough evidence for a conviction because a man was killed. The father could have just beat him up really bad but he continued until the man was dead. As humans we must excercise self-control and reason regardless of someone else’s wrong doing…and when we take matters into our own hands then you can be charged.
Yes, I think this is where I come out as well. Well put.
I wouldn’t, Candice. Expecting a father to exercise “self-control” under such circumstances is unrealistic. A father’s first duty is to provide for and protect his family. This father did just that. If, in the process of stopping an assault on his daughter, the molestor died… so be it.
Killing the guy wasn’t a side effect.
It was justified.
So what is SMP is framing it like it was insignificant collateral damage. After the molestation stopped (which likely occurred before the beating started), the attack on the molester is the action.
The molestation was stopped only because the father did what he did. TGT: Any man capable of such a crime against humanity is capable of anything. Suppose the predator had been armed? Suppose he had gotten the upper hand in a struggle to “restrain” him? Where would the child have been then? Under such circumstances, with the life of a little girl (YOUR’S) in the balance, you attack. You attack with no holds barred, with every bit of ruthlessness you can. This was not a man he killed. It was a monster. I doubt if that father cared overmuch at the time whether that guy lived or died. But his child was in imminent danger, so he attacked. The predator died in the process. The rest should be a mere formality of law.
The molestation was stopped only because the father did what he did.
Based on the evidence we have, there’s no reason to make this assumption.
Any man capable of such a crime against humanity is capable of anything.
Citation needed. Replace this crime with “faith” and it actually becomes true.
The rest is all fear mongering and rationalization with some shameless cheering of vigilantism thrown in for good measure.
A blanket statement from an ivory tower liberal. Men are not the sheep you’d like to make of them. What would you have had this man do, TGT? Plead with the monster to desist, call 911… and then watch the “proceedings”? Maybe in your neighborhood. God help the children there.
A blanket statement from an ivory tower liberal.
You’re attempting to attack my character as a side channel attack on my argument. It fails, but it does make you look like an anti-intellectual dick.
Men are not the sheep you’d like to make of them. What would you have had this man do, TGT? Plead with the monster to desist, call 911… and then watch the “proceedings”?
I never suggested any such things. I have not claimed the father was in the right or in the wrong. I have simply been attacking claims that assume facts not in evidence.
And I’m answered with deceit and hypocrisy! Hokay.
What deceit and hypocrisy? Can you back that up? It looks like you’re just throwing attacks against the wall and seeing what will stick.
And yet, it was somehow different when McCoy and Martinez killed Charles Whitman.
Not somehow. Be serious. Whitman had an arsenal, had killed several people, and was going to keep shooting until he was dead. Rapists seldom if ever continue a rape when they are interrupted by a third party.
Especially when he’s interrupted by an irate father who sees that his child is about to be savaged by a savage.
We know the threat level of Whitman. You’re assuming the threat level of this molester. You’re assuming he would have continued to rape a 4 year old even when beaten to a bloody, but alive, pulp.
You are assuming that what happened was, in fact, a crime. there is no evidence that it was a crime- the mere fact that a man was killed is insufficient.
Crime has multiple meanings. Someone can commit an act that is normally a crime, but have a valid defense for such act. It’s common to call the first act a crime. You’re equivocating to change Candice’s meaning.
Trying to muddy the waters again, TGT?
Just the opposite. Trying to be exact on meaning instead of allowing multiple meanings of the same word to be used unfairly.
Hi all, thank you for your responses. @Steven Mark Pilling you say that it is the father’s duty to protect and provide for his family first. So then I question the father…why was his 4 yr old daughter left un-supervised? Did he entrust this 47 year old man to care for his child? Where was the father (or mother) while this incident was happening? I expect every human being to exercise self-control under any circumstance or else we would be dealing with a murder/death on every corner of every day. Possibly if this father would have just beat the man…there would be no case/conviction. A man is dead and deserves justice regardless of his previous behavior. And when I say justice, that should be left to the judgte/jury….not sure if jail time is the best answer. @Michael Ejercito how is beating a man to death NOT a crime? My responses are based on the information provided on this case. Let’s flip it for a second. Say for instance your son is found molesting a young girl, would you feel the father is justified by killing your son because of it? Wouldn’t you want justice for your sons death regardless of his alleged actions? I would think so. We as humans cannot pick and choose on when we want to prosecute someones actions, we must stick to the laws and Constitution of our land. Yes we would all hate to see this father who was trying to protect his child go to jail, but to ignore his actions would be an injustice.
I can’t agree with the early on insinuations that the father deserved to have his daughter raped. That’s what your questions imply.
On the other side of the spectrum, the closing example is great.
The killing was justice, just like killing Charles Whitman was justice.
Should Officers McCoy and Martinez have been prosecuted for murdering Charles Whitman?
Completely different situation. Charles Whitman was still an actively deadly threat. If the officers had tackled him, and then beat him to death, they absolutely should have been prosecuted.
I can assure you that if one of those cops had picked up Whitman and heaved him off the tower- dead or alive- no jury in Texas would have convicted him. Not with all those dead kids lying there. You can argue points of ethics all you want, but some things supercede philosophy. Protecting our women and children from perverts and wanton killers is the chief one.
And Candice: First; we don’t know how the child wound up alone with this man. Maybe she was inticed away from the crowd by him. Maybe she just wandered off to an area of her safe, happy home- as young children tend to do- and the predator seized his opportunity. Both scenarios are not only possible, but have been tragically enacted innumerable times. Her parents were busy hosting a party of friends and co-workers and likely had few concerns for her safety. This is Shiner, Texas… not the south side of Chicago. And do you truly expect a loving father to exercise restraint under such conditions? Could anyone?! Once again, we’re talking about the ultimate crime.
1) Women don’t need any more protecting than men. You’re a bigot.
2) Just because a Jury wouldn’t convict doesn’t mean that it was either legally or ethically correct.
errr… that it [would have been] either…
Then you ignore the reality of human nature and the human condition, TGT. That’s a common leftist failing.
You take it on faith that women need to be protected by men. Can I rest my case on faith now?
I’m stating the obvious point that it is the NATURE of men to be so.
You can argue points of ethics all you want, but some things supercede philosophy. Protecting our women and children from perverts and wanton killers is the chief one.
That sounds like you’re calling it a duty, not an inherent nature, especially the way you say “our women”. Are you saying that you misspoke? What’s your actual position?
And if we are to believe the father, so was the pedophile nithing.
When the attack started only. After that, we don’t know. It’s like you pretending that beating someone to death is one action, instead of many actions.
It was a single, continuous, action.
One punch, then? Where’s that in the article? Or are you equivocating on what an action is. My playing ultimate Monday night was one action, but also many independent actions.
As a native texan who works as a prosecutor in tx, I can tell you that even though this case is old and the father was exonerated one must understand simply put that tx is a crazy place and things like this happen all the time unfortunately. That being said any prosecutor and especially any good one would not bring charges against the father given the circumstances. It’s an unwinnable case in which given the level of seriousness along with other things happening emotions, passion, etc… the court case would be a repeat of the whole scenario and any half-fit defense attorney can easily show the danger of the situation/a father’s need to protect his child as well as appeal to the jury’s sense of right/wrong and emotional ties (every jury member is a human being with emotions and most people are especially sensitive to issues regarding child defense/welfare). As a result, only 1 jury member has to say not guilty which is very very likely and the case is done. Even a plea deal would be a terrible idea, because the defense know this is a win in the bag case. It’s pointless and in my opinion the dad did what he had to do regrettably.