Former police officer Amber Guyger intends to possibly file an appeal of her murder conviction resulting in a 10- year prison term. She filed a notice of appeal. A notice of appeal must be timely filed within 30 days of a final court order to preserve a defendant’s right to appeal. A notice of appeal does not mean that a defendant will file an appeal. It only provides notice to the court that an appeal is being contemplated to be filed.
An appeal is successful when it determines prejudicial legal errors made by the trial judge’s rulings which likely resulted in the defendant’s conviction. Guyger’s own attorney made strategic mistakes that likely resulted in her conviction. And no, a defense attorney cannot appeal his/her mistakes. If Guyger had not testified that she intended to kill Botham Jean, a jury may not have likely convicted her of murder. The crime of murder requires an element of an intent to kill. Through her own testimony on direct examination by her attorney, she provided the crucial element of intent to kill to justify the murder conviction.
A defense attorney may appeal on alleged erroneous court rulings, jury instructions, admissibility of evidence and other factors that weigh on a juror’s decision to convict. In Guyger’s case, her defense attorneys argued strategically that Guyger mistakenly entered Botham Jean’s apartment—believing it to be her apartment. Based on her mistake, her attorneys argued mistake of fact. That strategy led to the Castle Doctrine being provided to the jury. The Castle doctrine states that if one fears for his/her life inside their house due to an intruder, then the party may use deadly force. The jury heard the facts put forth by Guyger’s defense. They considered whether the Castle doctrine applied in this case of mistaken fact and disregarded it. As a former prosecutor, I found it implausible for the Castle doctrine instruction to be given. Since it was allowed, there is no basis for appeal on that issue.
Guyger’s defense attorneys argued for a change of venue. They requested that the case be tried in a place other than Dallas due to pre-trial publicity. The judge denied the request. The Guyger case was publicly known in other parts of Texas and the U.S. Judge Kemp determined that Guyger could receive a fair trial in Dallas. Most appellate courts will refrain from overturning a case on appeal on this ground unless proven to be highly prejudicial.
The other aspect of a potential appeal issue is the prosecutor violating a gag order and giving a media appeal. The defense requested a mistrial due to the violation. This issue could carry some weight on appeal. However, the defense would need to prove that it prejudiced the jury’s decision and whether jurors heard the interview. Presently, a contempt hearing on the prosecutor’s conduct is upcoming before Judge Kemp.
Some have pondered whether the death of a key witness, Joshua Brown, would have any bearing if an appeal is filed and a new trial granted. A transcript of any deceased witness would be read to any potential future jury. But this is far from the reality of what is likely to happen. Success on an appeal in this case is not likely.
I always tell clients that dissatisfaction with a jury’s verdict is not grounds for an appellate court to overthrow a sentence or conviction. When and if Guyger files an appeal, she will need to identify the areas of errors that resulted in her conviction. She will need to prove that any alleged errors were not harmless but led to her conviction. It may be weeks or months before or if we know whether she files an appeal.
During the trial, Amber Guyger’s defense received her legal heart’s desires except for change of venue. A new trial and jury, if granted on an appeal, is not bound by any previous sentence. Given her sweetheart sentence of 10 years for a murder of an innocent life taken, Amber Guyger might want to forego an appeal.
Debbie Hines is a trial attorney and former Baltimore City prosecutor.