[guest post by Dana]

As ongoing border wall negotiations continue, some Democrats have broken with Nancy Pelosi’s claim that a border wall is immoral, and have publicly stated that some sort of barrier is necessary at the Southern border. House Majority Leader Steny Hoyer weighed in with Bret Baier:

“Obviously, they [walls] work some places,” Hoyer responded, when asked if he favored removing border walls. “But the president wanted to first build a wall apparently 1,954 miles of — and he changed that very substantially. ”

He added: “A wall is — that protects people is not immoral. I think the issue is whether it works. … And the debate ought to be not on morality or racism, I will — I will say that we’re not pleased with some rhetoric that has come about dealing with those — coming across the border, and we think some of the rhetoric was in fact racist. We think some of that rhetoric was to inflame and was not based upon facts.”

Newly-elected Democrats, especially those from battleground states, also didn’t judge a wall on the border as immoral, but rather voiced support to varying degrees for a physical barrier at the border.

Rep. Katie Hill (D-CA) expressed her support for a physical barrier while arguing that the disagreement has become a matter of semantics:

Rep. Katie Hill said she’s fine with a wall: The conflict between congressional leaders and the president is over semantics.

“For many of us, there’s not really doubt that some kind of physical barrier is necessary,” she said said in a Fox News appearance on Saturday. “I think the challenge is that we’ve gotten so hung up on the semantics, really on both sides. Gosh, I can’t tell you how much I’ve come to hate the word ‘wall,’ and many of us have.”

…

She maintained that she, like some of her cohorts, is in favor of a physical wall.

“Democrats are for border security, too, and part of that is physical barriers,” she said.

Rep. Anthony Brindisi, (D-New York) also spoke about the need for a physical barrier:

Brindisi — who narrowly defeated a first-term Republican incumbent last year and declined to support Nancy Pelosi for speaker of the House — scorned President Donald Trump for the shutdown but expressed agreement that some sort of physical barrier should exist at the border, WBNG reported.

The 22nd District Democrat and chair of the Blue Dog Caucus also argued for “immigration reforms” more broadly.

“Investments in technology at the border, you have to have more border agents and if we can throw in there some other immigration reforms that have been hampering us for the last couple years we should try and get that done too,” Brindisi said.

Rep. Angie Craig (D-Minnesota) was also open to increased barriers:

But Craig — a former executive for a Minnesota medical device manufacturer who unseated a freshman Republican to represent the 2nd District last year — agreed the U.S. “should be investing in advanced technology on our border and yes, there may be places where we need additional barriers.”

The semantics of a “wall” are also being addressed today by House Minority Leader Kevin McCarthy (R-CA):

A border security compromise that Congress hopes to produce doesn’t have to include the word “wall,” the top House Republican said Tuesday, signaling a rhetorical retreat from a term that President Donald Trump made a keystone of his presidential campaign.

…

“It could be barrier. It doesn’t have to be a wall,” McCarthy told reporters.

…

In recent weeks, Trump has veered between using the terms “wall” or “barrier.” He’s retreated increasingly from “wall” as it became apparent that he lacked the votes in Congress to win taxpayer financing for the project, which he initially said would be financed by Mexico.

McCarthy said wall and barrier mean the same thing to him and Trump.

“Inside the meetings we’ve had, he’s said it could be a barrier, it could be a wall,” said McCarthy. “Because what a barrier does, it’s still the same thing. It’s the 30-foot steel slat, that’s a barrier.”

Whether one calls it a “wall” or a “barrier,” it’s obvious that something needs to be done to enhance security at our porous Southern border because it’s far too easy for illegal aliens deported for a prior conviction to cross back into the U.S. and commit even more heinous crimes. You may say: Well, heinous crimes committed by illegal aliens don’t happen that often. To which I would say to you: Even one crime that is heinous in nature is one too many, and we should not have to put up with it and we should be doing everything possible to prevent that criminal illegal alien from re-entering the U.S. at all costs. And if erecting more walls or barriers is part of that prevention, how can it be argued against and called immoral? Or is the devastation wrought by one deported criminal alien not enough to budge a political heart of stone? :

A California judge sentenced a man to serve 401 years to life in prison for numerous violent sex crimes.

On December 4, a jury found Macario Cerda, 39, guilty of three counts of forcible rape, one count of kidnapping to commit rape, one count of criminal threats, and seven counts of lewd acts upon a child under the age of fourteen.

According to court records, Cerda, while in a relationship with the victim’s mother, forced the girl into his van, drove her to a remote location and raped her in 2013. When Cerda temporarily exited the van, documents say the victim jumped into the driver’s seat and drove away.

Cerda was later arrested by Tulare County Sheriff’s deputies.

During an investigation, it was discovered the victim had also been raped by Cerda when she was a minor in 2010, which resulted in the pregnancy and birth of a baby.

The victim’s younger sister also stated that Cerda had raped and abused her when she was a child.

According to court documents, Cerda has been deported before and returned within five months where he committed these crimes soon after.

For Godsake, what does it say about our immigration system and lack of border security that one of the young rape victims was compelled to plead to the court that which is so painfully obvious and to our great shame:

“[N]ever grant him any possibility at being deported because he has crawled his way back into the States illegally way too many times.”

Yet another criminal alien unlawfully entered the U.S. shortly after having been deported and wreaked vile havoc on two young sisters, doing untold damage to them and forever changing the course of their lives. Crimes, particularly those which are so unspeakable, are crimes that should never have happened because illegal aliens like Macario Cerda should not have been here in the first place.

(Cross-posted at The Jury Talks Back.)

–Dana

This is a rare and excellent guest post by commenter and very occasional guest blogger JRM. For best results, follow all the links. — Patterico

[Guest post by JRM]

OK, so let’s talk about the St. Louis shooting of the cop by the other cop. I’d like to thank the host for a shot at a guest post. (tl;dr version: Yes, it should be murder.)

Part One: The Facts. The allegations are: Officer Hendren and Partner are on duty. They go to visit Officer Alix who is off-duty. Alix is the only female officer, and they visit at Hendren’s house. As you do, they begin playing with handguns. Hendren clears a revolver – not a duty weapon – and puts one bullet in the chamber and begins screwing around, spinning the cylinder. Partner wanders away. Supposedly, Hendren aimed the weapon away from Alix when he fired, and then Alix took it and pointed it at his head and dry-fired, and then Hendren took it back and shot her in the chest and then she died.

Now, our source for this account appears to be Hendren. Partner is out of the room (he says) when the shooting occurs. Alix is dead. This leaves one person telling the tale. The unpleasant and cynical among you may think claiming Russian roulette where you shoot the other person at your house while you’re on duty and she’s not is maybe not true. And let me get this out of the way: We don’t have reliable facts on this generally because the law enforcement earlier response to this contradicts the current narrative. But for this analysis, I’m accepting these facts as true.

Part Two: Russian Roulette, Polish Roulette, and Just Shoot Them.

These cases come in four basic scenarios:

1. Regular Russian roulette: One bullet in the chamber, we all take turns (usually while hammered) pulling the trigger until someone dies. The seminal case on this, Commonwealth v. Atencio, comes from Massachussetts in 1964 where the survivors were successfully prosecuted for involuntary manslaughter, but different states have different rules. This is a thorny issue that merits another 600 words, which you’ve built up sufficient karma to avoid.  

2. The after-party: Someone ends up killing themselves accidentally after everyone else has finished the game and no one’s dead yet. This is generally not a criminal homicide. 

3. This thing, where the gun is pointed at the other person, called “Polish roulette,” in one case. I can find no case where a murder conviction has been overturned for this conduct anywhere in the United States. I am not saying they don’t exist, but that’s the way to bet. Here’s a case where the guy has two bullets in the chamber, fires once to his head (click) asks his friend if she’s OK with him firing it at her, and she says “yes.” Then she’s dead. He appealed on the ground of, “Hey, this is involuntary manslaughter because I’m super-wasted and she consented.” No. No, it isn’t. 

4. “Russian roulette,” in name only. Somebody may have different goals and be playing by different rules. In one case, a guy claimed it was Russian roulette but then clarified that he put the gun at the back of the other guy’s head and said, “Surprise, motherfucker,” before pulling the trigger. The victim was more dead than surprised. 

Part Three: The Law, almost everywhere in the United States: Let’s take a step back and figure out what crime is committed when we’re having our fun game of Russian roulette. For this, in most jurisdictions, we need to discuss malice.

Suppose Patterico says, “That JRM has been dissing Ted Cruz for a long time. I would like him dead; in order to make him dead, I will stab him a lot of times,” and then stabs me a lot of times. That’s express malice. That’s murder.

Suppose Carl Llama stabs a guy in the chest 37 times. The defense: “I did not know stabbing people in the chest all those times could kill him” — if true — negates malice in California and lots and lots of other states and it’s an involuntary manslaughter. But just not caring is not enough; we think Carl is lying about this. It’s not a felony murder because of something called the “merger doctrine,” which makes assaultive felonies that constitute the killing ineligible for felony murder.


So we end up with implied malice or depraved heart murders on all kinds of facts – go on a weeklong meth bender and leave your baby to die, and you’re a murderer. Drive 110 miles an hour super-stoned? Murder for you. You did something very dangerous knowing it was dangerous. Like, say, firing a gun with at least one bullet in it at a person.

The Model Penal Code and lots of states have ruled either explicitly or implicitly that Russian roulette is one of those things that shows implied malice or depraved heart murder. 

But this, my friends, is just a detour in this specific case. Because we’re in Missouri. 

Part Four:  The Law in Missouri – like Texas before it – is different. A 1986 change in the law removed first degree felony murder for enumerated felonies, and made all felonies eligible for second degree murder. The Missouri courts were initially taking the Beavis approach to legislative intent — “Words suck” — until eventually coming around to the Butthead approach — “Words mean stuff” — and abolished the merger doctrine.

The relevant statutes are Missouri’s second degree murder statute – Missouri Revised Statute (MRS) 565.021 which says a person commits murder if they “commit or attempt to commit  any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed[…]”

Do we have a felony here? How about second degree assault, which is MRS 565.052(4) – Recklessly causes physical injury to another person by means of discharge of a firearm? That happened.

Now, ideally, we’d have a series of cases which explain that the merger doctrine has been abolished specifically as to second degree assault… oh, right, in 2016 State v. Tuttle approved of an instruction that made the felony of stabbing sufficient for felony murder and said the merger doctrine was dead in Missouri. That’s a Southern District case; the Western District has similarly ruled, and the Eastern District (where St. Louis is) has a case where the court rules that it doesn’t have to decide, but that current Missouri jurisprudence was that the merger doctrine was, like many a Russian roulette player, stone cold dead.

Which means in Missouri, this is a felony murder.

Part Five: Sympathy for a Cop-killer. (But not from me.)

Hendren has now been charged with involuntary manslaughter, and the DA”s statement is striking. I am not making this up:  “Today, as much as it saddens my staff and me to file these charges, Katlyn [Alix] and her family deserve accountability and justice.”

Let’s take a look at prosecutor’s statements when people point guns at cops and shoot them to death. Generally, they lack the tone of, “I am very sad to charge poor Mr. Copkiller with a very bad charge, but I guess we need to do this, not because murdering police is super-terrible but the family has hurt feelings, so we just have to no matter how much catching and prosecuting cop-killers makes us cry.” 

This appears to be murder under Missouri law, under every other state’s law, under basic systems of fairness, under everything. I’d understand a non-murder resolution, but murder’s not an overcharge here. It’s not remotely a reach – it’s the clear crime when one takes a partly loaded firearm, aims it at someone’s chest, and fires. Officer Alix paid with her life; Officer – I assume soon-to-be Mr. – Hendren ought to pay with more than an involuntary manslaughter. 

This charging and this explanation are not respectful to the good cops out there. It’s not respectful to the rule of law. It’s not respectful to the citizens of St. Louis. This is not some second-guessing of a snap judgment, this is a straight-up unjustified, predictable killing. This is a bad business, and it sure as hell looks like murder to me.

Part Six: The Caveats. 

I might be wrong on the facts. I might have misinterpreted Missouri law. I might not know very important things that alter the equities of the situation.


I’ve included funny links and humor in this post. I always give a little blurb early in my oral law-of-homicide presentations – I’m educating with humor, but actual murders are awful. Occasionally a murder victim’s family member attends one of these; they are always very nice and understanding. To be clear: Officer Alix deserved better. If the factual account is accurate, this looks like murder, and I believe based on my incomplete information that it ought to have been charged.

That’s just my opinion. I could be wrong.  

(If you think I speak for my employer, I weep for you.)

[Cross-posted at The Jury Talks Back.]

— JRM