Father indicted in death of drunk driver

[Onkel Neal]

An Alvin father remained in the Brazoria County Jail Monday, charged with murder in the alleged revenge killing of a drunk driver who plowed into his truck, killing his two young sons last December.

David Barajas Sr., 31, a construction worker, is being held in lieu of $450,000 bail in the fatal shooting of 20-year-old Jose Inez Banda minutes after the Dec. 7 crash that claimed the lives of Barajas' 11- and 12-year-old sons.

http://www.chron.com/news/houston-texas/houston/article/Father-indicted-in-death-of-drunk-driver-4270089.php

Alvin is 10 minutes from here. Very tragic, it will be interesting to see how a jury views this.

[Herr-Berbunch]

I'd like to be in that jury!

The guy shouldn't have been out, free, to be shot.

[Tribesman]

Tricky one.
Temporary insanity is the most likely route, though walkng to get the weapon then disposing of it shows a level of calculated action.
Looks like a verdict of murder is the likely outcome, lets just hope they don't have mandatory sentencing.

[Jimbuna]

Tricky one.
Temporary insanity is the most likely route, though walkng to get the weapon then disposing of it shows a level of calculated action.
Looks like a verdict of murder is the likely outcome, lets just hope they don't have mandatory sentencing.

Could well be but a big part of me sympathises with the father of the two children.

[Mork_417]

I'd like to be in that jury!


Me Too!

[AVGWarhawk]

Tricky one.
Temporary insanity is the most likely route, though walkng to get the weapon then disposing of it shows a level of calculated action.
Looks like a verdict of murder is the likely outcome, lets just hope they don't have mandatory sentencing.

I agree with Tribesman. The action was calculated.

[Tribesman]

Could well be but a big part of me sympathises with the father of the two children.
I think just about everyone rightly sympathises with the father, but at the end of the day what has that really got do do with it?
That is why the "I want to be on the jury" comments don't make sense, sympathising with either the victim or the accused or the victim who is the accused should play no actual role in an impartial verdict.

[Mork_417]

Yeah, i know your right Tribe. The comment doesn't make sense with respect to the law, but made me feel a little better saying it also. Being the father of three girls, there is no way i could be impartial, ever. :nope:

[Herr-Berbunch]

Yeah, i know your right Tribe. The comment doesn't make sense with respect to the law, but made me feel a little better saying it also. Being the father of three girls, there is no way i could be impartial, ever. :nope:

Similar here.

[Skybird]

My heart is with the father, but my brain is with the law this time. As I see it, it was calculated action. Despair does not save you from penalty. To let this one get away would mean to open the door wide for lynching and mob law.

[Tribesman]

Floppy & Berbunch. I know, I have attacked people after an accident without even the added weight of personal fatalities involved, it is easy to flip out. In one case I still wish I had actually killed the bastard involved.
But the core of the issue is that you must still be held accountable for your actions.

[Mork_417]

But the core of the issue is that you must still be held accountable for your actions.

This is true sir. Hell, I wouldn't have even bothered to dispose of the weapon afterwards. As, i don't think after that, i would have cared what was going to happen to me. Would have just waited for the officers to show up and take me away.

Of course, this is all speculation, as I hope something like that never happens. But, for this guy it has, and no one can really know what he is going through. Darn SAD situation no matter how you look at it. :down:

[Sailor Steve]

As, i don't think after that, i would have cared what was going to happen to me.
But if you were thinking clearly you would have thought about what would happen to your wife and surviving daughter. Which is why temporary insanity might work.

[tater]

Sympathizing has everything to do with this case because the jury will be made of other humans. If ONE of them decides the drunk deserved it, he walks. We could argue technical guilt, but it will be decided by 12 citizens, logic and the law be damned. The DA is holding the guy accountable by charging him, but the jury can do whatever they like.

Calling it premeditated because of the effort to walk the short distance home, then come and shoot the guy might be technically accurate, and will result in the appropriate charge, but convincing a jury to put him away on murder might be a stretch. Sometimes DAs need to think tactically, and in this case sympathy is probably high enough that they'd do better to push a much lesser charge as he did society a favor by killing this drunk POS.

Here in NM, the news is filled with DUI cases where the idiot perp has literally dozens of prior stops.

[AVGWarhawk]

It will be deemed as a crime of passion. Such sudden rage he took the route he did.

[tater]

Dunno what the deal would be in TX about lesser, included charges. Doesn't seem far-fetched that many in a jury might not want a murder charge.

If I had to find it murder or nothing, I'd pick "nothing." I'd be open to a lesser charge of manslaughter. I think that is possible most places.

[sublynx]

Society must be protected so my mind says that the shooter must be punished. My heart would probably go with the shoot the drunk driver sob solution that the poor father ended up with. What a tragedy, though.

[Jimbuna]

Dunno what the deal would be in TX about lesser, included charges. Doesn't seem far-fetched that many in a jury might not want a murder charge.

If I had to find it murder or nothing, I'd pick "nothing." I'd be open to a lesser charge of manslaughter. I think that is possible most places.

Agreed :yep:

[Randomizer]

Whenever firepower trumps the law you no longer have a society, you have anarchy. This father merely created more victims and did not even allow for due process to run its course.

What happened was terrible and as a father I can understand but never condone vigilantism without legal consequences. I hope he gets death but instead he'll be acquitted, become a hero and make a gazillion bucks on the daytime talkshow circuit and for selling his version of events as the movie of the week.

[CaptainHaplo]

Whenever firepower trumps the law you no longer have a society, you have anarchy. This father merely created more victims and did not even allow for due process to run its course.

What happened was terrible and as a father I can understand but never condone vigilantism without legal consequences. I hope he gets death but instead he'll be acquitted, become a hero and make a gazillion bucks on the daytime talkshow circuit and for selling his version of events as the movie of the week.

I disagree.

His actions were against the law. However, the law was created to protect the innocent. The law failed - resulting in the death of his two sons. An impotent law is no law at all.

Charge him for murder. In the US - he would likely go free. The reason - jury nullification. If the law failed him and his family - why should it stand to further punish him and his family for its own failure.

[Platapus]

This will be a real test of the jury. Will they rule emotionally or logically?

Emotionally it may seem right to let him off
Logically, regardless of the intent, he may have committed a crime.

Two items what will work against him

1. Witness saw him leave the truck (which was about 150 yards from his home) and then return to the scene of the accident when witness say they heard a gun shot
2. The police have not been able to locate the gun

That will make the defense of "in the heat of passion" a little harder to support. Especially the ditching of the gun.

Unlike others, I would NOT like to be on this jury. The jury will be instructed to apply the law to the case, not their emotions.

What David Barajas did was wrong (assuming that he is guilty). Understandable and even sympathetic, but wrong.

No, I am very glad I will not be on this jury. I don't see this having anything close to a happy ending.

[TFatseas]

Reminds me of the guy who plugged his child's rapist in the head at an airport with a .38.


All he got was probation.

Here:http://www.liveleak.com/view?i=7f5_1281036313

[Platapus]

All he got was probation.



He got a suspended sentence and 5 years probation with community service and still has a felony record.

At least legally, he won't able to get a gun, for what ever that is worth these days.

[mookiemookie]

His actions were against the law. However, the law was created to protect the innocent. The law failed - resulting in the death of his two sons. An impotent law is no law at all. How did the law fail? He never had the chance to be subjected to it! Laws don't stop behavior - they provide punishment for it.

Everyone, even those we know are guilty, is entitled to due process. Vigilantism undermines one of the core tenets of our justice system - the right to be assumed innocent until proven guilty. Citizens don't have the right to be judge, jury and executioner. That's anarchy.

Charge him for murder. In the US - he would likely go free. The reason - jury nullification. If the law failed him and his family - why should it stand to further punish him and his family for its own failure. Technically, jury nullification would never play into it. Jury nullification is a way of expressing disagreement with a law by refusing to convict someone guilty of breaking said law on the grounds that it should never have been put on the books in the first place. I really doubt anyone is going to say that the law against murder is a bad one.

Refusing to convict someone ≠ jury nullification.

[tater]

If the DUI guy had ever had a previous DUI then the law failed. Serial DUI is the norm for many. Getting blind drunk and starting the car is no different than taking your rifle outside and firing in a random direction. 99.9999% of the time the bullet will hit dirt or a tree, or even a house, only rarely will it find a human.

The two are no different.

[CaptainHaplo]

How did the law fail?

In 2010 he was convicted of a felony. Any idea what the original charges were and what his conviction was for? I will give you a hint - it had to do with operating a motor vehicle.....

Everyone, even those we know are guilty, is entitled to due process. Vigilantism undermines one of the core tenets of our justice system - the right to be assumed innocent until proven guilty. Citizens don't have the right to be judge, jury and executioner. That's anarchy.

I don't say that citizens do have that right. We are not talking about joe blow citizen though are we - we are talking about one of the victims of the crime....

Technically, jury nullification would never play into it. Jury nullification is a way of expressing disagreement with a law by refusing to convict someone guilty of breaking said law on the grounds that it should never have been put on the books in the first place. I really doubt anyone is going to say that the law against murder is a bad one.

Refusing to convict someone ≠ jury nullification.

Thankfully - not every case is decided purely on the "technicals". A jury can choose to acquit using the rationale that while the law itself is good - it is being misapplied or applied in error. That also is jury nullification.

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding. (emphasis in Bold added)

Source: Doug Linder, School of Law - University of Michigan - Kansas City
http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html

[Tribesman]

Since people are talking of breaking the law canceling out breaking the law then the father is responsible for the drunk driver hitting his car.
He failed to follow the laws of the road concerning creating a traffic hazard with a broken down vehicle.

[mookiemookie]

In 2010 he was convicted of a felony. Any idea what the original charges were and what his conviction was for? I will give you a hint - it had to do with operating a motor vehicle.....

Ah, I did not see that. My bad, then.

I still stand by the fact that allowing revenge killings is a bad thing to do. Even by victims.

[HundertzehnGustav]

Since people are talking of breaking the law canceling out breaking the law then the father is responsible for the drunk driver hitting his car.
He failed to follow the laws of the road concerning creating a traffic hazard with a broken down vehicle.


valid.
Walk the rest of the path home, away from the road instead (paralell 10 feet?) of exposing himself and his kids.

[tater]

Not the best decision. But it is not breaking the law for the jury to decide whatever they like, for whatever reason they like, a jury is remarkably powerful in its narrow area.

[CaptainHaplo]

Ah, I did not see that. My bad, then.

I still stand by the fact that allowing revenge killings is a bad thing to do. Even by victims.

Not your bad - I had to go digging (which I did initially) to find that out. It isn't in the quoted article, but it is out there in others.

I agree with you that "allowing" revenge killings is generally a bad idea - by anybody. Victims included. However, I do see a difference between the guy walking (or running) 100 or 150 yards (about the length of a football field) into his home to get his gun and shoot the guy after seeing his two sons CRUSHED - vs some premeditated plan that results in a vengeance killing.

Seriously - as a dad of 2 - if that were me - I wouldn't be in my right mind for a long, long time. I can so totally see that this guy might have lost it. The time frame to get the gun and kill the drunk driver - is not enough for it to be premeditated. The shooter just saw his 2 sons crushed to death....

Which brings up the issue of WHY he will get off. Temporary insanity or jury nullification. It would be a rare jury that knows they have nullification rights that would be ok with applying the murder statute to this guy. I don't think its "ok" to commit a vengeance killing. However, given the individual circumstances of this case - the actions could be viewed as justified. That is what a jury may consider in regards to nullification. If they feel he was justified, then that would mean the law would be applied to him in error.

While I am against vigilanteism generally speaking, but I admit that my views are subject to change on it. The reality is that our legal system at this point continues to fail to protect us or rehabilitate the wrongdoer. Its broken - perhaps beyond repair.

[Tribesman]

I wonder why people are still going on about what a fictional jury will do when a grand jury has already looked at it and decided the indictment is fitting murder.
Is there some magical formula where 12 future people will view the case completely differently in regards to law than the 12 who already looked at it?

[Bilge_Rat]

There are some cases where revenge killings have been accepted as mitigating circumstances, but it is always on a case by case basis.

You have, for example, the Don Ayala-Paula LLoyd case.

Paula LLoyd was a anthropologist who worked as a volunteer in Afghanistan. In november 2008, she was part of a team visiting a village, she went to talk to a vilager who was holding a can of gasoline. For an unknown reason, he doused her with gasoline and set her on fire. She suffered first/second degree burns to 60% of her body and died two months later.

Don Ayala who was on her team immediately detained the attacker who was then held by other soldiers. Ayala went to check on the condition of LLoyd. When he came back 10 minutes later, he shot and killed the attacker with one bullet to the head. At that point, the attacker was lying on the ground with his hands tied behind his back.

Ayala was initially charged with 2nd degree murder, but he eventually pleaded guilty to manslaughter and was only sentenced to probation.

Obviously an extreme case.

http://www.nbcnews.com/id/30645926/

[swamprat69er]

Personally, I don't think I would have wasted the time to go and get the gun. Just beat the drunk to death. That way he would get to die as slowly as the kids did and probably with as much pain.

[tater]

I wonder why people are still going on about what a fictional jury will do when a grand jury has already looked at it and decided the indictment is fitting murder.
Is there some magical formula where 12 future people will view the case completely differently in regards to law than the 12 who already looked at it?

I take it you have not sat on a US Grand Jury.

I did for 3 months a few years ago.

The GJ is given the charge the DA wishes to bring. ONLY the DA's case is presented. The GJ then virtually rubber stamps the indictment. In 3 months I was empaneled for only about a weeks worth of days over that period. We worked 8 hours, and did multiple criminal indictments per day. There were hundreds of charges, usually several per case. In a FEW of the cases we indicted on fewer than all the charges. Maybe 5%. No one was NOT indicted for any crime. Not one. We all knew that we were not deciding anything other than "is it worth having a day in court?" We didn't suggest lesser charges to the DA or asst DA, we assumed they knew what they were doing.

You can, as they say, indict a ham sandwich.

Indictments mean nothing at all.

PS---I never suggested that juries should ignore instructions, but that they could ignore instructions.

[Tribesman]

Tater, explain why they rejected the defence that would have brought a lesser charge.

[tater]

Tater, explain why they rejected the defence that would have brought a lesser charge.

The GJ?

The GJ is only presented with the charges that the DA presses. They can either indict, or not indict, charge by charge. They have no flexibility. There is no defense. Even witnesses have no lawyers.

The DA clearly thinks he can get murder. The GJ thought "this deserves a day in court" and did what they always do, rubber stamp the DA.

There is no defense in a grand jury at all. Only the DA presents, the jury decides if there is probable cause for a trial.

There is only a lesser charge if the DA decides to ask for one (though some states might have included lesser charges, I dunno, and it never came up in any of my 4 jury duties).

[Tribesman]

The GJ is only presented with the charges that the DA presses.
The question is again.... why did they reject the lesser charge?
Do you understand the question or are you again just going to try and tell me what a grand jury is?

[AVGWarhawk]

The question is again.... why did they reject the lesser charge?
Do you understand the question or are you again just going to try and tell me what a grand jury is?

Here did you question that a lesser charge was rejected?

[tater]

I've see all of 2 articles on this, and one mentioned a murder indictment, none listed all the charges, or all presented to the grand jury. If you have the list of charges presented to the gj, and how they voted on each, do tell.

[Jimbuna]

Painting oneself into a corner perhaps.

[tater]

GJs are generally secret, and the charges they reject are not made public. That way if a DA goes after you, and the GJ says no dice, you are not stigmatized, it simply does not exist. Knowledge of a rejected charge would actually mean a leak in the GJ, and that might be a news story by itself.

Murder is basically knowingly (intentionally) killing someone in TX. Looks like manslaughter might include the idea of spontaneously doing it. Presented to a GJ, just the DA side, it's cut and dried murder in TX. He left the scene, got a gun, came back.

I'm not arguing the veracity of the charge, I'm just saying that the idea of a jury nullifying it in a climate of so many drunk driving deaths should not be ignored.

And again, maybe they can find him guilty of lesser, included charges, I have no idea, and the 2 stories didn't list all the charges brought against him.

[Madox58]

Only thing I can say about the case.

I'd not waste time going for any weapon myself.
If I knew he was drunk without a doubt?
I'd still be beating his dead body when the Law arrived.

I'd only use a firearm should he walk away from Court with little or no punishment.

Then it would be long range and well planned.

[Tribesman]

I've see all of 2 articles on this, and one mentioned a murder indictment, none listed all the charges, or all presented to the grand jury. If you have the list of charges presented to the gj, and how they voted on each, do tell.

If you had read the articles then you would know, it is in the first post in the topic.
If you take the 3rd&4th words of the 3rd post it covers that avenue too.

Here did you question that a lesser charge was rejected?
Indeed:03:

Painting oneself into a corner perhaps.
Painting even further into the corner with...."GJs are generally secret, and the charges they reject are not made public. That way if a DA goes after you, and the GJ says no dice, you are not stigmatized, it simply does not exist. Knowledge of a rejected charge would actually mean a leak in the GJ, and that might be a news story by itself.".....the "leak" is the people handling the case, it is those people who are quoted in the article mentioning the lesser charge which was rejected.

So tater are you actually going to answer the question which funnily enough is already answered in the article you say you read or are you going to try and tell me what a grand jury is again?

[tater]

The article says this, "The grand jury reviewed it and has indicted him for murder."

That's the sum total of the information on charges. It's the major charge, so all that is reported. Are there more?

One count, obviously, one victim. What other charges? Discharging a weapon within city limits? There could be more. What were the lesser charges offered the GJ? You claim they were offered lesser charges, but rejected them. What were they?

The 3d and forth words? Temporary insanity? That's not a charge (unsure if it is a valid defense in TX, too, that varies by state).

The charges don't matter, whatever the DA charges will get indicted 99.999999% of the time. It's apparently an ongoing area of study as the old saw of it being a rubber stamp instead of a check on the DA is true. The GJ will "sign a napkin if you put it in front of them" as they say.

No one has argued that the charge is legally wrong. What those of us that know better have argued is that the GJ process is nothing at all like the trial process, as guilt is not even an issue in the GJ process, just if there is probable cause to have a trial. Every single criminal case has a GJ, so every single case the DA loses loses in spite of the GJ indicting the defendant by definition.

In this case, I don't personally think a guilty verdict is a foregone conclusion because there will be much empathy for someone bumping off a guy he watched murder his kids. A lesser charge would be far more of a sure thing, even if after reading the TX murder statute, I think it is cut and dried murder technically. But again, juries can do whatever they like, regardless of the law.

We'll see how it turns out, but you need to remember that the jury is filled with the man on the street, not legal scholars.

[Tribesman]

That's the sum total of the information on charges.
Really?
It's the major charge, so all that is reported.
Really?
Are there more?

Do you really think I would still be asking you the same simple question if the answer wasn't plainly in front of you?

The 3d and forth words? Temporary insanity? That's not a charge (unsure if it is a valid defense in TX, too, that varies by state).


What charge does temprorary insanity bring instead of murder?
What does "crimes of passion" mean?
Who is quoted as saying it in the article?
Why was it rejected?

Simple questions tater.