Quote (MizzouFTW @ Nov 30 2018 10:01pm)

You can't prosecute her on both charges. If you're going to prosecute her for manslaughter then you cannot prosecute for murder. If you are going to prosecute her for murder you cannot also prosecute her for manslaughter. You could if there were separate instances or more than one victim. So no, the fix is not in. They would be charging her twice for the same crime when the variables within the crime committed only allow for one charge. They can charge her with a plethora of other crimes to go along with the murder charge though.

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An offense is a lesser included offense if: ******
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission;

Quote (Surfpunk @ Dec 1 2018 09:37am)

The prosecution can request, and the judge can issue orders, that the jury consider the lesser included offense of manslaughter.

https://www.lawserver.com/law/state/texas/tx-codes/texas_code_of_criminal_procedure_37-09



The bold is key, as the main difference between manslaughter and murder is intent, which would be the culpable mental state referred to here.

Although I think you're right regarding the indictment, in that they can't indict on both manslaughter and murder for the same crime. And I think Thor is right, regarding the higher burden of proof being the one they charge cops with.

Quote (Santara @ Dec 1 2018 10:35am)

Why wouldn't they be able to? They prosecute for both first and second degree murder for the same offense, so that the jury may consider lesser states of mind in choosing to vote for one verdict over the other.

Quote (Thor123422 @ Nov 30 2018 10:09pm)

One of the ways lawyers get cops off in situations like this, and this has happened several times in just the past few years on high profile cases, is they make sure the cop is brought up on charges that have a higher burden of proof than can be reasonably cleared in that case.

To convict her of murder would require that she intended him to die, or acted in such a negligent way that she knew him dieing was a possibility based on her actions. It's unlikely that the prosecution will be able to clear this burden since she thought she was in her own apartment and it wasn't premeditated in any way.

If they brought her up on manslaughter it's a much lower bar since all it requires is her making an avoidable mistake that resulted in his death, which would be pretty open and shut in this case.

Quote (thesnipa @ Dec 1 2018 10:41am)

which jurisdiction lets the defense lawyer choose the charge?

I get the flavor of what you're trying to say, but its the DA's fault due to public pressure.

if a lawyer walked into court and suggested their client was upcharged they'd get instantly sidebarred and possibly removed from council.