Senator Eliot Shapleigh - El Paso, Texas

For many Texas legislators, last year's castle law seemed like a no-brainer. Anyone breaking into your home, car or business poses a grave threat; you should have the right to shoot first – and ask questions later.
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Tell Us: Is the castle law good for Texas?

The new law has yet to see its day in court, but that day is coming. Homicide cases that pivot upon it could emerge by the middle of this year.

Meanwhile, some prosecutors worry the law will cause more confusion than clarity in the courtroom.

Worse, they fear it will let real murderers off the hook.

They are particularly concerned about a legal concept, called a "presumption," used in the law by legislators who appear not to have considered its potential consequences.

Prosecutors say it could force juries to "presume" it was necessary to kill someone, even when other evidence casts that into serious doubt.

"We have some very good defense attorneys in Harris County, and they are going to have an absolute field day with this," Harris County Assistant District Attorney Bill Delmore warned a committee of legislators last year.

The castle law says a citizen is "presumed" to be acting reasonably if he shoots someone he believes is trying to break into his occupied home, business or car.

But what does the word "presumed" mean in a courtroom? If your actions are "presumed" to be reasonable, does that mean they are reasonable?

Common sense says no.

Texas law, however, may now say yes.

"The existence of this presumption is so scary to prosecutors, that we would prefer to see the bill not passed than passed in the present state that we see it today," Mr. Delmore told legislators before the bill's passage.

Jana McCown, an assistant district attorney for Williamson County, echoed his concerns.

"The problem that I perceive is that this is not going to protect the law-abiding citizens," she said. "It's going to protect the criminals."

More of a burden

To understand why prosecutors fear the presumption, you must first digest – as it appears lawmakers did not – a brief legal history lesson.

In the past, presumptions have appeared in Texas criminal law only to help prosecutors, because they bear the heavy burden of proof.

For example, if you assault someone wearing a police uniform, the law presumes you knew that person was a police officer. A jury is allowed – but not forced – to conclude you knowingly assaulted a public servant.

In 2005, however, the Legislature passed a gun law that contained a new legal concept: a presumption that favored defendants. Because this concept was unprecedented in Texas, the gun law adjusted the penal code to dictate how a jury was to interpret it.
Sen. Jeff Wentworth authored the castle law that took effect Sept. 1.
Sen. Jeff Wentworth authored the castle law that took effect Sept. 1.

Essentially, it said this: Unless prosecutors can disprove the basis for a presumption that favors a defendant, jurors must treat that presumption as fact.

The law's language caused so much confusion that legislators scrapped it last year. But they didn't get rid of the section about how presumptions must be dealt with in court.

Now comes the castle law. It contains a presumption that favors defendants. For courts, this would be a complicated matter to begin with. But even more problematic is that it must be interpreted under the terms of the failed gun law.

"I think, not purposefully, but unaware of what they were doing, the folks who passed the so-called castle doctrine used that same concept of a defense presumption," said Shannon Edmonds, legislative director for the Texas District and County Attorneys Association. "And now we're right back where we were two years ago."

Reasonable or not

Speaking before legislators last year, Mr. Delmore described what the castle law might do in a murder case.

Imagine a late-night fight outside a bar, he said. One man shoots another, and all the witnesses scatter. Police arrive to find only a body full of bullet holes in the parking lot.

Later, investigators track down a suspect.

"In these situations, the defendant will always have a reason in his mind that he needed to shoot somebody," Mr. Delmore said. "Either someone pulled a knife, or someone showed a gun, or someone was breaking into his vehicle."

The jury may have little reason to believe that. Yet prosecutors may have to prove beyond a reasonable doubt that the dead man had not been trying to break into the car.

"It's going to require the state to sort of prove a negative, which is very difficult to do," Mr. Edmonds later explained.

Some defense attorneys counter that this was always a prosecutor's burden. They say the castle law's presumption merely highlights that responsibility.

"Keep this in mind about what you're being told by prosecutors: They don't like this; it's a limitation on their power," said Keith Hampton, legislative director for the Texas Criminal Defense Lawyers Association. "I think that they're muddying the waters a little bit here."

University of Texas law professor George Dix disagrees.

"Because I think it's using a presumption for a purpose it wasn't designed to serve," he said. "I can see how it would create difficulties, particularly of confusion."

In a criminal case, he said, confusion is a friend to the defendant.

It proved to be the hallmark of the failed gun law, created by former state Rep. Terry Keel. The story of its demise could speak volumes about problems on the way for self-defense cases.

It is a story that the castle law's creator admits to knowing little about.

"I wasn't involved in the Keel matter two years ago, and not aware that the language caused any problem then or now," said the castle law's author, Sen. Jeff Wentworth, R-San Antonio.

Mr. Keel's law attempted to clarify a previous law that allowed citizens to carry guns in their cars while traveling without defining what "traveling" was. He offered a set of conditions – such as not being in a gang – under which a driver was "presumed" to be traveling.

The new gun law presented a conundrum. What if a driver met all the conditions but clearly was not "traveling" in any normal sense of the word? What if he was headed around the corner for a carton of milk?

Prosecutors were confused, frustrated and even outraged by the law until legislators scrapped it.

"But now it's living on in a much more virulent form in the self-defense law," Mr. Edmonds said.

Intent and effect

In a recent interview, the castle law's sponsor in the House, Rep. Joe Driver, R-Garland, expressed little concern about whatever confusion it may cause.

"Sometimes we do have to come back and tweak something just because we didn't quite get it right," he said. "I mean, you're dealing with lawyers. Holy cow – that's what they do is argue."

Mr. Driver was asked whether he'd considered how courts would apply the presumption language.

"You're talking about the one thing I have a hard time understanding," he said. He suggested a reporter call the National Rifle Association, noting that one of its lobbyists helped write the law.

The NRA lobbyist, Tara Mica, said placing a heavier burden of proof on prosecutors was part of the law's intent.

"Any time you shift a burden in the criminal justice system one way or another, the person whose job becomes more difficult is of course going to complain," she said. "But we didn't write this law for the benefit of prosecutors."

Mr. Dix, however, said he believes the castle law's writers – by using the presumption language – indeed may have hindered prosecutors in a way that could help set real murderers free.

"I think you ought to know what you're doing if you're going to do it that way," he said. "And I don't think these folks did."

Here are major provisions of Texas' castle law:

•It presumes you are reasonable in using deadly force if someone – illegally and with force – enters or is attempting to enter your occupied home, car or workplace. You are not given this presumption if you provoked the person or were engaged in a crime.

•It removes your obligation to retreat if possible before using deadly force if you are anywhere you have a right to be. The previous law obliged you to retreat if a "reasonable person" would have, except in a situation where someone unlawfully entered your home.

•It gives you added protection from lawsuits by injured attackers or their families. The previous law granted this protection if someone illegally entered your home, but not in other situations.