I will readily admit that the executioner has committed a homicide (the act of a human killing another human) , but that then would be a justifiable homicide. Correct?

37.071 authorizes a death sentence (and requires the judge to sentence the defendant to death, so he’s probably okay), but while statutory requirement justifies the use of deadly force, statutory authorization does not, so that doesn’t help the jury or the prosecutor or the negligent defense lawyer. See PC 9.21.

You made it clear earlier that this discussion is about what Texas law says, not what it should say.

I think 37.071 pretty much excuses the judges and the jurors as it specifically authorizes them by law to sentence a defendant to death.

Courts have always held that it solely the prosecutor’s discretion to seek death.

I dont think, whether there is a change in public opinion or not in 80 years (or ever) that any judge, juror, prosecutor, or defense lawyer could be held criminally responsible for the execution of an inmate.

If a juror could sentence a guy to death without “intending” for him to die, that would be a serious flaw in the system.

Given that everyone involved knows that the jury’s verdict will, unless something highly unusual intervenes, result in the defendant’s death, I think we’ve got cause-in-fact and intent sewn up.

If you can show misconduct, (as was at least arguably the case with arson investigators) then I think the question may be different.

Isn’t that one of the problems with executions, anyway? That even dealing with well-meaning, “liberal,” hardworking government agents who “follow the rules,” unintentional mistakes still slip through? I think that’s a valid reason to categorically oppose executions, but I do not think one could lawfully hold such people criminally responsible.

Texas Penal Code sec. 6.04:

(a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:

(1) a different offense was committed; or

(2) a different person or property was injured, harmed, or otherwise affected.

Given that is the law, I renew my argument that proximate cause would limit how far ‘back’ in the process you could go (beyond, e.g., the executioner) and still establish criminal responsibility for “causing” the murder.

(4) I was mostly thinking about jurors, judges, prosecutors, the governor (who declined clemency) etc. I don’t know how you prove what they had in mind unless you pierce the veil of various privileges. I don’t know that verdict form is enough to create a jury question on intent.

4) What privilege? The state proves recklessness and criminal negligence regularly without any special means to pierce privileges.

Of course it’s speculative. That the State of Texas will exist in, say, 60 years is speculative. That kind of time can change everything.

I would make your first argument with a straight face.

Wikipedia is not legal authority.

We’ve prosecuted government agents before for crimes that they thought were part of their jobs. I only implicitly accept that civil liability is barred by sovereign immunity because that’s a tort concept and, being a criminal defense lawyer, I haven’t had cause to study it much. Is sovereign immunity a jurisdictional bar to civil suit? I don’t even know. (I don’t think so, because if it were then the inquiry would cease, and courts would never be able to find exceptions under the TTCA.)

Not all the actors in a death penalty case ARE the state. The defense lawyers are not; nor are the witnesses. (Sovereign immunity is illogical in a republic, where the People are the State, but that’s for another day.) In any case, criminal liability where civil liability is barred makes perfect sense in the historical context of sovereign immunity: the king might reserve the right to punish his princes while forbidding the people from taking them to court.

(4) To raise a “jury question” on mens rea, you need access to the evidence. But much of the necessary evidence would be privileged. I’m not sure the state can even survive an acquittal motion without some means to pierce the privielge.