Victory in Hayward

Christopher Daley, Transgender Law Center

One thing was clear when the jury came back this week with second degree murder convictions against Micheal Magidson and Jose Merel for killing Gwen Araujo -- transgender panic strategies have no traction in Bay Area courtrooms.

Two juries in two years proved this by repudiating aggressive and ethically debatable arguments that Gwen, as a transgender teen, was responsible for her own murder. The take-home message for defense attorneys around the country is: relying on a juror’s bias against transgender people will get your clients no reprieve from being held accountable for the violence they commit against transgender people. For that reason alone, Tuesday’s verdicts have to be seen as a huge victory.

Some community members are disappointed that the jury didn’t convict either Magidson or Merel of a hate crime and were unable to agree on the culpability of Jason Cazares. Hopefully, this disappointment doesn’t overshadow the victories that this case has produced over the last three years. This is one of those moments in a community’s lifespan when it is especially important to look for the big picture and not let the failure to get the outcome we wanted diminish the outcomes we did get.

No group of people has accomplished as much over the last three years as Gwen’s family and friends. Sylvia, Imelda, David, Delilah, Tina, Pearl, and literally dozens of others have provided us with a vivid example of the powerful role that our families play in advancing LGBT civil rights. Each time one of these folks speaks out, they do more to protect transgender people than I can in a month at my job at the Transgender Law Center.

At the same time, the Alameda County District Attorney’s office has set a new standard for prosecuting transgender murder cases. You don’t have to look any further than Fresno County to see what the standard still is in many DA’s offices. Last month, a Fresno County DA accepted a four year plea bargain for a person who confessed to stabbing and killing a transgender person. In stark contrast, the Alameda DA’s office devoted their office’s full resources to this case not once, but twice. Along the way, they faced and beat down some of the most egregious uses of transgender panic tactics that many of us hope to ever see in a courtroom.

This year, we also saw media coverage that had once been sensationalistic and oftentimes disrespectful of Gwen’s identity evolve into coverage that correctly identified the defendant’s as the people on trial (not Gwen) and their actions as the thing being judged (not Gwen’s identity). This evolution is not limited to Bay Area print, broadcast, and internet journalists. I’ve spoken with journalists from around the U.S. who have said that the coverage of this case has sparked dialogues and changes in their newsrooms as well.

Finally, to be clear, two men have been convicted of crimes that carry a potential for life sentences. Neither of these men is likely to leave prison any time before 2035, if they are ever allowed to leave. A third man, the one who made it possible for Gwen’s family to recover her body, will soon begin serving an 11 year sentence for voluntary manslaughter. And, if the community keeps the pressure on, Jason Cazares will be held accountable, at least in part, for his actions that night.

Of course none of these victories erases the fact that, for many of us, Gwen would be alive if she were a non-transgender woman. For some, that fact eloquently ends the analysis of whether a hate crime was committed. The jury in this case had a different charge, though. They had to apply the evidence presented to them, evidence that was spread out over a two month trial and that often conflicted with itself, to the hate crime law. Everyone I know who attended the trial more than a couple of times is convinced that this jury took their charge seriously and dedicated themselves to reaching a just conclusion in this case. I have to believe that in the final analysis, that is what we got – a just verdict.

In assault cases or other crimes where the number of years a person will serve in prison are modest, a hate crimes conviction can serve as a deterrent to future offenders. However, in a murder trial, such deterrent is less important. In fact, I’m hard pressed to understand what serves as a better deterrent than two second degree murder convictions. And the victory of getting these convictions shouldn’t be lessened simply because they were not accompanied by hate crimes convictions.

I know that it is tempting to give in to disappointment. Our communities have plenty of examples to prove that we aren’t valued or respected in the same way that non-LGBT people are. I just don’t believe the result in this case is one of those examples. And I believe that celebrating these victories, even if they feel incomplete, is a necessary step in the maturing of a civil rights movement dedicated to equal treatment and fairness under the law.

Christopher Daley is the Director of the Transgender Law Center. In 2004, he represented Gwen Araujo’s mother in her efforts to get court recognition of Gwen’s change of name.

2 Verdicts, 1 Mistrial

Septemeber 12, 2005:

Michael Magidson and Jose Merel were found guilty of 2nd Degree Murder, which carries a sentence of 15 years to life . Jason Cazares' case ended in a mistrial.

Magidson will be sentenced January 6, 2006 at 9 AM.

There will be a date to set a date for Merel's sentencing October 28, 2005 (perhaps due to his attorney's schedule conflicts.)

Cazares' (possible but unlikely) retrial is set for November 18 2005 9:55 AM in Dept. 513. Although it is too early to say, a plea bargain will probably be offered, as 3rd-time retrials are rare.

"2 juries, 2 verdicts--and (both times) total repudiation of the "trans-panic" defense."
--Chris Daly, TG Law Center

True enough, I guess, and I try to take heart in that, although justice was not wholly served. We all felt it.

But we heard Mr. Lamiero when he said--"Don't overlook the fact that this jury--(and the first jury)--rejected that defense," that because Gwen was transgender, that somehow explained or justified these men's crimes.

Although the jury voted 9 to 3 in favor of convicting Jason Cazares of murder, the 3 hold-outs felt there was not enough evidence to convict. "That is not to say they thought Cazares was innocent," Mr. Lamiero told family and supporters in the DA's meeting room.

And why no Hate Crime enhancement? Why did the jury not call this what it was--a horrendous Hate Crime? During the deliberations, the jury inquired, if they could not unanimously agree on the Hate Crime enhancement, "would that affect the verdict(s) overall?" The answer was no. This meant that some jurors understood and wanted the hate crime enhancement to accompany the verdicts, while others did not. Attorney Gloria Allred made several statements to the press that the idea, the definition of "Hate Crime" is new to juries, and that as people get a real understanding of what hate crimes are, this situation will change.

So we, as educators, have our work cut out for us.

As for the "15 years to life"---in California, people convicted of murder, rarely--if ever--get parole. Even though the symbolic verdict of First Degree Murder with a Hate Crime enhancement was not reached, Merel and Magidson will more than likely spend the rest of their lives in prison.

Regarding parole, Lamiero recounted a story about the DAs who prosecuted the Chowchilla kidnappers several years ago, who said: "You have to outlive the notoriety of your crime," in order to receive parole. In other words--when these men go up for parole after 15 years, if there are family and community members there to oppose it, they will stay in prison. That is how it is in California.

Most of us felt that Cazares, not Merel, should have received the harsher verdict. During this trial, the Merel family cooperated with the DA's office investigations. Jose Merel had taken the stand; many of us believed him when he stated that he cared about Gwen, and that it is likely that he was covering for his 2 big friends, Magidson and Cazares. But Merel had an opportunity to tell all he knew, and most of us felt that he did not. He continued to protect Magidson and Cazares, and now he will pay for it for the rest of his life.

When I arrived at the court house yesterday--Monday morning--it was pretty quiet. Gwen Smith, Zak Symanski, and Gloria Allred were there. The Cazares family was there, but otherwise, the hallway was mostly occupied with other court folks conducting their business, which was ordinairy yet strange. Shortly before noon, the clerk called folks into the court room, and the jury came in. Although we knew 2 verdicts were sealed, the jury was polled. They finally told the judge it was unlikely that they could reach a vercict on the 3rd. No one knew who the jury was deadlocked on, but we thought maybe it was Merel, or we hoped that was the case. The attorneys met in hushed voices, and it was agreed they would reconvene at 2:30 PM, and at that time, the verdicts would be read. The jurors had ordered lunch, and it was their intention to continue to deliberate.

It was after 3 PM when we came into court. It was a mobscene--media, of course, and so many people who work for the court. Family members from all concerned were there, it was warm and pretty claustrophobic. It was uncertain if there would be seats for everyone. Emotions were extremely high, the wait seemed very long. And then the verdicts were read.

In a murder trial, there are no winners. No one was happy or victorious. It just doesn't work or feel that way. You just sit there, wishing that this horrible thing hadn't happened period, in the first place, at all.

After the verdicts were read, we went up to a meeting room, and waited to hear from Mr. Lamiero. He arrived, and Sylvia thanked him for his dedication and hard work. A lot of questions were asked, and he did his best to answer them. After 40 minutes or so, folks went out to answer questions from the media.

The Alameda County DA's office gave unprecendented commitment, compassion, and resources to this case. The outcome might have been very different, had it not been for the efforts of Inspector Kathy Boyavich and ADA Chris Lamiero. They admittedly learned a lot from our community, and brought that knowledge forth. They valued Gwen Araujo's life, and made sure that the jury understood that.

Later that night, a vigil was held at the LGBT Center on Market Street in San Francisco at 6PM. Many folks--among them Cecilia Chung, Assembleyman Mark Leno, Shawna Virago, Julie Dorf, Gloria Allred, Gwen Smith, David Guerrero--were on hand to speak out and give their support. It was very moving.

It cannot be emphasized enough that Gwen Araujo was a 17 year old; she had her whole life ahead of her. Day after day in this courtwatch, I had to ask myself (because when I started my job at CUAV doing LGBT education, Gwen was 11 years old, and the men who murdered her were in high school)--what could we as a community have done--(what could I personally have done)--to prevent this from happening?

How could we have created a safer community Gwen?

The answer is education, but what does that mean?

Maybe for me, it means revitalizing our Speakers Bureau, expanding our relationships with other folks doing this work: working with transgender folks who want to educate youth, supporting Sylvia Guerrero and other trans-allied folks who also want to get involved, and expand these resources for schools and community groups. We have to speak out, we can't lose heart.

We have to stay involved.

DA Chris Lamiero’s final rebuttal (08/30/05)

by P. Espinoza, CUAV

Today ADA Chris Lamiero made his final closing argument. He began by talking about Jaron Nabors’ answer to a question posed to him during cross-examination. He was asked to explain how people are supposed to know when he (Nabors) is telling the truth and when he isn’t. To this Nabors answered, “In the absence of predated confidence, all we’re left with is rational perception”. If you recall from yesterday’s closing arguments, Jose Merel’s attorney DuBois referred to this comment by Nabors as a “Jaronism”, a comment so out there and irregular, that it simply baffles folks… and that this is how Jaron talks in order to appear witty or smart.

Today the ADA went on to explain why Nabors answered in such a way. That it was a quote from a book by Ayn Rand that ADA Lamiero had recommended to Nabors during their one-time meeting in which they spoke. The ADA said he theorized that this was a way of letting on that he had read the book.

He went on to talk a little about a story in the book in which a millionaire, whose family made a fortune mining copper, had always had ‘the Midas touch’ when it came to investments. This man decided to invest in something that crashed horribly and suddenly he was a pariah when it came to investments, and he was told so by a fellow industrialist who owned a steel manufacturing company. The point of this story? The DA said, “well I don’t really know why I’m telling you this today”, but his point was well taken by this observer… people really like you until you do something wrong, then they turn their back on you because it doesn’t benefit them to know you and be around you. And I think that is what happened to Jaron, he was suddenly ‘persona non grata’ for telling the truth and saving his own butt.

But, you can draw your own conclusions. Thus the one point of all of this is, as the ADA put it, "You the jury must weigh testimony and witnesses not by predated confidence, but by your own rational perception… who seems honest to you, who doesn’t… what do you believe was physically possible and what you believe is not, based on your own judgment…" That is what the jury is being asked to do, judge these men based on their own criteria and the criteria of the letter of the law.

ADA Lamiero then brought out a blown-up picture of Gwen mounted on poster-board, put it on the easel directly in front of the jury, and told them he would be referring to the victim as Gwen, that he would be referring to her as ‘she’ and ‘her’, because that is who she was. He explained that he wasn’t doing it for the media, not for the family, not for himself, but because she was who she was… a young, beautiful woman who lived her truth.

He then went into talking about Serra’s closing argument (Cazares’ attorney), asking the jury to think about why Serra spent ninety minutes of his closing argument talking about manslaughter, when he has maintained that his client is not guilty of killing the victim. Why would he do that? Because he knows that there is a very good chance that his client will be found guilty. The ADA reiterated how Serra made a crucial slip-of-the-tongue during his closing argument in saying that either Jaron Nabors committed 1st –degree murder or aided & abetted. Here Serra admits that someone committed 1st- degree murder! Someone is guilty of that! (according to Serra) Who could it be! That’s up to the jury to decide.

Lamiero then spoke of the ridiculous assertion by Serra that his client “had been punished enough” serving two years in jail after being arrested… that this is enough and he should be given a break… poor guy! It was truly a sad thing to hear that Serra thought Gwen’s life was not worth much more. Lamiero continued asking the jury to really consider how ridiculous that was… how unjust that was to even consider cutting these guys some slack, since they’ve served a couple of years. Cazares is out on bail, he reminded folks… he gets to be with his family, but Gwen is never coming back, she’s never going to grow up and live her future potential as a human being on this planet… she was not given a chance to present her case for defense… she’s gone… she’s never coming back! But that we should feel sorry for these guys because they have been punished enough?! The ADA really made it clear how absurd that sounds… how unjust that is to Gwen.

He continued by asking an important question about Jason Cazares: when did his attitude change from being the one to pull Michael Magidson off Lida, to being the guy that turns to Jaron Nabors and asks him, “Jaron, are you down?” (meaning are you gonna go all the way with this, with us?) When did this sudden change occur? It occurred the minute Nicole Brown and Paul Merel left the house. That, the DA wanted to reiterate, is the kind of person Jason Cazares is. He also stated how during his closing, Serra seemed to want the ADA to “vouch” for Nabors (you can’t do that!), that Serra wanted to emphasize the importance of 12 individual verdicts… because he knows that the chances are bad for his client… that he may be seen by the jury as the violent, pathetic person who would do anything for his “brother” Mike (Magidson).

Mr. Lamiero reiterated that the reality is, attorneys are looking for the most favorable light for their clients, not a “search for the truth”… this is what these defendants get a chance to obtain--a favorable light that was never offered to Gwen (Her name has been trashed by these attorneys, both in last year’s trial and again in this trial). He brought up the Edgar Allan Poe story Serra used in his closing argument. The story published in 1838 tells of a prince who decided to have his privileged friends join him in his luxurious comfortable surroundings, wall themselves off from the outside world and avoid the plague, only to find out at the end of their lavish masquerade party that one of the guests had concealed his having the plague by wearing a mask at the party. When this was discovered is was too late, they had all been exposed. The ADA asked if this is how we are to think of Gwen, as someone carrying something contagious? This is what Serra wants the jury to believe, by comparing her genitalia being forcibly exposed, to the guest at that Masquerade party being discovered as a carrier of the plague. He turned to Gwen’s picture, and asked if that is what we are supposed to believe? That this young person who is dead is to be considered with contempt for exposing the defendants to some “contagion”? “How dare they”, he said. He asked the jury to look at the reality of what is going on here--they are being distracted with these obscene comparisons… that what is true is that the whole defense is like a mackerel a few days gone… it’s shiny and looks good, but when you cut it open, there is no meat to it… there is no meat to their story.

He went on to talk about how Serra is asking the jury to believe that this killing happened in a “heat of passion”. But Lamiero reminded the jury that a “heat of passion” killing is still murder. Someone died at the hands of another. And he pointed to Michael Magidson and stressed that he was a pathetic, weak, narcissistic (pause) person who “did the deed” and then wanted to “pass the buck” onto Jose Merel [at one point, before they got arrested, Magidson told Jose that if the cops came to the (Merel) house asking questions, that Jose should tell them that he and Jason weren’t there that night. What a friend!]

He further stressed that he does not believe for one minute the “blowjob in the bathroom” story that Magidson told police: that when he had dragged Gwen into the bathroom to check her genitalia by force, that she coaxed him into letting her give him oral sex so she could distract him from making her show him her genitals. The ADA said he firmly believed that Magidson was already convinced that Gwen was “a guy” and that he was angry about it, and he was going to expose her, and wherever that lead to, he was ready. The ADA also pointed out that he didn’t believe that Magidson was taking Gwen into the bathroom to expose her vagina so his “brother” Jose wouldn’t be upset. This was all B.S.

He also wanted the jury to know that Jaron Nabors was the only one of the four that came forward; he led police to the body… the body of a person who probably wouldn’t have ever been found. He allowed for the family to have closure.

A little later in his argument, Lamiero said that in his opinion Thorman, Magidson’s attorney, doesn’t find it an honor to know and represent Magidson as he had said in his closing. Lamiero didn’t believe it. At this point Serra objected, saying opinion of the DA is irrelevant and inappropriate in this case. The judge sustained the objection.

What it boiled down to, the ADA stated, is that the defense attorneys in this case want the jury to believe that Jaron Nabors admitted to killing Gwen… that he alone grabbed her, beat her, tied her up, strangled her. But more importantly, the DA stated that once this strategy backfired on the attorneys, they had Magidson testify that “he went blank” with rage, and “didn’t know why” he did it. (Did what?! Hmmmm….)

Another point the ADA made was that it was very interesting to know that Paul Merel does not recall standing outside the house that night, talking to Jason Cazares (as Jason testified to) about going to Lake Tahoe. This is what Cazares wants the jury to believe, that he was outside when Gwen was being beaten. That he didn’t play a role in that. Serra wants the jury to look at Nicole Brown’s testimony with regard to that time-frame when she and Paul were leaving the house, when the interrogation of Gwen had already started, to try and put his client Cazares out of the picture. But DA Lamiero encouraged the jury to look at Nicole’s testimony… she knew what was happening, she knew that everyone in that house would be seen a complicit in what was happening and whatever would happen. In other words, she knew what they were capable of, those of the four that she knew the best: Michael, Jason, and Jose. She didn’t know Jaron Nabors very well. (remember, he was the tag-along).

Mr. Lamiero also wanted to talk particularly about how the defense had criticized him for the way he treated Jose Merel on the stand. They stated how he was treated differently than Magidson and Cazares. They at different points asserted that the DA treated Nabors and Merel nicely, and treated the other two roughly. The DA said that he knew Nabors was lying, and we could all see that Merel was not telling us what he knew. He chose to dodge questions and give vague answers. The DA stated that he set Merel apart for a reason: the other defendants used his house as their own private bar, their playground where “they would do the shit they couldn’t do in their own houses”; they treated this house as their bachelor pad of sorts where they would drink, smoke out, bring girls over. This was their “safe haven” as one of the defense attorneys described… and this “safe haven” was disrupted by Gwen. And she had to be punished for that. The DA then looked again at Magidson and stated that he may have put the rope around the victim’s neck and strangled her, but (sarcastically) give him a break, he’s a good person. That is what the defense wants the jury to conclude.

In further response to the topic of the ADA being easier on Nabors and Merel, Mr. Lamiero wants the jury to understand that Jose was treated differently on the stand compared to Mike & Jason because what the he is requesting is an adequate distribution of responsibility for this crime. That is justice. And he is asking that the jury not be swayed by phony character witnesses like Efren, a gay guy from the Castro who came to testify about what a great guy Magidson is… asserting he’s not homophobic.

Then Mr. Lamiero spoke up a bit and said, “So then this must have been a suicide. She just have killed herself”. He sarcastically proclaimed that this must have been her wanting to die, that she wanted to die because she spoke up for herself as she was being beaten, and she knew she would die because of it. How dare she try and stop this!

The defense wants the jury to believe that there was no premeditation, no malicious aforethought, that Magidson is to be protected by casting reasonable doubt as to whether this was planned. So the ADA asked the jury to ask themselves: what motivates an advocate, a defense lawyer? They want to prevail, of course, but what motivates them more is the fear that they won’t be believed… that the jury won’t give them what they want.

In closing, Lamiero asked that Jason Cazares and Michael Magidson be convicted of 1st-degree murder, but that if they conclude that it’s 2nd –degree that they unanimously agree and bring back a murder conviction. The ADA wants to give justice to the victim and peace to her family. He further stated that he leaves the fate of Jose Merel up to them, that they have to weigh the evidence and decide his level of guilt in this crime.

Now we wait…

Case submitted to jury (CWD)

Hey everyone -

this case is now in the hands of the jury. They should begin the meat of their deliberations tomorrow (8-30-05). It is impossible for me to predict how long the deliberations will take, but keep in mind that they have to review many weeks worth of evidence as well as the culpability (or lack thereof, I guess) of each of the three defendants.

Some quick notes on DDA Lamiero's rebuttal from this morning:

Lamiero spent approximately 90 minutes going back over the case with the jury this morning. He divided up his time between stepping up his comments on Jason's role, slapping down the arguments proffered by Mike and Jason's attorneys, and taking some uncharacteristically sharp jabs at Serra and Thorman.

Seemingly making up for any lack of focus on Jason Cezares in his initial closing statement, Lamiero definitely pointed his finger at Jason this morning. He spent a little bit of time elaborating on Jason's role and identified him as the one controlling the pace of events. Recognizing that Jason initially stepped in to stop Mike from harming Gwen, Lamiero attributed this to the presence of other people in the house rather than any concern for Gwen. Once those other people left, Lamiero theorized, Jason gave Mike the "go ahead" to do to Gwen whatever he wanted. Lamiero then told the jury that, to him, this kind of conduct is sufficient to meet the requirement for aiding and abetting a murder (and therefore qualifying for a murder conviction).

Making some additional comments about Mike's culpability, Lamiero spent a chunk of time taking apart the arguments of Serra (Jason's attorney) and Thorman (Mike's attorney). Recognizing that each of them is a skilled advocate, Lamiero made sure that the jury realized that each is an advocate for their own client and that neither is looking for the "truth" in this proceeding. Alternating between the two, Lamiero ridiculed their calls for leniency for their clients, the idea that the Merel home was a sanctuary, any argument that Jason was guilty of manslaughter, and their attacks on the prosecutions use of Jaron Nabors.

Finally, first the first time that I can remember, Lamiero went after Serrra and Thorman personally. He stated that Thorman was lying when he told the jury that he was honored to have represented a young man of Mike’s character. He accused Serra of sleeping through Jaron’s testimony and being way off in some of his philosophical meanderings about gender. I’m not sure what brought on these attacks or exactly where they played in his larger strategy, but after two years of dealing with these guys antics it’s not hard to understand if they were simply expressions of frustration and exasperation.

Lamiero closed his rebuttal by again asking for 1st degree murder for Mike and Jason. Just like last week, though, he told the jury that if all they could agree to was 2nd degree that they should come back with it to put some closure on this case. He again told the jury that he didn’t have a recommendation for Jose’s conviction, but reminded them that he thought Jose was less culpable than the other two.

It’s been a long re-trial. We could have a quick verdict or the jury could spend just as long as last year (let’s hope not). I hope everyone from the Bay Area who is reading this will make an effort to get to the SF LGBT Center (www.sfcenter.org) the day the jury comes down for a press conference and rally at 6pm.

Chris Daley
Transgender Law Center

Closing Arguments - August 29, 2005

Written by P. Espinoza

Today defendant Jose Merel's attorney, DuBois, finished his closing arguments via a Power Point presentation in which he presented the jury with a barrage of legal definitions, including but not limited to, how a witness can be willfully false, and, what "the heat of passion" is, what voluntary and involuntary manslaughter is, and what constitutes "assault". His main argument was that everything that Jaron Nabors said about Jose Merel's involvement in the beating and the murder were complete fabrications, "Jaronisms" as he put it.

He included how the testimony of an accomplice (meaning Nabors) should not be taken at face value, that it must be corroborated by other evidence. He especially went into testimony from Nabors about the significance of the "Dee Dee" letter, a letter that Nabors had written to his girlfriend that made its way into the hands of the DA. In it Nabors had written his account of what happened, and wanted his girlfriend to know he was not a murderer. DuBois basically said that this letter was written as a way of making himself (Nabors) look innocent. He went on to assert that accomplices are self-serving, and that the jury should view Jaron Nabors with caution, because "accomplices" tend to lie. This does however beg the question of what, exactly, Mr. Nabors was an "accomplice" to, doesn't it?

As any defense lawyer would do, DuBois went over the role of the can of food and the frying pan that Merel used during the commission of the beating. DuBois points to his assertion that there was no can found in the house that was bent as Jaron Nabors had described when it was used to beat Gwen Araujo over the head. He also said there was no frying pan in the house that fit the description given by Nabors. Basically his point was that with these facts, coupled with the failed experiments conducted with other cans of food to try and duplicate the bending or denting of the can, it was impossible that Jose Merel beat Gwen with any can of food, and that by the way, the body showed no evidence of any wounds consistent with a can being used, but there were other wounds on the head of the victim.

Another interesting item in the power point presentation was the use of "Thug Algibra" (this was interesting, and rather classist and racist in my opinion). This "thug algibra" DuBois brought up as a way to illustrate his point went something like this:

A= letter to DeeDee
B= Testimony at trial
T= the Truth

If A=B, and B=T, then A=T

DuBois' basic point was that the DA believed Nabors, and that Nabors knew they would believe him, because they just wanted him to tell the truth.

DuBois went on to then describe Nabors further as a compulsive liar, who was known to make up fantastic stories in an attempt to pass himself off as a tough guy. He further stated that because Jaron Nabors had not had sexual relations with Lida, that he didn't have a "heat of passion" defense, therefore he was a cold-blooded killer.

He also went into how one is supposed to tell when Jaron Nabors is telling the truth, and when he's lying. For the purposes of this trial, the DA is asking the jury to believe either Jaron Nabors or Jose Merel (interesting!). DuBois asserts that Nabors was motivated to lie because of fear that Jose Merel would testify against him, thus needing to conceal his true involvement, and that this is consistent with the letter to DeeDee.

DuBois went on to state that Jose Merel cared for Lida (Gwen), and just wanted her out of the house once her anatomy was displayed. He didn't ever imagine killing her, yet DuBois asserts that his client was menacing with the can of food (never actually striking Gwen) and that the blow he struck with the frying pan was a "glancing" blow, that it did not do any damage. With this he led the jury into definitions of what aiding and abetting a crime is, and that they would have to consider Jose Merel's involvement to be simply an assault, because there was no premeditation, no knowledge or malice aforethought on his part toward murdering her; he simply became wrapped up in a sequence of events that ended in the foursome burying the body in the Sierra foothills; that aiding and abetting or assisting on its own is not criminal.

At one point DuBois did an imitation of what Jose probably sounded like when he was drunk the night of the murder, as they all sat around the kitchen table playing dominoes and he decided to ask Lida if she was a man or a woman. With this slurred speech imitation, he hoped the jury would see that Jose was voluntarily intoxicated and that he was not in the mental state required to consider his actions manslaughter, voluntary or involuntary.

Toward the end of his closing DuBois went into the issue of "Special Findings" that would be required to make this a hate crime. He asserted that this was not a hate crime because Jose Merel did not act personally, with intent to kill... that perhaps he may be an aider & abettor, but that since he didn't act with knowledge or intent to kill, this brought it down to the core differences between his client and the other defendants. He asked how you can compare a can of food and a frying pan used by his client, to a rope, a weight, and a shovel that were used by the other accused men? He simply finished up with a reminder to the jury that Jose Merel had asked "why did she have to die?".

After the lunch break Michael Magidson's attorney, Thorman, made his closing arguments. He started off by informing the jury that he has found it to be an honor to represent Magidson, and that he has found it a privilege to get to know Magidson and his family. He went on to compliment the jury on what a great job they had done of paying attention despite the boring, repetitive nature of the trial, and that he was impressed by them, saying they were the most attentive jury he has ever witnessed.

His next step was to point to ADA Lamiero's descriptions of his client Michael as not accurate. That his intention was to dehumanize his client, to paint him as a pathetic, weak person. He went on to ask the jury to remember each of the character witnesses he brought forth to testify on Magidson's behalf, about what a great, caring person he is, and especially pointing out a witness that came to testify from the Castro District of San Francisco, saying how nice Magidson is and that he would not consider him homophobic (hello! Gwen was not a gay man!) and that he would even have him as a roommate. Thorman went on to say how Magidson was always polite to Lida and that the events described were "out of character" for Magidson.

Thorman went on to say that DA Lamiero's opening statement was a point-by-point account of Jaron Nabors' testimony about Merel using a weight, a can of food, a frying pan to hit Lida, and that he had said he wanted to kick her again, while saying things like "She's not leaving" and "If that's a man I'm gonna kill him". Thorman was making a point that Jaron & Jose's testimony was contradicting each other, and that you couldn't believe both; he said that this is what the ADA was asking the jury to do, to believe both.

One of the many things that Thorman asserted that were pretty strong statements was that Nicole Brown helped create the turmoil that night, and that she was just as motivated to keep herself out of the picture, even though in her taped interview with the police, she had made statements like "I have been a victim of domestic violence & I'll be damned if I'm gonna let a man hit me again" (referring to the fist-fight she had with Lida). He described Nicole as having had an emotional reaction to Lida deceiving everyone and fighting with her, a guy beating on a girl.

Thorman went on to say how many of the points made by Nicole were physically impossible, such as her stating that she had seen Lida on the couch when she came back, two feet into the house, looking for Paul Merel so they could leave. The couch was not visible from that part of the house. He wanted the jury to understand that everyone in that house was set off when Lida's genitalia was forcibly exposed, and that they all played roles in what happened that night, and therefore they all have motivations to remove themselves from culpability.

Thorman also made a point that Jaron Nabors' testifying that they went to get shovels while Lida was still alive is untrue. (But, well, isn't everyone that was there that night motivated to remove themselves from culpability?) He also wanted to know if anyone would believe that Jason Cazares' attitude went from 'peace-maker' to "let's go get shovels" in a matter of minutes? This proves that Nabors cannot be believed. He also asserted that Nabors' testimony contradicts the entire timeline of events. As an example, he said that since blood was not found on the portion of the wall where Lida's head had hit as it snapped back from being knee'd in the face by Magidson, this proves that Nabors lied about when Lida was bleeding and when she was not.

To try and wrap up his argument, Thorman was adamant about trying to paint the victim as a person with no boundaries... she was a person with reckless sexuality, was a substance abuser... and that she forced herself onto Magidson and Merel and basically raped them. That she had put her mouth on Magidson's penis to convince him that she was a girl. He wants the jury to believe that she was culpable for what happened to her (blame the victim... again!). He even went into how Detective Lavano, who interviewed Magidson after his arrest, had basically agreed with the notion that "anybody would understand the anger and the rage one would feel if they discovered that the person they were physically intimate with had lied about their true gender" (this was very sad to hear that a police detective would speak this way to a suspect... in order to get him to talk?)

Thorman told the jury how Magidson had basically said that his mind went blank when he realized that Lida was biologically male, that his experience of having had anal sex with Lida was gross to begin with, even before he knew her gender status, and that this together with seeing his friend Jose Merel having a 'nervous break-down' made him react.

By the end of his arguments, Thorman pointed to several instances in which things in the trial didn't make sense if this was actually a premeditated, malicious killing... for instance the issue of why Magidson would have used such a long piece of rope to strangle Lida? He had Jaron Nabors' knife... why not cut a more manageable piece with which to proceed and strangle her? Why was Nabors' pager in the garage if he had testified that he did not spend any substantial amount of time in the garage?

Thorman also brought in multiple legal definitions to remind the jury of how they must proceed to make decisions about whether this was murder or manslaughter, and that the additional accusation of kidnapping must also be weighed carefully, since, according to Thorman, it was not a significant distance from the hallway and living room where they took turns beating the victim, into the garage where it is believed she was actually killed.

Thorman wants the jury to believe that Magidson did what he did in a "heat of passion" as well, since he had had anal sex with Lida. He wants the jury to conclude that any ordinarily reasonable person would have reacted the same way had this happened to them, because that is what is required to label this a "heat of passion" crime and thus not premeditated with malicious aforethought... because that would mean that his client had an intent to kill with a conscious disregard for another person's life.

Tomorrow the ADA will have his final rebuttal, then it will be handed over to the jury with instructions so they can begin deliberating. Then we wait for a verdict...

Final day of argument

The DDA is wrapping up closing arguments/rebuttal tomorrow (8.30.05) morning.

Jury could have the verdict presented as early as this week.

The day the verdict is announced there will be a press conference at
the steps of Hayward Hall of Justice and a press conference and rally at the LGBT Community Center @ 6pm.

Lamiero's Closing Argument 8-24-05 (CWD)

In his usual subdued style, with flashes of real emotion now and again, ADA Chris Lamiero began what will likely be three or four days of closing arguments. After spending several weeks putting on a case rich with detailed evidence, ADA Lamiero dispensed with subtlety and went after Mike Magidson and Jason Cazares as Gwen’s murderers.

Reminding jurors several times that they were the final arbiters of the facts in this case and what role each defendant played in Gwen’s killing, the ADA wasn’t shy about telling them that he thought. Several times, Lamiero looked directly at Mike and referred to him as “the murderer.” Less often, but still consistently, he referred to Jason as Mike’s accomplice and as someone equally guilty of murder.

Instead of walking back through the exhaustive evidence presented since the trial began on June 1st, Lamiero spent time explaining the relevant difference between California law on murder and manslaughter. In an efficient and compelling way, he made clear that Mike knew what he was doing that night and that he formed the intent necessary to have committed murder instead of manslaughter. Jason, Lamiero argued, was Mike’s right-hand man throughout the night and his actions, including likely hitting Gwen with a shovel, made him equally guilty of murder. In the end, he asked the jury to find them both guilty of 1st degree murder. But in a nod to last year, he conceded that if the jury couldn’t agree on 1st degree, they should convict the two of 2nd degree.

When it came to Jose Merel, though, Lamiero took a different tact. Many of the people to whom I’ve spoken thought that Jose’s testimony weeks ago was likely the most compelling and the most heartfelt of any of the four men who were present that night (including Jaron Nabors). Lamiero seemed to think so as well. Differently from last year, Lamiero did not ask the jury to bring back a murder conviction for Jose. While not asking the jury to find him innocent, Lamiero made clear that he thought Jose was less culpable than the other two and seemed to open the door for Jose being convicted of felonious assault.

Wrapping up his statement, Lamiero offered passing comments on the hate crimes charges leveled in this case. Just like in the trial itself, Lamiero spent little time proving that any of the three defendants acted out of hate for Gwen because she was transgender. However, focusing mainly on Mike, Lamiero made the most salient argument on this issue: had Gwen not been transgender, she would still be alive today. That statement alone is a powerful argument for finding justification for a hate crimes enhancement.

Sitting through Lamiero’s statement, I was reminded of how incredibly difficult the last three years have been for Sylvia, her family, and her and Gwen’s friends. I speak a lot about the courage and commitment of this family, but it is rarely on display as clearly as it was during Lamiero’s comments. For much of his 45 minutes, Lamiero focused on Gwen’s final moments. He spoke about her strangulation in clear and blunt terms that must have chilled her family and friends to the core. Yet each of them bore that pain in quiet dignity.

Of course, their pain could not have been lessened by the antics of Tony Serra. I’m in no place to judge the effectiveness of Tony’s style. To me, he looks like a buffoon, but his style has obviously been successful in the past. And if looking and acting like a cartoon character helps his client, than it is Tony’s duty to do so. However, his oftentimes incoherent and almost always overblown rhetoric couldn’t have done anything to help Sylvia and her family and friends believe that this courtroom was a place where Gwen’s murder was being taken seriously and given the necessary consideration. As of noon on Thursday, Mr. Serra’s closing performance continued unabated.

Once Mr. Serra concludes, Mr. Dubois and Mr. Thorman will give closing statements. Lamiero will be able to provide a rebuttal statement after that if he chooses to do so.

Chris Daley
Transgender Law Center

PS – a quick virtual “high-five” to Ms. Connie Champagne. Obviously, this blog would have been pretty empty without Connie’s commitment to this case. The last week has been particularly tough for her and all of us at TLC extend her the most sincere thanks for her dedication and example.

Closing Arguements today 1:30 PM

Today will be my last day in court, most likely before the verdict. I am told ADA Chris Lamiero will begin his closing arguements; the other attorneys will follow suit. Then, the case will go to the jury.

I will be up north when the verdicts are in, but my colleagues from TG Law Center and CUAV will keep you posted.

It is everyone's fervent hope that the jury will render fair and just verdicts this time around. The DA's Office did a fantastic job with presenting the physical evidence provided by the Newark Police Department, the Medical Examiner, FBI-- especially in view of the limited budgets/resources it seems that small police departments apparently have. Presenting this evidence--the portion of the wall, the 35' rope, the blood-stained carpet, and the rest--this really brought home the violent nature of the crime--this was a murder. It was not self-defense, or what any reasonable person would do under the circumstances--so I just can't see how this crime could be manslaughter.

This process of the investigations, the preliminary hearing, the first trial which resulted in a hung jury, up to today--has gone on nearly 3 years. All the families and loved ones involved want resolution. Think good thoughts, and I will, too.

--Connie Champagne
CUAV Speakers Bureau Program Director
connie@cuav.org