Friday, July 29, 2005

Court Watch Thursday July 28th - Afternoon Session (B. Burgess)

During the afternoon session both Serra and Thorman cross-examined Merel. Both lawyers seemed to be intent on disproving Merel's credibility by asking him a string of questions about drug use, his emotional state at the time of the murder, and the length of time that passed before he attempted to recall the events in detail with his lawyer.

Before he began his cross-examination of Merel, Thorman requested that the jury be removed from the court room. He then told the judge that he wanted to make an accusation of "inducements made to the witness". Thorman accused the D.A. of offering Merel a deal (that they would go easy on him) if he agreed to testify that Magidson was the one who tied the rope around Gwen/Lida's neck. He demanded an "evidenciary hearing" before the rest of the trial could proceed.

Both Lamiero and DuBois denied Thorman's accusation. The judge asked Merel a series of questions about the alleged D.A. offer and Merel answered no to all of them, firmly denying that any such offer had been made. The judge announced that he could make no findings and brought the jury back in so that the trial could continue.

Thorman will continue his cross-examination on Monday.

Thursday, July 28, 2005

Court Watch Thursday July 28th (C. Champagne)

Lamiero resumed his cross-examination of Jose Merel today.

Last night, I was talking to my niece Kadie. She lives in San Leandro; she's 20 years old, the same age Gwen would be today. I have talked with her about this case since CUAV first became involved back in 2002. She wanted to come to court with me in support of Gwen's family, so today was the day.

Because Jose Merel initially balked at testifying yesterday as to what Magidson had told him (about strangling Lida/Gwen in the garage), they are no longer in the same pod (jail area) and now must travel seperately to court. This caused a delay this morning. Merel's parents have moved to the left side of the courtroom now, so that he can see them and not have to look at Cazares' and Magidson's family members. This is where Gwen's family and supporters also sit. Jaron Nabors' mother also sat on the left with us when he testified. It seems to be not only a physical shift, but a symbolic one as well.

Merel's testimony seems very honest--sometimes a little too honest. I don't mean to say that he's not being truthful because I think he is. It's just that there's a disconnect there, and it's often disturbing to hear what he has to say.

When Lamiero asked Merel what he felt (during Magidson's beating of Gwen), he replied, "I didn't really feel anything I don't think." Lamiero: "Others were in control?"
Merel: "Yes."

Lamiero asked Merel if he cared that Lida/Gwen was hurt. He alluded to her being hit by a weight, although he also said he didn't see her get hit with any weight. He admitted matter-of-fact that he cared more about cleaning up the blood on the carpet, than about her injuries. When the judge called the morning break, we stood in the hallway. Kadie was alarmed by Merel's candor about his lack of feeling. Since I have been in court too many hours now, it was good to know that this is still truly shocking to someone else, especially a young person--that although we want to hear the truth, it is very unsettling, nonetheless.

I have read what has been written in the newspapers lately--and though I am glad there is renewed interest in the case, it bothers me that the tone some journalists use in their articles regarding Jose Merel's testimony has been sympathetic. So, he was "disgusted" by his involvement with Gwen? So what? So, he "questioned" his sexuality? So what? Is this what a reasonable person does in this situation? I don't think so. And although he has expressed some remorse, Merel stated that while the beating was going on--the testimony from the medical examiner stated that Gwen could have died from blunt force trauma alone--he admits not only did he do nothing to help her, it never even crossed his mind. To me, that is "depraved indifference to human life."

This is the thing--it's not enough to just say "She should never have been killed" for this. That does not let Jose Merel, or Mike Magidson, or Jaron Nabors, or Jason Cazares off the hook. And ultimately, it doesn't let Nicole Brown or Emmanuel Merel or Paul Merel--or anyone else who may have been in that house that night when this crime was being perpetrated-- off the hook either, even though they aren't charged with anything.

It's not enough--period.

Do the reporters understand what "depraved indifference to human life" means? Will the jury?

My 20 year old niece understands. I am beyond grateful for that.

The judge has stated that court will resume for 1 day on Monday, and then be off until Tuesday August 9th. He also told the jury they may be deliberating through September 1st.

Wednesday, July 27, 2005

Court Watch July 27th (C. Champagne)

Mr. Lamiero began his cross examination of Jose Merel today. "You have a nice family...your mom, your dad--they've told you that smartest thing you can do is tell the truth?"
Merel: "They have."
Lamiero went on to question Merel about the last trial. Merel stated that he had wanted to testify, to tell his story.
"Do you remember meeting (after the murder)?...Did Mike (Magidson) ever tell you that he would accept responsibility for something he did not do?"
"No."
This line of questioning culminated in a tearful stand-off 10 minutes before the noon recess. Merel testified that Cazares was present (despite his testimony to the contrary) during prior discussions of Gwen/Lida's gender.
Lamiero asked Merel about the initial confrontation--
"Can you tell us what was funny about touching Lida's hair, asking her ' Are you a man or a woman? Why did you think your friends would be amused by your touching her hair, neck?"
"Well, it's not something you ask someone everyday..."
"What is so funny about that?"
"Maybe it's not funny...there may have been some smiles."

It seemed clear these guys were taunting her, and maybe teasing Merel.

Lamiero: "(Although) you were hurt by what Lida had done, you knew the better course of action was to let her go?"
Merel: "I did."
Lamiero: "When others made the choice to kill Lida, that hurt you?"
Merel: "Yes."

Then Lamiero asked Merel about the neighbors' party the three went to the night after the murder Friday October 4th. Merel said they went to the neighbors', so as not to provoke suspicion. They had always "kicked it" together on Fridays, so it might be suspicious if they did not attend.

Lamiero: "When you three--(Merel, Cazares, and Magidson)--attended the party, did you talk about what happened?"
Merel: "There was talk."
Lamiero: "Did Mike tell you that he strangled Lida in the garage?"
Merel: " I can't answer that... I don't want to answer that."
Lamiero: " Yes or no, did Mike tell you that he strangled Lida in the garage?"

Merel began to cry, repeating "I can't answer that, sir."

The judge directed him to answer the question.

Lamiero: " Your mom and dad are good people, I know that. They've told you to tell the truth."

But Merel still refused to answer.

Out of the presence of the jury, Lamiero then requested that Merel and Magidson be completely seperated, that they no longer travel together from the jail, that they be in seperate pods, and that they have no contact with one another.

They recessed for lunch.

Tuesday, July 26, 2005

Court Watch Tuesday July 26th (Connie Champagne)

Yesterday Cazares' lawyer Serra and his co-counsel Mr. Cazwell concluded their defense with 3 witnesses --Cazares' boss at the construction business, a soccer coach, and his girlfriend Lisa's father. When the father was cross-examined by Lamiero, the witness revealed that even if he had heard Cazares call his daughter a "stupid bitch" and that he threatened to smack her, she may have deserved it--that his daughter can be difficult. This was shocking to many of us present. Cazares admitted on the stand previously that he "might have" spoken to his girlfriend this way.

This morning the courtroom was filled with people--lots of courthouse folks, community, Gwen's family--and for the first time in quite a while--media. Defendant Jose Merel took the stand, and his lawyer Mr. DuBois began his direct examination. Merel did not testify in the first trial, and it seemed like everyone wanted to hear from him. We had heard so much about him--from Nabors, Brown, his brothers and then co-defendant Cazares--we wondered whose version of events would be corraborated, what he would or would not admit to, what he was feeling, if anything.

It must not have been good news for Cazares. Merel's timetable and version of events stayed closer to Nabors' and others' testimony. Although Merel denied striking Gwen with the can, he did admit to threatening her with the can and then striking her with the frying pan. He said did not think the injury was life-threatening.

He stated that he had feelings for Gwen, that he enjoyed being around her, that no matter what, she did not deserve to be killed.

Although the testimony seemed detached to me, it was fairly believable. My friend Cecilia remarked to me that we have to bear in mind that these people are facing years, possibly life , in prison. The truth must lie somewhere in the middle.

As Nabors and others testified, Merel admitted to being "crushed" and in tears--that he was confused and distraught that he could be "attracted to a man." He said he was having serious questions about his sexuality. He admitted he was "ignorant."

Merel stated that after they had beaten Gwen, he thought they intended to "drop her off on the corner" in old Newark where they ususally picked her up. He stated that as Magidson was tying her up with the rope, Magidson said no, that they needed to take her out "further."

Eventually Merel said that he went into his room, crying. According to the testimony , when he came out, Cazares told him they had to get going. Merel stated that he did not know Gwen was dead.

Court resumes tomorrow at 9 AM.

Wednesday, July 20, 2005

Court Watch July 20th (Connie Champagne)

Today, ADA Chris Lamiero continued his cross examination of Jason Cazares.

Cazares has stated that he didn't know gender was an issue for his "brother" Jose Merel, that he thought Merel was "joking around." Cazares claimed he didn't hear anyone except Nicole Brown shouting; however, other witnesses testified that Brown, Merel, and perhaps others were shouting; he claimed Jaron Nabors was a"tag-a-long" and an "exagerator"--yet Cazares stated that he definitely believed Nabors, when according to his own testimony, Nabors came in from the garage, "looking scared" and told them "She's (Lida/Gwen) dead." Cazares testified that Jaron Nabors exagerates things, that Nabors is a "fake"--yet Cazares testified he believed Nabors without any question when he told them that Lida was dead.

By his own admission, Cazares never checked Gwen, never took her pulse, never called police or ambulence, never took any action to revive Gwen, and never asked his buddies what happened--nothing.

This afternoon, from 1:30 PM until 4 PM today, when incriminating questions were asked-- at least 7 times he claimed he was too drunk to remember, 14 times he repeated the question back to Lamiero (as he did several times during his initial video-taped police interview which we saw early in the trial--"How did you feel?"--"How did I feel? Well..."), and over 50 times he stated "I don't know" or "I don't remember."

He did testify that when he and Nabors were in truck on their way to his house, that they did see Paul in Nicole's car, and said to them: "We're going to get shovels cos they killed her."

He denied repeatedly--despite so much testimony to the contrary--that gender was an issue--that he was aware of, that he thought they were just "joking around."

Lamiero did an excellent job, trying to get to the truth.

He closed with the question:
"And while Lida was being murdered inside (the house) you didn't hear anything?"
"No."
"While Lida was being killed, you just stood outside and smoked a cigarette?"
"Yes."
"Just enjoying a beautiful Newark evening you just--"
Serra: "Objection--argumenative!"
Judge: "Sustained."

At 3:30 PM, Jose Merel's attorney William Dubois was next to question Cazares.

Dubois may become an unlikely ally to the prosecution.

Dubois: "(So) what do you think Jose seemed to have a problem with?"
Cazares: "Lida."
Dubois: "Lida's what?"
Cazares: "Gender, I guess."
Dubois: "So, from the very beginning of that evening, you were aware that gender was an issue for Jose, one of your very closest friends, your brother...?"
Cazares: "Yes."

By 4 PM, Dubois had managed to get to the root of the matter.

If gender was no big deal, as Cazares claimed--why is Gwen Araujo dead?


Tuesday, July 19, 2005

Court Watch July 18th-19th (Connie Champagne)

Since my last posting, ADA Chris Lamiero has finished presenting the prosecution's case and currently, defendant Jason Cazares is on the stand.

Recapping the prosecution: after Nicole Brown, both Merel brothers (older brother Paul and Emmanuel), several law enforcement officials, the psychiatric social worker at Santa Rita, a classification specialist from the jail who evaluated Jaron Nabors (and also monitored his mail), the forensic analyst, Cazares' other girlfriend Deanna (cell phone records show he spoke with her after 3 in the morning, and she testified hearing Jose Merel shouting), Jose Merel's father, Jaron Nabors' father, and lastly the DA's Inspector Kathy Boyovich offered testimony. Emmanuel Merel was recalled to the stand, due to some conflicts in his testimony regarding the direction of Nicole Brown's car. Defense attorneys motioned for a mistrial; it was not granted. They also motioned for reduced charges, elimination of the hate crime penalty etc. The judge denied all the motions. I am told this is standard in a murder case, and I do remember similar motions from last year.

Mr. Serra began direct examination of his client Jason Cazares. Just as he did last year, Serra tried to paint a picture of a salt-of-the-earth guy who dropped out of high school to go to work, a "family man." On the stand, Cazares was vague about the events that transpired the night of the murder, again repeating "I was drunk." He did say he remembers smoking cigarettes and discussing a trip to Tahoe the following Saturday with Paul Merel while the mayhem was going on inside the house.

Paul Merel testified he never had that conversation with Cazares.

At one point, Mr. Lamiero made an objection that Serra was leading the witness--
Serra: "Why didn't you want to be confronted by the media?"
Cazares: "Who does?"
Serra: "Yes, but weren't you afraid of retribution by the victim's family?"
Cazares: "Well, yes..."

This line of questioning went on for awhile until finally, Lamiero objected. The objection was sustained. Mr. Lamiero began his cross examination of Cazares during the afternoon--thanks to Cecilia, Patricia, and several other community folks for being there--and thank you Vanissar and Chris for your detailed blogs.

I am grateful that the LA Times wrote about this blog, and we're getting some amazing feedback. Although the writer quoted me somewhat out of context--I did not say that there's "none of the transphobia"in the trial this time around--I did say that:
  • I see the effect that education has had on our communuties, the compassion that folks have toward one another.
  • I see straight allies giving support to queer folks. And queer folks responding in kind.
  • I have heard from educators who want to invite trans folks into their classrooms, in an effort to educate their students--to try and prevent something this horrible from ever happening to anyone again.
  • I see slow but important change, which is evident especially in the language that educators, allies, parents, the press (thank you Oakland Tribune), and even law enforcement use--and I know it's because of the work that we have done and continue to do.
And, I did say that Merel's attorney Mr. Dubois and Mr. Serra, in their opening statements, seem to have changed strategies--(the differences in the defense tactics are outlined really well in Chris' posting.) However, Magidson's attorney Michael Thorman continues to use extremely transphobic rhetoric, and seems to hold Gwen responsible for her own murder. He implies that she "robbed" these men of their heterosexuality, and that somehow justifies their rage. That tactic has not changed, and I suspect Thorman will pursue that line of questioning passionately when his client takes the stand.

Court resumes tomorrow at 9 AM.

July 14th Court Watch Update (Chris Daly)

Illnesses among some attorneys in the case slowed the trial down a bit. Since Connie’s last entry, illnesses have put the trial behind about one week.

However, when court has been in session, ADA Lamiero has been able to move the people’s case forward. In addition to eliciting testimony from Emanuel Merel, the ADA brought forth a great deal of physical evidence. As you can imagine, seeing this evidence presented was very difficult for Gwen’s family, friends, and the handful of community members who have been in attendance.

A detective from the Newark Police Department testified late last week about the investigation that was done in the Merel house. What became clear throughout his questioning is the lack of thoroughness of the investigation. A couple of the attorneys got frustrated trying to nail him down on whether particular areas of the house (including particular pieces of furniture) had been investigated for clues.

Not being at all familiar with police procedure, it’s possible that this kind of lack of attention to detail is a common occurrence. It is also important to simply note that police departments around the country have poor overall records in vigorously investigating the deaths of transgender people. However, it is also possible that the police doing the investigation considered this case to be an easy one to close and therefore only gathered the obvious evidence. After all, at this point they had a confession from one of the participants, they had recovered Gwen, and they had the other suspects in custody. I know I thought that convictions would be quickly forthcoming from what I was reading in the newspapers at the time. Now, nearly three years later, I know differently.

The Detective’s testimony also made apparent the continuing cracks in the cohesion among the defendants and their attorneys. In the 2004 trial, it was difficult to see which attorney was representing which client. In fact, Magidson’s and Merel’s attorneys seemed to be mostly Tony Serra’s assistance throughout most of the trial. Not so, this year. While Serra and Magidson’s attorney (Michael Thorman) still seem to be playing on more or less the same team, Merel’s new attorney, DuBois, is definitely not wearing their colors. In fact, at one point on the 14th DuBois blocked Thorman from introducing an FBI report as evidence. This block led to some words being exchanged between the two. And while I couldn’t hear what was being said and it may have been nothing, both attorneys seemed unhappy with the other.

It is worth noting that this split is one that is commonly seen in a trial with multiple defendants. What was abnormal was last year’s cohesion among the defense attorneys. The reason that each defendant is separately represented is to insure that an attorney is looking out for the individual interests of their client. Instead, last year, we saw the three defendants and their attorneys sticking close together by hoping that the jury would buy their arguments that Gwen was responsible for her own murder. So far, this year, we’ve seen that cohesion fall apart and that argument used by only one defendant and his attorney. The result is that this year we are seeing a more straight-forward murder trial rather then the circus that the defense tried to put on last year.

One of the pieces of evidence that the ADA presented to the Detective was a square piece of wall that the County cut-out of the living room of the Merel house. The cut-out contained a hole of the type that Jaron Neighbors suggested was made during the beating of Gwen. This evidence was not submitted in the first trial and its use here demonstrates the ADA’s beefed up case this year. In fact, Jose Merel’s father testified that the cut-out came from the living room wall and that he had not seen it prior to the night Gwen was killed (although, he was not living at the house for some time prior to the murder).

The ADA also had his chief inspector testify about the cut-out and the cell phone records she had obtained as a part of her investigation. She is likely to be on the stand on July 18th as well. Once her testimony is completed, the ADA is expected to rest his case (sometime this week, surely). At which time, Jason Cazares’s attorney, Tony Serra, will begin to make his case. Since all three defendants are expected to testify this year, it is unclear how long the defense teams will take before resting their respective cases.

Chris Daley
Transgender Law Center

July 14th Court Watch Update (Vanissar Tarakali)

Courtwatch: July 14, 2005

Today was about physical evidence.

Four witnesses were called today. The first was a forensic scientist with "Forensic Analytical" (I didn't get her name). She was established by the court as an expert in DNA and Serology. She testified last year for the prosecution. The focus was on one of several weights taken from the Merel residence living room that she examined. She found what was probably a spot of blood, about 1/16th of an inch. It was probably blood (she was not 100% certain because the weight was too dark for her to see the true color of the spot, but the speedy reaction to the test she gave it strongly suggests it was blood), but she was never asked to analyze the DNA of this "blood," although she believes there was enough of it to do so. [As an observer, I wonder why she was not asked to?] Sera's cross-examination seemed designed to ridicule and discredit the witness, but to me she still came across as a credible, cautious witness.

The second witness was police detective Patrick Williams, who was present for the early portion of the October 18th 2002 autopsy of Gwen Araujo's body. He took pictures and observed. The condition of Gwen's body was described: her wrists knotted together with rope, rope around her ankles, rope around her knees, thighs, waist and neck. There were 1-2 loops of rope around her neck, and around 10 loops around her knees. There was a gag in her mouth and around her neck which was made out of a hairtie ("scrunchie") and something else.

[Here I remember Nicole Brown testifying that she saw Lida sitting on the couch with a gag made from a scrunchie in her mouth and around her neck.]

During Detective Williams testimony, pieces of the rope were displayed and the scrunchie was passed around. The rope around Gwen's body was very, very long.

[Court is hard. As they so casually pass around and display evidence, I am getting a picture of Gwen sitting on the couch, gagged. I wonder, "what was she feeling? Did she know they were going to kill her?" My feeling is, yes, she knew. I feel such grief and horror, and it seems really wrong that neither I nor Gwen's family (who must feel what I am feeling a thousandfold) can express feelings here in this courtroom. I wonder what it is like for the defendants to be faced with the rope they bound this vivacious young woman with. What are they feeling?]

One of the family members leaves the room, tears streaming down her face.

The autopsy photographs are circulated. Williams points to the blood stain on the part of the rope that was on Gwen's neck. Her head was "pretty bloody."

[Seeing the photos of the rope around Gwen's ankles, wrists, etc is really horrifying. How can the family bear to look?]

The bag with Gwen's clothes and a flannel sheet that she was wrapped in is produced. The sheet is taken out in a lump, and displayed. Then the defense lawyer changes his mind and it is put back.

The comforter Gwen was wrapped and buried in is taken out of the bag. There are bloodstains on the comforter, but the defense lawyer challenges detective Williams' assertion that they are bloodstains, because he does not have "scientific proof." The defense lawyer's tone and manner toward the witness is smart-ass, flippant. [This creates a flip, casual feeling in the courtroom which seems really disrespectful to the dead.]

A carpet sample the FBI cut from the Merel livingroom with blood on the underside is displayed.

Some tension and rivalry evident between Jose and Michael's lawyers.

There is discussion about the weights in the Merel livingroom having been moved around.

Next, the hole in the wallboard found behind a wicker shelf and cut out of the wall is passed around and discussed.

Jose's lawyer questions the witness in a very mocking, condescending, smart-ass way. Trying to put him on the defensive. The focus of this seems to be on Detective Williams not remembering seeing one end of the rope around Gwen's knees/thighs.

The next witness is Paul Merel Sr., Jose's father, and the leaseholder of the Merel house back in October 2002. He is also questioned about the hole in the wallboard, which Jaron Nabors had said was caused by Michael thrusting his knee into Gwen's head, and her head flying back into the wall. There is questioning about the typical location of the wicker shelf, which was blocking the hole from view when the house was first investigated after the murder. Merel Sr. says the hole was not there to his knowledge before October 2002. Merel Sr. was surprised that the hole had not been noticed at the time the carpet was cut.

The next witness was Kathleen Boyovich (sp?) the inspector with the D. A.'s office. She answered questions about 9 cell phone call reports she subpoenaed from the cell phone company, which tracked Jason's and Mike's cell phone activity as they drove. One or both of them had used their cell phones on October 4th, 2002 from 3 AM to 11:46 AM on a trip from Newark to the Livermore and then back again. This established that Mike and Jason were definitely up in the area of Gwen's grave.

Witness also testified she looked at the Merel house before the preliminary hearing and did not see the hole in the wallboard, because the wicker shelf, piled with stuff, was barricading the area.

After the prelim, she returned to the house, moved the wicker thing, and found the hole.

Kathleen Boyovich's cross-examination continues Monday, July 18, 2005.

-as observed by Vanissar Tarakali