Wednesday, August 31, 2005

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…

Tuesday, August 30, 2005

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...

Monday, August 29, 2005

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.

Thursday, August 25, 2005

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.

Wednesday, August 24, 2005

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

Tuesday, August 23, 2005

No Court Today

Court was postponed and will resume tomorrow. (Mr. Dubois had an absessed tooth.) Closing Arguements will begin tomorrow Wednesday August 24th at 1:30 PM.

Monday, August 22, 2005

One Last Thing

I want to share with you something that has been bothering me for some time:

Michael Magidson stated that he put a gag in Gwen/Lida's mouth to keep her "from mouthing off, to shut her the fuck up." He then said he bound her wrists to keep her from pulling the gag out of her mouth, from making more noise.
He also bound her ankles.
  • But--why did he bind her wrists in the front, but not from in back? In front, it would be easy to pull a gag out (if she regained consciousness, as he claimed was his concern.)
  • If Magidson didn't intend to kidnap Gwen (i.e. transporting her against her will from place to place), why did he bind her feet?
Cos she wasn't going anywhere alive, and he knew it.

Jaron Nabors, Jason Cazares, Jose Merel, and Michael Magidson killed Gwen Araujo.
One of these people--Jaron Nabors--has taken responsibility for this crime. One of these persons-Jose Merel--has admittted remorse.

The responses to the blog have been amazing--thank you everyone.
I would encourage all to re-read this blog-- and respond again.
Love to all--especially Delilah, Imelda, David, John, Tina, Erin O, David, Sylvia G. ,Shelly, Karen, Chris L, and Kathy B.--and everyone at CUAV & TGLC.
It's almost over. Hang on.

Love,
Connie

Court Watch August 22nd (C. Champagne)

Magidson concluded his testimony today. Merel's lawyer Dubois, called his client as a rebuttal witness. He disputed Magidson's claims that Nabors said he'd strangled Gwen.

Merel looked defeated. Magidson, to the end, failed to take responsibility for anything, in my opinion, despite his opening comments that he had intended to. All Michael Magidson seemed to really want to admit to--was that he wanted to "shut her the fuck up"--and he certainly achieved that.

"I don't remember...I couldn't say... I may have...."


Responsibility.

I am exhausted, so I can only imagine how the Guerreros feel, the families of the defendants, the laywers, the judge, court folks, bailiffs et.al. and jurors must feel.

My grandmother passed away last Friday night, so I need to go and take care of her affairs. I will be in court Wednesday, but I will more than likely be out of town when the jury returns with a verdict. I am relying on my excellent co-workers and allies from CUAV & Transgender Law Center to carry this blog on, and would request that all of you who can, be there at the courthouse in support of Gwen's family when those verdicts are read.

The case is likely to go to the jury next week, and I would not be surprised if verdicts were in prior to Labor Day.


--Connie Champagne

Friday, August 19, 2005

Court Resumes Monday August 22nd (C. Champagne)

The case is nearly over.

Chris Lamiero concluded his cross-examination of Michael Magidson Thursday afternoon. Lamiero pointed out many inconsistancies. Magidson admits he went in to the bathroom that night, in an effort to determine--for his friend Jose-- Gwen/Lida's gender, although he claimed, he was "100 % sure Lida was a woman." He admitted she offered him oral sex, which he accepted, received, and enjoyed. Yet, after he was finished, it still wasn't enough.
Lamiero: "Well, why didn't you just walk down the hallway and say to Jose, it's cool--she's a woman?"
Magidosn: "Well, I wasn't gonna lie to my friend."

If there was any issue at this point, why did he accept the blow job? It just doesn't make any sense.

Lamiero persisted. He asked Magidson if he thought it might have been a desperate attempt to persuade him to let her go. "Do you think just maybe she might have been scared?" he asked. Magidson evaded the question, as he did most questions he was asked.

Magidson admitted he assaulted Lida, threw her to the ground, to pull her panties aside, "to make sure," yet stated that all the while he was sure she was "100 % woman." But according to him, he doesn't hit women, or assault women--he's a "good guy."

Lamiero boomed, "What gave you that right?"

Nothing gave him that right.

After the repeated assaults, when Magidson stated he heard someone say "Knock her out, " or Knock the bitch out," (as folks have testified), he did just that. Gwen/Lida lay face-down, according to his testimony, in front of the Merel's couch. But then, she's bleeding on the floor, so they move her to the couch. More bleeding. Now what? Ultimately, she ended up in the garage, with a gag in her mouth, bound with rope, bleeding and unconcsious.

Magidson admitted he was concerned that Lida might wake up, might make noise, attract attention from the neighbors or the police. Steps had to be taken. Magidson rambled," Maybe if she woke up, I don't know, we'd take her somewhere."

Lamiero: "If Lida woke up, do you think she'd want to go anywhere with you?"

No, they weren't going to let her get away, or and even if she were conscious, they weren't going to drive her home.

Very little of Magidson's testimony seemed truthful to me. I think the most bizarre statement Magidson made in court (and there were many) was that although he has admitted he strangled Gwen, he said that in his "heart of hearts," he knows he didn't kill her. And then he stated:

"Due to the gaps and memory lapses I guess there's a mere, slight chance I did do it."

Mere, slight chance that he did do it?

If this is some kind a strategy Thorman has concocted for him to confuse the jury, I really don't think it's effective.

Lamiero concluded by asking Magidson if he might be a little concerned that there is a law which states that if someone is killed during the commission of a serious crime like kidnapping, that's first degree murder. I am told that the jury will be given instructions to that effect.

Magidson restrained her, knocked her out, bound and gagged her ("to make her shut the fuck up" he testified repeatedly), tied her wrists and ankles and body with more than 35 feet of rope, and stated that it was his idea to take her in this unconscious, bloodied state, "somewhere"--not home or anywhere she might have wanted--needed to go--like maybe, to the hospital. Jose Merel testified earlier that Magidson said they needed to take her "further."

And when someone ties you up and forces you to go somewhere you don't want to go, isn't that kidnapping?

Serra had no questions for Magidson, apparently. Merel's attorney Bill Dubois will begin his cross-examination Monday at 9 AM. It should take most, if not all day. Presuming Thorman has no more witnesses for Magidson, they should go to closing arguements sometime this week, after which, it will go to the jury.

Wednesday, August 17, 2005

Court Watch Wednesday August 17th (C. Champagne)

Magidson was still on the stand for most of the day; Merel's attorney Dubois did request to call a witness out of order, Dr. Van Meter, who performed the autopsy on Gwen. Dr. Van Meter is a brilliant woman, but the testimony had been mostly heard before--what caused the death, timeline, blood alcohol and so on. Though pressed, she did not waiver--Van Meter testified repeatedly that Gwen's death was caused by" asphyxiation due to strangulation, in association with blunt force trauma to the head." In association--both were serious enough to cause her death.

Magidson is being cross-examined by Lamiero, who is very effective. He asked in more detail about Magidson and Cazares' first meeting with Gwen. They were on their way to a billiard hall, to meet some other girls.

Lamiero: "She didn't flag you down, right?"
Magidson: " No, (it) took a little persuasion. She was a little nervous about getting into a truck with 2 guys she didn't know. We let her know we were good guys."
Lamiero: "Made her feel comfortable?"
Magidson: "Same thing I would do with any woman."
Lamiero: "And, you were 22 at the time?"

Lamiero asked Magidson what he expected from Lida, a young, attractive girl walking down the street with a beer in her hand--Magidson admitted she looked "like a party girl, likes to drink, like we do."

Lamiero: "Easy?"
Magidson: "You could say that."
Lamiero: "Requires less effort?...One should never turn down an easy piece of ass, right?"
Magidson agreed that was his thinking.
Lamiero: "(But), why didn't you go to the pool hall?"
Magidson: " Lida. Maybe cos we had a different girl."

So they had no use for the girls who were waiting for them.

Lamiero demonstrated with his questions how Magidson regarded women in general. Magidson stated that were he to share Lida with one of his buddies, he'd be open to that, that he "wouldn't turn it down."
Lamiero: "Both of you together?"
Magidson: "Sure."

Magidson testified one evening Lida "hounded" him not to leave the Merel house, and coaxed him into sex. He admitted that his only interest in Lida was sex--and that he was "irritated" with the attention she gave him, and didn't want to be teased. "I wasn't interested in that cuddly-duddly shit," he said.

Magidson insisted that Lida's gender never came up in conversation, not even with Jose and Paul. In view of others' testimony, this is difficult to believe, especially when Magidson was recounting that she had anal sex with Jose, using the same excuse that she was on her period. Magidson admitted having conversations with Jose and Paul about Lida being on her period for a very long time. Others testified that they were curious about Lida's gender.

Some fireworks occurred at the end of the day, when Lamiero was trying to get answers about how Magidson drove to the Merel house October 3rd, ending up sitting around the table playing dominoes. He called Magidson out on his frequent use of the word "Obviously."
Lamiero: " Why do you use that word in that fashion? There's no sarcasm in that, right?"
Magidson: "No!"
Lamiero: "Okay then, So obviously, you--"
Thorman objects.

The judge informed the court that we will have to wait until tomorrow to hear the rules for a game of dominoes, how it's played, how to keep score. It was 4 o'clock.

Recently, the headlines of a local paper read "Nabors Did It, Magidson Testifies." Magidson has blamed Nabors for nearly all of it--claimed Nabors hit Gwen with the shovel--in the driveway in full view before they left for Silverfork. Given their level of panic, that seems unlikely. He also claimed Nabors was the one who strangled Gwen--not him, even though he's the one who had the rope.

Magidson testified that he said he'd told his friends that he would take the blame, "cos they all have kids...but I never thought they'd take me up on it."

Magidson admitted he's the one who put a gag in her mouth, so "she'd quit screaming." Magidson admitted he's the one who tied her up, "to keep her from pulling the gag out, and start screaming." Lamiero asked Magidson if his plan was just to "drop her off somewhere," then why did he have to tie her ankles, and the rest of her body, too?

On her way out of the courtroom, Gwen's mom Sylvia spoke to Jaron Nabors' mom, who has come in support of her son and in turn, the Guerreros. Sylvia has a new grandson--and Nabors' mom has a grandson, too.

It's an incredibly difficult road that they are both on--not to mention, Gwen's Aunts Imelda and Emma, her step-dad John (who is there without fail every day), her Uncle David who loved her so, Delilah M., all the trans folks and allies who show up in support, Advocate Erin Osanna--we all seem to be part of a big, hurt family. Folks stick together, though, and seeing each others' faces each day seems to give us all strength.

Attonement, redemption, coming clean. It's something.

Court resumes tomorrow at 9 AM. There is no court on Friday.

Monday, August 15, 2005

Magidson Takes the Stand (C. Champagne)

Monday August 15th, Michael Thorman, Mike Magidson's attorney, presented several character witnesses for Magidson. 3 witnesses were young women-- 2 girlfriends (both of whom said they had "gay friends" that knew Mike) and 1 childhood friend. The other 2 witnesses were the aforementioned "gay friends," who were actually friends of Magidson's girlfriends, neither of whom had known Magidson for any significant length of time.

The young women who took the stand all smiled and giggled at various times. Maybe they were nervous. Shabree Barton testified she had plans with Magidson the night of the murder. She tried to phone him that evening/early morning, 10 maybe 11 times. When she finally reached him, he said he couldn't talk. "Call me back in 5 minutes," she said. He did not call her back, she testified.

He did arrive at her house the following day, after burying Gwen, exhausted after the road trip, and all, needing a place to crash. He later described her nagging him, wanting to know where he'd been, why he'd stood her up. "Bugging" him, "nagging" him, he said. She testified he took a shower, ignored her, went to sleep.

On the advice of her attorney, they no longer communicate.

Another girlfriend Vivien Porter reminisced about their happy times, but admitted that although she lives in Dublin now (where Santa Rita Jail is located, where Magidson has been incarcerated for nearly 3 years), she doesn't visit him. "You know...I've been busy..."

The most unusual character witness was a co-worker of girlfriend Porter's, Ephren (sp?) Roman, who is a gay man, living and working "in the Castro, in San Francisco." He testified that he had written a letter to the judge in support of Magidson's bail.

Roman stated that he felt "safe" around Magidson, and wrote the judge that if Magidson were to secure bail, he would take him into his home.

Lamiero asked Roman on cross, "Did you really mean that?... I mean, you knew him-- how long? A total of 3 hours or so? A total of 2 or 3 lunches at work and a trip to buy hotdogs at Costco?" Lamiero asked , "How is that?"
Roman answered, "Well, there are many variables to this case."
Lamiero: "Like what?"
Roman: "Well, drugs and alcohol."
Lamiero: "In other words, Eddie/Gwen got what was coming (to her), right?"

Roman seemed flustered and answered "Incorrect."

Magidson took the stand in his own defense. He recounted early in his testimony a story about a sexual exchange he had previously, (prior to his involvelment with Gwen/Lida) with a trans woman, that Jason Cazares was aware of--that it was an old joke to them, smiling at the remembrance. I guess this was to tell us that he is/was not transphobic, and that these gay male friends of his girlfriends who testified are supposed to show us he's not homophobic.

Okay. Which is it? He attacks Gwen in a transphobic panic about his compromised straightness/masculinity, or because of his loyalty to his friends, or as he said over and over in his testimony and in his police interview--because his "mind just went blank."

I am reminded of when Magidson recounted his initial meeting with Gwen back in August 2002. He testified that he and Jason were on their way to meet some other girls, "one of them, "he said," had a little crush on Jason."

But when they saw Lida walking down the street, with a beer in her hand, they said "Hey! What's up?" Lida said she'd had a fight with her boyfriend, so they offered her a ride, and in Magidson's words, they "blew the other girls off" they were supposed to meet instead, to hang out with Lida, to take her to party at the Merel house. (Later, Magidson testified that Lida was reluctant to get in the truck with 2 guys she didn't know. But they reassured her they were "cool.")

Gwen's aunt, Imelda had to leave the court, as Magidson testified that Lida/Gwen" violated the sanctity of their place--the Merel home." The sanctity.

Magidson used language--after laughing about similar sexual behavior with others--that was hypocritical, and vulgar--and showed no remorse for his actions whatsoever. It was clear he did not/does not regard Gwen Araujo as a human being of any worth.

In light of his testimony, it is hard for me to believe that he was traumatized by his involvement with Gwen.

During the afternoon testimony, Thorman played the entire 2 hour + police interview with Magidson and Newark PD Detective Lovano. I wondered--is this supposed to make us feel sorry for Magidson? Is this another twinky defense? Why did Thorman make us--and the jury suffer through this?

It went on forever. Officer Lovano using every transphobic cliche in the book:
"Dude--did she have a weapon?"
"Dude--I'd feel the same as you, man."
"You know, those (transgender) prostitutes --they're always packing--did she have a knife, anything? Was it self-defense? You can tell me."

In my view, this went way beyond "Good Cop/Bad Cop." Folks wondered, "Who's side was he on anyway?" I had to ask myself, do all defendants in murder cases get this buddy-buddy treatment? I know that police use many tactics to gain the trust of a suspect, but it seemed like Lovano was suggesting ways Magidson could get out of his predicament.

Where was Bad Cop?

"You can tell me, man. Cos I undertstand. I put myself in all you guys' shoes."

I wondered if the officer put himself in the victim's shoes.

The videotaped interview finished at 4 PM.

Thursday, August 11, 2005

Court Resumes This Monday Aug 15th 9 AM (C. Champagne)

Court has not been in session. Last week, one of the jurors had some personal business to attend to and apparently asked to be replaced by an alternate. Instead, the judge postponed the trial until Monday August 15th 9 AM.

I know the delays have been stressful, and it is easy to become overwhelmed by this process.

William Dubois (who also just took on a new case-- that of a retired teacher in Berkeley who was recently arrested for his alleged role in the 1970 murder of an Oakland police officer) is expected to wrap up Jose Merel's defense. Mike Magidson's attorney Michael Thorman will then begin presenting his case. Thorman is expected to call Jaron Nabors' girlfriend Dede to testify (for what reason, we don't really know.) Magidson, like his co-defendants, is expected to take the stand sometime next week. It will be the first time Magidson's personal testimony will be heard.
Please come to court if you can.