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…


Blogger Karen said...

Hi P. Espinoza,

If you look at paragraph 16, you will find a major error. Please fix this.


7:33 PM  
Anonymous Anonymous said...

i always thought the DA would go after Mike and Jose for murder 1, and Jason for whatever the jury thinks, not Jose. did anyone else think this too. and i'm not saying jason isn't guilty, i think they all are, so don't go there, i was just questioning the DAs actions. to me it seemed that jose was more actively involved in the beating than jason was.

4:29 AM  
Blogger Karen said...

It is understandable how you could think this. But I believe ADA Lamiero got it right. Let me explain my view. Its quite ok, if you don't agree with me.

First off, Jose Merel had genuine feelings for Gwen. He initially participated in the beating -- but Jose played no role in Gwen's actual strangulation. Jose Merel expressed his desire for Gwen to leave the home numerous times.

But there is more. I believe I understand Mr. Lamiero's theory of this killing. According to this theory, Magidson discovered Gwen's genitalia problem 2 weeks prior to Gwen's murder. He was the one who was instigating everything. While Jose was upset and asking Gwen, if she was a man -- Magidson was there instigating. Magidson took Gwen into the bathroom. He then told Nicole to go into the bathroom and check Gwen's genitalia. He already knew the answer. Nicole did find out.

At this point Jose and Magidson go outside. Cazares went into the bathroom with Gwen. Magidson was instigating Jose about what to do next. Now, when Jose and Magidson came back in the home -- Gwen was attempting to leave. This is when Magidson threw Gwen to the ground and the initial assault began.

Cazares stopped the assault just until all the witnesses who were not "down" for the murder left the home. (According to ADA Lamiero, this is sufficient to convict Cazares of 1st degree murder.) Once Nicole and the others left, then Cazares and Nabors went to get shovels to bury Gwen. Gwen was alive at this time. If you believe the testimony that supports this -- then Cazares is guilty of 1st degree murder. There is testimony that Cazares also hit Gwen in the head with a shovel one or two times.

In my opinion, Mr. Lamiero believes that Magidson, Cazares, and Nabors had discussed their plan prior to Gwen even arriving that night. Cazares clearly lied throughout his testimony. And there are quite a few important parts of his testimony that is directly refuted by the testimony of Jose Merel, Nabors, and Nicole.

I think the fact all those folks left the house, while Jason Cazares stopped the assault -- is compelling evidence of premeditation. Some of these folks were sleeping. They just got up, put some clothes on and left the home. This is very odd, and can only be explained logically in one way: They were told to leave because of what was going to happen. And then Cazares's action to delay the assault becomes an integral part of the murder. And the murder was then clearly premeditated. Looking closely at this event, when Cazares stopped the assault, there are clear indications that Cazares was lying. Cazares claimed he thought Gwen was a woman -- so he was stopping the assault to protect a woman. But he claimed to have never even looked at Gwen to ascertain if she had sustained any injury. He also testified he never did anything to help Gwen off the floor. It is simply impossible to believe his claim that he thought Gwen was a woman at that moment. He lied.

In my opinion, Michael Magidson is guilty of 1st degree murder. He also was the motive force behind this murder. My point is: Had Michael Magidson not been present at the Merel home that night -- then I believe Gwen had a real good chance of walking out of that home that night. With Magidson there: Gwen had no chance. Magidson had murder on his mind.

As for Cazares and Jose Merel, I think everyone has to simply accept the jury's decision. For Magidson, I will be literally shocked, if he escapes a murder conviction. Nabors deserved his deal. Even though he was involved with the crime, he broke the case open. Without Nabor's cooperation, Gwen's body would never have been recovered, and the trial would never have occurred.

These are my conclusions, based on the evidence and arguments I observed while attending the trial. In the end, what I think is not that important -- only the jury has the authority to hold these men accountable for Gwen's murder. We just have to wait for the jury to arrive at their own conclusions.

11:44 AM  
Blogger Justice for Gwen Araujo said...

If you can point me to the error, I will gladly fix it. Thanks much.

11:57 AM  
Blogger Karen said...

Referring to paragraph sixteen, you say:

"The DA said that he knew Nabors was lying, and we could all see that Merel was not telling us what he knew."

The ADA said he knew Magidson was lying. He also said he knew Cazares was lying. The ADA said Jose Merel lied at times out of fear of Magidson. I do not believe Mr. Lamiero ever said he knew Jaron Nabors was lying.

1:18 PM  
Anonymous Anonymous said...

If Jason gets charged with murder and Jose gets nothing, it just goes to show how crooked the system is!!!! Just because Jose sat up their and let out those fake tears the ADA feels sorry for him!! Yeah right! He is not "feared of Mike", he is scared of spending his life in prison and he is doing whatever he has to to put blame on someone who he knows didn't do crap!!! He knows what he did; him, Jason, Mike, Jaron & Gwen are the only ones that REALLY know what happen. The lord and Gwen are gonna let the real truth be known and make who really caused her death pay for it in their own ways. The lord works in mysterious way. They are all in my prayers and all the families that have been involved. Especially the babies of these guys that might be fatherless becuase of their bad decision making...

11:13 AM  
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5:19 PM  
Blogger Karen said...

Well, now you believe the legal system is unfair. Folks think about that one. At this time, we know the jury has reached 2 verdicts and continues to deliberate on the last verdict. I believe this jury will arrive at the third verdict soon.

Whatever the jury decides. It is fair. It is fair, because these are normal folks. They will deliver the community's justice for each of these 3 defendants.

Whatever the jury decides for Jason Cazares is going to be fair -- by the authority that jury has. I'm waiting to see what this jury does. But I can tell you this much, as I have waited for the jury to do it's work, one thing has become quite clear to me about Jason Cazares: He was caught in so many lies, I suspect the jury will not believe anything he said. What that means to his verdict -- I do not know. Let's wait and see.

7:47 PM  
Blogger Justice is Blind said...

Looks like the jury didn't see it your way Karen. They hung on Jason and convicted Jose and Mike for murder. I think you need to realize that the case against Jason is the weakest and stop trying to quiet the opinions of others.

9:19 PM  
Anonymous Anonymous said...

They hung on Jason 9 FOR to 3 against second degree murduer conviction.

Be thankful we live in a country in which all twelve jurors have to agree, in order to convict someone of murder.

11:19 PM  
Blogger Karen said...

My understanding is that the jury hung on the verdict for Jason Cazares at 9 votes for 2nd degree murder and 3 votes against.

Let me just say this jury obviously did their best to find justice. And in their opinion, 9 jurors were convinced, beyond a reasonable doubt, that Jason Cazares is guilty of 2nd degree murder. Three jurors saw it different. I respect the jury's decision.

But let's be clear, this 9 to 3 hung jury is not an acquittal of Jason Cazares. It just means 3 jurors had a reasonable doubt. Jason may never be convicted of his role in this murder, but it is likely he will never be acquitted either.

I accept the jury's decision. It doesn't matter what I think about his guilt. This jury served with honor and integrity, and their decision speaks for itself. Gwen was a wonderful human being with a full life in front of her -- and this jury's actions confirm this community valued her life. And the jury's action, in hanging on Jasons' verdict, demonstrates this jury valued the lives of these defendants. We all need to accept the jury's decision, even where we don't agree with them. They served with honor and distinction.

My heart goes out to Gwen's family. And I wish them all strength. And my heart goes out to the Merel family, the Magidson family, the Nabors family, and the Cazares family. I wish them all strength, as they move on with their lives.

11:57 PM  
Blogger Justice is Blind said...

I think the system worked in this case, with the exception of Jaron Nabors. I think the 9 who voted guilt for Jason were blending the three defendants. I think the case was way to weak to substain a conviction for anything.

I think it's a testament to the jury system that the jurors were able to look past the DA not arguing murder for Jose. I think those who are interested in the "trans-panic" defense being wrong should have been disappointed in the DA for trying to cut Jose loose. Cazares was the only defendant who never used that defense (as he never slept with Gwen). He's simply declared he is not guilty of murder and guilty of accessory after the fact from the beginning. The DA failed to prove the case against Jason.

I think the jury did the right thing in this case and I think the system works.

7:06 AM  
Anonymous Anonymous said...

I feel a little more relief for Jason...
Really sad for Mike and Jose because they really were, really, good guys. They made an extremely bad judgement and now they have to pay for it. Jason will pay for his actions, but now through the legal system obviously, he did NOT commit murder and I had a strong feeling that it was going to be a hung jury on him...
I think the right decision was made.

9:27 AM  
Blogger Karen said...

Having said I respect this jury's decision to hang on Jason Cazares verdict at 9 votes for 2nd degree murder and 3 votes against, let me clarify my personal views.

I believe Mr. Cazares is as guilty as Michael Magidson. And in my view, there was overwhelming evidence that Michael Magidson commited 1st degree murder, and that Jason Cazares aided and abetted Magidson in committing this murder. (And 9 of 12 jurors apparently believed as I do.) I also believe very strongly that this was a hate crime. I therefore enthusiastically support a third trial of Jason Cazares for the murder of Gwen Araujo. Only Jason Cazares would be on trial this time. Everything will be focused on Mr. Cazares's actions that evening. I think the actions of the three defense teams in this last trial diluted the jury's focus with respect to Mr. Cazares. In a third trial, I believe it is possible to convict Jason Cazare of murder.

I also believe Gwen's family should file a wrongful death suit against Jason Cazares in civil court. I believe Gwen's family should pursue all available legal options to hold these men accountable for their actions in murdering Gwen. I believe it is the right thing to do.

I also believe that the transgender community should acquire a copy of the entire public record of this second trial's proceedings, and post all of it on a web site for all time. This trail's record should be available, on the Internet, to anyone who has an interest in learning the truth about what actually happened. The circumstances of Gwen's murder are heinous. The public at large will benefit from having easy access to this public record. I believe this is a very worthy project to consider.

12:05 PM  
Blogger Justice is Blind said...

I think the DA threw everything he had at Jason this time around. I think a second trial with two people already convicted of murder is an impossible feat for any district attorney. There will be two empty chairs in the courtroom (three if you count Jaron). Not all of the evidence that was used to convict Mike and Jose can come in against Jason, and the DA can't rely on his guilt by association reasoning as effectively. The evidence is just not there against Jason, it's all inferences. This would only be made more clear in a subsequent third trial.

Don't get your hopes up Karen...

12:32 PM  
Anonymous Anonymous said...

Gwen paid with her life for believing this guys "really were, really good guys." They proved the world what a bunch of "good guys" they really were the fall of 2002!

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