Wednesday, September 14, 2005

Victory in Hayward

Christopher Daley, Transgender Law Center

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 13, 2005

2 Verdicts, 1 Mistrial

Septemeber 12, 2005:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How could we have created a safer community Gwen?

The answer is education, but what does that mean?

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

We have to stay involved.