June 29th-30th Court Watch Update

The ADA Chris Lamiero continued to build his case. Last week, an investigator from the DA's office read into record the transcript of Jason Cazares' testimony in last year's trial. Cazares' story last year was that he smoked 2 cigarettes, had a long talk with co-defendant Jose Merel's older brother Paul about going to Tahoe the following Saturday (?) and then went back in the house. Cazares claimed that it was only after going back into the house after this conversation with Paul, that he was told that Gwen/Lida was dead, and it was then that he and Jaron Nabors went to get shovels in Magidson's truck.

However, no testimony so far has been able to corroborate Cazares' version of events.

After the testimony was read, a videotape of Cazares' initial interview with the police in October 2002, a few weeks following the murder, was played. He said many things--like that he went home at 3 AM, took the route by the railroad tracks, that he never knew anyone was seriously questioning Gwen/Lida's gender--things we know now, and that he has since admitted--were not true. And his demeanor/behavior pattern when he was telling these untruths is notably different than when he was telling the truth. I remember his testimony from last year, and I wonder if the jury will notice what I noticed.

The timeline of when they got the shovels is important, because if Cazares went to get shovels before the murder--that implicates him very seriously. Nabors has already testified that when they left to get the shovels, Gwen was sitting on the couch--injured but still alive. Nabors testified that Cazares' said they needed to go and get shovels because, "They're (Magidson and Jose Merel) gonna kill that bitch."

Following Cazares' interview, Paul Merel was called as a witness. He was very evasive, and now claims that he left the house because his girlfriend Nicole Brown was pushing him to leave. (Last year, he said he knew something bad was going down, and already being on probation himself, was worried the police were coming.) However, Merel testified again that he never had any conversation with Cazares about going to Tahoe that night--that they didn't talk until the next day.

Girlfriend Nicole Brown followed Merel and also testified that Paul never had a conversation of that nature with Cazares. Although she admits her memory was problematic due to alcohol and pot, she testified that she remembers events, if not the specific order. Last year, her testimony was erratic, due to her meth use at that time; however, she stated that she has been sober for a year, and seems credible this time around on the stand, despite the defense attorneys' efforts to discredit her. She and Merel both said they saw Gwen alive and sitting up when they left the Merel house. Moments later, she said they saw Magidson's truck. She testified although she couldn't see who was in the truck, she stated she heard Cazares' voice say, "We're going to get shovels."

A side note--I was told that Nicole Brown has apologized to Gwen's mom Sylvia for her role in this nightmare, and that Sylvia embraced her. These gestures are amazing to me for so many complex reasons. The process of healing and change is very powerful. I am always amazed and moved by it.

Brown's testimony continued through Thursday June 30th and is expected to conclude Tuesday morning July 5th. The younger Merel brother Emanuel is the next witness scheduled. Emanuel (aka Manny) lived in the house at the time, was present that night, and also left with Nicole and Paul. Emanuel was the only person sober (doesn't drink/use pot etc.) that night. It will be interesting to hear his testimony in that regard.

Thanks to Pablo, Vanissar, Oscar and Shane for making it to the trial last week. Community presence means a lot to the Gwen's family. Now that Pride Week is over, we hope to see more folks at Court Watch.

--Connie Champagne

June 20th Court Watch

Court began Monday morning with the defense lawyers and the ADA discussing (out of the presence of the jury) which photographs would be admitted into evidence. Jose Merel's attorney Mr. Dubois wanted 6 photos; Cazares' attorney Serra wanted only one :"They (the photos) are too gruesome...will be prejudicial and have no probative value."

The photos are what they are, and they reflect the brutality of the crime--the savage beating and murder of a 17 year old. Dubois entertained a motion to sever--meaning that he might want seperate trial for his client Merel.

Ultimately, the judge ruled that most of the photos would be admitted. The jury came into court at 9:45 AM.

The medical examiner Dr. Sharon Van Meter took the stand. She has been a doctor of pathology for over 30 years, and as a member of the Western Medical Group, provides medical services to the Alameda County Coroner's office. Van Meter examined the body, and determined the cause of death to be "asphyxia (from strangulation) in association with blunt force trauma to the head." The victim was alive at the time of strangulation, and she may or may not have been conscious. The trauma alone could have been fatal.

Serra: "What instrument caused the trauma/lacerations? Could it have been a can?"
Van Meter:"Yes."
Serra: "Fry pan?"
Van Meter: "Yes."
Serra: "A shovel?"
Van Meter: "Yes."
Serra: "A weight?"
Van Meter: "Yes."
Serra: "You can't tell us exactly (what caused the trauma)?"
Van Meter: "No I can't."

Dubois, in his opening statement, described Merel's assault as "glancing" blows. But, Van Meter testified that there was no evidence of "scraping," so "glancing" blows would seem unlikely.

One of the distinct characteristics that define a hate crime is the over-kill factor--the extreme violence that perpetrators use. Van Meter testified that there were indeed a number of post-mortem lesions over Gwen's body: "Yes...a (large) number of areas--over the back, abdomen, knees, left-forward chest, right forearm and thigh and knee, back of left forearm..."

In other words, they were still beating the life out of her, after she was already dead.

Van Meter testified that nearly 4 feet of rope was used--that there were "numerous lengths of rope" used and that the free ends were knotted. Her wrists were bound multiple times; the rope extended down the side of her body, around her ankles, too, and her chest. Jaron Nabors testified she had been "knocked out" and was unconscious, and that Magidson asked him for his knife to cut the rope. But why all the rope, the intricacies of cutting the pieces of rope, and tying the pieces in such an elaborate way? Did Magidson have some weird rope fetish, some sociopathic fantasy involving rope/restriction--what? Gwen's predicament certainly presented a perfect opportunity to for him to act this out, were Magidson so inclined. It 's very disturbing.

Mr. Serra in his cross examination of Van Meter asked her to detail the toxicology report on Gwen's blood alcohol content and drugs found in her system. Although it is an allowable line of questioning, it feels like he is again blaming the victim for her cirmumstances and impunes her character. Gwen Araujo is not on trial for her own murder, so such questions should be irrelevant.

Next on the stand--the investigator from the DA's office who read Cazares' testimony from the last trial, then a sergeant/detective who interviewed Cazares a couple of weeks after the murder, and the videotape of that interview. But this courtwatch participant has a had a long day--I will update soon.

Court watch continues this Monday June 27th at the Hayward Hall of Justice, 24404 Amador Street, Hayward in Courtrroom 510, 2nd Floor. Please try and come to court and support Gwen's family when you can--thanks.

--Connie Champagne

Thursday June 16th--Nabors Testimony Concludes

Court Watch Update-- Thursday June 16th, 2005

William Dubois (attorney for Jose Merel): "Why should we believe you?"
Jaron Nabors: "Well, in the absence of predated confidence, all we're left with is rational perception."

For 9 long days, Nabors testified for the prosecution. He held up well. The defense attorneys Thorman, Dubois and Serra took their turns alternately questioning and ultimately badgering him in a variety of creative ways--by pointing out pejorative terms he used, ugly language and slurs, avoiding eye contact with the jury, the deal he eventually received for taking police to Gwen's body and testifying against his former friends.

Dubois: "You had to move very quickly (before anyone else got a deal first) didn't you?
Nabors: "No, I wanted to move quickly...I don't think I could have gotten a deal any worse," (meaning he will serve the maximum sentence.)
Serra: "Isn't what you're doing called 'speaking with forked tongue'--agree?"
Nabors:"No. I'm not lying."
Serra: "In your next life, be a lawyer!" (Lamiero objects.)
Thorman (attorney for Michael Magidson):"Why don't you look at them (the jury)?"
Nabors: "In my circumstances, I think it would be inappropriate...I'm not a victim facing my attackers. And I'm not a defendant asking to go home. "

In the end, Lamiero asked the most important questions.

Lamiero: "You said all of you (Merel, Cazares, and Magidson) should have seperate trials--why?"
Nabors: "(Because) only 1 person killed Lida."
Lamiero: "At that time, you drew a distinction between the person who did the act (versus) those who helped?"
Nabors: "Yes."

Lamiero noted Nabors' lack of remorse over Gwen's death evident in phone calls he made from jail to his girlfriend, and tape-recorded by police shortly after his arrest.
Lamiero: "How do you feel about that today?"
Nabors: "It hurts. When I think back on it, I realize I didn't even care what happened to her. Everyone deserves at least that. I didn't even have enough character to. Not only did I not try, I didn't even consider trying...I could have stopped it."
Lamiero: "Mr. Thorman has asked you about not looking at the jury--have you testified truthfully?"
Nabors: "Yes."
Lamiero: "So, even if all three of these men walk out of this courtroom free, you'll still do 11 years?"
Nabors: "I know that."
Lamiero: "Want the jury to believe you?"
Nabors: "It doesn't really matter to me."
Lamiero: "Explain your answer."
Nabors: "Well, I don't want them to think I'm a liar. But, it's up to them."

Lamiero had no further questions; the defense attorneys excused Nabors with the stipulation that they may recall him for more questions later.

Although there were a couple of press people in court that morning, they left after lunch and missed what was probably the most important testimony we've seen in either trial thus far. The small coderie of folks who stayed for the afternoon meandered out the door. Gwen's mom Sylvia called an "emergency victims' meeting"--she was frustrated and upset with the tactics the defense attorneys used-- " Why did the judge let them badger him like that?" Whatever the reason, the more out of control the defense attorneys got, the less their version(s) of events seemed plausible. And the more we believed Jaron Nabors.

I don't know whether he was quoting someone else--Ayn Rand? (if anyone knows--tell me) but nevertheless, Nabors was pretty much right--"in the absence of predated confidence, all we're left with is rational perception."

Afterall, at this point--what more does he really have to lose?

--Connie Champagne

(Court resumes Monday June 20th @ 9AM--the medical examiner is expected to take the stand.)

Tuesday June 14th Court Watch

Michael Thorman, attorney for Michael Magidson had begun his cross examination of Jaron Nabors. He was playing a video of Jaron Nabors' interview with the police.
On tape--
Detective Lovano--(and btw, I don't know how to spell his name, so apologies up front)--"If all you did was block the door, why on earth would you go with them (Magidson, Merel & Cazares) to Silverfork (to bury Gwen's body)?"
Nabors: "Loyalty... And, like ,'Holy shit, what if I'm too far into this to back out now?'"
Detective: "You know, there's DNA, trace evidence can be found on the body.."
Nabors: "I'm not worried about that--"
Detective: "Cos we'll find out--"
Nabors: "I want you to find out."
Thorman detailed the inconsistancies of Nabors' interview statements versus what he is destifying now (and in the first trial.) Nabors was upfront about the inconsistancies, and admits telling half-truths, trying to save himself and the others:

• Description of his knife, how he came in possession of it
• Left Jason out of initial report--said that" Jose and Mike took Lida in the garage" (when it was actually Magidson and Jason Cazares)

Thorman: "You were protecting Jason?"
Nabors: "Yeah."

And then, information from Thorman--(and this will most likely be a new tactic Thorman will use): "Do you remember a discussion, where Mike (Magidson) said that since all three of you--(Merel, Cazares, and Nabors)--have children and he (Magidson) doesn't have children--Mike offers, he says "I'll take the blame?"
Nabors: "I don't remember him making that statement at all."
Thorman: "Reason why you went along?--Loyalty? But you were in."
Nabors: "Yeah."

Thorman asked about Nabors' meeting with his lawyer--who objected--and the judge overruled. When they met, what they discussed.

Thorman then began to play the recorded phone call Nabors placed to his girlfriend. We all heard this in the last trial, and it is full of minutia and details about their personal lives which seem to be irrelevent to the case--and homophobia and transphobia and mysogeny.

What is different is Nabors' reaction to hearing himself and Dede on tape. He put his head in his hands.

The girlfriend Dede (again--apologies for misspelling her name if I am)--says: "They (referring to a vigil for Gwen) had some kind of prayer! It makes me mad! The aunt (Imelda Guerrero) said she (Gwen) was a "beautiful person." It's not fair! She was not...she was sick and disgusting...don't worry, it will all come out, the truth will come out."

And so it goes.

Well, Dede was right in a way. The truth is coming out. Not in a way Dede would have imagined at that time, but the truth nevertheless. Transgender awareness is everywhere--and transgender education is becoming more effective each day.

The first trial began the process. In this trial-there's been a turn-around in these defense lawyers tactics, the language they use, the language the press uses. Sylvia Guerrero and the rest of Gwen's family have taken up the banner, and as a result, so many folks are talking, learning, and their minds are broadening and changing. We are all--learning.

I had to leave at noon--I had a crisis line shift to cover at CUAV. I spoke to Gwen's mom Sylvia today as I was leaving. She thanked CUAV for being there with her and her family. She also believes that Jaron Nabors is telling the truth, which is a comfort to her. She shared with me that only Nabors' parents have expressed to her their condolences for her loss. And partly because of that, Sylvia has begun to find a way to heal.
--Connie Champagne

Monday June 13th Court Watch

Trial began at 10:15 AM--an hour and 15 minutes late, due to a "transportation problem." William Dubois, attorney for Jose Merel, began his cross-examination of Jaron Nabors. He asked about Nabors' weight loss. Dubois seemed very interested, as if to imply that the weight loss was intentional--to illicit sympathy? Nabors testified that he weighed 150 lbs when Gwen was murdered, 205 lbs when he testified last year, and 170 lbs now.

Dubois is the new lawyer on the case, and he repeats questions over and over ( a tactic Mr. Serra seemed to realize might not have been effective last trial.) After deducing what Nabors weighed and when, he turned to Nabors' religious beliefs. Nabors' responded, "I wouldn't expect anyone to believe me because of my religious beliefs." Dubois-- (some sarcasm) "Are you living a 'Christ-like' life?" Nabors--"As much as can be possible...I don't expect it to mean anything to anyone else." Dubois then grilled Nabors for 30 minutes, with what seemed to most of us, a pointless debate about the meaning of the 23rd Psalm, his knowledge of it, and whether it refers to "a lost sheep, with a broken leg, who's strayed from God"--or not.

The questioning veered to what Nabors said to his lawyer, and several objections were made--most of which the judge sustained on the basis of attorney/client privilege. After this line of questioning went on for some time, DA Chris Lamiero asked if he could instruct the jury on the meaning of aiding and abetting, and what it means "to participate in a crime." The judge declined.

Dubois produced a small can of tomatoes, asks if it was similar to the can his client hit Gwen Araujo in the head with. Nabors said no, the can Merel used was bigger.

Interesting to note: Dubois always refers to Gwen as "Gwen"--not as "Lida," not as "Eddie." He is, after all, the new lawyer.

He questions Nabors about his testimony in the last trial, but Dubois only has a transcript "marked up" by his "predessor" (i.e. Merel's lawyer in the first trial.) It seemed odd to me that both Serra and Dubois don't seem to have any access to a copy machine, or admin assistants to make clean copies of transcripts for them...

The transcripts have Nabors testifying about the can and skillet used in Merel's assault. Nabors--"He (Merel) got a can and a frying pan from the kitchen, and that's what I'm still saying." Dubois brought out another prop--this time, a tiny frying pan. Again, Nabors notes that the pan is smaller than the one Merel used in the assault. Dubois seems to be laying groundwork to imply that Nabors struck her with something (a weight?) and not his client Merel.

Dubois moved on the describing Nabors' relationship with Merel as "commercial;" in other words, Merel sold him marijuana:
Dubois--"How often?"
Nabors--"Whenever the stars were alligned."
Dubois (apparently quoting from the musical Hair), --"You mean when the moon is in the 7th house?"
Nabors--"Something like that."
Dubois--"Grass brought you there?"
Nabors--"Yes."

Dubois stressed the affects marijuana has on memory, and how much he smoked over a 6 year period of time. Nabors acknowledged that pot affected his memory, "That's weed--there's something that you (used to) know, that you know that you know--but you can't remember it," but insisted, "...My memory was far from shot."

Dubois' main points, in short:

• Pot affected Nabors' memory (was the can Rotel?) How far away was Nabors from Merel when merel struck Gwen?
• Nabors promised his "friends" that he wouldn't tell what they had done to Gwen, but within hours, told someone--(another) friend Adam anyway. Why? Was he bragging? Was it his conscience? Both?) Ultimately, he led the police to Gwen's body, hoping for leniency, "a deal."
  
• In his letter, Nabors didn't tell his "significant other" the real reason he went out that night (Nabors wrote his girlfriend that he was defending his buddies from"enemies," when, in fact, just wanted to "hang out.")

Although Dubois went on and on, and many objections were made, overruled or sustained, Nabors did well corraborating his original testimony. The props--the can of food and the tiny pan--seemed theatrically false--and they weren't the actual ones that Merel used to assault Gwen.

Does the jury know that?

Court recessed at 2:50PM, and I had to leave. I will be back tomorrow at 9 AM.
--Connie Champagne

Court Watch Update June 6th through June 8th

June 6th through June 8th 2005
Monday, court resumed with DA Chris Lamiero's direct examination, Jaron Nabors still on the stand. Nabors recounted the events of October 3rd into the early hours of October 4th, 2002. The account was consistent with last year's-- the 4 going to the Elephant Bar, then to Mango's, then ending up at the Merel house, and the rest.

An important piece--did Jason Cazares and Nabors fetch the shovels before--or after--Gwen's murder?--was again corroborated by Nabors. According to his testimony, after Jose Merel's assault on Araujo with the can of food and then the "skillet," Araujo was still alive, sitting on the couch. Cazares asks Nabors "Are you down?" and Nabors nods in the affirmative. They get Magidson's car keys, drive to the Cazares house and fetch the shovels. This is a key piece of testimony, and when Merel takes the stand, his attorney Bill Dubois has indicated he will back that up. It's crucial to the case against Cazares, who arguably has a chance at manslaughter, or even of going free.

Much will be discussed about Nabors' jailhouse letter to his girlfriend--how much was true, how much was bragging. Was he trying to manipulate the DA, the police? And how did he hurt his elbow? Nabors has chronic inflammation in his elbow--was it from holding his arms inside the shirt he was wearing, borrowed form Merel, so he wouldn't get his other shirt dirty, on the cold ride to Silver Fork, or some other way?

Lamiero concluded by asking him about his life in jail, where Nabors has been in Administrative Segregation, " (I.e. relative solitary confinement) for the past 2 years and 8 months. What does he do? Spends time "reading, exercising, studying Spanish, college entrance exams..." Lamiero asks him again, "Are you telling the truth?" Answers, "Yes."

And, although I think there is still more to the story--I believe him.

The thing that is striking about Nabors' testimony this time around, is the change in his demeanor. He looks defeated. In the words of one Guerrero family member, "This is a different guy from last year." It's true that he's lost 35 pounds, and apparently is plagued by nightmares of that night, what happened, what he did. The arrogance of last year is gone--this person on the stand now has maybe begun to realize there is no way out, and the price to pay immeasurable.

Cazares' lawyer, famous Tony Serra, made a motion to lift the gag order. The judge partially relented, but reminded Serra that he cannot impune the "credibility of a witness" (meaning Jaron Nabors as well.) "Well, Mr. Serra, discretion is the better part of valour, " Judge Sheppard joked. It seems like it must be very difficult for Serra to not be able to talk to the media. I mean--and this is just me--for an attorney with such an illustrious social justice law career and an obvious flare for showbiz, what's in it for him this time around? Without being able to go on TV, what are his perks? Although I agree that everyone is entitled to a defense, his client was there, he particiapted--Jason Cazares got the shovels--they were HIS shovels! Why Serra took Cazares as a client in the first place is a mystery, and I guess we'll have to wait for True Believer Part II to find out.

Volunteers Needed for CUAV's Court Watch

Interested in helping to ensure justice for Gwen Araujo? Please volunteer to participate on CUAV's Court Watch. By attending court during the course of the re-trial, court watch participants have a key role in being an emotionally supportive presence to Gwen's family. Additionally, your silent support and courtroom visibility sends a message to the judge, the jury, the attorneys, the witnesses, and sometimes even folks in political power that the case matters, and that its outcome will affect the community in a profound way. For more information, please contact Tina D'Elia at tina@cuav.org.

Court Watch Update by Connie Champagne

Today is the second day of the murder retrial. D.A. Chris Lamiero, and all 3 lawyers for the defense have given opening statements. Tony Serra is again representing Jason Cazares, and Michael Thorman for Michael Magidson; Jose Merel has a new lawyer, William Dubois.

Lamiero methodically presented the events, culminating with a statement I felt really resonated—that these defendants “were not who they seemed” to be. Gwen Araujo thought these men were her friends, she didn’t know they were “pathetic, angry, weak…” Since the defense had attacked Gwen’s character relentlessly in the last trial, it begs the question—who was truly deceiving who?

Strategies for at least 2 of the defense attorneys will be very different from the last trial. Serra (an old-school activist lawyer, as many of you know) seems to be dismissing trans-panic, claiming his client Cazares had “no feelings for Lida (another name Gwen went by),” and that he was only involved in the cover-up out of misguided loyalty for his friends. Dubois is claiming that Merel “had feelings for Lida,” and only “menaced” her with a frying pan and can of food. He will try to convince the jury Gwen’s head injuries were caused by Jaron Nabors (the 4th perpetrator who will receive involuntary manslaughter conviction if he testifies truthfully) who allegedly hit Gwen with a weight. Although both lawyers seem to want to distance themselves from the trans-panic tactics they hoped would work last trial, they still use very sexist, transphobic inflammatory language in describing Gwen.

Thorman is back and bolder than ever with his uber-trans-panic defense, claiming his client Magidson with “zombie-like” with “rage.” “Deception and betrayal,” are words he uses frequently, and claims that Magidson “wants to take responsibility for the crime--of manslaughter, not murder.” (?) His is a classic “blame-the-victim for her own murder” defense. Thorman stated that her “reckless” behavior led to this tragedy. He asserts that his client believed that Lida/Gwen “was a gay man who enjoyed tricking straight men, possibly exposing them to HIV,” and when he “politely” tried to find out Gwen’s gender (politely--by assaulting her and pulling at her underwear?), she didn’t “apologize.” Wow. This line of rhetoric, though not a big surprise, was more offensive than ever, and I felt physically ill.

This afternoon, the prosecution’s case began. Gwen’s younger sister Pearl Serrano was the first witness to take the stand today; her testimony was heart-felt, and for the first time, the jury heard Gwen’s legal name—Gwen Amber Rose Araujo. When Lamiero showed her Gwen’s photo, she stated “That’s my sister.” She explained that Gwen had always been “feminine,” that when she was 12 or 13 began to transition, and that Gwen had been living “100%” out as female since she was 14 years old. This goes far to establish that Gwen was not deceiving anyone by identifying as female, and was, in fact, being her true self. The testimony was concise, and very moving. None of the defense lawyers had questions for her. Pearl had great support from her family---their grandmother, Aunt Imelda, Uncle David, Step-Dad John, several family friends, and of course their mom Sylvia Guerrero were all there in attendance today.

Jaron Nabors—the 4th perpetrator in the case—took the stand after Pearl at 2:10 PM. He has lost a lot of weight, and looked pretty gaunt. Lamiero began to question him about the events leading up to Gwen’s murder—how they met, who did what, and what his impressions of Lida/Gwen were. The testimony was consistent so far with the last trial.
The judge adjourned at 4PM; court reconvenes at 9 AM on Monday. The schedule generally will be Monday through Friday 9AM to 4PM, at the Hayward Courthouse, Courtroom 510, 2nd Floor Hayward, CA and is open to the public.

There is a gag order on this case which means that lawyers and witnesses can’t speak to the press. We also won’t be able to know in advance who/what order witnesses will take the stand. But Chris Daly from TG Law Center tells me it’s okay for me to write this out to you—so I am. I will try and attend court as often as possible, and try and keep this blog up to date. Thanks to Oscar, Tina, Chris Daly, Julie Dorf, Carolyn Laub, Shelly, and everyone who showed up to give support. It is powerful and appreciated.

The road ahead

Gwen Araujo's second trial began yesterday on June 1, 2005. The following is a link to an article published in the San Francisco Chronicle:

http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/06/02/BAGE9D25C31.DTL

A number of courtwatchers from CUAV, Transgender Law Center, and other community organizations plan to post a biweekly update on the trial's proceedings. Stay tuned!