Issue:  Vol. 44 / No. 15 / 10 April 2014
 
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Two murder convictions in Araujo case

NEWS


z.szymanski@ebar.com

Jose Merel, left, and Michael Magidson in court as the jury verdicts are read. Pool photo
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In the end, nobody was truly happy. Despite a legal victory in the Gwen Araujo murder trial, one defendant's future remained uncertain, several families and friends were torn apart, there would be no hate crime enhancements in the case, and nothing, noted Araujo's mother Sylvia Guerrero, would bring Gwen back.

Still, the second-degree murder convictions delivered on Monday, September 12 against defendants Michael Magidson and Jose Merel, both 25, brought a sense of closure to years of graphic testimony, personal grief, and community anguish over the brutal killing of the East Bay transgender teenager. Even a second mistrial declared in the case against Jason Cazares, also 25, was not altogether surprising considering the testimony and known jury deadlock over one of the defendants.

Justice, in many respects, has been served, according to Araujo's family. Perhaps most importantly, said some advocates, Monday's murder verdicts soundly reject the "trans panic" defense, which argued that deadly violence should be expected or excused if it is committed in response to the discovery of a partner's transgender status. Defense attorneys claimed, to varying degrees, that the victim's "sexual deception" provoked a "heat of passion" response that lessened the defendants' culpability in Araujo's killing; the jury, in refusing to deliver convictions of manslaughter and lesser charges, did not allow such a defense to have merit.

"The jury did an awesome job," said Guerrero after the verdicts were read. "We should be celebrating, not just for Gwen but for other transgender people."

Araujo, 17, was born a boy but lived as a girl in her hometown of Newark, CA since the age of 14. She met the defendants in the summer of 2002 and quickly became a regular at the Merel home, where the group of friends often drank, smoked pot, and played dominoes most nights into the early morning hours.

Araujo also reportedly engaged in sexual relations with Merel and Magidson over the course of several weeks, and in October 2002, the men confronted her about her gender, interrogating her and forcibly removing her clothing to reveal male anatomy. That revelation, witnesses have testified, elicited an emotional and chaotic reaction, with the men claiming to have been "tricked" into "homosexual sex" and violently attacking Araujo until she was killed. The friends then drove her body into the Sierra foothills to bury it.

This was the second trial in the case against the three defendants, who faced first-degree murder charges with a hate crime enhancement. A fourth defendant, Jaron Nabors, pleaded guilty to voluntary manslaughter in exchange for his testimony and an 11-year prison sentence. Last year, a mistrial was declared because the jury deadlocked on first-degree murder charges for the men and was not allowed to discuss other charges until a unanimous verdict could be reached. This year, Alameda County Deputy District Attorney Chris Lamiero made clear to the jurors that they could determine various levels of guilt in relation to the defendants' different roles in Araujo's death. In both trials, noted Lamiero, two separate juries rejected the notion that panic over a person's transgender status was a mitigating circumstance for murder.

"The jury rejected the defense that Gwen being transgender lessened [the defendants'] responsibility," Lamiero said after Monday's verdict. "We got two murder convictions. We can't overlook the value of that. Certainly we wanted more, but we got a lot."



Disappointment, hope

Second-degree murder convictions carry minimum sentences of 15 years to life, but very few convicted murderers, regardless of the degree, are ever paroled in the state, noted Lamiero.

While pleased by the two murder convictions, many transgender activists and advocates said they were outraged that Cazares – who claimed he was not involved in the murder and only helped to bury the body – was again not convicted of any crime, and that the jury did not agree to add hate crime enhancements to the murder convictions of Magidson and Merel.

Legally, a hate crime conviction may have added just a few years to the sentences of Magidson and Merel, but politically, said some LGBT advocates, the enhancement would have emphasized that Araujo was killed because she was transgender, a detail that even the defendants admitted when they referenced her genitalia as the provocation of their violence.

"The jury did not see fit to find that these men were guilty of hate crimes. That hate did not play a role in this murder is unimaginable," said a statement from the San Francisco LGBT Community Center.

Yet other LGBT advocates pointed out that hate crime laws are not entirely clear about whether there is a distinction between a crime based on an individual's transgender status versus a crime motivated by bias toward transgender people as a whole. Nor is there a universal standard for what portion of the crime must be motivated by hate. Testimony during the trial indicated that several factors might have contributed to the violence against Araujo, noted Lamiero, including a fear of retribution following Araujo's reported gang threats against the defendants.

"The hate crime law is not well-written, especially in regards to a case like this," said transgender activist Gwen Smith, founder of the Remembering Our Dead project and a columnist for the Bay Area Reporter. "Likewise, some of the facts that came out in this trial seemed to fly in the face of the hate crime enhancement bein

Sylvia Guerrero, left, leaving the courtroom with attorney Gloria Allred. Photo: Jane Philomen Cleland
g appropriate. If these facts were true as such, then this would not be able to be considered a hate crime by the letter of the law."

Local transgender activist Shawna Virago, however, said that the time has come for others outside of the LGBT community to be able to recognize hate violence when they see it.

"This was a transgender youth who was interrogated, brutalized, sexually assaulted, and humiliated before her death, based upon her transgender status. The overkill of the actual murder speaks to the fact that this was a hate crime," said Virago, who advocated taking a more angry approach to the verdicts as an organized community. "We have to remember that any of the freedom we enjoy in being out and expressing our gender comes from the fact that we have been fierce, and we have been proud, and very loud, and I don't see that right now."

There are steps that people can take, said Araujo's supporters, to ensure that bias against transgender people is recognized as such.

The Horizons Foundation, for instance, needs donations for its Gwen Araujo Memorial Fund for Transgender Education. The fund, started last year, makes small grants to school programs in the greater Bay Area that promote understanding of transgender people and issues among youth.

Donations are tax deductible and can be made online at www.horizonsfoundation.org (click on the "grants" button and scroll down to the Araujo fund), or people can call (415) 398-2333.

Since Araujo's murder, at least four other transgenders have been murdered in the Bay Area, and all of those cases remain unresolved. Additionally, in Fresno County last month, Estanislao Martinez was sentenced to just four years after pleading guilty to manslaughter for killing Joel Robles. In cases like these, it is education that can make all the difference, said advocates.

So, too, can the laws themselves. Equality California is calling for the passage of AB1160, by Assemblywoman Sally Lieber (D-Mountain View), a bill that would ban the use of "panic" type of defenses to mitigate murder charges. Lieber's bill seeks to clarify that the discovery of, knowledge about, or disclosure of the victim's sexual orientation, gender, race, or religion cannot support a finding of voluntary manslaughter in criminal cases. More information can be found on the bill at www.eqca.org .

Simple justice

Throughout the Araujo trial and retrial, the legal case for murder had very little to do with Araujo's transgender status. Lamiero told the Bay Area Reporter in 2004 that he had to accept that he might not be able to get a group of 12 diverse people to agree that Araujo was a woman, but regardless, the arguments for a murder conviction would be the same.

And in the end, members of the jury in the retrial agreed. They did not address any area of law specific to transgender rights, nor were they supposed to. The murder verdicts, rather than make any statement about Araujo's gender, instead reflected what most of the corroborated testimony said with regard to who did what on the deadly night in question.

Magidson, identified by most witnesses as responsible for Araujo's strangulation – one of two possible fatal injuries, according to a medical examiner's report – was convicted of murder.

Merel, who admitted to inflicting at least one hard blow against Araujo's head – one of two possible fatal injuries, according to a medical examiner's report – was convicted of murder. The jury found him legally responsible for Araujo's death despite permission from Lamiero to find him morally less culpable than Magidson and Cazares due to his apparent attempt to get Araujo out of the house.

Cazares, who by most accounts did not commit violence against Araujo, was still in legal limbo as a result of his second mistrial. Jurors deadlocked 9-3 in favor of convicting him of murder; those who believed he was guilty also believed that Araujo was still alive when Cazares went to retrieve shovels to bury her body. With most of the case against Cazares resting upon this claim – and with most of the relevant witnesses now behind bars with nothing to gain from testifying against their friend – it is unlikely he will be re-tried, although Lamiero said he did not rule it out. Another option would be a plea-bargain centered around a manslaughter conviction, although Tony Serra, Cazares's defense attorney, said he would try to negotiate a deal around accessory to murder charges.

A date for Merel's sentencing will be set on October 28. Magidson is scheduled to be sentenced on January 6, 2006.

But any "victory" in these convictions, said local transgender and progressive activist Robert Haaland, would always be bittersweet.

"There is no victory in someone dying," wrote Haaland in his blog at www.leftinsf.com. "There is no victory when a jury says there is not a hate crime when a transgender woman is killed for being transgender. There is no victory in two young men going to jail. There is no victory."






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