Harris announces 'panic defense' conference

  • by Zak Szymanski
  • Wednesday March 29, 2006
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Last summer, three East Bay men stood on trial in a Hayward courtroom and claimed that transgender teenager Gwen Araujo provoked her own murder by living as female and throwing their sexualities into crisis.

Months before that, Aaron McKinney and Russell Henderson told ABC's 20/20 that they originally lied about hating gay people and therefore no hate crime was committed when they robbed and killed Matthew Shepard in pursuit of drug money in Laramie, Wyoming in 1998.

In August 2005, Fresno suspect Estanislao Martinez negotiated a mere four-year prison sentence after violently stabbing to death Joel Robles, a crossdresser he took home after a night of drinking.

As far as legal defenses go, it's relatively new, and actually imaginary. But that hasn't stopped countless criminal defendants from claiming "gay panic" as their reason for assaulting and killing lesbian, gay, bisexual, and transgender people. How that strategy manifests – often as a "heat of passion" defense to argue manslaughter rather than a murder conviction, but sometimes as an excuse to justify other crimes – is the subject of the San Francisco District Attorney Kamala Harris's groundbreaking symposium, "Defeating the 'Panic Defense,'" to be held at Hastings College of Law in San Francisco from July 20-21.

The event was inspired by a similar conference hosted last year in Atlanta by Fulton County District Attorney Paul Howard and covered by the Bay Area Reporter. Howard's conference was sparked by the murder of one of his own assistant district attorneys, Ahmed Dabarran, whose killer Roderiquez Reed claimed that he was forced into a sexual encounter with Dabarran and was acting in self-defense when he repeatedly struck the sleeping Dabarran then stole his car and cell phone. A Cobb County jury acquitted Reed of murder charges in 2003. Atlanta's 2005 conference drew more than 145 police officers, investigators, and prosecutors from across the country to strategize against the panic defense.

San Francisco's conference will include Howard as a featured guest and incorporate many of the Atlanta organizers' ideas, but also will seek to "take the conversation to the next level," said Harris, by involving academics and scholars, activists, attorneys, and law enforcement in intellectual and strategic conversation in one of the most LGBT-progressive and nuance-savvy places on earth.

"My hope is that we can get beyond the basics. I do recognize that we are at a point in time where we do have to cover the basics so that we can get people to the point of elevating the discussion," Harris told the B.A.R. "I hope also that this symposium not only serves as an opportunity to educate the public in general but law enforcement in particular. Part of my agenda also is to encourage victims of hate crimes to come forward. Hopefully this conference symbolizes the fact that we take seriously these crimes and our responsibility to protect these victims, and that [the victims] will be treated with dignity because we understand who they are and understand their experience."

"Gay panic," simply put, has been a way for criminal defendants to blame their victims for provoking crimes against them. The panic defense relies on the biased assumption that a natural reaction to gay sexual advances or one's own internalized homophobia is violence.

The defense may be invoked as a perceived easy way out of a crime that was motivated by a variety of factors, such as robbery, or it may be used to explain an actual emotional reaction to a sexual advance or consensual sex act, as the killers of Araujo and Robles used it to explain their own "trans panic" reactions to discovering the biological sexes of their victims. While Robles's killer negotiated a manslaughter plea through a Fresno DA's office apparently unconvinced it could do much better, Araujo's killers stood two trials in Alameda County and two of the three defendants eventually were convicted of second-degree murder.

Yet a panic defense can be a difficult thing for victims, law enforcement, and prosecutors to recognize and/or effectively defeat. Harris said the conference would place a heavy emphasis on "trans panic," in part because of the Bay Area's recent Araujo case. Prosecutors may find it harder to fight "trans panic" than "gay panic" because transgender victims often are accused not just of being sexual but also of being "deceptive" by living in their true gender identities.

Acknowledging that the topic is complicated, Harris said the conference programming is prepared to both acknowledge the complexities as well as simplify them so that everyone working within the justice system can do their jobs.

"A hate crime is something so insidious, that is borne out of a deep and unreasonable and irrational and ignorant position," said Harris. "A panic defense almost suggests that the offender was helpless. The irony of it is that the person committing the hate crime – the bully – is posturing as though they were disabled."

Hate vs. panic?

"The panic defense is an insidious strategy based upon prejudice and hate," said a statement from Harris's office about the conference. "It has been raised in homicide and assault cases nationwide, inviting jury nullification and attempting to justify violent crime based upon the identity of the victim."

There is a natural relationship between hate crime laws and the existence of so-called panic defenses. Some legal experts have pointed out that the existence of one can lend itself to the existence of the other; claiming sexuality as a violence motive, for instance, is akin to acknowledging committing a hate crime as defined by many states' laws.

Yet hate crimes themselves are difficult to recognize and prove, even when a panic defense – an apparent admission to a biased motive – is used.

Regardless of hate crime laws, "I think the panic defense does appeal to the prejudices that exist," said Harris.

Hate crimes often are described as "message" crimes, motivated at least in part by a bias against a particular group of people.

By such a definition, it would not matter whether McKinney and Henderson sought out to rob Shepard several years ago; his sexuality played a large part in whether they believed he would be missed, mourned, or valued when they claimed a "gay panic" defense as the motivation for their violence. (It should be noted that while Shepard's murder is considered a hate crime, neither hate crime laws nor gay panic played an actual role in the Shepard murder trial; the court threw out the attempted use of the panic defense).

But while some people claim hate crime laws help to invalidate "panic" defenses, there are instances where they may actually help to validate "panic" in a jury's eyes.

If hate crimes are, as Harris mentioned, "irrational," it may also be possible that they lend themselves to effective "heat of passion" defenses where a defendant's inability to reason is often used to mitigate a crime.

Additionally, a less nuanced understanding of bias in personal relationships may work against conviction of hate crimes where the panic defense is present, as witnessed in the Araujo trial where jurors who convicted Michael Magidson and Jose Merel of murder did not also find them guilty of a hate crime. The two men committed their crimes after reportedly engaging in sexual relations with Araujo over the period of several weeks.

Many members of the LGBT community believed that a hate crime conviction could have been won if transgender issues were more fully explained to the jury. Yet Magidson, Merel, and their co-defendant Jason Cazares likely did not harbor general hatred toward transgenders given their testimony; their bias was less about the transgender community and more about the characteristics they believed defined a "real woman" in relation to their own intimate choices.

It also cannot be denied that Magidson's and Merel's violent reactions were motivated in part by their beliefs that being homosexual was an undesirable thing; witness testimony described Merel as having an emotional breakdown upon fearing that Araujo's biology meant he could be gay. Given the circumstances, proving Araujo's womanhood to a jury may not have effectively addressed the antigay bias in the defendants' actions nor proved an existing bias against the transgender community at large.

"The problem is we had set of circumstances that did not fit neatly into what people typically think of when they think of hate crimes – for instance, someone who was out looking for someone to beat up. Here we had relationships between the defendant and victim, and that, I think, blurred the question of motive and confused the jury," Alameda County Deputy District Attorney Chris Lamiero told the B.A.R. shortly after the Araujo case ended. "If the bias against a victim as a member of a group was a substantial motivating factor then a hate crime enhancement applies. So the question becomes, what makes it bias? Is it a component of why they killed her as opposed to a firmly held conviction they've always had? The statute implies the existence of a bias. That was confusing to the jury as well."

Lamiero, however, believes that the panic defense was soundly defeated once the jury rejected the heat of passion (manslaughter) argument and found Magidson and Merel guilty of murder

"In this case they rejected the idea of manslaughter so they rejected the notion that Gwen had somehow deceived them in way that made their response appropriate," said Lamiero of the defendants' failed panic defense.


Lamiero will be one of many featured speakers at San Francisco's conference, joining Howard, Harris, and other prominent legal, political, and academic experts. At press time additional panelists include attorney Gloria Allred; Jeffrey Montgomery, executive director of the Detroit's Triangle Foundation; FBI Special Agent Joseph Ford; Tom Charron, executive director of the National District Attorney's Association; Kate Kendell and Shannon Price Minter, executive director and legal director, respectively, of the National Center for Lesbian Rights; and San Francisco Police Commissioner Theresa Sparks.

The conference was organized by openly lesbian Assistant District Attorney Susan Christian, recently recruited from the 9th Circuit Court of Appeals and a "brilliant" attorney, said Harris.

Additional sponsors include Hastings; the National District Attorney's Association; the Williams Project on Sexual Orientation Law and Public Policy at the University of California, Los Angeles School of Law; the California District Attorneys Association; the National Black Prosecutors Association; Lawyers Committee for Civil Rights of the San Francisco Bay Area; NCLR; the National Lesbian and Gay Law Association; Bay Area Lawyers for Individual Freedom, the Triangle Foundation; and the Transgender Law Center.

Over the course of one and a half days, the conference will feature instructional panels on countering the panic defense from the investigatory phase through trial. Instruction on seeking hate crime enhancements, and the problems encountered by prosecutors who charge these enhancements, will also be addressed. The symposium also will include instruction related to victim services, including the issue of restitution. The DA's office also will sponsor a community-based forum, "bringing together the advocacy, policy making as well as law enforcement communities to cross-educate each other on the ways in which the panic defense is used and how communities can respond to such a strategy," said a statement.

"The San Francisco District Attorney's office is committed to providing law enforcement officers, prosecutors and the communities we protect with the tools, experience and information needed to dismantle the myth that this strategy constitutes a legitimate legal defense," the statement said. "By doing so, we will ensure that 'gay panic' or 'transgender panic' no longer serves as justification for assault or homicide, or mitigates the responsibility of those who commit these crimes."

"We've got several district attorneys' associations and the major law schools and legal organizations in the country involved in this conference and it's an incredible opportunity to cover a lot of ground ... so we plan on taking full advantage of that opportunity," said Harris. "I really do think this going to be historic. And San Francisco is again acting as a leader in taking the discussion to an increased level of sophistication and understanding."