For more than a year, Assemblywoman Sally Lieber (D-Mountain View) has been working to pass a bill that would allow juries in criminal cases to receive explicit instructions that the use of "panic strategies" – more commonly known in the community as "gay panic" and "trans panic" defenses – to influence the proceedings of a trial is inconsistent with the public policy of the state. The bill, named in the memory of murdered transgender teenager Gwen Araujo, has already cleared the Assembly and is now headed to committee hearings in the state Senate.
But as we report this week, there may be a move under way to weaken the bill by removing provisions that would allow judges to examine evidence before it is heard and to potentially reject that evidence for such panic defenses. While it is true that attorneys can currently request evidentiary hearings, we believe such a measure is essential to the panic bill and urge legislative leaders, including members of the LGBT Legislative Caucus, to reconsider the changes that have been made.
Criminal defendants over the years have learned to exploit their victims by claiming a gay panic defense as a reason for assaulting and killing LGBT people. We saw it in the Araujo trial, though to its credit the jury did not accept that defense in the case of convicted murderers Michael Magidson and Jose Merel. But that wasn't true of a case in Fresno. In fact, a jury never even heard the case of Joel Robles, who was stabbed 20 times with a pair of scissors by Estanislao Martinez. Fearing that a jury would not convict Martinez for murder, the district attorney there negotiated a plea-bargain and Martinez received only four years in prison. It's those kinds of cases that would be served best by a stronger panic law.
We are aware of the difficulties this bill entails, and that the rights of criminal defendants must be protected. We understand that balance must be ensured. However, as transgender activists point out, a simple jury instruction seems inadequate for equal treatment for LGBT people who are murdered.
San Francisco District Attorney Kamala Harris, whose office is planning a seminar on the panic defense later this year, recently summed up the problem. "The panic defense is an insidious strategy based upon prejudice and hate. 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."
AB1160 should contain the jury instruction – and that should include the stronger language already in the bill that defines bias as being "based upon a victim's actual or perceived disability, gender, nationality, race or ethnicity, religion, or sexual orientation, or association with a person or group with one or more of these characteristics." (Lieber has proposed replacing that language with "Bias includes bias against the victim or victims based upon his or her disability, gender, nationality, race or ethnicity, religion, gender identify, or sexual orientation.")
But the bill also needs to include directives regarding judicial review of evidence. As Harris told us several weeks ago, "A panic defense almost suggests that the offender was helpless." We've covered enough murder trials over the years to know that is simply not the case. Judges need to accept responsibility for fair trials, and to us that doesn't include panic defenses.