Prosecution, defense, both allege cover-up during closing arguments

Closing arguments in a transgender sex worker’s federal trial wrapped up Wednesday with both sides claiming a cover-up had occurred. The statements to the jury came on the seventh day of Leniyah Butler’s second-degree murder trial March 26.

Federal prosecutors reminded the jury of where they all began last week.

“When the government started this trial, we told you this case was about the crime, the cover-up, and the confession,” Assistant U.S. Attorney Kelsey Davidson said, quoting from the fed’s opening statements March 17.

But defense attorney David W. Rizk asked in his closing argument, “Whose cover-up?” He alleged that not only did the federal government fail to meet the burden of proof, but that it ignored evidence on the basis of Butler’s identity as a transgender female sex worker.

“Ms. Butler was justified in shooting this man,” he said. “It’s not a marketing slogan like ‘crime, cover-up, confession,’ but it’s true.”

Butler, 21, shot Hamza Walupupu, 32, just before dawn November 12, 2023 after he had picked her up in a Hyundai Accent in the Tenderloin district with the intent of paying her for sex. Butler has pleaded not guilty.

In opening statements, Butler's defense attorney Shaffy Moeel cited self-defense in the case. Moeel told the Bay Area Reporter on the first day of the trial that her client wants to be referred to as Leniyah. She is listed as such on the court documents along with Leion Butler, which is not her deadname. Those documents were changed on March 17. Previous court records included Butler's deadname, which the B.A.R. isn't publishing.

The trial is being held in Judge Susan Illston’s courtroom, who is a judge for U.S. District Court for the Northern District of California, at the federal courthouse at 450 Golden Gate Avenue, near San Francisco City Hall.

While homicide cases typically are adjudicated in county courts, the fact that the killing took place on federal land gives the United States government original jurisdiction on this matter.

U.S.: Defendant acted ‘deliberately and intentionally’
Davidson and Rizk both argued that the case was relatively simple.

Davidson acknowledged those witnesses who’d testified Walupupu had a history of drinking and getting into conflicts with sex workers while diagnosed with schizophrenia, and that Butler had a history of being sex trafficked and abused.

“But I want to bring you back to November 2023,” Davidson said. “He [Walupupu] was left there in a pool of his own blood. Ms. Butler said she did it. She said, ‘It was a gunshot – head shot or some shit.’”

The killing happened after Walupupu and Butler got in an argument after the victim had asked for a refund – he wanted more than oral sex and expressed surprise Butler is trans, according to the FBI interview after her arrest.

Said Davidson: “Mr. Walupupu wanted ‘everything’ – Ms. Butler gave him oral sex; she thought she was done; she thought that this was enough; she thought he already knew and, I know this is uncomfortable, we know her pronouns, but Ms. Butler is a biological male, which makes it harder to do everything.’”

Davidson argued that Butler had many opportunities to leave the situation; such as when Walupupu was parked while he got cash at an ATM on the way to Crissy Field.

“At every step of the way, Ms. Butler considers her options,” Davidson said. “She thought about the pros and cons of each.”

Davidson argued that Butler wasn’t in danger of great bodily injury because Walupupu was outside his car when he was shot, and that her malice aforethought was shown by the fact that after the killing, she didn’t call 911 but, rather, took the victim’s car to Hunters Point.

Davidson quoted Butler’s statement from her FBI interview that, “I kept touching things, so I had to keep wiping them down” while she cleaned the Hyundai Accent.

“Not only did she take the evidence from the scene, but she had the presence of mind to clean the car up and make sure she wasn’t leaving new fingerprints and new DNA,” Davidson said. “This shows she was acting deliberately and intentionally.”

Davidson said, referencing the jury instructions, that “there’s no room for sympathy.”

“Ms. Butler did not say he [Walupupu] was drunk or driving erratically or that he threatened to rape or kill her,” Davidson said. “She was the one with the gun and he was outside the car.”

The motive, Davidson argued, was anger.

Walupupu “was not posing an imminent threat, and so Ms. Butler shot him because she was mad, because she wanted the money, because she didn’t want to look ‘dumb as fuck,’ because she didn’t want to be stranded, because she didn’t want to be cold,” said Davidson.

Defense: Defendant’s gender identity played a role in investigation
Rizk argued that actually, there was a physical fight. DNA evidence had put Butler’s DNA under Walupupu’s fingernail.

“Why do you think they clip the fingernails, swab them, and test them for DNA?” he asked. “It’s for evidence of a physical altercation.”

He quoted from Butler’s FBI interview, when she said, “I was inside the car, and he [Walupupu] was trying to get me out.”

Asked FBI Special Agent Joseph Atneosen: “Oh, he was trying to pull you out?”

Answered Butler: “Yeah.”

The government argued that although Walupupu was at almost twice the legal limit for driving after drinking alcohol, that did not make him an “angry” drunk or that there was any indication he was intoxicated.

Rizk said Butler’s words from the November 20, 2023 FBI interview – as well as testimony from sex workers with whom Walupupu had gotten into conflict – went to show that he was.

“She’s in that small car with an older man, in his 30s,” Rizk said. “He’s very drunk. He’s screaming at her, he’s aggressive – he’s increasingly aggressive – he’s screaming at her, ‘You’re gonna suck this dick. I’m gonna fuck you. You’re gonna get this money,’ and he’s yelling at her because she told him she was trans, and he says, ‘People get killed like you.’

“He’s been tussling with her, he’s screaming at her and jumps out of the car, and he’s leaning back into the car and he’s trying to pull her out of the car,” he continued.

What happened, argued Rizk, was that in threatening to take the money Walupupu had initially given her for sex, “he was threatening to rape and sexually assault” Butler.

“He isolated her for a reason,” Rizk said, referring to the drive from the Tenderloin district where he’d picked her up to the dark Presidio parking lot where the killing took place. “He took her there to get his sex for free, to sexually assault her, to put her in fear. He never intended to pay. He was never going to pay, and the trouble began when she would not go along with it.”

The cover-up, Rizk said, was the government’s.

“This FBI, this federal government, didn’t even bother to look,” he said. “They [law enforcement] would not believe her because of who she is: because she’s a young, Black, trans sex worker, and sadly because of what he did to Ms. Butler, because of what he put her through and what he said to her and what he did to her … She was justified in shooting him, and that’s sad, it’s sad for his family, but it's not a crime.”

Rizk said if the alleged robbery was attempted, “You can shoot that man dead.” It was the victim, Rizk said, who attempted to commit a crime that night.

Butler “ran and she hid because she knew the cops wouldn’t believe her,” Rizk said. “And when she was interviewed, she did her honest best to tell the truth. She told the FBI the honest-to-God truth – even when it was inconvenient. There is no other version of events than Ms. Butler’s. They want you to believe this line, but not believe that line. There is only her version of events.”

Rizk said the government didn’t investigate the case enough by not talking to sex workers.

“They don’t know anything,” Rizk said, about the government’s investigation.

“Why didn’t they believe he [Walupupu] knew Ms. Butler was trans?” Rizk asked. “He had picked up multiple other trans sex workers at the blade, and they are sticking to their theory? … They don't believe them because of who they are, just like they don’t believe Ms. Butler, because of who she is.”

The blade refers to the area where people go to find sex workers selling sexual services. San Francisco’s transgender blade is centered at Polk and Post streets, which is in a different neighborhood than the blade for cisgender sex workers, in the Mission district.

“We’re not trying to besmirch his memory,” Rizk said of Walupupu. “We’re trying to tell you what the facts of that night were.”

Assistant U.S. Attorney George Hageman made a rebuttal to Rizk’s closing argument.

“You may think he [Walupupu] was not his best self in the moments before he died,” Hageman said. “But none of that means he should have been murdered.”

“What you just heard from Mr. Rizk is an attempt to distract you,” he said. “It’s victim blaming.”

Butler’s mother Leslie Blueford, and Walupupu's family members who have been in court, have declined to speak to the B.A.R.

Possible outcomes
The jury began deliberations the afternoon of March 26. Before that, Illston instructed the jury before the closing statements as to the law to be applied in this case.

Butler was charged with second-degree murder, for which the government must have proved Butler killed Walupupu with malice aforethought, did not act in reasonable (or, complete) self-defense, and did not act in imperfect self defense, or in a sudden quarrel or in the heat of passion.

To kill with malice aforethought means to kill either deliberately and intentionally, or “recklessly with extreme disregard for human life,” she said.

The jury may find Butler acted in reasonable self-defense if the lethal force was justified “against the immediate use of unlawful force … but a person may use no more force than appears reasonably necessary under the circumstances.”

A person isn’t required to retreat, the judge said, and it is not a crime if one defends themselves based on a reasonable belief force is necessary to prevent death or great bodily harm.

The jury can also return a verdict of either voluntary manslaughter in imperfect self-defense or voluntary manslaughter in a sudden quarrel or passion.

“The difference between complete and imperfect depends on whether Ms. Butler’s belief in the need to use deadly force was reasonable,” Illston said.

Further, in a quarrel or passion, “provocation must be such as might arouse a reasonable and ordinary person to kill someone,” Illston said.