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Update: I corrected mistakes/typos in the piece. Also, below the article, I added a YouTube of the CourtTV’s posting of the opening statement of the prosecutor. There is some commentary mixed in with the Deputy District Attorney Neito’s statement, but you can hear some of what I heard from the her last Thursday afternoon.
I have lots of blog diaries to write this weekend. I need to post on what happened at the trial Friday (and why it’s hard for me to post about it), about what my experience in Greeley, Colorado has been like, and a post entitled “Am I Deceptive Too?”
But, I’m going to make my first report this weekend about what are the possible sentences will be if Allen Ray Andrade is found guilty of a homicide directly related to Angie’s killing. And, talking about how Justice For Angie may be slightly different that justice for the Transgender (or Trans) Community, and the broader Lesbian, Gay, Bisexual, and Transgender (LGBT) Community, as well as the Progressive and Civil Rights Communities.
And, my source for the possible sentences is Beth Karas (Facebook fan page is here) of TruTV In Session (formerly known as CourtTV).
Beth and I had coffee this morning at Café Woody’s. There, she graciously explained to what the prosecutor is aiming for, what the defense is aiming for, and the punishments would be for the for just the murder change. (There are other criminal complaints for this case, and except for the bias motivated crime complaint, these won’t be discussed in this piece.) Beth is an attorney — a former prosecutor herself — so she knows law. She thoroughly researched the possible homicide sentences, and briefed me on possible sentencing based upon what, if homicide charge, Allen Ray Andrade is convicted of.
To the right is a table of the charged offenses against Allen Ray Zapata Andrade (correction for a horrible typo – 4/19/2009), with possible sentences. Since this isn’t a death penalty case, life without parole would be the highest sentence Andrade could receive. And, that sentence apparently would be the automatic sentence if he were convicted of that crime — 
there would apparently no discretion available to the Judge (Judge Marcelo Kopcow) regarding sentencing. First Degree Murder is premeditated murder in Colorado, is a First Class Felony (F1), and is the criminal conviction that the prosecution is aiming for.
Allen Ray Andrade could also be found guilty of Second Degree Murder, Felony Second Class (F2). If he were found guilty of this criminal count, the sentence range is 16 to 48 years. Colorado doesn’t have indeterminate sentencing for crimes, so he wouldn’t be sentenced to 16 to 48 years, he would be sentenced to 16 years, 48 years, or some number of years in between those two numbers. A conviction on this criminal count would mean that the jury believed that the murder wasn’t premeditated.
The other homicide conviction Andrade could be found guilty of, assuming he his found guilty of any criminal homicide, would be Second Degree Murder, Felony Third Class (F3). In most other states, this criminal offense would be referred to as Manslaughter. If he were found guilty of this criminal count, the sentence range is 10 to 32 years. Again, Colorado doesn’t have indeterminate sentencing for crimes, so he wouldn’t be sentenced to 10 to 32 years, he would be sentenced to 10 years, 32 years, or some number of years in between those two numbers. The defense has conceded that Andrade committed the killing, and an F3 criminal conviction that the prosecution defense (correction 4/19/09) is aiming for, based on heat of passion (read in this case as “gay panic” or “trans panic”) and intoxication.
The elements that would be taken into account by a jury to change Second Degree Murder from an F2 into an F3 felony offence would include provocation, rape, heat of passion, and intoxication, for example. And, as stated in the paragraph above, the Andrade defense is claiming heat of passion and intoxication.
[Below the fold: On Colorado's Habitual Offender enhancements, and what Angie's family believes justice for Angie in a criminal sentence would entail.]Colorado has a “three strikes” kind of law on their books, as many states do — their law is referred to as their Habitual Offender law. Essentially, if a defendant is found guilty in trial of a felony and has had 2 prior felony convictions, he can be found by the trial judge to be an habitual offender. The prosecution has submitted 6 felonies to the court as ones that could be used by judge to find Allen Ray Andrade to be an habitual offender, so if Andrade is convicted of the F1, F2, or F3 offence with regards to Angie’s killing, it seems likely that he’ll be considered an habitual offender. If Andrade is found guilty of the highest F1 count, then the prosecutor isn’t going to push for the habitual offender enhancement: he already would be receiving a sentence of life without parole. However, if he’s found guilty of the F2 or F3, that enhancement would be significant — it doubles the maximum sentence.
So if Andrade were found guilty of the F2 felony by the jury, and if the court found he was an habitual offender, then the result would be that the judge would have no discretion in sentencing Andrade to 96 years in prison. In a similar manner, if Andrade were found guilty of the F2 felony by the jury, and if the court found he was an habitual offender, then the result would be that the judge would have no discretion in sentencing Andrade to 64 years in prison. As Andrade is 31 years old, it’s likely that if he were convicted of an F1, F2, or F3 homicide, and found to be an habitual offender, he would likely spend the rest of his natural life in prison.
If we’re looking for justice for Angie, having her admitted killer spend the rest of his natural life in prison would be justice for her and her family — and that’s accorning to Angie’s family. We need to remember this to help us keep perspective on any felony homicide conviction in this case before the Weld County Court.
If we’re looking for justice for broader community; however, then one of the other charges we haven’t talked about yet — the bias motivated charge — becomes important.
Count 2 of the charges is the Bias Motivates Crime count. This count reads as follows:
Between and including July 16, 2008 and July 17, 2008, Allen Ray Andrade, with intent to intimidate or harass [Angie's male name] Zapata, also known as Angie Zapata, because of her actual or perceived race, color, religion, ancestry, or national origin , physical or mental disability, or sexual orientation, unlawfully, feloniously, and knowingly caused bodily injury to [Angie's male name] Zapata, also known as Angie Zapata; in violation of section 18-9-121(2)(a), C.R.S.
Sexual orientation is defined as follows in the statute:
“Sexual orientation” means a person’s actual or perceived orientation toward heterosexuality, homosexuality, bisexuality, or transgender status.
Speaking as an individual who identifies as both transgender and transsexual, and knowing trans folks at the grass roots as I do, I don’t believe that the Trans Community will be satisfied with an F2 or F3 homicide conviction of the admitted killer of Angie Zapata alone. To be “acceptable,” an F2 or F3 homicide conviction would need to be accompanied with a conviction on the bias motivated crime count. Given the facts of this case, if Colorado is unsuccessful in convincing a jury that this was a bias motivated hate crime against transgender people, many trans people will be wondering what set of facts will convince a Colorado jury that a bias motivated crime against a trans person was committed against a trans person specifically because the killed person was trans.
And, because that mixed outcome would matter to trans people, their significant others, their friends, their families, and their allies, that outcome would matter to many people in the broader LGBT, Progressive, and Civil Rights communities.
In my mind, justice for Angie is the most important outcome we need to concerned about in this case, and not vengence for Angie. And, according to Angie’s family, justice justice for Angie means that admitted killer Allen Ray Andrade spend the rest of his natural life in prison. I’m with the family on this.
But that said, no one should be under the delusion that justice for Angie in this criminal case is necessarily the exact same thing as justice for trans people. If there isn’t a hate crime conviction in this case, the broader communities are going to have to rethink how hate crime laws are written so that “gay panic” and “trans panic” strategies put forward by defense attornys don’t nulify the intent of the hate crime laws. And, the intent of these hate crime laws being the legal tools to address how people in the LGBT community feel fear — and feel terrorized — by hate crimes against their brothers and sisters within their community. We often fear becoming hate crime victims ourselves, especially when we hear of hate crimes being commited against others in our community; when we don’t see those perceived as committing hate crimes being convicted of the hate crimes they’re charged with.
22 Comments
If a human being isn’t capable of controlling their anger, They have no place in society if their anger, rage, or whatever, leads to the act of MURDERING another HUMAN BEING.
I don’t care if it is road rage or the discovery that a person is transgender, MURDER is still MURDER.
I am glad that this is not a capital punishment case, as I am against the death penalty. Life in prison without parole is the only sentence that should be handed down in this case, IMO.
I have seen cases where anger is released and holes in the walls are left. I have also seen victims of anger have been eaten senseless. I don’t care if they were angry. If you can not control your anger, you have no right to be free in society, you are dangerous. Unfortunately we can’t lock up everyone with rage issues caused by anger or what ever until they commit a crime. People who have anger and rage issues know they have these problems and should seek help on their own. NO ONE MAKES A PERSON ANGRY BUT THE PERSON WHO IS IN CONTROL OF THEMSELVES.
I hope Mr. Andrada receives life without parole, that would be justice. But nothing can bring Angie back to life.
but…“NO ONE MAKES A PERSON ANGRY BUT THE PERSON WHO IS IN CONTROL OF THEMSELVES.”
Well we do know that harassment, verbal abuse, and hate speech are all non-violent acts that DO make people angry, and rightfully so. I don’t believe people choose to “get” angry. They only choose what to do with it, and usually the first choice that must be made is to hold back the beast within, which when first triggered by OUTSIDE influence is an automatic feeling, but ACTIONS can be controlled or prevented.
but “trans panic” is NOT justifiable angerIn the case of trans panic, we do not need to consider that a case where the person outside the angered one’s brain was the cause of the angered one’s anger.
The angered one, in this case, is a bigot, and thus it is his own bigoted brain that caused his anger. No action done by the “angeree” was to blame for the angered one’s anger.
Coupla QuestionsAutumn, how difficult has it been for members of the general public to attend the trial? Is there adequate seating, or does the court run a little lottery for the available seats at the beginning of each session? If they do, do you know when that happens?
Also, though I’m somewhat reluctant to bring this up, I’ve heard the accused has family members/supporters in attendance. Has anyone spoken with them or gotten any impressions about them?
So far, the authorities and/or the media have scrupulously restricted the release of any information about the accused, which I presume is a bid to avoid influencing the jury’s impartiality. That leaves us with a lot of strange rumors floating around, but at this point the person seems mostly like a cipher who came out of nowhere. It should be very interesting when he takes the stand.
You’re assuming the Jury won’t deadlockThey did twice in the Gwen Araujo case.
I don’t see a unanimous “Not Guilty” verdict as being possible, but deadlock – certainly a possibility. As likely as a unanimous first degree murder conviction with bias.
Some of the comments on the CNN site:
I think Felony 3 murder is the most likely result if a conviction can be obtained at all.
Nope, it is a reaction that we possessWe possess the reactions we have. I had what people call a violent temper. When I was 10 or 11, I used to get picked on all the time. I eventually snapped after all the taunting and teasing I received. I eventually put two people in the hospital.
Prior to that, I had chased a kid that was picking on me with a metal pronged rake, another I chased with an unloaded pistol. An aluminum handle/plastic ended canoe paddle is one heck of a weapon.
This was back in the mid 70s and people where glad that I was sticking up for myself. And then came the change in tune when I actually struck two people with the canoe paddle. What a change in the concept, I was supposed to defend myself and then when I did and caused harm I was in the wrong for defending my self.
These events led to police intervention, where I had to go through anger control. (Blame the victim of the bullying) This is where I learned that I need to be in control of my actions. Did I feel Rage when I was being picked on, yes, but I also learned that I could not attack those who were picking on me. The other kids also were instructed not to pick on other people.
Now this was when I was 10 or 11. The Murderer here was 31. He should have been able to control his Rage/Anger and not have murdered Angie. Gay/Trans panic should in no way justify the beating or murder of any LGBT person. We all should know that.
Other people may do something, and we react to that something. We are in control of our reaction and not anyone else.
And then If I were a lesbian……and murdered every straight guy that tried to pick me up, I would be justified for killing them.
I know you posted quotes from CNN. But how did we as a society get to murdering anyone can be justified unless it is self defense? This IMO is completely insane.
But I know that as a society, people try to justify the most inhumane things.
Oh my gods!
I blame the homophobia promoted by the bible,combined with a culture that glorifies anger and a general lack of self-control.
“If a human being isn’t capable of controlling their anger,They have no place in society…”
That’s the bottom line, and it should be the primary consideration when it comes to sentencing. This monster, Andrade, is a danger to others and needs to be removed from society for the rest of his life.
Soooooo many questions…
There is plenty of seating. The general public has plenty of room at the trial. 
There are a few family members in the courtroom, but most are sequestered from the hearing room because they’re also witnesses. The Greeley Tribune has a piece up today on how the family’s testimony…Angie Zapata’s friends, family take the stand. Gives insight into the family’s thoughts, and if you do a Zapata date search on the site and check out last week’s article on the Angie Zapata Family Vigil, it gives a great take on what the family is thinking.
…And, assuming he takes the stand. Don’t know if he is or not — probably not would be my guess, but who knows.
We know the Defense will be looking for a way to avoid a hate crime enhancementSince the Prosecution is putting forth the claim the defendant knew Angie was transgendered could the Defense then come back with the argument if Andrade was so disgusted with Ms. Zapata being transgendered, why did he wait to harm her?
Could this horrid logic work?
Dena
Not for a crime of passion.If he stewed over it for 36 hours, then it’s not a crime of passion — it’s a premeditated murder. That’s what the prosecution is arguing.
The legally sound only way trans panic/gay panic/blame-the-victim/crime-of-passion strategy can work as a “defense” is if he just found out, and he killed her nearly immediately.
As for what happens in the jury room behind closed doors — we’ll just have to wait and see.
Got it.Thanks for clearing that up.
Dena
The Name issue, I can relate to this. The defense using the male name and the prosecution using Angie. The comments from the Greeley Tribune are a mixed bag, but these two caught my attention,
I take issue with this. What did the defendant know Angie as? Angie. Now legally Angie didn’t get her name changed. Does anyone know if she was in the process of having it changed?
I know from my divorce, when the divorce lawsuit was filed, my legal name at that time was my new name. I had my legal name change one month before my ex-wife filed. The style on the lawsuit had my old name. I requested that the style be changed to reflect my legal name and that motion was refused. I had to adhere to what I was known as the court said.
My ex-wife and her attorney during my first hearing kept referring to me by my old name and as male. I had GRS after the first hearing. By the time the second hearing came around, I had all my documents changed to my correct gender, Female.
My ex and her attorney continued the male garbage. but I would correct them every time. They would say ‘HE’ , I would say out loud, ‘SHE’ ETC.
This continued until the judge set a rule in her court, She is female and her name is what it is.
To my point, The prosecution could ask the court to refer to Angie as Angie as well as refer to her in female context for this reason. All parties involved knew Angie as Angie and not anything different. If Angie was in the process of a legal name change, this would add for reasons of the request. As the commenter says, the prosecution should be legally bound to use her legal name, I would have to disagree. We know the defense is using her legal name to smear the victim, this needs to be stopped IMO.
Autumn, thank you for your posts on this tragedy.
Even if the jury buys his story, That he found out just before Murdering her, from CNN,
That last blow killed her, he was cleaning up the mess. He didn’t have to kill her. If he had any humanity, he would not have hit her again. To much time, this is first degree.
Andrade’s attorneys told the juryduring both their mini opening statement on Wednesday and their opening statement on Thursday that Andrade would testify. There is no other way to establish his defense than for him to testify. It’s possible that he will change his mind (the decision whether to testify is entirely up to him), but without his testimony, there is little doubt that he will be convicted of first degree murder.
Can you clarify?Did they actually say Andrade was going to take the stand in his own defense? Or did they say something like, “As you will hear in Mr. Andrade’s own words…” I thought it was the latter, and that this was simply referring to parts of his recorded confession and conversations recorded in prison.
Thanks for any help clearing that up.
we’ve been there for a long timeThe crimes of passion have a long history. Traditionally, it served to excuse the husband of killing the wife and/or her lover after he learned of the adultery (most likely witnessed it). So, it’s nothing new. It was just some attorney who thought to argue that the gay/transgender panic is of similar nature – that your passions take over and move you to commit the crime.
And by the quotes from CNN, it looks like we’re stuck with this for a long time.
They did not literallysay he was going to testify. In their mini opening statement they said
It’s possible that you or I might interpret that to refer to something other than Andrade’s personal testimony in court, but I don’t think the jury is going to see it that way. And jury’s get very angry when they’re told that the defendant is going to testify and doesn’t. Despite the Fifth Amendment and all the instructions juries are given that defendants have the right not to testify and that their failure to testify can’t be considered by the jury, juries still think that the only reason a defendant doesn’t testify is because he’s guilty.
Justice for Angie?To me, justice for Angie (and Gwen, Lawrence King) only can come when everyone says “This is wrong, and I will not stand by and let it happen.” The eyes of this country, indeed those of our very world, must be fixed on how terrible it was that Angie was taken from us; our hearts must unite in chastened, bittersweet determination to bring about a worldview that acknowledges how we have lost everything when we lose anyone to hatred.
You can blow out a candle
But you can’t blow out a fire
Once the flames begin to catch
The wind will blow it higher -Peter Gabriel, “Biko”
If that headline on the freeze frame of the video……is actually what the defense is saying, I would use that against him.
Are they gonna be back in court for another murder trial later when the defendant loses his temper again? How is that even a justifiable defense?
In life, we are all negatively surprised by things all the time. Does that give us the right to murder?
I hate that trials are about showmanship and the manipulation of the juror’s emotions rather than the cold hard facts and the morals of our justice system.