Long day at work, and I’m skimming somewhat incoherently so this may be in your article (or somewhere on the web), but did they poll the jury after they couldn’t reach the verdict? Or have any of the jurors said what the final count was? It would be interesting to see, and I’m sure the prosecution would want that information for a future trial (if they go that route).

The L.A. Times has th poll of the jurors in their article Mistrial clouds fate of teen accused in slaying of gay student (emphais added):

A judge declared a mistrial after jurors said they could not agree whether to convict Brandon McInerney, the middle school student who shot and killed a gay classmate during a morning computer lab.

Jurors deadlocked 7 to 5 in favor of voluntary manslaughter in the emotional two-month trial in the case of the stunning 2008 shooting inside an Oxnard classroom.

Defense attorney Scott Wippert said McInerney was disappointed by the mistrial because his fate was left hanging. Prosecutors probably won’t announce until next month whether they will try the 17-year-old a second time, and whether he again will be tried as an adult.

AB 1160 failed us Californian trans people.

In my opinion, Larry’s confrontational behavior towards those who bullied him helps explain the hung jury.

It’s not just you. There are a number of people (most of the jury, at the very least, if 7 of them were going to call this assassination-cum-human-sacrifice “voluntary manslaughter”) who will proudly show their disapproval of the murder of LGBT people (and they generally don’t make a distinction between L/G/B and T) — as long as said LGBT people are “pure” victims who never so much as raise their voices in their own defense. If one of us has the gall to stand up for ourselves, even verbally, rather than trusting our safety to the whims of the cis-heterosexual majority, then we’re clearly less than human and so a cis-heterosexual can’t be held entirely responsible for taking us out.

excellent commentary

but Heaven forbid anything happen to you. this madness has to stop

The defense’s success of a hung jury in the trial of Brandon McInerney tells me that my life is likely worth less than your life. If you don’t think that doesn’t send a chill down my spine, you’d be wrong.

No kidding. I had a bashing experience a little over 20 years ago – left a scar over my right eye that I needed a bunch of stitches for, among other places.

Every once-in-a-while, sometimes I catch a glance at it while I’m shaving and just burst into tears remembering it.

Oh, damn, Autumn, I had the same sinking feeling yesterday. It reminded me of Election Night 2008 in California: LESS THAN.

Thank you for this personal post.

Does this mean the jury was unanimous in rejecting first and second degree murder? Because that’s some spectacularly bad prosecuting, if true. And my memory from murder jury service is that you have to consider the charges from highest to lesser included, and find unanimously on them all: you must unanimously reject 1st degree before going on to consider 2nd degree, etc.

If this jury unanimously rejected 1st and 2nd degree, we need new prosecutors and we need a new judge. This was horrible lawyering on Larry King’s behalf, and horrible presiding by the judge.

I think things must work differently in California from DC, as to consideration by the jury of the lesser included charges:

“Jurors on Thursday said they were deadlocked on a verdict, with seven favoring a voluntary-manslaughter conviction and five pushing for first- or second-degree murder. The jurors, who have not spoken to the media about the deliberations, told defense attorneys that they did not believe the killing amounted to a hate crime.”

Strong and vital commentary. I do have a few questions to add to this, since California law was supposed to, or should, prevent this kind of miscarriage of justice, at least on a procedural basis, and not just when the judge issues instructions to the jury at the end of the trial.

1. What went on during the voir dire phase, when they were seating the jury? Did any LGBT or LGBT-friendly members of the jury pool get let go for cause or on peremptory? The 9th Circuit is looking at this — see
http://www.latimes.com/news/local/la-me-jurors-sexual-orientation-20110805,0,6750375.story

I don’t have access to Westlaw but I would think there’s case law in California law already. There already was a Federal case involving a prosecutor who let all African-American jurors go on peremptories, so it’s logical that this extended, somewhere. Anybody know of a case?

It’s important because even with AB1160, it’s kind of moot if the jury is already stacked. (See, e.g., the trial of Dan White, in which every LGBT or LGBT-friendly juror was let go for cause). It’s also insulting if this removal of potential jurors takes place in any trial, even if LGBT people or issues aren’t involved.

2. During the evidentiary phases, did the prosecution even try to object to defense attempts to try the victim? I can’t find any mention of “orientation” in the Cal. Evidence Code but there are provisions like this, Cal. Evid. Code § 352:

The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.

At the very least, we need something in the California Evidence Code and in the Federal Rules of Evidence, similar to the laws shielding rape and molestation victims, against trying the victim’s conduct and not that of the defendant, in cases where the victim’s sexual or gender orientation was a motive. Any takers in Sacramento?

3. Did the judge read all the relevant instructions from, say, CALCRIM, the official jury instructions (see, e.g., the general Rule 200)?
http://www.courts.ca.gov/partners/documents/calcrim_juryins.pdf

If they do re-try the defendant, they/we need to look hard at the jury selection, at very least. IINM, the defense in this trial did admit, didn’t they, that Brandon McInerney did enter that classroom and shoot Lawrence King? The only question then is which section of the Penal Code on homicide applies.

I read that the Jury was not hung on guilt, but degree. 7 Wanted manslaughter and the others wanted 1st or 2nd degree murder. In some ways I see this as a failure, but it is much more likely to push the defense into a plea, since guilt was not the question.

That is the design function of a panic/”blame the victim” defense – these defenses aren’t designed to result in a not guilty verdict for an admitted killer, but instead are designed to get a killer who committed a premeditated murder off on a lesser charge.

A jury deadlocking, or agreeing to a lesser included charge rather than the top count of a premeditated murder, or a plea deal that is for a crime less than the top count of premeditated murder, is a successful outcome for a panic/”blame the victim because of their minority status” defense.

It’s in that outcome of less than top count convictions — and pleas to lesser charges — for my trans community members’ killers that creates the situation that trans people’s lives are less valuable than the lives of most others in broader society.

Autumn, I felt the same way. It brought back that horrible day in 1979 when Dan White got away with the cold-blooded murders of Moscone and Milk. I never would have dreamed that 32 years later we would have made so little progress in the American justice system. I have now been a second class American citizen for 50 years and I despair of ever achieving equality in my lifetime.

I was reading about this case on Yahoo News. You know how people are always saying that this or that is the difference between humans and animals? If you read those comments you’d conclude that the difference between us and critters could be summed up as “not much”. I’m not that impressed with the 21st century yet, is anyone?

Swell. Now the prosecutors are telling the LA Times they’re not sure if they can retry the accused as an adult.

http://www.latimes.com/news/local/la-me-gay-student-20110903,0,5433686.story

The ballot proposition that allowed California courts to try juveniles as adults passed 11 years ago. A lot of kids have been sent up since then, no doubt, so why the squeamishness on this jury?

One juror told the Associated Press that they had difficulty accepting the fact that McInerney was being tried as an adult. And jurors told defense attorneys they did not believe the killing amounted to a hate crime.

Yes, it is grotesque.

Maybe what California needs to do is to eliminate the common-law requirement of proving specific intent (rather than the implied general intent) on any criminal offenses. The defendant shot him, the act meant intent, the thing speaks for itself — res ipsa loquiteur. The principle is simple enough: it’s the accused who’s on trial, not the victim — or that’s how it needs to be.

Footnote on the jury-selection phase. Seems that the court was aware that Prop 8 might have poisoned the jury pool, to the extent that a change of venue from that county — or, by extension, anywhere in California — would improve matters.

http://lezgetreal.com/2010/08/prop-8-factors-in-jury-selection-for-trial-of-teen-charged-with-murdering-larry-king/

And jurors told defense attorneys they did not believe the killing amounted to a hate crime.

defying reason

I disagree with your premise that the blame the victim mentality doesn’t occur in heterosexual society. The “blame the victim” mentality against women has been around forever. One need only look at rape stats versus reportable rape stats.

It’s sad but I think your argument undermines your cause which is a just one. Transgender folks belong having a happy and safe environment, just as anyone else does.

cwaltz- I certainly didn’t read this as saying “blame the victim mentality doesn’t occur in heterosexual society”.

What saddens me is (along all else) is the level of ignorance that people in general have about transgender, even supposedly educated people. (that is just a statement, not directed at you cwaltz)

Teddy will remember a long late night FDL discussion back at the time of ENDA.

It’s disgusting, but anyone considered ‘fringe’ is endangered. Among others, cyclists (with or without motors) are routinely killed and maimed on California highways, and “I didn’t see him” is defense enough to get off, if charges are even brought. They ask for it by being on the road without tons of steel around them.

I didn’t make that argument. I’m not sure what statement that I made that caused you to perceive that I did.

Yesterday I commented on this thread about my own being bashed experience. Why was my comment removed?

Not removed. There is one copy of this article in MyFDL, and another copy of this article on Pam’s House Blend. You’re previous comment is still on the MyFDL post of this article.

What really pisses me off, is that after reading more into this, the Jury all agreed that this “was not” a hate crime. WAS NOT A HATE CRIME! King was killed because he was gay and/or transgender. He was killed because of an immutable difference guaranteed protection and justice under the California state law. It just goes to show even hate crime legislation is an absolute failure too, so long as your fate is in the hands of the “mor(on)al majority.”

Sends a chill down my spine too, because once the idea that some lives are worth more than others becomes established, we are all at risk. I’m a straight man, but I’m also Hispanic and my group has also been targeted. Maybe it is easier to pretend we’re all apart, but if we are all a target than we do each other and ourselves no good by refusing to unite for common cause.

I’m not poor, but I could be. I’m not a woman, but my wife and mother and many friends are all women. I’m not black, but Hispanics aren’t too well-respected either. I’m not gay or transgendered, but my sexual behavior and love life are still no one else’s business but my own. I’m not old or disabled, but the odds of me becoming so become greater every day.

Your life,Autumn, is worth as much as any lesbian, gay male, bisexual person in a same sex relation or any transman or transwoman. In other words, we are worth diddly.

Precisely. What the court did was to try Lawrence King for the crime of gender nonconformity, and the jury upheld Brandon McInerney’s sentence: death.

Hate crimes on the basis of perceived or actual orientation or gender, and that includes rape, might better be characterized as acts of terrorism, domestic terrorism, which they are. And maybe terrorist acts need special state courts to treat them with the seriousness such crimes deserve.

It all starts in the churches.

Here is the statement I take issue with

“If you’re a heterosexual man or woman, and/or if your appearance is one where you’re perceived as not violating western society’s sex and gender norms, your life is more valuable than mine. That’s because I’m transgender.”

Here’s an example of why,

http://www.nytimes.com/1994/10/19/us/punishment-is-18-months-for-killing-cheating-wife.html?src=pm

Even in heterosexual relationships our judicial system is sorely lacking and as such it seems completely unfair to charecterize it as solely unsympathetic to transgender folk.

While I understand the frustration of the transgender community I find it peculiar to attempt to make this into an us(transgender) vs them (heterosexuals)thing and a our minority group has it way worse thing. We should be protecting each others back, celebrating our diversity and attempting to help others get over their fears and bias against those that aren’t like us. I don’t see how we get there when your first words prejudge(prejudice is wrong no matter who does it) the situations of heterosexuals as a whole.

On the strength of the available facts, it is quite clear that Letitia King was a trans girl who is being misgendered as a gay boy by the mainstream media out of ignorance and by the gay media as an act of willful appropriation. Just as they did with the Barry Winchell case.

Whoever this person was, this person was a human being who was killed unlawfully with malice aforethought, for which the maximum penalty under California law is death under certain circumstances, and if a hate crime, carries a penalty of life imprisonment. Nothing in Cal. Penal Code §§ 187-191 makes any excuses for the victim being somehow deserving of this because of gender identity or anything else. The victim deserved life; the killer’s life should thus be forfeit, if only by imprisonment in Pelican Bay till the end of his natural life.

Put him away or let California courts justify their legitimacy.

Fiat justitia ruat coelum.
Let justice be done, though the heavens fall.
– motto, San Francisco Committee of Vigilance, ca. 1853

Swell. Now the prosecutors are telling the LA Times they’re not sure if they can retry the accused as an adult.

I’d be much happier with a murder conviction as a juvenile than a “voluntary manslaughter” conviction as an adult. Yes, this assassination was an act of cis/heterosexual supremacy, a political act — but it was still committed by someone in his early teens. Trying as an adult and convicting on a lesser charge, IMO, sends a rather worse message than trying as a juvenile and convicting on the strongest possible charges.

That’s fine, and conferring him to the Dickensian mercies of the California Youth Authority will certainly be a punishment, but remember he does get out at age 25 if convicted as a juvenile. If he spends 25 years or so in the adult lockup it could be worse. Yes, I well remember that Dan White got seven years, later commuted, for the murder of Harvey Milk (oh, and by the way, the mayor as well). It still enrages me either way: I wanted life w/o possibility of parole. In Pelican Bay.

I’m just not quite there with the retributive approach to justice. I tend to think that the best revenge against the people who hate us is to turn their members into people who don’t hate us, rather than turning the people who hate us into martyrs to the cause. (Not that the former is necessarily accomplished by the prison term, of course — but at the very least, we can hope to establish that this sort of assassination and human sacrifice counts as murder not manslaughter. If it’s murder, we put the numerous remaining conservatives who might toy with the idea of abandoning their hypocrisy and actually acting according to their professed beliefs on notice: their bloodlust will actually result in convictions for murder, not just manslaughter. No conviction will undo the political/religious assassination carried out here; but a clear sign that we-the-people consider such acts murder might intimidate a few more Republicans into continued hypocrisy than a manslaughter conviction would.)

Consider the content of the victim-blaming of heterosexual crime victims. In the example you gave, she violated her prescribed gender role by not being totally submissive to her husband. Or in the example of rape victims you gave earlier, women get victim-blamed because they violated their prescribed gender by doing pretty much anything besides being a virgin and covered from head to to, while men are victim-blamed violated their prescribed gender role by not being able to fight off the attacker regardless of the attackers size or gender. So yes, I think Autumn has a point in that people who abide by their prescribed gender role are considered more valuable than those of us who don’t.

I do agree that this example you give shows a glaring lack of justice in our judicial system, but do you not understand the difference between someone being murdered for something someone says they did (committing adultery in this example) vs being murdered for someone being who they are (murder of gender variant people because they are gender variant)? Letting someone off with a lighter sentence for murdering someone for who they are, because the gay/trans panic defense convinces a jury that the very existence of the murdered person is somehow threatening to the murderer, points to the relegation of trans and gender variant people to a life as second class citizens with lesser rights to live. As long as any court is willing to listen the gay/trans panic defense, it tells me, as a trans person, that killing me for being myself is more acceptable than killing someone else for any other reason. This is why my life as a trans person is less valuable than that of a cisgender, cissexual person.

Interesting analysis over at Bilerico, particularly in the discussion of criminal intent, and also the judge letting a highly unethical argument go by regarding the victim.

http://www.bilerico.com/2011/09/what_the_hung_jury_means_in_the_larry_king_murder.php#.TmDhvZ43Na4.faceboohttp://www.blogger.com/img/blank.gifk

I’d still like to know what went on in the jury-selection phase, which seems to have had little news copy other than “jury selection began today in the trial of …”. If you have a jury that was stacked against the victim, the AB1160 jury instructions would have been meaningless to them.

PS. The Bilerico article has an update, with hyperlinks.

UPDATE: The jury did, in fact, split 7-5 in favor of voluntary manslaughter, with 5 wanting to convict for murder. However, the jury universally rejected the hate crime charge.