Editors' Note: Guest blogger Abigail Jensen is a trans woman and attorney in Prescott, Arizona. She is also President of QsquaredYouth, a member of the boards of directors of the Prescott Area Women's Shelter and TransMentors International, and a general rabble rouser on issues of equal rights for transgender, as well as, lesbian, gay and bisexual, people.
On July 17, 2008, Angie Zapata, a happy and beautiful transgender woman who was only 18 and living on her own for the first time, was brutally murdered in Greeley, Colorado by Allen Andrade because she was trans. Her murderer, of course, claims that he beat her in the head with a fire extinguisher until she was unconscious, and then went back and did it again to make sure she was dead when he noticed her trying to sit up, in a fit of "uncontrollable" rage when he discovered that she had a penis. Andrade's trial began on Tuesday, April 14.
I am a criminal defense attorney. More specifically, I do criminal appeals; I represent people like Andrade after they have been convicted, either by a jury or by pleading guilty. My job is to look over the shoulders of the police, the judges, the prosecutors, and the defense attorneys to make sure that everyone follows the rules, imperfect as they are, that have been adopted in this country to help ensure a fair trial. I've been doing this work since 1997. I have read the transcripts of hundreds of jury trials, including several murder trials, so I have a pretty good idea of why defense attorneys do what they do and what juries look for when they decide to convict or acquit someone.
There is good reason to believe that Andrade already knew that Angie was trans, but his defense attorney has no choice but to go with the best chance she's got for defending him -- blame Angie for her own murder.
The Weld County District Attorney charged Andrade with first degree premeditated murder, a hate crime for murdering Angie because she was trans (the first such prosecution in the nation), auto theft for stealing her car, and identity theft for stealing and using her credit card.
Yesterday, the prospective jurors got to hear for the first time what the case is about when the attorneys presented their "mini-opening" statements. Mini-opening statements are apparently relatively new in Colorado. They've been used in Arizona for several years and are intended to give the jurors a basic idea of what the case is about, so that they can be questioned about whether the nature of the crime will make it difficult for them to be fair and impartial.
The prosecutor told the jurors that Andrade had known that Angie was trans for some time and that he murdered her in a premeditated attack. Andrade's defense attorney, however, said that he felt "deceived" when he found out that Angie was trans.
...and he reacted. He reacted, he lost control, he was outside of himself.
"Everything happened so fast, it was over before it started. He couldn't control it. Those are the words you're going to hear from Mr. Andrade. He never knew he had that kind of rage."
If Andrade pursues that defense through trial, he's cooking his own goose, which is fine with me.
On her blog this morning, Kelli Anne Busey quoted from another article about the mini-opening statements in Andrade's trial, noting that the prosecutor told the jurors that, contrary to Andrade's claim, there would be no evidence that he had sexual contact with Angie before the murder. If the prosecutor can make that claim stick, the defense is going to have a very difficult time. Why?
Without proof that Andrade had sex (of whatever kind) with Angie without knowing she was trans, his "trans panic" defense falls apart, and his crime is revealed as the bald-faced hate crime that it really is.
In other words, Andrade didn't kill Angie because he was deceived into having sex with a "man," but simply because he hates trans people and believes, as he told his sister in a recorded phone call from the jail, that "gay things need to die."
What's even more significant, however, is the statement by Andrade's attorney that he is going to testify: "Everything happened so fast, it was over before it started. He couldn't control it. Those are the words you're going to hear from Mr. Andrade." Of course, that's the only way Andrade can hope to prove his alleged "trans panic" defense (who else can prove what was going through his head as he bludgeoned Angie to death?) and thus convince the jury to reduce his conviction to 2nd degree murder or manslaughter, but it's a very risky move. Very few defendants do this.
Andrade's decision to testify means that the prosecutor gets to cross-examine him in excruciating detail about when he first knew or suspected that Angie was trans, which could well cook his goose right there. In addition, the prosecutor will get to hammer home the evidence that, after first beating her unconscious, Andrade went back and made sure Angie was dead after she tried to sit up. That makes it first degree (premeditated) murder without question, regardless of how outraged he may have been when he first hit her.
Lastly, and perhaps most importantly, is what happens if Andrade contradicts any of the things he told the police, including the things he said during the parts of his confession that the judge threw out. For example, what if Andrade tells the jury that Angie was dead after he beat her the first time but told the police he went back a second time to finish the job because he saw her moving?
If that happens, the judge will allow the prosecutor to bring back in everything that he previously threw out, including any audio or video tape of his police interview, to prove that Andrade is lying to save his ass. When a jury hears a defendant say one thing to them face-to-face from the witness stand, and then gets to hear (and, if the interview was videotaped, see) him say the opposite to the police right after he was arrested and before he had a chance to plan out his story, it is absolutely devastating and virtually guarantees a conviction.
From where I sit, unless something changes very drastically over the course of his trial, Andrade is about to cook his own goose. It couldn't happen to a nicer guy!