Dr. Jillian T. Weiss

What The Hung Jury Means In The Larry King Murder Case

Filed By Dr. Jillian T. Weiss | September 02, 2011 8:00 AM | comments

Filed in: Politics
Tags: Brandon McInerney, gay panic, Larry King, murder, Oxnard

Larry KingThe jury in the trial of Brandon McInerney, who killed Larry King because he was gay or trans, has notified the judge of their inability to reach a verdict, and has been discharged. There will either be a plea deal or a retrial. But the question that must be on everyone's mind is what the jury was thinking.

My guess as to the likely reason that the jury could not reach a verdict is that there was disagreement as to whether McInerney acted in the "heat of passion." The other potential interpretations don't make any sense. The "heat of passion" defense, when the "passion" offered is that the victim was gay or transgender, is what we colloquially know as the "gay panic" defense, or "trans panic" defense. (Although there is some evidence that King was questioning his gender identity and even referred to himself by a female name at times, the crux of the defense is based on alleged sexual advances and McInerney's homophobia, and so I refer to the defense employed here as a "gay panic" defense rather than a "trans panic" defense.)

The charge against McInerney was first degree murder. The definition of first degree murder in California law is the unlawful killing of a human being, or a fetus, with malice aforethought. "Malice aforethought" essentially means, in this context, that the defendant formed the intent to kill prior to the act that caused death. First degree murder is punishable by death (not applicable here due to McInerney's age), imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life, depending on aggravating or mitigating circumstances. (If the crime was committed because of the actual or perceived sexual orientation of the victim, then the minimum punishment is life imprisonment without parole.)

The first degree charge in this case is justified by the fact indicating that McInerney formed an intent to kill prior to the act that caused death. These include remarks made to another student the day before the murder suggesting that McInerney was going to murder King. There was also the fact that McInerney brought a gun to school, which was not revealed until seconds before it was discharged into the body of Lawrence King.

In California, the lesser offenses of second degree murder and voluntary manslaughter are automatically included in a first degree murder case. Second degree murder refers to an intentional killing, but the intent was not formed prior to the act that caused death. It is punishable by imprisonment in the state prison for a term of 15 years to life.

If McInerney had, on the spur of the moment, gotten into a fight with King and then killed him, there could be an argument that there was no "malice aforethought." That is not, however, the case here. The gun was brought to school, hidden, and brought out second before discharging it directly into the back of the head of Lawrence King. There cannot be any reasonable argument that McInerney's gun was simply intended to intimidate or threaten Lawrence King, and that it all went horribly wrong. In addition, the gun was discharged directly into King's head, not his body, arm or leg. It was therefore brought and used based on the intent to kill, not to threaten or maim. There was no testimony during the trial, as far as I am aware, about McInerney's intent being something other than killing.
Thus, it is unlikely that any reasonable juror would be holding out for second degree murder.

The other lesser included offense of first degree murder is voluntary manslaughter. That means, under California law, that the killing occurred "upon a sudden quarrel or in the heat of passion." It is punishable by 3, 6 or 11 years imprisonment, depending on aggravating or mitigating circumstances. It is likely that this was the sticking point for the jury. Some jurors must have felt that McInerney was acting "in the heat of passion" based upon the alleged taunts of Lawrence King, in which King allegedly blew McInerney kisses, said "what's up, baby?", and suggested to others that McInerney was his boyfriend. Perhaps they did not credit the testimony that these were a response by King to McInerney's bullying, or felt that, nonetheless, it was reasonable for McInerney to feel harassed.

As I discussed in my post last month, If Larry King Had Been A Girl, it was clear that the defense was banging away at a gay panic defense, suggesting that King's sexual "advances" were the trigger for McInerney's actions. But there are certain things we are not prepared to accept as a "reasonable" provocation. The fact that someone hates people of a particular race or ethnicity, for example, is not generally accepted as "reasonable" provocation. It might have actually acted as a factor that provoked the defendant, but our law does not consider that as a reason for diminished responsibility. A defense lawyer would not be allowed to make such a case, ask questions insinuating as much, or argue it to the jury. It is also clear that, had King been a girl that McInerney had killed because he didn't like her sexual advances, such an argument would also be deemed inappropriate. And yet, such an argument happened just now in the Larry King case, and the judge said nothing and did nothing to stop it.

As a side note, there was much hullabaloo about a law passed a few years ago in California against the "gay panic" and "trans panic" defenses. However, it was nothing more than a law requiring a jury instruction that the jury shouldn't consider the victim's personal identity, including, among others in a long list, sexual orientation. That's a meaningless law as demonstrated by this case. Jury charges can be pages and pages long and simply stating that one should not take the victim's sexual orientation into account is meaningless in the context of a trial such as this. Of course they took Larry King's sexual orientation into account. How could they not, when the defense presented 100 witness and weeks of testimony about Larry King's sexual orientation and the judge allowed it? The law that's needed is a law that says that evidence pertaining to a victim's sexual orientation or gender identity is deemed irrelevant and prejudicial, and therefore inadmissible. But I digress.

There is no reasonable argument here that McInerney acted "in the heat of passion." The classic "heat of passion" case is the example of a husband who comes home to find his wife naked in bed with another man, and the husband picks up a weapon close at hand and kills. The law's judgment in such a case is that the defendant's killing is motivated by "heat of passion" and thus less culpable. But if the husband waited a day and then killed his wife, he would not be entitled to a heat of passion defense. In the case of Brandon McInerney, he waited a day and then killed King. The idea of a "heat of passion" defense here is ludicrous.

What makes the "heat of passion" defense particularly egregious here is the fact that a crime motivated by the sexual orientation or gender identity of the victim is considered a "hate crime," which carries an enhanced penalty. Thus, shooting King because of his sexual orientation or gender identity is both a reason for an enhanced penalty (as a hate crime) and a reason for a reduced penalty (as a murder committed in the "heat of passion" because McInerney was "disgusted" by King's sexual orientation or gender identity).

Some people make the point that McInerney was 14 at the time of the shooting, and should not have been tried as an adult. Be that as it may, the jury's job was to decide whether McInerney committed premeditated murder or whether the killing was "in the heat of passion," and thus voluntary manslaughter. There is no reasonable argument here for "heat of passion," unless one is homophobic. That's probably why the jurors who believed that McInerney premeditated the act, and did not act "in the heat of passion" refused to cave, and thus the jury could not reach a decision.

The point here is that the "gay panic" defense is alive and well and living in California. Based on the results in this case, legislators ought to take strong action to stop this type of defense from occurring again by taking stronger legislative action to stop it.

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.


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You write, "The law that's needed is a law that says that evidence pertaining to a victim's sexual orientation is deemed irrelevant and prejudicial, and therefore inadmissible." How would one write a law that invalidates both "gay panic" and "trans panic" defenses?

Good point, Greg. I should have included gender identity. I'll add it in now.

Where is McInerney? Is he in jail? Was he in jail during the trial? Since his arrest? If there was another trial, would he be in jail during that?

I think he's been in jail, since any sentence as a minor would essentially have been "paid" by now, which really leaves no other option of justice except to charged him as an adult.

He has been in a juvenile detention facility. He is going to remain there until they either decide on a plea bargain or come up with a new trial date.

Where is the judge's scrutiny of the jury members for being unable to reach a verdict? If a number of non-homophobic jurors refused to move from considering first-degree murder, it would seem apparent that other, homophobic jurors had rejected their duty to not consider a "panic" defense and, perhaps, had deceived the court during jury selection with the intent let McInerney off. This is another disturbing example that. in America, non-heterosexual, non-cisgender lives are discounted.

The other factor here that I suspect is the case for hung jury is that they're looking at a trial involving two minors rather than a trial with two adults or one adult and a minor. Regardless of what McInerney did, a jury will most likely be more hesitant to convict a minor who is a white male. Then you have the sympathy case they built for him, which probably had a moderate effect on some of the jurors. And that's not even factoring in agreement with gay panic.

So you basically have a verdict that must be harsh because there is no other rational motive and potentially you have jurors who believe that harsh punishment is the correct sentence, but a defendant to whom jurors also are less likely to feel comfortable about handing out such a harsh sentence.

From what I've read elsewhere, the jury was acutely aware that McInerney was only 14 at the time of the crime. The gay panic defense was perfectly revolting, but the defendant's age may have been at least as influential to the jury as the defense team's closing argument. Frankly, first degree murder is the only verdict that fit the facts of the case. I'd like to believe this is an instance of jury nullification given the kid's age at the time of the crime, and not necessarily a reflection of people's acceptance of a gay panic defense.

What's obvious to me is that jurors who were unable to really try McInerney as an adult didn't excuse themselves from the jury (or weren't properly challenged by the prosecution). Moreover, there are many jurors who clearly did NOT follow the judge's instructions about what their job was and what facts they were actually deciding. They were trying to mitigate the sentence themselves (based on McInerney's age or, perhaps, gay/trans panic) rather than decide on issues of fact.

Fourteen is not young when murder is considered. At fourteen a person is fully aware that killing is wrong. However I believe a factor in this impasse is the inflexibility of the punishments available to the court. Life imprisonment without the possibility of parole could have influenced jurors to not convict. If the sentencing option had ben more flexible this may not have happened.

In the UK the penalty is Life but with a minimum tariff to be served before parole can be considered. Once Parole is granted the convicted murder is released on a life time licence so can be recalled to gaol at any time, for any infraction of the law. There is no distinction about murder categories, murder is murder and manslaughter involuntary/ accidental killing.

Fourteen or eighty-four, it seems to me this was simply a case of pre-meditated murder. How could he not be found guilty when it took place in the classroom? Have I missed something?

Paige Listerud | September 3, 2011 1:58 PM

So now, what's next? The judge has declared a mistrial--prosecution has to make some choices over how it represents the case a second time. Getting any verdict less than first degree murder re-affirms and reinforces second/third class citizenship for California's LGBTQ.

This whole "gay panic", "trans panic" stuff is a big load of bullpoop. Everyone is aware that gay people and transsexual people exist throughout society, and there is nothing inherently harmful about such individuals. In fact, gay people and trans people tend to be far less aggressive than the homophobic and transphobic people their lives are threatened by. I don't know about anyone else, but I've *never* ready a story where a gay or trans person was attacked, and handed their attacker a ass-whooping. Most of the time, they're lucky to escape with their lives.

Transphobia. Homophobia. let's examine these "phobias" for moment. A phobia is an irrational fear. It's a fear for which there is no logical reason to be afraid because the thing feared presents no danger. We've all heard of people who fear things like touching snakes, or seeing circus clowns, or getting an injection. How often do these people go home, get a gun, come back and kill the snakes, murder the clowns, or destroy the syringes? People with "phobias" want to get away, and STAY away, from the things they fear, not attack them.

The truth is, these murders are not suffering from phobias in any way. They are simply violent, hate filled animals who believe they are free to destroy people they don't approve of. A person who premeditates a murder is *BROKEN*, and presents a danger to society. There is no "rehabilitating" them because there is no way we can risk allowing them the opportunity to kill again. Frankly, I don't know what you do with a "child" who has committed such an act as this. I don't have an answer to it. I only know that there is no possible excuse or justification for what this child did, in the manner he did it.

Jillian -

The more I read about the jury's feedback, the more I think this was actually jury nullification based on McInerney being charged as an adult. I think, at the end of the day, a number of folks (maybe not all) voting for manslaughter simply didn't want him to go away for such a long time. I haven't read anywhere that a juror has said that McInerney was a "victim" of Larry's "harassment." Those are the kinds of statements I generally see when folks are actually buying into panic strategies.

In terms of the Gwen Araujo Justice for Victims Act, everyone involved with drafting and passing it saw it as a first step. If you really want to get some effective legislation passed on this issue, though, I'd strongly recommend staying away from a "rape shield" law type of bill. That was the mistake I made when I drafted the original California bill. It completely alienated folks who would have otherwise been on our side and did nothing to attract the law and order types.

Instead, we should have looked into adding a definition of "provocation" to the manslaughter statute from the outset (by the time we tried, the bill was already tainted by our previous "rape shield" language). CA has a sweeping hate crimes law. Defining provocation (a key element of "heat of passion") to explicitly exclude having or expressing the characteristics covered by the hate crimes law would, I think, have gone a long way to taking the knees out from under panic strategies.

The other thing we really need to do as a community is stop legitimating this strategy by referring to it as a "defense." It is not one that is recognized in statute or common law. The name is catchy (and it's hard to find an equally catchy substitute) but it really diminishes our ability to combat it because people who should be on our side on this want to make sure that defendants are not stripped of any legitimate defense. By calling this cynical strategy a defense, we put ourselves on the opposite side of these folks for no good reason.

All the best,
Chris

A very interesting comment, Chris. Thank you for all of your work on behalf of our community. What would you suggest instead of "panic defense"?

Jillian - you'd be appalled at the amount of time we spent trying to come up with a new phrase. The best we came up with was "panic strategy" (which could be modified by trans or gay). We would often throw in an "unethical," "discriminatory," or "horrifying" for good measure. The goal was to really mark this as something the defense attorney(s) were injecting into the matter in order to prey on institutional homophobia or transphobia. When someone used "panic defense," we'd often try to acknowledge that it was a common misconception but that no such "defense" exists and instead the defense team was just acting unethically.

Of course, the challenge was to do that while still not demonizing criminal defense attorneys in general for doing their jobs.

As you can tell, though, outside of a few organizations in CA, this attempted correction never really caught on. If I had to guess, I'd probably say that it was LGBT people who coined "gay panic defense" without realizing the complications that it would cause down the road. We certainly seem to be the ones who are using it most often these days.

I'm sure someone out there can come up with a fix that will more easily make it into the lexicon, though.

Best,
Chris

Jillian -

The more I read about the jury's feedback, the more I think this was actually jury nullification based on McInerney being charged as an adult. I think, at the end of the day, a number of folks (maybe not all) voting for manslaughter simply didn't want him to go away for such a long time. I haven't read anywhere that a juror has said that McInerney was a "victim" of Larry's "harassment." Those are the kinds of statements I generally see when folks are actually buying into panic strategies.

In terms of the Gwen Araujo Justice for Victims Act, everyone involved with drafting and passing it saw it as a first step. If you really want to get some effective legislation passed on this issue, though, I'd strongly recommend staying away from a "rape shield" law type of bill. That was the mistake I made when I drafted the original California bill. It completely alienated folks who would have otherwise been on our side and did nothing to attract the law and order types.

Instead, we should have looked into adding a definition of "provocation" to the manslaughter statute from the outset (by the time we tried, the bill was already tainted by our previous "rape shield" language). CA has a sweeping hate crimes law. Defining provocation (a key element of "heat of passion") to explicitly exclude having or expressing the characteristics covered by the hate crimes law would, I think, have gone a long way to taking the knees out from under panic strategies.

The other thing we really need to do as a community is stop legitimating this strategy by referring to it as a "defense." It is not one that is recognized in statute or common law. The name is catchy (and it's hard to find an equally catchy substitute) but it really diminishes our ability to combat it because people who should be on our side on this want to make sure that defendants are not stripped of any legitimate defense. By calling this cynical strategy a defense, we put ourselves on the opposite side of these folks for no good reason.

All the best,
Chris