Dr. Jillian T. Weiss

Prosecutor in Larry King Murder Invokes "Gay Panic" Law

Filed By Dr. Jillian T. Weiss | July 26, 2011 8:00 AM | comments

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

LawrenceFobesKing.jpgIn the first-degree murder trial of Brandon McInerney, who brought a gun to school in Oxnard, California to kill his classmate, 15 year-old Larry King, the defense is arguing that McInerney was "provoked" into killing King because King was gay and McInerney perceived him as flirtatious. It appears that King attempted to counteract hateful conduct of McInerney and others by "blowing kisses" and similar strategies during their frequent bullying.

Prosecutors, on the other hand, are seeking to quell this "gay panic" defense, invoking a state law that allows jurors to be instructed to disregard a victim's sexual orientation. The Gwen Araujo Justice for Victims Act, passed in 2006, allows the judge to instruct the jury not to allow bias based on sexual orientation, gender identity or other protected bases to influence their decision.

McInerney has been charged as an adult with premeditated murder with enhancements of discharge of a firearm and a hate crime. He faces a minimum sentence of 53 years imprisonment to a maximum life sentence.

I discussed the gay panic defense a few years ago in the Zapata murder case. Here are some of the highlights.

The gay panic defense, and its cousin, the transgender panic defense, have been criticized by many, and yet it still survives to rear its ugly head again and again. Cases in which these defenses are raised become high profile, with prominent examples such as the murders of Matthew Shepard, Brandon Teena, and Gwen Araujo. In fact, there have been a couple of legal conferences on the issue of gay panic and trans panic defenses in the past several years, in which prosecutors have sought to learn how to defeat it.

The trans panic defense is essentially a variation on the classic defense arguments negating two major elements of first degree murder -- premeditation and intent. As in any murder case, it will be the job of the prosecutor to say that the case is open and shut - that the evidence is clear that the defendant acted deliberately and with intent to cause death. It will be the job of the defense attorney to muddy the waters - to say that the evidence is ambiguous. He will argue that the defendant had no time to deliberate, and that he didn't intend to kill, but only to strike out after being provoked by the victim but going too far in the heat of passion.

The arguments would be the same in any first-degree murder case. The prosecutor would say he deliberated and intended to kill. The defense would say he didn't deliberate, but only struck out at some provocation by the victim. Almost anything might constitute provocation - an argument, accusations of infidelity or impotence, a theft, or ridicule.

The gay panic defense is a vile variation of this standard defense argument. It says "yes, I killed, but I was provoked to such a degree by the victim's identity that either I cannot legally be held responsible for my actions, or this is manslaughter (or second degree murder), rather than first degree murder." This takes advantage of the widespread homophobia and transphobia of many jurors and judges, who might think of their own reactions in such a situation, and their fears of being a homosexual. A variant of this is the claim that the killing was in self-defense from a sexual assault, which takes advantage of prejudices regarding gay and transgender propensity for sexual assault.

The stakes are very high here. For the defense attorney, his client is looking at life imprisonment if convicted of first-degree murder. How will a jury determine whether he is guilty of first degree murder or not? It all comes down to his intent.

Hypothetical case: how do these statutes work in operation?

Let's look at a hypothetical case. A pulls out a hammer and hits B on the head. B dies. Is A guilty of first-degree murder?

Answer: As usual in the law, it depends on the defendant's intent. If the hammer is a sledge hammer, and A shouts "after thinking it over, I've decided to kill you," then yes, he is probably guilty of first degree murder. If A, however, acts hastily and impulsively after an argument with B, who called him a dirty so-and-so, then he is probably not guilty of first degree murder.

However, he was aware that his actions were practically certain to kill, so even if there was an argument that prompted A to act impulsively, A is still guilty of second-degree murder. (This usually carries a sentence of 8-24 years, but only 4-12 years if A were sufficiently provoked.)

What if, however, the hammer was a rubber mallet that wouldn't kill with a single blow, but A, angered by the so-and-so comment, hit his victim forty times? Then it's arguable that he is only guilty of manslaughter because he wasn't aware that his actions were certain to kill.

Now back to the real world, in which a real victim, Larry King, has been killed by a real killer with a gun. Did he deliberate, and exercise reflection and judgment? McInerney's argument that he did not deliberate, or exercise reflection, might have had some traction if he had hadn't solicited others to assault King, and if he hadn't brought that gun into school. But McInerney had obviously planned this well in advance. This indicates deliberation and intent to kill. The defense argument will be that McInerney brought the gun into school only to scare King, not to kill him. Which is a more likely interpretation? That's up to the jury.

The next issue is that of provocation. Provocation changes the fact pattern in two ways. First, it negates "deliberation" by positing that the killer did not act deliberately and after reflection, but hastily and impulsively. If the jury buys it, then he's down to second-degree or manslaughter.

"Provocation" is generally defined as "a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person." In other words, it has to be something that would drive any reasonable person to an irresistible impulse to murder.

Cases of legal provocation

Let's take a look at the types of acts that the courts have considered legal provocation. For example, in Cassels v. People (92 P.3d 951, Colo. 2004), the Supreme Court of Colorado took a look at the issue. Cassels was unemployed and struggling when Morris, a former co-worker, agreed to let him move into his one-bedroom apartment. Three months later, their relationship had become tense and volatile, and Cassels agreed to move out shortly.

One day when Morris returned home, he started screaming at Cassels, shouting that he was a no good son of a bitch and a low-life, and threatened to beat the hell out of him and put him in the hospital. Morris started pushing and shoving, and positioned himself in front of the only exit from the apartment. He stood next to an iron bar that he had previously boasted would make a good weapon. Cassels, afraid of an imminent assault, retrieved a loaded gun with the intent to frighten Morris and cause him to calm down and stop threatening and pushing. However, when Cassels exited his room with the gun, he "freaked out" and "lost it." He shot Morris nine times, emptying the gun.

Cassels did not remember shooting Morris, but when he saw Morris lying on the floor of the living room, he called 911 and told the dispatcher that he shot his roommate. Morris did not survive the gunfire.

Cassel's attorney attempted to argue provocation. He wanted the judge to tell the jury that they could reduce the charge if there was provocation. The trial judge wouldn't let him do it, saying that it didn't meet the requirements of the statute. As you may recall from the second-degree murder statute listed above, it has to be something that would drive any reasonable person to an irresistible impulse to murder. The trial judge thought that shouting and pushing wasn't something that would drive any reasonable person to murder. But the verdict was reversed on appeal.

The Colorado Supreme Court said that the attorney had to be allowed to argue provocation. "A provocation instruction is warranted whenever a defendant shows some supporting evidence -- regardless of how incredible, unreasonable, improbable, or slight it may be -- to establish each factor described in the second-degree murder statute." So now, in Colorado, when a prosecutor wants to limit argument on provocation, she must show that the evidence rules out one of the elements of provocation.

As noted above in the second-degree murder statute, the five elements of a provocation defense requires that the act resulting in death 1) be performed upon a sudden heat of passion, 2) caused by a serious and highly provoking act 3) of the intended victim, 4) affecting the defendant sufficiently to excite an irresistible passion 5) in a reasonable person. If Andrade can bring evidence (including his own testimony) to support these five elements - regardless of how incredible, unreasonable, improbable or slight it may be - then he is entitled to raise the provocation defense.

But can he? The provoking act of the intended victim must be "serious and highly" provoking for a "reasonable person." Is it? From the Cassels opinion, one would think that all a defense attorney has to do is raise any act of the intended victim, regardless of how incredible or unreasonable, and the judge must allow the provocation argument to go to the jury to decide.

It doesn't make sense, however, to state that the act must excite an irresistible passion in a reasonable person, and then allow something totally unreasonable. For example, if the intended victim says hello, or sneezes on the defendant, or wears a miniskirt, and the defendant claims the act was a provocation, does the court have to allow it? In fact, the answer is no.

Cases in which provocation defense is barred

Some judges have decided that, in some cases, a provocation for which there is evidence is nonetheless not permissible and cannot be argued in court. For example, four years after Cassels, in People v. Valdez (183 P.3d 720, Colo.App. 2008), the Colorado appeals court held that a provocation argument could be ruled out. Here's what happened:

The defendant drove to his wife's house, from whom he was separated, saw a car there of a friend of his whom he suspected was having sex with his wife. He broke into the basement, went out into the yard, picked up a metal pipe, re-entered the house, and grabbed a knife. He walked upstairs to the bedroom, hit the boyfriend in the face with the metal pipe, and stabbed him in the chest. Defendant then woke up his estranged wife and told her that her boyfriend was dead and that he was going to get rid of her, too. He said if he could not have her, nobody was going to have her. The boyfriend survived, and defendant was arrested.

Okay, wife having sex with friend of husband's - not a crime but nonetheless "provocation" within the meaning of the statute, satisfying all five elements. The appeals court did not dispute this, but nonetheless held that the provocation defense was barred. The court said that where a person places himself in a position, by his own actions, to encounter the provoking act, then the provocation argument is barred. Thus, while the Cassels case seems to indicate that a provocation argument must be allowed no matter what, no matter how vile or prejudicial, that is not, in fact the law in Colorado. Under the Valdez doctrine, it is clear that a provocation defense may be ruled out in certain circumstances, even where the intended victim committed an act that fits the statutory definition.

What The Araujo Justice For Victims Act Would Do

The Gwen Araujo Justice For Victims Act would not bar the "gay panic" defense. It would simply involve slipping a line into the long series of jury instructions read to jurors at the end of a case. That line would say that jurors should not use their biases to decide the case, such as biases based on race, ethnicity, religion, etc., etc., and sexual orientation or gender identity. I'm not convinced that is sufficient to combat the "gay panic" defense. People who are biased are called "biased" because they are predisposed to believe certain stereotypes about the person, but do not perceive these beliefs as stereotypes. Instead, they believe that the individual "really is" that way because all "those people" are "that way." Telling a biased individual not to be biased is a waste of time. Instead, they must be shown that their beliefs about "those people" are incorrect, and that the individual cannot be judged based on those beliefs. It's not easy. One line amidst hundreds of lines of jury instructions isn't going to to it. Oh, it's a step in the right direction, and for that we should be thankful. But the gay panic defense is alive and well in California, and everywhere else for that matter.

We Need A Law Banning The Gay Panic Defense

I would like to see a law that permits the prosecution to present a motion in limine (before trial) barring the introduction of provocation defenses based on gay or trans stereotypes. Some people correctly note that the First Amendment (free speech) and the Sixth Amendment (right to confront witnesses) would interfere with passage of such a law. True, one would have to word it carefully, but such a law could be constructed so as not to prevent asking questions about allegedly "flirtatious" or "sexual" conduct. Rather, it would prevent an argument by defense counsel to the jury in closing arguments that the defendant's act was mitigated by his or her fright at the defendant's sexual orientation or gender identity. There are many types of arguments that are prohibited in court. As noted above, the court has the discretion to decide whether to allow a "provocation" defense, and can tell the defense attorney that it is not allowed. No one argues that the First Amendment means you can say anything and everything. The gay panic defense should be banned. A line in jury instructions is nice, but it's not enough.


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Even the press, is engaging in prejudicial reporting. They are making King out to be the aggressive harasser and not the other way around. Harassment is defined by ongoing and continuing unwanted and threatening behavior.
King was not the bully here. McInerny was physically bigger than King. And King was not known, but reputation or habit, to harass or act aggressively towards anyone.
However, McInerny DID display that kind of behavior. He came from a home not only where he was exposed to domestic violence, but there were lethal weapons handy that he had skill enough to load and use. And as pointed out, McInerny would try to illicit others to assault King.

McInerny had plenty of cooling off he could have done. He had plenty of opportunity to leave King alone.
But stereotypes, even LUDICROUS ones, persist.

In the cases of the murders of gay males in particular, those that commit them have a profile of their own. They typically outclass or outnumber their target. They are prepared for assault with a blugeon, knife or gun, and they usually lie in wait or verbally threaten their target prior or during assault.
This profile hardly makes the case that the perpetrator(s) felt any threats whatsoever in the sense of acting in self defense. Indeed, it doesn't pass the smell test for any other assaults when the target ISN'T gay.

As an appellate attorney whose practice is limited solely to criminal defense work, I can tell you that McInerney's attorneys would be hard pressed to convince any trial judge in Arizona to give a "heat of passion" instruction (as it's usually called here), given the ample evidence of premeditation and the lack of any evidence that Larry did anything provocative at or around the time he was shot.