Friday, January 27, 2006

The sentencing of the men who killed Gwen Araujo

They all did it. They know it. We know it. The judge knows it. The jury knows it. It just comes down to an opinion of why they did it.

man·slaugh·ter n. The unlawful killing of one human by another without express or implied intent to do injury.

mur·der n. The unlawful killing of one human by another, especially with premeditated malice.

In my opinion, the accused, and now guilty, party found out she was biologically male and killed her. They found out her little secret and killed her. It seems like simple murder. Manslaughter is more like not paying attention when you were driving down the road and ran over some old lady going thru a crosswalk...that’s manslaughter...not, ‘ooops, how did my hand get a shovel in it and then beat you across the head until you no longer were alive’ manslaughter. It’s murder. It just so happens that not all of the jury saw it that way...although they did for two of them.

Jason Cazares sits next to his lawyer, Tony Serra, on the far side of the accused tables. Michael Magidson and Jose Merel, both wearing county attire, sit next to their lawyers, closer to me. Michael and Jose’s lawyers have requested a new trial, with Michael’s lawyer bringing up their ‘heat of the passion/moment’ defense. It’s the classic ‘gay panic’ defense, and that’s what he’s saying they had to tell the jury...that a reasonable person could kill based on sexual deception. They’re asking for either a new trial or for the court to act as the 13th juror and change the verdict to manslaughter. The Assistant District Attorney disagreed with the lawyers and respected the verdict by the jury. The judge then denied a retrial, and said there was adequate evidence to substantiate the jury’s decision of second degree murder for the two. He denied the request to change the verdict to manslaughter.

Michael’s lawyer made requests for edits to the report, especially those concerning the probation officer’s comments about Michael not capable of being rehabilitated, nor was he remorseful for what he did.

Jose’s lawyer also asked for comments to be stricken from the report which indicated that his client wasn’t remorseful...that he does feel remorseful...in an attempt to prevent his client from being denied parole in the future.

The judge allowed some corrections to the probation officer’s report, but denied some requests to edit or strike comments pertaining to the recommendations.

Next, they allowed family members of the victim to address the court with Victim Impact Statements. Sylvia was first and addressed the court with a very passionate and well spoken speech telling them how her life has changed and how she will never be the same. She said Jaron, Jose, and both of their families have expressed remorse, which she appreciated. She knew they were sorry, but she had never heard any remorse from Michael or Jason, nor either of their families. (It was similar to her Op-Ed article in the SF Chronicle.)

Next was a very distraught sister, followed by the two younger brothers of Gwen whose comments were read by Gloria Allred. Gwen’s aunt went next and expressed how much hate she has for the defendants who had the opportunity to save Gwen, but never did, along with the 3 other people at the party who did nothing. Two aunts followed, the second stating how hard it was to be Gwen - how she was rejected by school, friends, employment, and even her own family - so she didn’t blame her for turning to drugs and alcohol...things that didn’t reject her...just as many adults do when they fall on hard times. She really expressed a lot of touchy topics, especially how much the defendants had destroyed their lives and how much they should pay for their actions. She finished by asking the defendants to tell the truth sometime - to let it out because sometime they will need to tell someone. Another aunt followed. Gloria read statements from another family member. One of Gwen’s younger relatives read statements from another younger relative that contained a number of curse words which the judge soon discontinued.

Sylvia read the final statement from David Guerrero expressing his anger at the defendants.

After a break, Michael Magidson’s attorney was still moving that his client should be granted probation.

Michael Magidson spoke next - saying that the trial was based on lies by his co-defendants, witnesses; and propagated by the defense. He thanked his family and supporters, then read a letter he purportedly received from a gay white man showing his support. He read that the gay man said it was not respectful for people to misrepresent themselves...citing himself as an example such that 'a person with AIDS should always warn their partner' was the same as a transsexual warning their partner that they were trans. The gay man wanted equality, not special treatment, but simple human equality. Michael still showed no remorse.

Jose’s lawyer spoke next and expressed his sympathy and his client’s sympathy toward the family and the loss of their family member...that Jose’s actions were limited to the one night and won’t happen again...that he does not articulate very well, and that he didn’t express the truth during the trial - but protected his friends - and paid for it.

Jose then read a statement expressing his sorrow and that he was sorry about his actions.

The judge them moved forward with sentencing for Michael Magidson. Probation was denied and the crime was based on special circumstances, but did not justify the murder even based on the circumstances. The judge found that Michael wasn’t sorry about his action and rescinded his removal of the ‘not possible for rehabilitation’ that he had previously removed from the probation officer’s report. He sentenced Michael to 15 years to life in state prison. He did not receive credit for time already served.

For Jose Merel, he found him eligible for parole, but that it would not be justified. The nature and seriousness to the victim outweigh the court’s view and outweigh the remorsefulness. He, too, was sentenced to 15 years to life in state prison, but unlike Michael, Jose was credited with time already served. After that, both of them were removed from the courtroom.

Next, the judge moved on to Tony Serra, and mentioned the plea agreement. Tony sought a stay of execution (in order for Jason Cazares to attend the birth of his child), and wrapped it up by saying that he expected the sentence to be carried out according to the plea. The judge denied probation based on the crime and violence against Gwen. Pursuant to the plea agreement, though, Jason pled ‘no contest’ and was to be incarcerated for 6 years in a state prison. He has almost 2 years of time-served credit and will be placed on parole after his time of incarceration. The judge allowed the stay of sentence until March 30th in order for him to attend his child’s birth.

I was rather disappointed that the judge actually allowed this, especially with how much Jason has gotten away with.

I’d love to write more about my feelings I expressed at the sentencing and after it, but they aren’t that positive, so I’m going to leave them out.

I would like to express how much Gwen’s death meant to me. When she was killed on a Saturday evening on October 4th, 2002, I had been on hormones for less than 2 months. When they buried her a few weeks later, I was there at her funeral. I skipped out of work during the day, ran by a vendor for a short period of time, then changed into dressier attire in my car. I went in boy mode since I was still living that way at the time. I met up with a number of other transgender women at the funeral and we all showed our respect for Gwen. A few of my friends went closer to view Gwen as she laid in the casket, but I couldn’t bring myself to do so. I was afraid. I didn’t want to see myself laying there.

After the funeral, I put my work clothes back on, then drove back to work. I cried along the way, but had to bottle everything up as I went back in to work. That period of my life was so hard...having to pretend to be someone else as I searched about for my own identity.

I attended my first Day of Remembrance just over a month later. When the person holding Gwen’s card read off her name, where she was from, and how she was killed, followed by Gwen Smith ringing the bell, the emotion of that moment overwhelmed me like never before. I began crying and couldn’t stop. It was that powerful. It was the first time I felt that way...the first time I felt the amplification of my emotions...possibly caused by the hormones or my own emotional growth as a woman.

I ran into some of Gwen’s family members again when I dragged a friend off to a Newark school event that was a fundraiser for Sylvia.

Over the course of the next few years, I saw Gwen’s family either in court or at the Day of Remembrance activities. Sylvia has done so much for the community as the voice of a loving mother.

Gwen’s death still affects me, and likely always will. I think a lot of people have learned from this event, although the ones who have are likely not the ones who really needed to learn from it...but there are probably a few that truly have.

(For another account of the days event, please see Gwen Smith’s blog.)

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