Thursday, April 16, 2009

Fairness for Angie Zapata

Thank whomever for the Internet. Without it there would be no Google and no Wikipedia, without which I wouldn’t have been reminded that it was Anatole France (née Jacques-Anatole Thibault) who wrote in 1894 in Le Lys Rouge (The Red Lily)), “La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.” (Translated: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”)

A gratuitous reference? No, especially because today marks M. France’s 165th birthday.

I thought of this famous quote as I considered Allen Andrade's murder trial in Greeley, Colorado, which opened today.

Allen killed Angie Zapata. Not “allegedly” – he killed her and he intended to kill her. He hit her twice with a fire extinguisher, thought he'd killed her, then when she tried to get up he finished her off with another blow to the head. The only questions are (i) whether his crime was murder or manslaughter and (ii) in what degree. The State is charging him with first-degree murder. If convicted, he could be executed.

Angie Zapata’s crime? Just wanting to live and love as a woman.

Andrade’s version? The victim deceived him. “It” led him to believe “it” was a woman when in fact “it” had a cock, which makes “it” a man.

His defense: When he learned that "it" had a cock he "lost it" - he went berserk because that meant (to him) he’d had sex (the victim gave him a blow-job) with a man, which, he alleges, makes his skin crawl. He said if people knew they'd think he’s gay, which (he says) he’s not.

It’s the same tired old “trans panic” defense – blame the victim because "it deceived him."

The case is being tried before Judge Marcelo Kopcow. Since we’re a nation of men rather than laws, who's who matters. I don’t know where Judge Kopcow is from but he attended Northeastern University undergrad and New York (not to be confused with NYU) Law School.

NYLS is not a name law school. Like many local law schools, it graduates what some consider a disproportionate number of lawyers who go on to become judges.

Kopcow was appointed to the bench in 2005. My internet search didn’t disclose whether he was recently re-appointed or elected.

Angie Zapata is not the first person beaten to death by men who claimed the trans panic defense. The list of victims is simply too long and too tragic to enumerate. What’s different here is that the perp is also being charged with a hate crime.

In the 2000 presidential debates I watched Bush and Gore field a question about hate crimes. The context was the sensational Texas murder of James Byrd Jr., a black man who was tied to a pick-up truck and dragged to death. The three perps were tried and convicted.

Bush came out against a separate hate crime charge. He argued that justice was amply served by convictions on the base criminal charges. Two of the perps got the death penalty; the third got life in prison.

I didn’t expect more from Bush. I already knew him for what he was and what he still is. But Gore’s answer infuriated me because his long-winded response completely missed the point. Gore never even got close to saying that a hate crime is and should be charged separately because it’s intent is to threaten not victim-at-hand but rather the community-at-large represented by the poor unfortunate victim-at-hand. James Byrd Jr.’s murder was a not-very veiled threat to black people everywhere – get uppity and we’ll kill you too. For that reason, and to dissuade others who might be contemplating similar crimes, enlightened legislatures enact hate crime statutes. Why is that so difficult for some people to articulate?

Judge Kopcow ruled on a number of pre-trial defense challenges. It’s a mixed bag. On the one hand, he upheld the hate crime and first-degree murder charges but he threw-out part of Andrade’s confession and excluded evidence of his gang affiliation.

Regarding the confession, Kopcow ruled that police wrongfully continued questioning Andrade after he told them he didn’t want to talk anymore.

I’m a lawyer and while I never practiced criminal law exclusively I know that this point falls under the Miranda “right to counsel” rule. All the cases I know of that do limit police questioning involve a suspect whom police continue to question after s/he utters the magic words “lawyer” or “attorney.” That’s all it takes. Until then, the police can continue asking questions and the suspect is free to say nothing. Ask the U.S. Supreme Court.

Maybe the law’s changed under successive Republican administrations but I’ve not read any published report that upholds the right to limit questioning and exclude answers obtained after a suspect says s/he doesn’t want to talk anymore – not without first asking for a lawyer.

But Andrade never asked for a lawyer. Did Kopcow bend over backwards to aid a killer? And if so, why? And why no murmer of dissatisfaction with the ruling from the prosecution? Because the victim was transsexual?

Regarding the gang affiliation, Kopcow said that prosecutors wanted a Greeley police gang expert to testify that Andrade was a member of a gang and that any allegation that he had "homosexual sex" would result in severe penalties.

"This type of conduct can result in a 'general hit' by a ranking member of the gang, including death," Kopcow wrote in his order. But the gang investigator "also has never encountered this type of violation to occur where a gang member was 'dubbed' into committing this homosexual act."

Kopcow ruled the gang testimony was “speculative” and “prejudicial” to the jury. Again, the prosecution said nothing.

Speculative? What would be untoward if the expert testified what he knows as a fact about the gang, that this is what he knows about them from their past conduct, and that Andrade was a member of the gang. That’s “speculative?”

Of course Andrade's chances would suffer if the jury were to find out about his gang affiliation but that's the point of a hate crime charge, so how is that “prejudicial?” What exactly does the prosecution have to introduce in evidence to prove a hate crime? Will anything suffice less than a bald-faced statement along the lines of, “I killed “it” because I hate trannie faggots?”

Or do we exclude this highly probative evidence because the victim was transsexual?

So it’s fair to ask: What’s changed since Anatole France wrote his famous quip? The justice system is fair, n’est-ce pas? Transsexuals and the cisgendered are both forbidden to sleep under bridges, to beg in the streets, and to steal bread.

Bon anniversaire, M. France.

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