Hung Jury in Araujo Murder

Defense lawyers emphasized their clients’panic in learning that victim was biologically male

After Alameda County Superior Court Judge Harry Sheppard declared a hung jury in the case of three men charged in the murder of transgendered teen Gwen Araujo on Tuesday, after almost ten days of jury deliberations, Sylvia Guerrero, Araujo’s mother, sat in the emptying courtroom and wept.

She sat holding her new granddaughter, Isabel, just several months old, surrounded by the infant’s mother Pearl and her large extended family. Family members leaned over and tried to comfort Guerrero. The family sat in the same brown theater-style seats they had occupied during the three-month trial—while the sound of slamming holding-cell doors and rattling chains reverberated through the courtroom—and the three men accused of killing Araujo were led off to wait in jail, perhaps for another year, for a new trial.

The jury considered first-degree murder charges against the three defendants, but when they deadlocked they did not consider lesser charges of second-degree murder or voluntary manslaughter.

Guerrero’s child, who was 17 at the time of the killing more than a year and a half ago, was baptized Edward, called herself Gwen, but was known to the alleged murderers only as a girl named Lida. Prosecutors say that at least two of the men, José Merel and Michael Magidson, had sex with Araujo during their several-month acquaintance with her; but on the night of October 3, 2002, after a night of drinking and partying, they and two other friends, Jaron Nabors and Jason Cazares—all four men in the early 20s—discovered she was biologically male and killed her.

David Guerrero, Sylvia’s brother, stood outside the courthouse after the decision and said that his greatest fear was that the family will have to re-live the events of that night through the next trial.

“And then there are the pictures,” David Guerrero said. “We don’t want to have to look at those horrible pictures again.”

The pictures, of Araujo’s battered body, taken when sheriffs unearthed it after 13 days in a shallow rocky grave in the Sierra Nevada Mountains, confirmed the brutality of the killing. The basic facts of the murder were not in dispute. At the time of the preliminary hearing more than a year ago, Nabors agreed to testify against his friends—Merel, Magidson, and Cazares—in exchange for a reduced manslaughter conviction and an 11-year prison term.

During the trial, Nabors testified that on that October night, he and the three other men, plus Merel’s older brother Paul, his younger brother Emmanuel, and Paul’s girlfriend, Nicole Brown, were all in the Merel house, on a quiet suburban street in Newark, California, a small heavily-Latino city—just a few blocks from the Newark police department headquarters. At some point in the early morning hours, after closing the local bars, the group sat around the dining room table in the house, quizzing Araujo about her gender. Finally, after Brown led Araujo to the bathroom, lifted the teen’s skirt, and discovered that she was biologically male, the four suspects are alleged to have begun an ordeal of beatings and torture. By the time the ordeal began, Brown and Paul and Emmanuel Merel had fled the house, they testified during the trial, fearing what was about to happen. They did not, however, call the police.

In the violence that ensued, Araujo was allegedly beaten over the head with a can and then a skillet and had her head smashed into a wall with enough force to crack the plaster, before being dragged into the garage where she was strangled with a rope. The men then allegedly threw her body into the bed of Magidson’s pick-up truck and set off on a drive of approximately 150 miles to a remote Sierra campground where they buried the body.

Police say the four men stopped for breakfast at McDonald’s on the way back to Newark.

The jury became deadlocked over questions about the speed of the events. The defense lawyers, including noted attorney Tony Serra who represented Cazares, insisted that the killing happened very quickly. Conviction for murder in the first degree requires the jury to find that the killer acted with “premeditation and deliberation”; second-degree murder removes the condition of premeditation; and voluntary manslaughter is a killing committed in the heat of passion. All of the defendants were charged with first-degree murder, but the jury never got beyond the premeditation question. After seven ballots on the charge against Merel, two of the jurors remained sure that he had plotted the killing, in opposition to the views of the other ten. The jury had similar disagreements about the other two defendants.

Prosecutors contended that the four had discussed Araujo’s gender for several weeks before the murder—and had vowed to kill her if she were biologically male. Most of the jury apparently didn’t buy that argument.

After the mistrial decision, both Magidson’s lawyer, Michael Thorman, and Jack Noonan, representing José Merel, said they would have agreed to a plea of voluntary manslaughter. They said their clients acted in a fit of passion—because they were upset that they had unknowingly had sex with a man.

Nicole Brown testified that before he began the beatings, Merel started crying, and yelled, “I can’t be gay, I can’t be fuckin’ gay.”

After the jury decision was announced, Thorman denied having put on a “trans-panic” defense. He had repeatedly argued that the defendants felt “deceived” by Araujo—and that this deception is what fueled the passion that ended in Araujo’s death.

It is this element of the trial that most horrified transgender advocates.

“They’re saying it’s fine to kill a transgender if a person is shocked,” said Theresa Sparks, a transgendered member of the five-person San Francisco Police Commission, on her way to a rally in the city’s Castro district to protest the decision. Sparks added, ironically, “Sure, it’s OK to kill a transgender, just because you were confused.”

Gloria Alred, a civil rights attorney representing Araujo’s mother, told reporters that prosecutors, in speaking with the jurors after the decision was announced, heard that the twelve were also reluctant to accept that learning about the victim’s gender caused panic among the defendants.

But, neither the prosecutor nor the defense attorneys have yet had time to question the jurors in detail.

On their questionnaires at the start of the case, eight of the jurors said they were college graduates. Eleven of the 12 said they knew a gay, lesbian, or bisexual person, and four said they were acquainted with a transgendered person. But they won’t decide the case, and the case likely won’t be decided soon.

Two of the defense attorneys, Serra and Thorman, have conflicting schedules that will keep them from taking it up again until at least the summer of next year. The defendants will remain in jail until then, and, if convicted, will probably get credit for time already served. California’s death penalty is not applicable in this case.

At the time of the murder, Araujo was called the “Matthew Shepard of the transgender rights movement,” and advocates hoped the crime would bring attention to the plight of transgendered Americans, but that hasn’t turned out to be the case. Since Araujo was murdered, community leaders say that another 42 transgendered or gender variant people have been killed across the nation, with none of those cases receiving widespread public attention. The national media has, to a great extent, lost interest in the case—as has much of the gay press.

Why hasn’t this case gotten the same attention as the Matthew Shepard killing?

“It’s simple,” said Sparks, “because Shepard was a young blond gay white man, and Araujo was a transgender teenager of color.”

The mistrial is a victory for the defense attorneys. Serra smiled, hugged his client, Cazares, and nodded knowingly, just before Cazares was led off. Serra maintained that Cazares tried to stop the murders, and was smoking cigarettes in front of the house at the time the others strangled Araujo. He wants an “accessory after the fact” conviction for his client.

Serra spent much of his effort during the trial hammering Nabors’ testimony, calling him an “expert liar.” Advocates are concerned that memories of the night will fade over time, and that witnesses may begin to contradict each other, and themselves, as they forget. The prosecutor, however, will continue to have a burden of proving the charges beyond a reasonable doubt.

After the decision, soft-spoken prosecutor Chris Lamiero vowed to seek first-degree murder verdicts when the case is heard again.

The defendants will return to court on July 30 to set a new trial date. Araujo’s family has vowed to be there.

“If it takes us 20 times to get justice,” David Guerrero said, “we’ll do it 20 times, even if we have to live it in our heads every single day.”

Memories of the killing have already faded in Newark and surrounding communities. At the time of the killing, residents held vigils for Araujo and her family. The local PFLAG chapter started an education campaign. The moribund Gay Straight Alliance (GSA) at the local high school started up again.

But this spring the local GSA proposed a workshop on transgender issues, named after Araujo, for the schools in neighboring Fremont. The local school board rejected the proposal.

Araujo’s last words, as she begged her killers for mercy, were, “Please, don’t I have a family?”

Before the decision was announced, Araujo’s family, about 15 of them, gathered in the hallway outside the courtroom. They formed a circle, held hands, and prayed.

“For the justice system,” they intoned, “peace on each of the hearts in here—and for the trials we’ve all been through.”

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