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Cross-Posted from Criminal Injustice Kos:^†

† Criminal InJustice Kos is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy Heitzeg (aka Soothsayer99 of DK), Professor of Sociology and Race/Ethnicity, is the Editor of CIK. Criminal InJustice Kos is published every Wednesday at 6 pm CST.

Lawrence King’s Murder, Trial and Implications

by indiemcemopants

The jury in the trial of Brandon McInerney — a seventeen year old white supremacist who shot and killed another teen, Lawrence King, while in class on February 12, 2008 — is deadlocked, and the judge has declared a mistrial. The Ventura County District Attorney is now confirming that they will retry McInerney:

“The district attorney still believes that this is a first-degree murder with a lying-in-wait special allegation,” Jim Ellison, chief assistant district attorney, said Friday.

Including that special allegation makes it mandatory that the murder case be tried in adult court, not juvenile court as McInerney’s lawyers have sought.

“Our policy has long been that we charge the defendant with the crimes and special allegations that define their conduct,” Ellison said.

How did we get to this point? Why could a jury in a murder trial in which thirty witnesses saw the shooting not reach a verdict? Why is the media attacking the victim of the shooting, claiming that he “taunted” a “sweet-faced boy” into shooting him point blank in the head? Did King ‘ask for it’? Why did the judge allow the jury to consider a voluntary manslaughter charge for a person who admitted the murder and talked about how he contemplated murdering King and planned it out?

The murder and its aftermath is a glaring example of how our system works not only against those who are non-white, non-gender-conforming and non-heterosexual, but actually assists the institutional systems that contribute to punishing those who are considered “the other.” In just about every aspect, the so-called criminal justice system, with the media’s complicity, has failed to provide justice in this case.

From the beginning, putting McInerney’s young age aside, this should have been a relatively easy case to prosecute. And given the media’s decision to shine the spotlight on murder cases in which the defendant’s obvious guilt and lack of remorse for the cold-blooded murder of an obviously innocent victim has led the public to recognize flaws in our prosecutorial system, one might assume that the media would decide to show the unfairness of blaming a fifteen year old boy for his own murder.

That didn’t happen.

The difference here is that the victim of the execution-style murder was gay and chose not to conform to a strict gender stereotype that society continues to believe males should aspire to.

The defense put the victim’s sexual orientation and gender identity on trial from the beginning, claiming that the killer was provoked into the murder by a very flamboyant, aggressive gay male in a dress, a male who sexually harassed the killer on a daily basis.

More often than not, the media went along with the defense, putting the victim on trial in the court of public opinion as well. Here is how a Newsweek story led off a piece addressing the murder:

At 15, Lawrence King was small—5 feet 1 inch—but very hard to miss. In January, he started to show up for class at Oxnard, Calif.’s E. O. Green Junior High School decked out in women’s accessories. On some days, he would slick up his curly hair in a Prince-like bouffant. Sometimes he’d paint his fingernails hot pink and dab glitter or white foundation on his cheeks. “He wore makeup better than I did,” says Marissa Moreno, 13, one of his classmates. He bought a pair of stilettos at Target, and he couldn’t have been prouder if he had on a varsity football jersey. He thought nothing of chasing the boys around the school in them, teetering as he ran.

But on the morning of Feb. 12, Larry left his glitter and his heels at home. He came to school dressed like any other boy: tennis shoes, baggy pants, a loose sweater over a collared shirt.

At the outset, King was portrayed as weird, flamboyant, and anything but a typical boy. How King chooses to dress should, of course, not lead to his murder but that logic is seemingly lost in this article. They go on to blame coming out of the closet as one factor for the murder:

What you might call “the shrinking closet” is arguably a major factor in Larry’s death. Even as homosexuality has become more accepted, the prospect of being openly gay in middle school raises a troubling set of issues. Kids may want to express who they are, but they are playing grown-up without fully knowing what that means.

The idea of expressing heterosexuality or masculinity in middle school is, of course, never the cause of anything bad or wrong. It would never be considered “flaunting” oneself to be proud of that. And in fact students flaunt their heterosexuality and gender conformity every single day in middle school and high school.

The concept that we can question someone’s existence as an LGBT person in middle school in the presence of a white supremacist with a gun as if it’s the LGBT person with the problem- the idea that LGBT people do not have a right to exist without fear is a horrifying and backwards notion. And let’s be clear: arguing that LGBTs should inflict upon themselves the terror of the closet in order to prevent chaos and crime is exactly what is being suggested here. This theme was a large focus of the media. Here’s what Newsweek had to say about our right to exist:

The staff at E. O. Green was clearly struggling with the Larry situation—how to balance his right to self-expression while preventing it from disrupting others. Legally, they couldn’t stop him from wearing girls’ clothes, according to the California Attorney General’s Office, because of a state hate-crime law that prevents gender discrimination. Larry, being Larry, pushed his rights as far as he could. During lunch, he’d sidle up to the popular boys’ table and say in a high-pitched voice, “Mind if I sit here?” In the locker room, where he was often ridiculed, he got even by telling the boys, “You look hot,” while they were changing, according to the mother of a student.

To the media, and to the defense, LGBTs should not be “pushing” their right to exist as a free and open LGBT person because it’s disruptive and makes others uncomfortable. To them, there’s no questioning how that discomfort would lead logically to a murder of another human being. There should be.

Not to mention that the facts of these incidents are particularly striking because they’re so mundane: King asked the popular boys if he could sit with them. In another instance he said, “What’s up, baby?” to McInerney.

For this, King was portrayed as an aggressive, weird kid who wore make-up and dresses and sexually harassed McInerney and others:

A teen who shot a gay classmate to death in a school classroom reached an emotional breaking point after weeks of being sexually harassed by the boy, a defense attorney said.

In his closing argument Thursday, lawyer Scott Wippert said his client Brandon McInerney didn’t have problems with Larry King until King started wearing makeup, high heels and began sexually harassing him in the weeks leading up to the shooting. Wippert also blamed school administrators for not addressing the simmering feud between the boys.

“We’re not saying Larry King is a terror, a bad kid, but the adults should have stopped this behavior,” Wippert said.

The defense may say that they aren’t trying to give the impression that King was a bad kid, gender non-conformer and sexual predator deserving of death, but the facts of the defense’s presentation belie that contention:

The defense has portrayed Lawrence King as sexually “aggressive” and suggests that McInerney was “provoked.” Prosecutors are seeking to quash McInerney’s “gay panic” defense. Prosecutors asked the judge last week to instruct jurors to disregard King’s sexuality.

Previous witnesses have testified that King’s “feminine attire” and gender identity was upsetting some of the students and faculty at E.O. Green Junior High in Oxnard.

The defense’s case was focused like a laser on King’s homosexuality:

But King’s sexuality is the central focus of the defense’s case. Attorney Scott Wippert told jurors that King was openly gay, wore makeup and girls’ clothing to school and constantly harassed his client.

“He targeted Brandon McInerney. He knew that what he was doing to Brandon was bothering him, and he did it over and over and over again. He made unwanted sexual advances to a 14-year-old boy,” Wippert says.

It’s even more upsetting considering that King was bullied by McInerney and other students for years before the murder and his provocativeness was likely a result of that behavior. It’s as if the defense thinks gays should be bullied and just take it and stay silent and closeted.

This is truly a case in which a kid was murdered in cold blood while sitting in class one morning, and the defense has worked tirelessly to try to prove he deserved it simply for not being like other males.

I can grudgingly understand why prosecutors or defense attorneys involved in a trial might try to push a certain agenda. In their book Queer (In)justice, the authors laid out the underlying homophobia and sexism inherent in our so-called criminal justice system. Along with the racism that the system was founded on, homophobia, sexism and transphobia work against defendants and even victims of crimes from the time the crime is allegedly committed. Whether it’s a prosecutor relying on stereotypes about LGBTs, including the idea that LGBTs either “flaunt” their sexuality or conversely are “deceptive” “predators” who go around sexually harassing “normal” men, or defense attorneys using the same tactics, one can at least see the underlying ideas at play here.

At least, the concept goes, in a trial the goal is to paint your client as an innocent person who fell victim to an abnormal aggressor – but what’s the media’s job? In a case where a victim of a brutal, execution style murder is portrayed as the real aggressor simply because of a trait that he was born with and does not choose to hide, as is his right, shouldn’t the media consider the alternative? Shouldn’t they show some sympathy for someone who did nothing but walk into class one day and sit down, just like any other student?

And it’s especially telling in this case because the murderer had white supremacist ties. Even when those came to light, however, they were barely remarked upon if at all. This follows a pattern of ignoring racist and white supremacist murders, attacks and threats in the United States that the media has always adhered to. One need only look at the Tea Party coverage for an example. Or look at the difference between a shooting or terrorist attack by a brown person and one by a white person.

A detective testified to McInerney’s white supremacist ties, but before he did, he gave a history of white supremacy and pointed out its connections to homophobia and sexism:

But before Swanson testifies why he thinks McInerney is a white supremacist — which he is expected to do — he used a PowerPoint slide show to give the jury a detailed explanation of what white supremacy is and where the beliefs come from.

He covered the rise of Hitler and his SS force, and how Nazi policy called homosexuality among men a criminal act.

[…]

He also spoke about how Nazis labeled gays in concentration camps with a pink triangle and showed photos of many victims at the camps, either dead or on the verge of execution.

“This is hard to look at and I apologize, but this is something that is admired by modern day neo-Nazis,” he said.

Besides hating Jews and blacks, many white supremacy groups also hate gays because they believe they are impure and do not help further the white race, he said.

“White supremacy is all about hate, a hate and distrust of those who are different from them,” he said.

Then he gave his informed opinion on McInerney’s involvement in a white supremacist gang:

“It is my opinion that Brandon McInerney is a member of the Silver Strand Locals, a turf-based criminal street gang, and he is a white supremacist who has been indoctrinated into and adheres to a white supremacist ideology,” he read from a slide of red words projected near the jury. “That ideology provided him the support and acceptance for his hatred of, and bias against Larry King. … His belief in and adherence to that white supremacist ideology was a primary motivating influence to shoot Larry King.”

He went on to say that “Brandon McInerney is a violent person and he has a specific characteristic trait for committing unprovoked acts of violence[.]”

And yet headlines scream that the defense has refuted his white supremacy (notably waiting to cover that charge after the defense had its say):

Oxnard gay-student murder trial: Defense refutes white supremacist motive

The “I have a black friend” excuse was used:

One officer was asked how he got along with the mostly minority inmates he was housed with.

“We don’t get too many African-American kids in there but I have seen him interact with different nationalities and have relationships,” said corrections officer Chris Niblett.

And even after all of that, the obvious bias crime, blatant premeditation and the issues of homophobia and transphobia, even after it was revealed McInerney had white supremacist ties and wanted to kill King on purpose, the judge decided to allow the jury to consider a voluntary manslaughter charge which would have earned McInerney a sentence of four to eleven years in prison:

Conviction on a first-degree murder charge would bring a mandatory 50-year sentence, but a manslaughter sentence ranges from four to 11 years, along with a 10-year enhancement for using a gun. McInerney will have to be found not guilty of first- and second-degree murder by all 12 jurors for them to consider the manslaughter charge.

In the end the jury wouldn’t even convict him of that. The judge declared a mistrial after the jury split over the degree of McInerney’s guilt:

The nine-woman, three-man panel said they took a series of votes with the last one being seven in favor of voluntary manslaughter, while five others supported either first-degree or second-degree murder.

Whether the reduced charge is fair considering McInerney’s age is nearly an irrelevant point now that a mistrial was declared. There’s certainly valid debate over whether someone so young should have been tried as an adult and should have been charged with first degree murder instead of manslaughter in the first place. He did act with premeditation though and viciously executed another human because of his sexual orientation.

The emotional and the practical consequences of the mistrial are staggering:

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.

[…]

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.

[…]

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.

Notably, all of the jurors rejected the hate crime charge and the retrial will almost certainly be more difficult and face more hurdles than the first trial, possibly including lesser charges.

It seems that even now, in 2011, we still live in a country where white supremacists go free, where gays and transgender people are blamed for their own murders and where the media plays the part of the antigay bully and enforcer of strict gender roles and heterosexual behavior.

† Criminal InJustice Kos is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy Heitzeg (aka Soothsayer99 of DK), Professor of Sociology and Race/Ethnicity, is the Editor of CIK. Criminal InJustice Kos is published every Wednesday at 6 pm CST.

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