Left Hanging

Why the first Gwen Araujo jury couldn't convict the defendants. And why it might happen again.

The three defendants were scared shitless as we entered the jury box one final time. The next few minutes would determine the course of the rest of their lives. Defendant Mike Magidson, an unhealthy pale throughout the entire trial, was blinking nonstop and practically translucent with fear. No one had any idea what our foreman was going to announce.

What he said, basically, was, Judge, we’re finished.

It had come to loggerheads back in the jury room. “Let’s face it, we’re stuck,” said one juror, a Fremont schoolteacher, her arms folded in frustration. “We’re just sawing sawdust here,” said another, a Hayward retiree and big NASCAR fan. The foreman sent a note to Judge Harry Sheppard, who brought us out into the jury box and polled us individually.

“Do you think any more debate would produce a verdict?” he asked me.

“No,” I replied, glumly shaking my head. And as the people in the courtroom eyed us for a glimmer of hope, most of us jurors gave the same succinct answer.

It’s a crappy feeling to be unable to deliver a verdict in one of the country’s highest-profile murder cases. But after nine days of debate, we on the jury had that feeling. I was juror eleven in the Eddie “Gwen” Araujo trial — known throughout the country as the “transgender murder case.” Along with eleven other citizens of Alameda County, plus four alternates who stayed until deliberation, I listened to two months’ worth of testimony — some of it chilling details of a violent and tragic death, some modern psychobabble, and some, in the opinion of us jurors, outright lies.

After more than sixty days — from April 14 to June 21 — we couldn’t reach a verdict. We had asked for certain testimony to be reread. We had asked for clarifications of legalese. Nothing seemed to solve our quandary.

On the eighth day of deliberations, we told Judge Sheppard we were stuck. He sent us back to keep trying, but one day later he agreed that we were “hopelessly deadlocked” and declared a mistrial. The kindly, bespectacled judge — who always made a point of thanking us before dismissing us on weekends — thanked us one last time, and then dismissed us for good.

There were gasps and sobs in the courtroom. The family of the victim and a variety of interested onlookers couldn’t believe we were unable to convict Magidson, Jason Cazares, and Jose Merel. The defense and prosecution just looked grim — they’d share their feelings soon enough.

Someone hurried us out of the room to shield us from the press and the protesters — gay, lesbian, and transgender activists, and wacko fundamentalists from Kansas. Deputy District Attorney Chris Lamiero briefly questioned us. He concluded that we all believed the defendants were guilty of some degree of murder, and told us he would seek a retrial on first-degree murder charges. I was surprised at how quickly he had come to that decision.

Then an officer of the court led us out a back way, down a labyrinthine passage that looked as if it was used only for air-raid drills. I entertained thoughts of walking out front and facing the cameras, but figured the media would just take a sound bite and make me look stupid. There were already enough other people who wanted to do that.

The protests had occurred intermittently throughout the trial. The gay and lesbian community hated the defense’s “gay panic” strategy, and the Reverend Fred Phelps and his Westboro Baptist Church of Topeka, Kansas — the folks who brought you www.godhatesfags.com — wanted us to know that Gwen’s lifestyle was sinful. I didn’t need to hear from either side.

But the political winds blowing around this case made a lot of people feel compelled to mouth off, and we received the brunt of their criticism. I felt pissed off and attacked from all sides. As a citizen of Alameda County, I’m proud to have done my jury service and not ducked it, like the dozens of people I watched slippin’ and slidin’ during jury selection — the cowards of democracy. I speak for myself, and don’t pretend to speak for the other jurors, but I think we did a pretty good job of sorting through it all. You certainly wouldn’t come to that conclusion based on the response to our efforts.

“We are strongly disappointed and saddened that Gwen, her family, her friends and the gay, lesbian, bisexual, and transgender community won’t get fair and swift justice,” opined president Cheryl Jacques of the Human Rights Campaign in a press release. Funny, but I couldn’t remember anything in our jury instructions about the need to provide swift justice for the gay, lesbian, bisexual, and transgender community. And ignoring the redundancy of the phrase “fair justice,” how did Jacques know it wouldn’t yet be done?

“What happened today wasn’t just a mistrial,” San Francisco Supervisor Tom Ammiano told the San Francisco Chronicle. “It was a miscarriage of justice. I am a homosexual who is in a panic, and I want justice for Gwen.” I like Ammiano, but he should have listened to the evidence before running his mouth.

After it was all over, one of my workmates sent me the stupidest and most thoughtless e-mail: “Well, they got away with it for now.” The office errand boy was even blunter, dismissing the process as a “waste of time and money.” Another friend wrote to me later in the day, “Can you believe they’re protesting your verdict in the Castro?”

“Protesting what verdict?” I thought. “It was a mistrial.”

In fact, no one got away with anything. The three men charged with killing Gwen Araujo are about to have another trial, and the same questions will be debated: Who killed Gwen, how, and why? And, perhaps most important given our outcome, was this heinous crime truly first-degree murder?

One fellow juror, whom I’ll call C, wrote me recently that he too felt slammed by the post-trial criticism: “I was personally offended by … spokespersons for the gay/lesbian/transgender society [claiming] that there was some bias or sympathy for the heterosexual defendants.”

The defense let us have it too. J. Tony Serra, speaking to the San Jose Mercury News, said his client Cazares “was cheated out of a nonguilty verdict.” He told the Chronicle, “One or two jurors did not deliberate like rational human beings.” In the same newspaper, Magidson’s lawyer, Michael Thorman, said he couldn’t believe that “seven people apparently concluded that Mike was the one who put the rope around her neck.”

Gwen’s mother, Sylvia Guerrero, couldn’t understand why we were unable to bring her child’s killers to justice. “Murder is murder,” she said in Rolling Stone.

Ah, but you see: It’s not that simple. We couldn’t reach a verdict because, in most of the jury’s opinion, the prosecution overstated the case for first-degree murder. The district attorney’s office set us up to deadlock by pursuing charges it could not prove beyond a reasonable doubt.

Prosecutors may have felt politically compelled to seek the most severe punishment possible. Vigils were held across the country to demand justice for Gwen and other transgender victims of murder. In San Francisco, after the trial ended, Ammiano even presented a resolution asking his fellow San Francisco supervisors to “join him in urging the Alameda County district attorney to retry the Gwen Araujo murder case and seek to limit the three defendants’ use of a trans-panic defense,” according to the Chronicle.

But the problem with pursuing first-degree murder was selling those charges in court. Juries are directed to consider the most serious charge first, and until we reached unanimity on that, we couldn’t move on. It said so right in our jury instructions:

If you are unable to reach a unanimous verdict as to the charges of first-degree murder, do not sign any verdict forms, and report your disagreement to the court. The court cannot accept a verdict of guilty of second-degree murder unless the jury also unanimously finds and returns a signed verdict form of not guilty as to murder of the first degree. CALJIC 8.75

What happened in the jury room during nine days of often-intense debate was a reasonable disagreement among intelligent people. Our time together consisted of a series of arguments and votes. Since each of the three defendants was accused individually, we voted several times on each of the charges. The closest we came to convicting anyone was with Magidson, with eight jurors at one point favoring first-degree murder, and four opposing it. In the end, that vote was seven-five. Meanwhile, voting on the other two defendants started off at one vote for first-degree murder and eleven votes against it. And even though the final votes were two to ten, just one changed vote would have let us consider murder two. We certainly would have convicted all three defendants of that (per our instructions, we had the discretion to discuss the merits of the other charges, and did so).

In the end, out of 36 possible votes for first-degree murder, the prosecutor got only eleven. That ain’t bad if you’re batting second for the Oakland A’s, but if you’re a prosecutor, you might want to reconsider the credibility of your star witness — who was originally an accomplice, charged with the same crime as the three defendants.

In the retrial that began Monday, prosecutors once again intend to seek first-degree murder charges.

Given the outcome of the first trial, I wonder why.

The Trial: Lies and Damnable Lies

We in the jury referred to the victim as Lida. While Lamiero initially called her Eddie, his first witness said that from about age fourteen on, Eddie became “Gwen,” and that’s what her family called her. But to the four guys who hung out on St. Andrew’s Terrace in Fremont, Gwen had yet another name: She presented herself as “Lida.” That’s what nearly all the witnesses in the trial called her, and so did we of the jury.

The basics of the case were laid out by Lamiero in opening arguments. Four pals around age twenty who liked to hang out, smoke dope, and drink beer together — Jason Cazares, Mike Magidson, Jose Merel, and Jaron Nabors — met a girl named Lida one night in the summer of 2002 on a beer run. Lida was up for partying, and came back to the house with them. Over the next few months, she was a regular — smoking pot, drinking, and flirting. She had sex with at least two of them, as well as another roommate at the house, Jose’s brother, Paul.

Questions about Lida’s gender soon emerged. She insisted on anal sex with both Magidson and Jose Merel, saying that she was on her period, but since the interludes were only two weeks apart, that didn’t add up. She also packed a pretty powerful punch when she backhanded one of the other trial witnesses in a household spat, according to several witnesses. And her voice was a bit on the masculine side — “scratchy,” one of them recalled.

Nabors said the four guys discussed the issue of Lida’s gender. In the early hours of October 4, after consuming a few tequilas and beers at a local joint, they came home and decided to find out for sure whether she was anatomically female or male. When they discovered Lida was the latter, Nabors said, a nasty beating escalated into murder. Jose hit Lida on the head with a soup can and then a skillet. Finally, the coup de grâce was administered with a length of rope in the garage. After borrowing Nabors’ knife to cut the rope, the defendants choked the life out of her. A coroner testified that either the head trauma or the asphyxiation could have caused death, meaning that either act could be considered as contributing to death (“There may be more than one cause of death,” the jury instructions said).

The defendants covered their tracks, Lamiero said. They fetched shovels, wrapped Lida’s body in canvas, and drove to the mountains, burying her in El Dorado National Forest as the sun rose. No one was going to say a thing, but Nabors couldn’t keep quiet. Smoking a joint with one of his buddies just a day or two later, he told all. That friend went to the police, and shortly thereafter, Nabors, Magidson, Jose Merel, and eventually Cazares were charged with Araujo’s death.

Lamiero said the three defendants had intended to kill Lida. They had discussed the issue weeks before, and decided that “the wages of Eddie Araujo’s sins were death.” They did this, he said, because they decided “that’s what a REAL HEAVY BAD DUDE would do.” Coupled with the photos of Lida’s corpse, his presentation was damning. Those photos — showing a bashed-in skull, rope marks on the neck, a body bundled in canvas and wrapped in rope — kept me awake a few nights and will be with me for the rest of my life.

Everybody’s Got Something to Hide

The defense, of course, had a different story. These young men had been sexually deceived. Their lawyers said this was a case so far out for all of the defendants that they simply freaked out. Jose Merel, according to his brother Manny, was “crying and upset” when it was revealed that Lida was male. Magidson, Cazares said, was “just zombied out.”

No one admitted participating in the killing, but no one denied that it happened, either. Under the law, the burden of proof lay entirely with the prosecution. Neither Jose Merel nor Magidson took the stand. Admitting that a “tragedy” had taken place, the defense lawyers asked us to show understanding for their clients and not convict them of murder. I’m sure they would have settled for manslaughter.

The defense’s best blows were landed by Serra, the well-known trial attorney who represented Cazares. To me, the silver-ponytailed jurist looked like a rarefied combination of country singer Charlie Rich and trial lawyer Johnnie Cochran. He wore fancy suits and ties; his gold fillings gleamed as he punctuated talk of the law with references to Omar Khayyam, Eastern philosophy, Greek tragedy, and modern jurisprudence. (At one point, a testy Lamiero asked, “You got a question comin’ at the end of that soliloquy?”) Most of all, Serra blew holes in the testimony of the prosecution’s star witness.

The first major witness for the prosecution was Nicole Brown, Paul Merel’s girlfriend, who explained the origins of the altercation. Brown said she was jealous of Lida, apparently viewing her as competition for male attention. She said she discovered Lida’s sexual identity in the wee hours of October 4 after Magidson sent her to the bathroom to talk to Lida. Other testimony showed her contributing to the evening’s agitated state by walking out of the bathroom and shouting, “I can’t believe it’s a fucking man!” Nabors said Brown shouted, “I felt balls. It’s a fucking man.” Magidson’s lawyer said Brown “poured gasoline on a smoldering fire.”

It soon got hotter. Brown said she saw Magidson wrestle Lida to the ground — the first act of violence in a series that would lead to her death. Surrounded by the other young men, he “tussled her down to the ground,” she said, and “pulled Lida’s underpants aside.”

But Brown could not testify about who committed the alleged crime because she said she and Paul left the house before Lida was killed. Paul was on probation at the time, and would have had to return behind bars if he were discovered at a new crime scene. Brown also admitted having at least a dozen and maybe as many as fifteen beers that night — so her powers of recall were dubious, to say the least. (One juror said later that Brown reminded him of the “This is your brain on drugs” television commercial.)

Serra had hammered away at the phrase “beyond a reasonable doubt.” If you have a doubt, he said over and over, you must err on the side of the defendants. The problem with the prosecution’s case was that nearly every witness it brought forward might have had some reason to be dishonest — either to avoid implicating themselves or out of loyalty to a relative. Or as W, a bearded religious scholar from Berkeley, put it: “Almost everyone who testified had a reason to lie.”

A Leopard and His Spots

The star witness turned out to be the biggest liar of all.

Nabors was new to the original group of three friends. Serra called him a “chameleon” who had showed a different face for every social situation, and suggested that Nabors’ role as a helpful witness was yet another aspect of his ever-changing persona.

At least twice, Nabors fabricated stories of his exploits. He admitted lying to his girlfriend about being in a nonexistent “scrap” with the other defendants. And he admitted inverting a fantabulous tale of kidnapping and beating some guys who had burned him in a robbery in San Diego. “My friend, you’re a pathological liar,” Serra insisted. “That’s what I’m hearing.”

Nabors went home with a big bruise on his forearm the morning of the killing — big enough for his girlfriend, Dolores “D.D” Ojeda, to remember remarking, “Oh my God, what happened to your arm?” when she saw him in the bathroom that day. In an initial interview with police, D.D, the mother of Nabors’ son, said the bruise covered the “lower third” of his arm and was about six inches long. Nabors even predicted to D.D, “They are going to come at me about my elbow.”

During the trial, under cross-examination, the bruise turned into a small, insignificant welt caused by an “old baseball injury” Nabors said was aggravated from wearing a sweatshirt that was too small, and being cramped in the cab of the pickup on the ride to the burial scene. Meanwhile, his former friends Cazares and Jose Merel snickered from the defense table. This was different from Jose Merel’s demeanor during the rest of his former drinking buddy’s testimony — his searing gaze could have melted glass.

There also were suggestions that Nabors had been sexually active with Lida. Serra introduced more doubt. Nabors certainly had been alone with Lida many times, hadn’t he? He had taken mouth-to-mouth marijuana “power hits” from her in the garage, right? And wasn’t his phone number found in her purse when her body was exhumed? One night, according to his own testimony, Nabors and Jose Merel had even run their hands over the semiconscious body of the drunken Lida in a bedroom of the house. Cazares testified that Nabors had told him “he got head and some ass” from Lida. Serra implied that many of the actions and words Nabors attributed to others were, in fact, his own.

“You will lie, you will squirm, you will make up stories, you will add self-authenticating detail to save your own skin … isn’t that fair?” he asked Nabors.

“That’s fair,” Nabors conceded.

“So you want us to believe that the tiger has lost its stripes, the leopard has lost its spots, that you’re a reformed person?” Serra continued.

“Yes,” Nabors answered.

Serra’s questioning was peppered with so many accounts of Nabors having lied — to police, to his girlfriend, to friends — that we in the jury were indeed having a hard time believing anything he said. C, a 51-year-old mechanical engineer, wrote me recently: “It’s still hard to this day to know what was true of his testimony, what was true with embellishments, and what were lies.”

After all, when describing Lida’s death, Nabors had told a different story every time. He gave two different statements to police detectives, and wrote a third account in a jailhouse letter to his girlfriend. We heard version number four. The most difficult thing about accepting his stories was his tendency to add what Serra called “authenticating detail” — taking a true story but adding something extra to make it more vivid. In the case of Lida’s death, Nabors’ details were the difference between first- and second-degree murder.

The Letter

You cannot find a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense. CALJIC 3.11

To the extent that an accomplice gives testimony that tends to incriminate a defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case. CALJIC 3.18

Nabors’ infamous “Tony Soprano scenario” was key to the prosecution’s allegations of premeditation. This is a story he remembered only after being questioned twice by police. He first described in a detailed, multipage letter to D.D from Santa Rita jail how he and the defendants “went off on a Tony Soprano-like plan” to kill Lida. Nabors wrote that he had participated in a conversation with Magidson and Jose Merel two weeks prior to the night of the murder. What if Lida had tricked them into believing she was a girl? “If that had happened … to a bad guy … that person would be smoked … [and the killer] would have a body on their hands,” Nabors remembered saying. He also wrote that they had discussed the mob movie Casino, where people are killed in the desert with baseball bats. No one could possibly corroborate this, since Magidson and Merel never took the stand in their own defense.

Similarly, Nabors never mentioned Jason Cazares in his initial interview with police. And in a subsequent taped phone call to D.D from Santa Rita jail, Nabors said, “He didn’t do anything. He’s like me. He did nothing.” But by the time Nabors wrote the letter, Cazares was involved in every step of the killing, from saying things like “Knock that bitch out” to bringing a blanket to wrap Lida’s still-living body and carry it to the garage. It was only after the letter was given to Nabors’ attorney that Cazares was arrested and charged.

To Serra, it reeked of being an effort to strike a deal with the prosecution. He called the letter Nabors’ “ticket to a deal,” and asked why anyone would write such a detailed description of a crime from jail, where all mail is routinely opened, if he wasn’t actually hoping it would be read by the authorities. Several of us on the jury saw his point.

“Don’t you dare convict on his evidence,” Serra shouted during closing arguments. “He’s been proven to lie time and time again. Does a leopard change its spots?” Most of us took those words to heart. In fact, during deliberation, a fellow juror — T, a likable fortyish construction supervisor with short salt-and-pepper hair — repeated Serra’s “leopard and his spots” summation word-for-word.

Lamiero tried to get us to like and believe Nabors. At the end of the testimony, he asked Nabors, who had stared straight ahead during his entire appearance on the witness stand, to look at the jury and tell us to believe him. That was too much theater for the defense, which objected loudly, and the request was withdrawn.

The Plea Bargain

The testimony of a witness who has received favorable disposition of a charge from the prosecution should be viewed with caution and close scrutiny. … You should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. CALJIC 3.20(a)

Once the letter was turned over to his attorney, Nabors plea-bargained to a charge of manslaughter, for which he will serve at least nine of eleven years — a far cry from the 25-to-life that murder one carries. He was “paid with years of liberty for testifying,” Serra said. “Don’t be beguiled by him.”

Juries are instructed that the testimony of anyone who cuts such a deal should be viewed with a jaundiced eye. In fact, our instructions said that any kind of evidence should be backed up by other witnesses. Some of what Nabors said was corroborated, but the damning details that would have pointed to first-degree murder for his ex-drinking buddies — the “Tony Soprano” scenario, the new accusations against Cazares — weren’t confirmed by anyone else.

Nabors testified that Cazares said to him as they left to get shovels, “We’re going to get some shovels, because they’re going to kill that bitch.” But only Nabors heard this.

Cazares was the only one of the three defendants who took the stand on his own behalf. The only one of the trio who claimed he had not had sex with Lida, he portrayed himself as a gentleman who tried to stop the carnage. He said he saw all three of the others — Magidson, Merel, and Nabors — right on top of her, throwing fists “like when you see the Tasmanian Devil running around and you see feet and hands all over the place.”

After breaking up the violence several times, Cazares said he decided to let things take their course and went outside to smoke a cigarette. “It was too way out for me,” he testified. “I just let ’em be.” When he came back inside, he said, Jose Merel and Magidson were cleaning blood off the living room carpeting where the violence had begun. Then he saw Nabors come in from the garage “like he seen a ghost … then he just told me, like, ‘She’s dead.'” Cazares also contradicted Nabors’ testimony about the shovels, saying that he agreed to get them only after Lida was dead to help his friends cover up their deed.

Just a Bunch of Kids

Magidson’s lawyer Thorman called clinical psychiatrist Dr. Andrew Pojman to the witness stand. He outlined a “perfect storm” scenario, wherein three young adult males whose maturity was stunted to the point of being teenagers would react violently when faced with a challenge to the group dynamic such as Lida’s sexual deception. “You have the shame of the individual plus the shame of having my buddies know that I did this,” he testified.

Dr. Eugene Schoenfeld, a bronzed seventysomething Sausalito psychologist who looked as if he spent half his days at the tanning salon and the other half making passes at widows, talked about the natural empathetic reaction of friends, arguing that empathy could have led Cazares to help his friends bury the body.

Lamiero parried the “empathy” defense by asking if empathy also could manifest itself by imitating the murderous behavior of your buddies. Yes, Schoenfeld conceded, it could. Lamiero also knocked the “panic defense” out of the box. After all, Paul Merel also had sex with Lida, and would have felt equally “threatened” by her deception. But he just walked away, didn’t he?

We weren’t buying the Lord of the Flies defense. So what if the defendants behaved like teenagers? They were adults when they had sex with Lida, and they were adults when they killed her. So their fragile sense of adolescent sexuality was threatened? Sell that bill of goods somewhere else. We talked about the psychological defense very briefly, and dismissed it out of hand.

Another thing we dismissed almost immediately was the parade of character witnesses: family, friends, and associates of the accused testifying to their noble and upstanding characters.

Deliberation: The Ayes Don’t Have It

The jury deliberation room in Dept. 510 of the Alameda County Superior Court in Hayward is classic 1970s-ugly. It has hideous blue carpet, a bunch of unattractive chairs, a whiteboard, water cooler, coffee machine, and a tacky faux-wood table so huge it was hard to squeeze by if you had to go to the bathroom. We got to know that room pretty darned well. Our charming court officers Harold and Nancy led us to that room from court, brought our notes to the judge, and when we couldn’t leave during deliberations, brought us boxed lunches there from across the street.

We spent the first day reconstructing the night and morning of Lida’s death. Our able foreman, R, a manager at a construction firm, wanted to have some clear sense of what had happened, as best as we could determine. Sorting through our trial notes and using a map of the house and a cardboard box full of evidence, we examined photographs of the rope marks on Lida’s neck, placed all the actors in the drama according to the testimony, and read Nabors’ letter, among other things.

We went by the book. Or, in this case, the eighty pages of jury instructions that were painstakingly read aloud and provided to us in writing after closing arguments. But we never got past CALJIC 8.20:

All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. The word “willful,” as used in this instruction, means intentional. The word “deliberate” means formed or arrived at determined upon a result of careful thought and the weighing of considerations for and against the proposed action. The word “premeditated” means considered beforehand. CALJIC 8.20

It was here that the jury hung. Most of us simply could not see conclusive evidence of the “careful thought and the weighing of considerations” needed for first-degree conviction. Malice aforethought, sure, we saw that. But that’s second-degree murder. We briefly discussed manslaughter and agreed that what happened that night went beyond that.

Murder of the second degree is also the unlawful killing of a human being with malice aforethought when the perpetrator intended to unlawfully kill a human being but the evidence is insufficient to prove deliberation and premeditation. CALJIC 8.30

At what point did the defendants decide to kill Lida? And how clearly were they thinking? R said he didn’t think the original intent was to murder, but after a certain level of injury had been done to the victim, the accused thought, “Now we gotta take it all the way.” Similarly, W said he thought there was a “ramping up” in the level of violence.

When my turn came to talk, I pointed out several things. One was that the defendants were drunk, or certainly impaired, based upon testimony about their alcohol consumption. An altered state of mind is one thing that can preclude deliberation and premeditation. This produced an exchange that I think is funny now, although I didn’t then.

Juror S, an Oakland school district employee, said, “Well, Jimi Hendrix and Carlos Santana created some of the great classics of rock ‘n’ roll under the influence of drugs.” Her point was that alcohol would not have clouded their minds so much that they were incapable of thinking. Luckily, because I was really pissed off at this line of reasoning, W cut in and tactfully pointed out that plotting a murder and writing “Purple Haze” are two very different brain functions.

Another point that came up several times was the need for corroboration. If someone cuts a deal with the prosecutor, their testimony must be corroborated. Much of Jaron Nabors’ testimony was uncorroborated. “Don’t you dare convict on his evidence,” Serra had cautioned. I wasn’t about to.

The Holdouts

The person who held out the strongest for first-degree murder was a woman for whom I have the utmost respect. I’ll call her B — a petite, fiftyish telecommunications worker with long frosted hair and bangs that hung above her eyes. I hung out with her some during the trial; she told me about her life, her church, and her love of classic rock. I’d buy her a cup of coffee tomorrow and give her a big hug, because I truly liked her. I just didn’t happen to agree with her assessment of the evidence.

While several of us pointed to the many inconsistencies in Nabors’ testimony, B said she thought Nabors was telling the truth now “because he has too much to lose at this point.” Lamiero had pointed out that if Nabors was discovered lying under oath, his deal was off and he’d be tried on the same charges as his former pals.

B stuck to her guns, arguing that because the defendants drank on a regular basis, they wouldn’t have been incapacitated. And she said their thoughts were clearly murderous and premeditated. When we first began deliberations, B admitted that “I don’t think we got the truth out of anybody.” But she saw enough evidence — and of all the jurors, she seemed most diligent about reviewing her copious notes to believe in the first-degree charges for all three defendants. And I admire her for it; she wasn’t swayed by the crowd, just as the jury instructions counseled against.

At first we voted by a show of hands; when things became a bit more heated, we resorted to anonymous ballots. I changed my mind once, in the case of Mike Magidson, voting in favor of first-degree murder after some persuasive argument. Later, my doubts resurfaced and we ended up at seven to five in favor of first-degree murder for Magidson and two to ten for Cazares and Jose Merel.

“The outcome was unavoidable,” W wrote me later. “I did not think two of our jurors ever were open to changing their opinion, which in my view, at that time, seemed very rigid.”

B admitted at one point that she felt under attack, and indeed, I think we singled her out because we wanted to change her mind, at least in the case of Merel and Cazares.

The People and the defendant are entitled to the individual opinion of each juror. … Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision. CALJIC 17.40

Voices were rarely raised, but we hammered on certain points over and over again: drunkenness, unreliability of witnesses, uncorroborated testimony of accomplices. When, the majority asked, was that moment of “careful thought and weighing of considerations” as defined in CALJIC 8.20? When did the defendants have time, in the furor of the early morning hours, to clearly consider the consequences of their actions? “Heat of passion,” at least by one definition, did not reduce the crime to manslaughter, but it could reduce it to second-degree murder.

C, the mechanical engineer, who also feels frustrated by the outcome, later wrote, “For some jurors, it seemed that any discussion or critical evaluation of their statements or viewpoints was taken as personal attack. When this first happened, I believe the handwriting was on the wall.”

Another frustrating point was when B brought in a dictionary definition of “deliberate” to show us what she thought it meant. We said, B, you gotta go by what it says in the instructions. Looking back, I’m not sure she was ever fully convinced of that.

Toward the end of our deliberations, W pointed out that some jurors used an Aristotelian method of analyzing the evidence, weaving a story without need for point-by-point proof, while others relied upon a Platonic method, where each point of evidence needs proof. Everyone was tired and ragged by this time, and I could see in the face of G, the clean-cut airline pilot, that W’s analogy was about to make him blow a gasket.

Without resorting to the classics, we soon agreed to disagree.


We all tried to devote energy to our jobs during the trial. Some woke up before court began and checked in at the office. I spent afternoons, nights, and weekends on my laptop. But I cast my professional death sentence the day I stepped into the jury box.

I lost my job two months later. My boss never really forgave me for taking part in the trial. First he became randomly abusive; when I called him on that, he cut off all communication and assigned a Mini-Me underling to supervise me. She delivered the coup de grâce shortly thereafter. The boss couldn’t be bothered.

My anger still bubbles to the surface when discussing the case. When I saw the multitudes celebrating the Scott Peterson verdict, I thought what a bunch of assholes they were. Nobody wants to be on a jury, but they’re happy to play judge and executioner from the comfort of their living rooms.

The people who protested our nonverdict were about as dopey as fans protesting the rainout of a baseball game. It was a washout, folks, and the process will continue. The wheels of justice do grind slowly sometimes, but where is the “injustice” in that? Probably the most intelligent comment I read came from Christopher Daley of the Transgender Law Center in San Francisco, who called it “justice delayed, not justice denied.”

I truly despise the so-called Christians who felt they needed to come all the way to California to tell us that being gay is a sin. Is there really that little to do in Kansas? These flat-earthers must have read the abridged version of the Bible, with two Old Testament passages on fornication and sodomy and all the rest about forgiveness and loving thy neighbor ripped out.

My own father recently said, “So those guys got off, didn’t they?” I almost crushed the receiver in my hand as I gently explained, No, dad, there’s going to be a new trial; mistrial does not equal acquittal. And, by the way, KPFA Nation, if Mumia Abu-Jamal gets as many trials as are deemed necessary to prove his innocence, then these young men have the same right. Don’t hang them from the nearest tree just because they don’t jibe with your political worldview.

I have no qualms about the trial’s outcome. Frustration? Sure. I think we reached a reasonable conclusion after a lot of conflicting and confused evidence. If you’re going to convict somebody of first-degree murder — let alone three people — you’d better be damned sure, beyond a reasonable doubt, that they committed first-degree murder.

But at least one juror now has remorse. “After a few months, my opinion changed,” my friend W wrote. “I realized that the law was what the law stated, and I felt that the members should have found them all guilty. I had more time to reflect on it. At the time I felt too much empathy for the ‘lives’ of the young men … they killed her, and I think they had enough time to figure that out while it was going on.

“I voted the way I did because I was convinced at the time that the shock factor of the gender and its sexual betrayal coupled with the drug use could not convince me beyond a reasonable doubt that they were premeditated, or had sufficient time to reflect rationally on what was happening. In retrospect, I think that was more of an excuse for bias and hatred. … I think they were filled with hate and were aware.”

Perhaps that can be proved this time. But I believe the new trial will fail if it proceeds down the path the old one did. One defendant’s investigator phoned me after the trial, asking for my opinions. Why, I asked him, did the prosecution seek first-degree charges? “There’s a lot of ego involved there,” he said.

After the trial, Magidson’s lawyer Michael Thorman told the Mercury News, “The prosecution’s case is likely to hang no matter how many times you try it.” If the prosecution insists on pressing for first-degree murder, I think he’s correct.

Chris Lamiero has another opinion, of course. He remains convinced that murder, not manslaughter, is the appropriate charge for the three defendants. “The jury will have the option to convict of first- or second-degree murder,” he said in a recent interview. “First-degree is an option again.”

Yet Lamiero clearly regrets declaring at the end of the first trial that he would hold out for first-degree murder once again. Last Friday, on the eve of jury selection in the new trial, he said plans to leave his retrial strategy open-ended until closing arguments. He declined to spell out how he plans to alter his approach. “It’s a tough question to answer without revealing my strategy,” he said. “We always have the benefit in a retrial situation of learning how things worked in the first trial and seeing things that, in retrospect, may have been done differently. And we can make adjustments for this go-around.”

Lamiero admitted being frustrated by the outcome of the first trial, but said he accepts that the occasional deadlocked jury is just a part of doing business. “I have no quarrel with what that jury did,” he said. “Obviously it’s frustrating to have to try a case again, but … the jury has to follow the law and apply the facts as they find them to exist.”

I’d hate to see it happen, but the Gwen Araujo murder trial may be in for a painful rerun this spring.

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