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Prosecutor seeks to quash 'gay panic' defense in Oxnard slaying

Judge will be asked to invoke a state law that allows jurors to be instructed to disregard a victim's sexuality.

July 21, 2011|By Catherine Saillant, Los Angeles Times
  • Brandon McInerney, left, and Larry King.
Brandon McInerney, left, and Larry King. (Los Angeles Times )

The trial of an Oxnard teenager accused of gunning down a gay classmate he thought was flirting with him marks the first test of a state law allowing judges to admonish jurors that a victim's sexual orientation should not influence deliberations.

Attorneys for Brandon McInerney argue that their client, who was 14 when he gunned down Larry King in an Oxnard junior high school computer lab, was so humiliated by King's flirtation that it provoked him to kill his classmate. Gay rights advocates say the argument is a classic "gay panic" defense.

The panic defense became a flashpoint following the 2002 slaying of Gwen Araujo, a Bay Area transgender teen who was beaten and strangled by three men. Defense attorneys for the suspects argued that their clients panicked after learning Araujo was a biological male and won a mistrial.

When the suspects escaped first-degree murder convictions, legislators responded by passing a law designed to blunt the use of panic defenses.

Similar panic strategies have been used in more than 45 cases nationwide, according to Equality California, a San Francisco group that sponsored the 2006 Gwen Araujo law and advocates civil rights for gay and transgender people. Prosecutors sometimes agree to reduced charges because of the difficulty of facing a "gay panic" defense in certain parts of the country, especially in the Bible Belt, the group said.

In the McInerney case, the defense doesn't deny that their client is the one who pulled the trigger, but they say the teen was pushed to an "emotional breaking point" after the flamboyant King made him the focus of unwanted flirtatious attention at school.

Ventura County Senior Deputy Dist. Atty. Maeve Fox this week said she would invoke the Araujo law when the case is sent to the jury, asking that the panel of nine women and three men be instructed not to let biases toward the victim's sexual identity influence their deliberations.

Legislators and advocacy groups that pushed hard to see the law passed say they are gratified to see the jury instruction invoked.

"We can't restrict the free speech rights of the defense and the ability of a defendant to mount their defense," said Sally Lieber, the former assemblywoman who wrote the Gwen Araujo Justice for Victims Act. "But the judge should instruct juries that a person's gender or sexual ID is not an invitation to assault or murder."

McInerney's trial on a first-degree murder charge is in its third week in a Chatsworth courtroom. Multiple students have testified that King, who had recently been placed in foster care, began showing up at school in feminine accessories and makeup.

Rumors swirled about King blowing kisses at McInerney and asking him to be his valentine. On the day before the Feb. 12, 2008, shooting, King loudly said "Love you, baby!" to McInerney as they passed in a corridor.

McInerney started to make a move toward King, but his friends held him back, students and a teacher testified. He told a friend he was going to bring a gun to school the next day, and he did. During a first-period English class, McInerney took out a Saturday night special and shot King twice in the back of the head, witnesses testified.

Fox, the prosecutor, has told jurors that McInerney was motivated not only by his dislike of King but by a budding white supremacy ideology that holds homosexuality as an abomination. He is also charged with a hate crime.

Defense attorney Scott Wippert in opening statements said he would show that McInerney was a good kid who came from a broken, violent home filled with firearms and was provoked into the attack by King's repeated sexual advances.

Gay panic defenses are used because they often work, said Cynthia Lee, a law professor who wrote a 2008 UC Berkeley Law School Review article on the topic. In February 2006, a Kentucky man successfully won a lighter sentence after using a gay panic argument, according to a report by Equality California.

In the same year, a Fresno man who stabbed a transgender person 20 times agreed and was permitted to plead guilty to a reduced crime that brought a four-year sentence. The Fresno district attorney reportedly cited the difficulty of overcoming a panic strategy as a reason for offering the plea deal.

"There is no question that when murder defendants argue gay panic, they seek to tap into deep-seated biases against and stereotypes about gay men as deviant sexual predators who pose a threat to innocent young heterosexual males," Lee wrote in the law review article.

Despite the "corrosive" effect of gay panic defenses, Lee argues that there should be no attempt to outlaw them. States should instead institute jury instructions such as California's that remind jurors that a victim's sexual orientation is not a credible criminal defense.

"Suppression of gay panic claims, like suppression of bad speech, will not eliminate the underlying stereotypes and assumptions that make such claims persuasive," Lee wrote. "Open discussion and debate is a better way to combat those assumptions."

McInerney's lawyers are expected to present their defense later this week. The case could be sent to the jury within the next two weeks, attorneys said.

catherine.saillant@latimes.com

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