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'Empathy' cited in Araujo burial
Attorney considers strategy
By Ivan Delventhal, STAFF WRITER

March 25, 2004 HAYWARD -- An attorney for one of three men charged with killing a transgender teenager indicated Wednesday that he is seeking to rely on the testimony of a psychiatrist to help explain why his client helped bury the slain Newark teen.

Meanwhile, jury selection continued for a seventh day Wednesday as the prosecutor and defense attorneys began to exercise peremptory challenges to excuse prospective jurors.

The prosecutor dismissed three men from the panel of prospective jurors, and the defense excused three women.

Each side has 35 peremptory challenges that may be used to dismiss jurors without stating a reason.

Opening statements, which tentatively had been scheduled to begin Monday, probably will be delayed.

Jury selection continues at the Hayward Hall of Justice today.

J. Tony Serra, attorney for defendant Jason Cazares, on Wednesday described the principle he may explore at trial as "automatic empathetic response."

Serra, who has said that Cazares did nothing to contribute to the transgender teenager's death, said instinctive empathy caused his client to accompany several other men on a trip to the Sierra foothills and to help bury the body.

Cazares, 24, Michael Magidson, 23, and Jose Merel, 24, are charged with murder and a hate-crime enhancement in the slaying of the teenager, who was born Eddie Araujo but who was living as a young woman named Gwen at the time of the killing on Oct. 3, 2002.

According to testimony during a preliminary hearing a year ago, the killing occurred after four men -- two of whom had been sexually active with Araujo -- discovered that the teen was biologically male.

Serra has said that his client did not participate in the killing, a statement contradicted by preliminary hearing testimony that Cazares struck Araujo in the head twice with a shovel after the teenager was choked with a rope in the garage of Merel's home in Newark.

Serra also has noted that Cazares, unlike Magidson and Merel, was never sexually intimate with Araujo and therefore would not have felt sexually deceived as the other two men may have on that October night.

That would seem to narrow the possibility of a heat-of-passion, or manslaughter, defense for his client.

However, the empathy reflex hypothesis, Serra said, could help explain why "someone who didn't do anything to cause (Araujo's) death" would nonetheless help bury the body.

It is important for Serra to address Cazares' participation in the burial, which amounted to a kind of evidence suppression that could be viewed as circumstantial evidence of guilt.

A letter by Dr. Eugene Schoenfeld of Sausalito addressed to Serra, and provided as part of discovery to the prosecutor, elaborates on the automatic empathetic response theory.

"Jose and Michael were like brothers to Jason Cazares. When they experienced the shame and rage caused by (Araujo's) deceit, Jason felt the same shame and rage.

"He felt these emotions because he had empathy for his friends," the letter states.

The psychiatrist said a recent issue of Science magazine refers to empathy "as an involuntary breach of individual separateness."

"Thus empathy for his friends caused Jason Cazares to feel their rage, their shame, their self-loathing, their dishonor. And it precipitated helping them bury the body," the letter concludes.

Serra echoed the psychiatrist's conclusion.

While Serra intends to call Schoenfeld as a witness, the prosecutor could move to have the psychiatrist's testimony excluded. Deputy District Attorney Chris Lamiero said Wednesday afternoon that he was still evaluating the empathy theory.

While Michael Thorman, attorney for Magidson, has suggested in his questions to prospective jurors that he ultimately may ask them to consider a verdict of manslaughter rather than murder with respect to his client, Serra has said that he is seeking an acquittal of Cazares.

Ivan Delventhal covers crime, police and courts. Call him at (510) 293-2469 or send e-mail to idelventhal@angnewspapers.com .

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