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Wednesday, June 23, 2004 (SF Chronicle)
Mistrial in transgender case/Deadlock over first-degree murder charges --
3 to face retrial in slaying of Newark teen
Kelly St. John, Henry K. Lee, Chronicle Staff Writers

Three men will be tried again for first-degree murder in the slaying of
transgender teen Gwen Araujo, a prosecutor announced Tuesday, after a
judge declared a mistrial in a case in which activists had hoped a guilty
verdict would send a forceful message about gender-related hate crimes.
Chris Lamiero, an Alameda County deputy district attorney, made his
decision shortly after learning that jurors had agreed that the killing in
Newark almost two years ago was murder -- but were deadlocked over whether
it was premeditated.

"This is a case we will take to trial again," said Lamiero, who will retry
the men on charges that they beat and strangled Araujo, 17, after finding
that she was biologically male. "The sooner the better, as far as I'm

Araujo's family and friends gasped in the Hayward courtroom when Alameda
County Superior Court Judge Harry Sheppard declared the jury of eight men
and four women hopelessly deadlocked after 10 days of deliberations in a
case that drew national attention.

The panel was stuck 7-5 in favor of convicting Michael Magidson, 24, of
Fremont on a first-degree murder charge, the jury foreman told the judge.
The jury was deadlocked 10-2 in favor of acquitting Jose Merel and Jason
Cazares, both 24 of Newark, on first-degree murder.

The jury had the option of returning a verdict of second-degree murder or
manslaughter in the case, but only if it first agreed on guilt or
acquittal on the first-degree charge. First-degree murder is punishable by
25 years to life, second-degree by 15 to life, and manslaughter by up to
11 years.

"I believe there was no one on the jury that was going toward acquittal,"
one male juror, who declined to be identified, told The Chronicle. "It was
all first-degree murder or second." A first-degree murder conviction
requires a finding that the crime was premeditated.

All three men also were charged with a hate crime in the Oct. 4, 2002,
killing of Araujo -- who was born Edward Araujo but had been living as a
young woman since age 14.

After they were dismissed Tuesday, jurors left the courthouse through a
side entrance. Most of them -- including the jury foreman -- declined
comment. But the same juror who spoke to The Chronicle said the
deliberations "were very difficult."

"There was one part of the instructions given to the jury, about the
difference between murder and manslaughter, that was a key point in the
holdup, " said the juror.

"That's where we were stuck, between first- and second-degree murder,"
said another juror, who declined to give her name. A third juror concurred
with the assessment but would not elaborate.

Prosecutors spoke only briefly with jurors Tuesday, but that apparently
was enough to persuade them to seek a new murder trial. Lamiero plans to
interview jurors at greater length soon, he said.

David Guerrero, Araujo's uncle, said his family was disappointed at the
mistrial but is pleased that prosecutors will try the case again.
"We're confident that we'll have justice in the end," Guerrero said. "But
it's very difficult. I just don't want to see those pictures again. I
don't want to hear that testimony again."

While the defendants and their families sat stoically when the mistrial
was declared, Araujo's sister, Pearl Serrano, ran out of the courtroom in
tears. Araujo's mother, Sylvia Guerrero, dropped her head in her hands and
left the courthouse in tears, and her family's attorney, Gloria Allred,
described her as feeling "sick, stressed and upset."

"This mistrial has only added to their grief, but they understand the jury
did their best," Allred said. "It was not a jury that was going to acquit
or a jury that was going to find a basis for a manslaughter conviction.
They weren't willing to accept a provocation defense."
Some transgender rights advocates had criticized what they called a biased
"trans panic" defense put on by attorneys who called the crime a "classic
manslaughter" committed in the heat of passion after a sexual deception by

Magidson and Merel had oral or anal sex with Araujo in the weeks before
the killing, thinking she was biologically female.
Though upset at the mistrial, activists at the courthouse said advocates
were buoyed by the district attorney's assertion that jurors were unified
on the idea the crime was murder.

"Today was justice delayed, not justice denied," said Christopher Daley,
co-director of the Transgender Law Center in San Francisco.
During the three-month trial, the prosecution's star witness, 21-year-old
Jaron Nabors, described a brutal attack in which Araujo was punched,
choked and hit in the face with a can and skillet. Nabors said he didn't
see the killing but saw Magidson pull a rope toward Araujo's neck after
she had been tied up. He also said Magidson later talked about twisting
the rope.

Nabors, who pleaded guilty to manslaughter and will serve 11 years, said
the men then buried Araujo's body in El Dorado National Forest.
But defense attorneys hammered Nabors' credibility, accusing him of lying
to get a deal and pointing out he told conflicting stories to police.
Magidson's and Merel's attorneys argued that if they were guilty of
anything it was manslaughter, not murder, because the men were provoked by
their rage at learning they were duped into having sex with a man.
Cazares' attorney argued his client was outside smoking a cigarette when
the killing occurred and only helped bury the body out of loyalty to his

Outside the courtroom, J. Tony Serra, who represented Cazares, said he was
disappointed because his client was so close to being acquitted on first-
degree murder and predicted his client would be vindicated in a retrial.
"One or two jurors did not deliberate like rational human beings," Serra

Magidson's attorney, Michael Thorman, said he was surprised that seven
jurors thought his client was guilty of first-degree murder.
"I was hopeful the jury would agree this is a manslaughter," Thorman said.
A new trial is not expected to happen for months because of attorneys'
conflicting schedules. The three defendants will continue to be held
without bail at Santa Rita Jail in Dublin.

According to his plea agreement, Nabors will also testify at a subsequent
trial and is not expected to be formally sentenced until then, said his
attorney, Robert Beles.

The defendants and their charges Michael Magidson, 24, of Fremont
Faced charge of murder and a hate-crime enhancement. Jury deadlocked 7-5
in favor of conviction of first-degree murder.
Jose Merel, 24, of Newark Faced charge of murder and a hate-crime enhancement. Jury deadlocked 10-2in favor of acquittal of first-degree murder.
Jason Cazares, 24, of Newark Faced charge of murder and a hate-crime enhancement. Jury deadlocked 10-2in favor of acquittal of first-degree murder.
Jaron Nabors, 21, of Newark Pleaded guilty last year to voluntary manslaughter and testified against
his friends. Expected to be sentenced to 11 years in prison after the

E-mail the writers at kstjohn@sfchronicle.com and hlee@sfchronicle.com.

Source: SF Chronicle

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