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?



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