On July 17, 2008, Angie Zapata, a happy and beautiful transgender woman who was only 18 and living on her own for the first time, was brutally murdered in Greeley, Colorado by Allen Andrade because she was trans. Her murderer, of course, claims that he beat her head in with a fire extinguisher until she was unconscious, and then went back and did it again to make sure she was dead when he noticed her trying to sit up, in a fit of “uncontrollable” rage when he discovered that she had a penis. (Oh, the horrors!!) Of course, there is good reason to believe that Andrade already knew that Angie was trans, but his defense attorney has no choice but to go with the best chance she’s got for defending him, which is to blame Angie for her own murder.
The Weld County District Attorney charged Andrade with first degree (premeditated) murder, a hate crime for murdering Angie because she was trans (the first such prosecution in the nation), auto theft for stealing her car and identity theft for stealing and using her credit card. Andrade’s trial began on Tuesday, April 14. Yesterday, the prospective jurors got to hear for the first time what the case is about when the attorneys presented their “mini-opening” statements. (Mini-opening statements are apparently relatively new in Colorado. They’ve been in use here in Arizona for several years and are intended to give the jurors a basic idea of what the case is about, so that they can be questioned about whether the nature of the crime will make it difficult for them to be fair and impartial.)
The prosecutor told the jurors that Andrade had known that Angie was trans for some time and that he murdered her in a premeditated attack. Andrade’s defense attorney, however, said that he felt “deceived” when he found out that Angie was trans,
and he reacted. He reacted, he lost control, he was outside of himself.
“Everything happened so fast, it was over before it started. He couldn’t control it. Those are the words you’re going to hear from Mr. Andrade. He never knew he had that kind of rage.”
(“In Transgender Murder Trial, Key Question Looms: When Did Suspect Know?“, Greeley Tribune, April 16, 2009.) In my opinion, if Andrade pursues that defense through trial, he’s cooking his own goose, which is fine with me.
I am a criminal defense attorney. More specifically, I do criminal appeals, which means I represent people like Andrade after they have been convicted, either by a jury or by pleading guilty. My job is to look over the shoulders of the police, the judges, the prosecutors, and the defense attorneys to make sure that everyone follows the rules, imperfect as they are, that have been adopted in this country to help ensure a fair trial. I’ve been doing this work since 1997. In that time, I have read the transcripts of hundreds of jury trials, including several murder trials, so I have a pretty good idea of why attorneys, especially defense attorneys, do what they do and what juries look for when they decide to convict or acquit someone.
On her blog this morning, Kelli Anne Busey quoted from another article about the mini-opening statements in Andrade’s trial, noting that the prosecutor told the jurors that, contrary to Andrade’s claim, there would be no evidence that he had sexual contact with Angie before the murder. Kelli commented, if the prosecutor can make that claim stick, the defense is going to have a very difficult time. Why? Because without proof that Andrade had sex (of whatever kind) with Angie without knowing she was trans, his “trans panic” defense falls apart, and his crime is revealed as the bald-faced hate crime that it really is. In other words, Andrade didn’t kill Angie because he was deceived into having sex with a “man,” but simply because he hates trans people and believes, as he told his sister in a recorded phone call from the jail, that “gay things need to die.”
What’s even more significant for me, however, is the statement by Andrade’s attorney that he is going to testify: “Everything happened so fast, it was over before it started. He couldn’t control it. Those are the words you’re going to hear from Mr. Andrade.” Of course, that’s the only way Andrade can hope to prove his alleged “trans panic” defense (who else can prove what was going through his head as he bludgeoned Angie to death?) and thus convince the jury to reduce his conviction to 2nd degree murder or manslaughter, but it’s a very risky move. Andrade’s decision to testify (very few defendants do) means that the prosecutor gets to cross-examine him in excruciating detail about when he first knew or suspected that Angie was trans, which could well cook his goose right there. In addition, the prosecutor will get to hammer home the evidence that, after first beating her unconscious, Andrade went back and made sure Angie was dead after she tried to sit up. That makes it first degree (premeditated) murder without question, regardless of how outraged he may have been when he first hit her.
Lastly, and perhaps most importantly, is what happens if Andrade contradicts any of the things he told the police, including the things he said during the parts of his confession that the judge threw out. For example, what if Andrade tells the jury that Angie was dead after he beat her the first time but told the police he went back a second time to finish the job because he saw her moving? If that happens, the judge will allow the prosecutor to bring back in everything that he previously threw out, including any audio or video tape of his police interview, to prove that Andrade is lying to save his ass. Let me tell you, when a jury hears a defendant say one thing to them face-to-face from the witness stand, and then gets to hear (and, if the interview was videotaped, see) him say the opposite to the police right after he was arrested and before he had a chance to plan out his story, it is absolutely devastating and virtually guarantees a conviction. From where I sit, it looks like, unless something changes very drastically over the course of his trial, Andrade is about to cook his own goose. It couldn’t happen to a nicer guy!
It seems to me that Allen Andrade knew what he was doing, when he did it. The act of taking a life is so profound that his admission of guilt, in describing the actions he took, was really all that is necessary to convict. Were I a juror, I would require only a yes or no to the question, did you kill her? If the answer was no, I would then want to know how then did she die? Allen Andrade is obviously guilty as charged, by his own admission, regardless of whether his statements are excluded from court or not. Hopefully he’ll testify and give the prosecution the opportunity to ask questions that will allow Andrade to paint himself into the corner he’s created for himself.
[…] (Cross-posted from my personal blog.) […]
In the opening statements it was mentioned by the prosecution Andrade had 36 hrs to walk away.
They have him telling his gf or some friend of his that all “gay things must die” – following on twitter :
justiceforangie – they may have a snow day tomarrow.
Anyone old enough to remember the Dan White Verdict, the Twinkie Defense, and the White Night Riots when he got a mere 7 yrs for TWO pre meditated murders , knows that if the panic or ick factor defense should by some fluke work on this jury of 10 men and 2 women and even those who have recently seen Milk – need to know the entire lgbTq community is watching and we want JUSTICE. We will not take this sitting down. Angie , Gwen all those we have lost to sick psychopaths have not died in vain.
Make sure to call your reps to support HR 1913 the Trans Inclusive Hate Crimes Bill.
yours in solidarity and affinity – ProudprogressiveTG
The Greeley Tribune had a couple of pictures published today of Andrade – his demeamer is one of pure arrogance he exudes “no remorse” what so ever. Angie’s family and friends who did testify today could not hold back their tears and also to their credit and a testiment to their love of their sister Angie, She is a very sympathic victim , the jury cannot help but realize this, Her family consistently corrected the defense attorney who insists on refering to Angie in her male name and as a “he” – this has got to have an effect on the jury to the benefit of the prosecution.
Andrade was noted to be smiling , pictured smiling and even laughing with his defense team and at his family – when he hits the stand this miscreant will not be able to contain his hatred , his sociopathic condition NO matter HOW LONG or Hard the defense may work with him.
No matter that the jury is 10 men 2 women i believe that the callousness and the facts will obscure any “ick” factor – this guy needs to be behind bars. Also noted in the trial today is that Angie was OUT , she was No deciever – not to her family , not to anyone. May she rest in peace , and may this murdered get the book thrown at him.
This case (as you say Abby , is historic – it is tragic , but a guilty verdict will change legal history forever – the panic defense is just not going to fly – He was 32 and had clearly has been around the block more than a few times. The next block he is going to be going around is a Cell Block – is the defense asking for the death penalty ? Death would be too good for this scum bag. imo.
Both the Greely Tribune and Justice for Angie and apparently Court TV are following this trial closely – ( i no longer have the satilite channels that include court TV which millions of homebound people watch) A guilty verdict in this trial will change the trajectory of our fight for complete civil rights will be changed forever –
the LGBT must be protected under the law – when it comes to Hate Crimes, when it comes to issues such as ENDA – regarding Hate Crimes , as a New Mexico State Representative once said , there is a big difference for example in Vandalism between someone spray painting a smilely face on a garage door vs. a swastika. There is also a big difference between bashing someone’s head in to rob them , and because “all gays things must die”
May justice prevail –
No, the State isn’t asking for the death penalty. If Andrade is convicted of first degree murder, he will receive life in prison. (I don’t know if he will eventually be eligible for parole. Even if he is, he probably won’t be eligible for at least 25 years.) Even if he is convicted of second degree murder, he will, in all likelihood, spend the rest of his life in prison, since the normal sentence for that offense (up to 24 years in prison) will be quadrupled because he is already a 3 time loser.
The jury at this point consists of 10 men and 4 women. Assuming they all make it until the close of evidence (i.e., none are eliminated due to medical emergency or misconduct), two of them will be selected by lot as alternates. The other twelve will then decide Andrade’s guilt or innocence. Consequently, the final jury could be 8 men and 4 women, 9 men and 3 women or 10 men and 2 women. We won’t know the final composition until the alternates are selected.
As for the “trans panic” defense, I’m afraid the verdict in this case isn’t going to have the broad impact you’re hoping for. That defense can be eliminated only by changing the statutes that make it possible, and that has to be done in every state individually. Therefore, it’s going to take several years, if not decades, to accomplish that goal.
In this particular case , why is the panic defense being attempted, if the Hate Crime Law exists , one might (again wishful thinking on my part) think that would cancel out the statutes that allow for a “panic” defense , or does the so called panic defense fall under a involentory manslaugher charge ? something like that ?
so the burden is on the prosecution to proove that he acted with malice and forethought ? and also that it was a Hate Crime because the defendant is “innocent until proven guilty beyond a reasonable doubt ?
would being rid of the use of the “panic” defense involve changing all levels of murder charges in all states? if so – i can see that is not going to happen , nor really should it. i suppose. In this case “panic” is standing in for “passion” so to speak ?
The “trans panic” defense and the hate crime allegation are strangely connected in this case. To prove the “bias-motivated crime” charge, the State must convince the jury beyond a reasonable doubt that Andrade “knowingly cause[d] bodily injury” to Angie (death qualifies as “bodily injury,” of course) “with the intent to intimidate or harass [Angie] because of [Angie’s] actual or perceived [transgender status].” So, by claiming that he killed Angie in a fit of “uncontrollable rage” after discovering she was trans, which is what I’ve been calling his “trans panic” defense, Andrade is admitting the hate crime charge. However, since the maximum sentence on for a hate crime is only 3 years, it’s a pretty reasonable trade off for him to make.
In Colorado the trans panic defense can’t reduce the charge to manslaughter (whether voluntary or involuntary), because manslaughter in Colorado applies only to “reckless” killings, not to knowing or intentional killings, as this once clearly was, even if Andrade was in an “uncontrollable rage.” Consequently, the best Andrade can realistically hope for is a conviction on second degree murder as a Class 3 felony.
Normally, second degree murder in Colorado is a Class 2 felony, but it is reduced to a Class 3 felony, with a potentially shorter sentence, if the murder was committed “upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person.” Therefore, if Andrade’s attorneys can convince the jury (a) that it was “serious and highly provoking” for Angie to have sex with him without telling him that she was trans, (b) that it was reasonable for his discovery of that “deception” to “excite an irresistible passion” in him, and (c) that he killed her in the “sudden heat of [that] passion,” then he will theoretically be eligible for a shorter sentence. As I explained above, however, any benefit of that reduction will be wiped out by his prior felonies, since he will be sentenced as a repetitive offender.
This language I quoted above is the source of the “trans panic” defense in Colorado. Other states have similar statutes. To eliminate the trans panic defense nationwide, the law of each state, as well as federal law, must be changed. That won’t be an easy task, but it can be done if the current public opinion that someone who kills “in the heat of passion” upon discovering that the person they just had sex with was transgender can be changed. Thus, once again, the task is one of public education.
That defense was outlawed in California in the wake of the trials of Gwen Araujo’s killers, where it resulted in manslaughter, rather than murder, convictions. The same thing could happen in Colorado in the wake of this trial if Andrade succeeds in convincing the jury to convict him of second, rather than first, degree murder. Hopefully, though, we won’t have to wait for such tragic murders and subsequent trials in every state to change these laws nationwide.
[…] do I know all this and why am I so confident in my conclusions? As I explained in my previous post, I’m an attorney. Because of the nature of my practice, for the last 12 years, I have done […]
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