When I heard yesterday that the jury in the trial of Allen Andrade, the man charged with murdering Angie Zapata, had reached a verdict in less than two hours, I was hopeful, since a quick verdict usually means that the prosecution’s evidence was so overwhelming that the jury saw no need for extended discussion. As I watched the judge read the verdicts convicting Andrade on all counts, my hope turned to elation. To the extent that our criminal justice system can actually deliver “justice,” the jury did everything that we could have hoped for. My elation, however, was, and will always be, tempered by the knowledge that Angie, a beautiful young trans woman, will never have the opportunity to live the life of peace and dignity that all of us, trans- and cisgender alike, deserve.
For the rest of the day, I surfed the Web to see what others were saying about this truly momentous event. There I found several people expressing concern that the jury’s verdicts may be vulnerable on appeal on the theory that the short duration of their deliberations indicates a failure to adequately consider the evidence. My experience as a criminal appeals attorney, however, tells me that there is no reason for such concern.
The Weld County District Attorney’s Office charged Andrade with first degree murder and a bias-motivated (i.e., “hate”) crime for bludgeoning Angie to death with a fire extinguisher that he found in her apartment. Before the trial began, however, his attorneys asked the judge to tell the jurors that they had the option of convicting Andrade of second degree murder, manslaughter or criminally negligent homicide, instead of first degree murder. Much to my surprise, the judge agreed and instructed the jury on all four types of homicide as “lesser included offenses.” (A “lesser included offense” is a crime that contains some, but not all, of the elements of the greater charge, such that it’s impossible to commit the greater offense without also committing the lesser. As long as the evidence supports a conviction on the lesser offense, the Constitution requires that the jury be given the option to consider both the greater and the lesser offenses.)
The law on when the jury can pass over the greater offense and consider convicting the defendant on a lesser included varies from state to state. In this case, the judge instructed the jurors that they could not consider any of the lesser included offenses until and unless they first found Andrade not guilty of first degree murder. Thus, there was no reason for the jury to spend any time on those offenses until they decided whether to convict Andrade on the primary charge.
Throughout the trial, Andrade and his attorneys admitted that he killed Angie. That admission meant that the jury only had to answer two questions on the first degree murder charge: (1) was the murder intentional, i.e., was killing Angie his goal when he began to beat her with the fire extinguisher; and (2) was the murder committed “after deliberation,” i.e., was it premeditated. As the jury’s quick verdict demonstrates, those two questions were pretty easy to answer. Here’s why.
First, bashing someone in the head with a fire extinguisher multiple times until her skull is crushed is a pretty good indicator that Andrade’s purpose was to kill Angie. After all, you don’t do that thinking, “Hmmm, she might or might not die if I bash her head in. Let’s try it and see what happens.” In addition, the autopsy showed that Andrade didn’t hit Angie any place other than her head. You don’t hit someone with a lethal weapon in the head but nowhere else unless you intend to kill her. In other words, because of the way he did it, it’s clear that Andrade intended to kill, not merely injure, Angie. Thus, the murder was intentional.
Second, because the most damaging portions of his confession were suppressed, the jury didn’t get to hear Andrade tell Det. Tharp that he hit Angie with the fire extinguisher the first time and thought she was dead; then, while he was going through her apartment figuring out what to steal, he heard Angie “gurgle” and saw her sit up, so he went back with the fire extinguisher and, this time, made sure she was dead. That’s absolutely conclusive evidence of premeditation, but, as I said, the jury didn’t get to hear it.
What they did get to hear is that Andrade started beating Angie with his fists. Apparently dissatisfied with the damage he could do with his fists alone, Andrade paused, took the fire extinguisher down from the wall of Angie’s apartment and used it to kill her. That pause, even if all he had to do was reach over and grab the extinguisher without taking a single step, was ample time for the premeditation or deliberation that the law requires for first degree murder.
Deliberation or premeditation, however, requires more than just the passage of time. It requires the prosecution to prove that the defendant actually reflected on or thought about what he was doing before delivering the fatal blow. So, how do we know what Andrade was thinking during that pause while he grabbed the fire extinguisher? The answer to that question is similar to the answer to the first one. We know Andrade was thinking about how he was going to kill Angie, because you don’t grab a lethal weapon like a fire extinguisher, after beating someone with your fists, and then use it to bash in her skull unless your plan is to kill her.
At this point, you’re probably saying to yourself, but what about the evidence (primarily the things Andrade said to his girlfriends from jail) that indicated that Andrade acted impulsively and without thinking or even knowing what he was doing? It’s true that there was plenty of evidence that the jury could have relied on to acquit Andrade of first degree murder. The beauty, and sometimes the bane, of the jury system in this country, however, is that it simply doesn’t matter how much contrary evidence there was. What matters is whether the prosecution presented enough evidence for a reasonable jury to find the defendant guilty beyond a reasonable doubt. Because there was more than enough evidence for the jury to convict Andrade, he and his family (and any other supporters he may have) can complain that the jury should have believed his evidence, not the prosecution’s, for as long and as vehemently as they want. In the end, however, it simply doesn’t matter.
How 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 nothing but pour through the record of trials like this one on behalf of defendants like Andrade looking for claims that their convictions were improper, for example, because there wasn’t enough evidence. Every single time during those 12 years that I have argued that the jury made a mistake because there wasn’t enough evidence, the appeals court has “schooled” me by showing me that, regardless of how I think the evidence should have been interpreted, it was perfectly reasonable for the jury to see it differently and convict my clients. The bottom line from that experience is that, where the evidence is disputed and the jury chooses to believe the prosecution, the defendant always loses.
Because of all of these factors, there’s no chance Andrade’s convictions will be overturned on appeal for lack of evidence and any concern about the fact that the jury only took 2 hours to convict him won’t even be a footnote when the Colorado courts reject his appeal.
Living My Life 
That makes me feel relived.
At least that part of the process may be resolved quickly, and quietly sparing her family any more sorrow, or anguish.
“Strength and Happiness”
The Zapata family issued a statement found on the Greeley Tribune at
http://tinyurl.com/c9ec3h
What beautiful words from Angie’s brother and the rest of his family! And what a sad, sad ending to such a beautiful young life. May we all dedicate ourselves to ensuring that never again will anyone suffer from hate as Angie suffered, nor as her family, and we, her community, have suffered. NEVER AGAIN!
I had it pretty much reasoned out along those lines in my head, but having it confirmed by someone who “knows” is such a relief!
For your words, for the tears on my cheeks; I thank you!
alan
Hi Abby,
Thanks you for clearing this up. I also worried that this monster would be able to get out some how on appeal. You put me at ease. Speaking of monsters,
Taken this comment:
“Mr. Andrade is not some kind of monster as some people have portrayed. I’ve gotten to know Mr. Andrade over the course of these eight or so months … He is a good person. And he does have feelings and he does care,” Kundelius said.
Do you feel that Ms. Kundelius really feels that Andrade is not a monster. After reading it I wonder what it would take for her to believe he was a monster.
I also have a question about a statement that was made during the trial:
(Note: From Bird Of Paradox blog)
Annette Kundelius, the Defense Attorney, presented the closing argument, saying that what happened was nothing to do with sexual orientation (ie Angie’s gender identity) but because Andrade had been deceived and therefore did not commit a felony (F1, F2 or F3). Finding out that Angie had male genitalia was “sufficient provocation” (to commit manslaughter or criminally negligent homicide) and Andrade “just reacted”
Is this just lawyer speak or am I missing something. “sufficient provocation” to commit manslaughter. WTF! If she is saying that because Angie had not had her SRS, Andrade had the right to murder her, then I don’t know what the hell is wrong with this women. If I’m misunderstanding it, please correct me. Sorry, it’s been bothering me since I read it yesterday and I just needed it cleared up.
THanks Abby, As usual a great blog.
Hugs Michelle
Abby,
I’ve thoroughly enjoyed your take on this case and cross-tweeting the trial with you (I’m a/k/a/ Janus303).
It’s been really refreshing to have a defense attorney’s take on the case. I am not an attorney but have worked in the legal field more than once and on civil liberties and equality issues my whole adult life, so I’m able to speak with some level of authority, but certainly not that of a trained, experienced lawyer like yourself.
Thanks again.
[…] (Cross-posted from my personal blog.) […]
Thank you Abby. May Angie rest in peace, may her family find some solace in a quick and just verdict and may Andrade rot in jail.
I think that the jury had no problems because of the following reasons:
1. Andrade was fighting the urge to take a walk on the other side – having sex with a male. Only having sex with a transgender is safer – still resembles a female.
2. Tats on his arms looks like that he ran with a rough crowd though through the trial nothing was said.
3. Looking at the pictures, Angie was on the floor next to a single mattress with her legs crossed at the ankles – conclusion that she was in a resting position – sleeping.
4. Nothing in the apartment was disturbed. No signs of struggle.
5. The only damage to Angie was on her left side of her face. No defensive marks – no DNA under fingernails. She was never awake to defend herself.
6. I have looked at a lot of blogging on the internet. One thing everyone is missing is Andrade’s DNA on the adult toy. And only his DNA!!!
7. He kept the car and purses. He did not use the card right away. He waited a few days.
8. It was claimed by the defense that he was taken by surprise that Angie was not totally female. Another lie. There was a audio recording of Angie attending court and we heard her voice. Unless a male is taking hormones – a male will sound distinctive when trying to sound female. Angie was a very beautiful girl. The voice did not match.
9. If he was in fact taken by surprise, why keep Angie’s belongings and give them as gifts to the current girlfriend? Why not ditch the car as soon as he got to Denver? No – I think he felt that if he did not get caught within the first week – he was a free man. He was talking to his current girlfriend about their relationship and having babies the weekend before he was arrested. In fact, the police responded to a noise complaint – Andrade playing the music in the PT Cruiser too loud. They ran the plates – car involve with a felony/homicide. Also- I think current girlfriend knew more – she kept the purses in the trunk of her car. She was living with her parents.
10. I do not think Angie died the way Andrade has said which was only printed in the paper and blogs not allowed in court- remember, he stated on a jail call that he could probably sell his story for “$55,000 or something.”
I think that something happened between them intimately the day and evening before. There is a cigarette butt found in the window sill of the only bedroom of the apartment that has both of their DNA on it.
Angie went to Monica’s house to babysit early on the 16th. Andrade spent the whole day there by himself. He could have left at any time. She went to a friend’s house for a while after she was done babysitting. No hurry to get home and be with Andrade.
I think she came home and they drank the beer – 4 40 oz bottles. I think he claims to want to sleep. He goes into the bedroom. He finds the adult toy and uses it and I do not think it was the first time he used it. I think Angie went to see if he was asleep – maybe get a cigarette from him – something innocent – found him using the adult toy. She goes back to the living room and passes out or falls asleep. I believe she passes out – again no defensive wounds. He waits for this. Embarrassed by what she saw, he paces the living room. He sees the fire extinguisher and uses it to bash her head in. I think he goes through the apartment, finds her purse only because it has her cell phone. He takes the other purses too. On the way out of town, he tosses the fire extinguisher.
I read somewhere that he says he hits her, thinks she is dead and starts to go through the apartment. He then is surprised by the fact that she wakes up and sits up moaning. That has to be a lie because the picture only shows damage to the left side of the face. If he is “surprised”, how was he able to continue hitting her in the same place on the face? There is no evidence that he was hitting her with his fists before he grabbed the fire extinguisher.
11. His jail calls pretty much sealed his fate. The ex-girlfriend that “still loves him” perjured herself on the stand about the phone calls. Andrade stated he wanted to “learn more about crime of passion”. The phone calls with the current girlfriend “send me money”. He was using both girls. He bragged about what he had done.
There is a lot of wrong information about the actual facts regarding this case. I wish that people would not twist the facts to get a better story out of it.
This was not an easy case for the jury. They were given 30 pages of instructions by the judge who also had them follow along with the written instructions while he read them to the jury. By following the written law, the decision on each count was done by voting.
I personally hope that this sends a message that you do not get a lesser charge if one claims that they were “surprised and snapped”.
Personally I think that if Andrade ever had a doubt about his sexuality – it will become very clear for him in prison!!!!
No – I read what you stated above. At no time during the trial was it ever stated that he hit her with his fists. There would have been defensive wounds and more facial damage. The damage was done to only the one side of the face. As for Andrade, he is a habitual liar and a manipulator. He is glorifying himself by saying he used his fists. He is making sure that all who know him know how manly he was about this – to gain sympathy. The only time in court that it was known that he used his fists was when he was angry and he hit himself. This information came from the ex-girlfriend and current girlfriend.
As for the comments made from the defense attorney, it would get him an appeal quicker than you could say WTF! if they were to say anything different than what they said in their statement. It would mean that he may not have had the best representation if they were to talk badly about their client even though they were court appointed.
He does not have a remorseful bone in his body. Too bad there wasn’t an option for the death penalty.
Angie’s family has been blessed. This may have gone unsolved for a long time and taken years to get to court.
“Juror,” I have no intention of getting into a protracted debate with you over this case, but I do have these comments.
Some, but not all, of your statements are supported by the evidence.
Most of the facts you point to are irrelevant to the issues the jury had to decide in order to convict Andrade.
Your speculation about how Angie died is plausible, but nonetheless purely speculative. There are many other scenarios that match the evidence as well or better than yours.
What you read about Andrade hitting Angie with the fire extinguisher, thinking she was dead until she sat up, then going back and hitting her again to finally kill her came from the portions of his confession that were excluded by the judge. Given that those statements provide conclusive evidence of the deliberation necessary to convict him of first degree murder, despite his “trans panic” defense, it’s very doubtful that they are lies. Obviously, he had no reason to lie about facts that would have led to an even quicker verdict than the one that ultimately resulted.
As for Andrade first striking Angie with his fists and then grabbing the fire extinguisher to kill her, that is the argument the prosecutor made during his closing arguments to convince the jury that the State had proven the element of deliberation. During their closing arguments, attorneys are not allowed to argue evidence that was not, in fact, presented to the jury. Although I cannot name the witness that the evidence of Andrade’s use of his fists came from, I am confident that such evidence was, in fact, presented.
Michelle,
Yes, I suspect that Kundelius does, in fact, believe that Andrade isn’t a “monster.” Over the years, I have had many clients who unquestionably did horrific things but who were nevertheless perfectly “normal” and pleasant to deal with. One thing that I have learned from my work is that the idea that people are all one thing (e.g., “nice” vs. “mean,” or a “monster” vs. a “good person”) is false. You never know who is capable of what. People’s ability to hide things about themselves they don’t want the world to see, or may simply be unaware of, is amazing.
As for Kundelius’ closing argument, she was not arguing that Andrade had the right to murder Angie, although some of her statements could be interpreted that way if you don’t understand the law underlying her arguments. Andrade’s “trans panic” defense had two purposes.
First, by arguing that what Andrade’s actions were “impulsive,” she sought to convince the jury that he did not kill Angie “after deliberation,” which means that he was not guilty of first degree murder.
Second, Colorado law says that second degree murder is a Class 3, rather than a Class 2, felony, which means 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.” (Colo. Rev. Stat. 18-3-103(3).) Kundelius attempted to make use of that language and win a shorter sentence for Andrade by trying to 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 that “deception” to “excite an irresistible passion” in him, and (c) that he killed her in the “sudden heat of [that] passion.” Her arguments about “provocation” were thus relevant only to a possible conviction for second degree murder and did not apply in any way to her attempts to convince the jury to convict Andrade of the even lesser offenses of manslaughter or negligent homicide, despite what she may have said. Fortunately, the jury had no problem in rejecting that defense.
If this hasn’t answered all of your questions, feel free to email me. I’d be happy to explain further.
You did such a wonderful job helping us to understand this case Abby. You dispelled the rumors and fortified my certainty when I was in doubt. Thank you.