Alex Blaze

Gay-panic-esque defense in Larry King trial

Filed By Alex Blaze | April 21, 2008 9:32 AM | comments

Filed in: Living, Media, The Movement
Tags: Brandon McInerney, California, gender performance, Lawrence King, LGBT, Oxnard Middle School, school shooting, schools, violence

William Quest, the public defender of the boy who shot Larry King in Oxnard last month, will be trying to move the case to juvenile court and pushing a variant of gay panic:

Quest said he believes school administrators supported one student expressing himself and his sexuality -- King -- and ignored how it affected other kids, despite complaints. Cross-dressing isn't a normal thing in adult environments, he said, yet 12-, 13- and 14-year-olds were expected to just accept it and go on.

And, of course, folks who don't do "a normal thing" deserve to die.

More after the jump.

They had both been at E.O. Green and even had a class together previously, but Quest said he's not aware of any problems until they came back from vacation.

It was then that King began dressing differently, becoming a focus of conversations on campus, Quest said.

Students have said they witnessed confrontations between King and McInerney in the weeks or days before the shooting, including King's teasing McInerney and telling him that he liked him.

McInerney perceived King's treatment as harassment, Quest said. Quest, however, declined to discuss any specific confrontations or issues between the boys. He also declined to say if McInerney ever sought help from an adult to deal with the issue.

That last sentence means that McInerny didn't. But who really cares? He shouldn't have had to have told anyone that he was being harassed; the boy in high-heels and make-up was plainly obvious to anyone looking. It's almost as if these teachers didn't consider gender non-conformist behavior harassment.

It's interesting that his defense is coming down to, for a large part, entitlement. He shouldn't have to see abherrant behavior like King's since he's one of the normal folks.

How the fact that there weren't any problems for McIrnerney before King came out means that the problem was him expressing himself and not McInerney's reaction to that expression is beyond me. But that simply isn't the logic that we're dealing with here. Gender non-conformism is aggression.

If, contrary to the way the Ventura County Star story is written, the harassment being claimed here is King's already-noted confrontational behavior towards McInerny, then the fact that he never went and told a teacher short-circuits that argument. Especially since the larger argument that Quest is making - that the school should have stopped this conflict before it got to where it ended - doesn't work if McInerney didn't say that King flirting with him bothered him.

But the subtext of his argument (at least the one Quest is making to the media now) is obvious in the before-jump blockquote: King expressing himself and wearing feminine shoes and make-up isn't about King or the shoes or the make-up or anything else. It's an attack on our children.

And whether McInerney said that King's confrontational reaction to being teased bothered him, whether it did bother him, is completely unimportant because a masculine straight male was forced to acknowledge that a femmy boy existed, was forced to see him happy, and was forced to accept that he was a peer with an equal right to express himself.

The horror.

In fact, in that before-jump blockquote, one almost gets the impression that Quest means that the school cared more about protecting the fags than it did the real Americans. Which is simply ludicrous in light of the fact that the school didn't have a sexual orientation or gender identity relevant aspect to its diversity education.

The school dropped the ball there, but the argument, I guess, is that they didn't drop it far enough. Why not just go one step further and say that King himself is to blame? Why not just put the victim on trial for living his life?

On the issue of being tried as an juvenile, Waymon posted about that last week and I agree with him. It makes a lot more sense than trying a barely 14-year-old as an adult, especially since arguments about the heinousness of the crime don't at all address the reasons we have a separate juvenile court system (minors have less intellectual capacity than adults and a less ability to do the right thing).

The conservative mantra that "adult crimes" should be tried in "adult courts" makes little sense when put up against the opposite - should a 44-year-old man who commits a juvenile crime (like spray-painting a penis on a wall) be tried as a juvenile? Would these people start saying that "juvenile crimes" should be tried in "juvenile courts"?

Of course not, because arguments about heinousness are just about getting revenge and trying to get the most punishment for the crime. Proportionality has nothing to do with it.

(h/t Lena Dahlstrom)

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Robert Ganshorn Robert Ganshorn | April 21, 2008 10:02 AM

Alex, you have said it so well. All I could add is thank you for the differences in people. The thought of being considered "normal" by anyone scares the hell out of me.

So - parents must be worried if there child appears outside of the norm in any way - their murder may be considered justied?

If the murderer thinks your kid has the wrong clothes, wrong hair, wrong body, wrong religion, wrong ethnicity - that's a justifed killing?

I wonder what Quest's kids look like? Who's litmus test don't they pass?

So - parents must be worried if their child appears outside of the norm in any way - their murder may be considered justified?

If the murderer thinks your kid has the wrong clothes, wrong hair, wrong body, wrong religion, wrong ethnicity - that's a justifed killing?

I wonder what Quest's kids look like? Who's litmus test don't they pass?

As I've said before, as long as the gay panic defense works just often enough, defense attorneys will continue to use it. They have an ethical obligation to attempt any strategy that might prove their clients not guilty or at least reduce the sentence. The larger ethical question about the damage the gay (or trans) panic defense does to society is ignored because defense attorneys can't be disciplined or disbarred for it.

Two solutions: make using the gay/trans panic defense an ethical violation punishable by the licensing bar association; or change society to the point where juries automatically reject the gay/trans panic defense when they hear it.

So, let me get this (for lack of better word) "straight." If a person kills another person in a panic situation, regardless what the situation is, then they are allowed to get away with the murder? I guess that if one person doesn't cut their grass and it grows wild, their neighbor, who is pissed off at that person, can kill them and say the tall grass made him panic? After all, not cutting one's lawn is considered "abnormal behaivor" by many. We can call that the "Tall Grass Panic Defense."

It would be interesting to see the prosecutor use that sarcastic example in countering the "Gay Panic Defense."

A.G. Casebeer | April 21, 2008 1:28 PM

As stated last week, I strongly feel McInerney should be tried as a juvenile - because he is one. In my opinion, McInerney's PARENTS need to be held responsible for allowing their child to commit this crime - if parents were held responsible for the crimes of their minor children, as they used to be, they would maintain much more control over them. But the judge needs to kick any sort of "panic" defense right out of the courtroom.

I thought California had some sort of prohibition on the use of the panic defense?

Not really, Monica. Your argument doesn't really do anything for the prosecution except make them look just a little bit silly.

I think a better counter to the panic argument would be this: If a white person kills a black person because they felt "threatened" by this person's presence in the classroom, most juries would reject that defense out of hand because it is clearly racist. Why is there a different standard in this case (or any other case involving a hate crime committed against the LGBTQ community)?

Alex, you may have missed your calling as a prosecutor. All of your debate prowess is wasted on these French kids. Come back to the States and go to law school already!

I thought California had some sort of prohibition on the use of the panic defense?

That was my thought: This sounds like a test for the Gwen Araujo Justice For Victims Act.

Also, thank you Alex, for stating it so well.

As I would understand the use of he word, "panic," it seems to imply something that happened spontaneously and impulsively. I think if the arguments took place over a period of a couple of weeks, and then one day the perpetrator decides to bring a gun to school, it shows premeditation. I think the judge should throw this defense out.

I don't know the standards contained in California law, and I ask this: If what could be considered to be a first-degree murder charge were made against another 14-year old against an unknown student in a similar situation, would that person be charged as an adult?

Many of us who come to TBP each day might seek revenge because we view the murder of Lawrence King as an act of intimidation and violence against our community. We do expect justice. In fact, we demand it, but it has to be in accordance with the laws of California.

As a criminal defense attorney, trans woman and lesbian, I’m ashamed of the strategy that McInerny's attorney now seems to be pursuing in defending his client against the charges he faces for killing Larry King. Alex, thanks for doing such a good job of showing that, tragically, but not surprisingly, it’s just another version of “blame the victim.”

This defense isn't gay panic (i.e. that finding out someone was gay made the perpetrator temporarily insane to create a mitigating factor and seek a reduced sentence or jury nullification (i.e. the jury says "fuck the law" and does what it wants).

I used the "esque" in the title to indicate that this isn't gay panic exactly... he's arguing that the administrators should have stepped in to prevent this from going any further and that Brandon shouldn't be expected to put up with femmy boys b/c he's just a kid.

I think that's stupid - i've found kids are a lot more willing to put up with gender transgression than adults, in general. And Serena's response is good too.