Guest Blogger

Why the Jury Had No Trouble Convicting Angie Zapata's Murderer

Filed By Guest Blogger | April 23, 2009 6:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: Angie Zapata, hate crimes against LGBT people, life in prison, murder, trans panic, transgender

Editors' Note: Guest blogger Abigail Jensen is a trans woman and attorney in Prescott, Arizona. She is also President of QsquaredYouth, a member of the boards of directors of the Prescott Area Women's Shelter and TransMentors International, and a general rabble rouser on issues of equal rights for transgender, as well as, lesbian, gay and bisexual, people.

Abigail-Jensen.jpgWhen 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.

First Degree Murder and a Hate Crime

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.

Intentional and Premeditated

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.

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Thank you, Abby, for giving us your unique perspective as a criminal appeals attorney.

My wife and I were glued to the computer waiting for the jury to come in (when they came back so fast, we figured that it was a good sign)but when the verdict was read, all we could do was cry for Angie and her family. We knew, intellectually that the GUILTY verdicts mean justice was served, but all either of us think about at that moment was a beautiful young girl--not much older than our own daughter--who's life was so tragically cut short.

It is small comfort to know that the monster who killed her is behind bars for the rest of his life, but I am glad that the jury could see this crime for what it was--cold-blooded, premeditated murder.

Thanks for doing this Abby. I've no experience with American Criminal Law as it applies to capital cases.

From my own point of view the duration of the jury's deliberations in this case are a non-issue since:
1. The prosecution adequately proved that this was no impulsive act since the accused had 36 hrs foreknowledge of the facts that the defense argued precipitated the murder
2. with 36 hours foreknowledge no kind of diministed capacity defense based upon "crime of passion" derivatives could be undertaken
3. The Defendant's phone calls adequately demonstrated a contempt and loathing for the victim and the protected class that the victim was a member of to remove reasonable doubt.

Lisa C. Gilinger | April 24, 2009 12:16 PM

Thanks Abigail. Well thought out, presdented in the context of your experience, I am assured that it is unlikely that we will see this monster in our midsts.

It is all so hard to hear, all so hard to comprehend, all so painful. I don't fault Andrade's defense team for their use of openly maligning language. It was their duty to defend this case to the best of their abilities and it was their only defense, it was all they had. I want that defense to go away.

It allows an offensive, disrespectful characterization of the victim to deflect the juries vision of a heinous act by the accused. It allows a suggestion, a reinforcement, if you will, for the idea that if you have sex with a trans person it is reasonable to kill them, or brutalize them. Trans folk as disposable things, less than human and that cannot serve us as a society, in any way.

Angela Brightfeather | April 24, 2009 3:15 PM


Thank you for that perspective and I would like to thank everyone from our community who took their time to attend the trial and report back to the GLBT Community with their views and running documentary.

I would like to ask you a question that has been on my mind.

I have been invovled in our community for many years and part of that involvement has made me witness to many human losses in the Trans community, some of who I knew personally and felt a great loss at the passing in acts of violence.

The common thread that existed prevously insuch cases is that there was little or no local or national news coverage of the trials or reporting of the incidents beyond a bried accounting of them.

This time however, this trial was reported on CNN and MSNBC and many other national news media outlets as well as being covered by the print press and now with blogging and the internet it led to play-by-play news being available.

My question is, do you feel that the social pressure of acceptance in the media and the more than usual coverage by major media sources, improved the chances for the verdict that was given or the attitude of the judge in hearing the case? Or have we finally gotten to a point where the years of education are beginning to help people to understand about Transgender people?

Angela, I believe both factors affected the outcome of this trial.

Theoretically, neither the judge nor the jurors are supposed to be influenced by anything they see in the media. That may be realistic in the case of judges, but it's unlikely that jurors are able to completely ignore whatever they've heard about the case outside the courtroom, even though they have to promise that they will before they are allowed to serve on the jury. Did the coverage of this case by national, as well as local, media make the participants in this case - the judge, the attorneys on both sides and the jurors - more careful than they otherwise would have been? I think it probably did. Also, since most of that coverage was fair in recognizing Angie as the woman she was and was not sympathetic to Andrade, I believe that the media had a positive effect on the outcome here. (It's interesting to note that Andrade's attorneys didn't think the publicity was so negative or overwhelming that they needed to ask the judge to move the trial out of Weld County.)

As for education, I think it had an effect also. Probably most influential was the education that took place through media coverage and advocacy by the LGBT and other community groups specifically focused on this case. Being able to discuss the issues we face in the context of real life examples, especially one as horrific as this case, brings the education out of the theoretical and into the concrete. People are much more likely to remember the tragedy of what happened to Angie and why, and what needs to change to help prevent similar occurrences in the future, then they are a theoretical lecture or newspaper editorial.

I also believe that we are beginning to see a genuine shift in public attitudes toward transgender people. The contribution that this case made to that shift came from the ability to shine the light of the MSM on it and attract a coalition of not just LGBT groups, but anti-violence and other progressive groups, to keep that light focused and to frame the public discussion as a struggle for equal rights and simple respect. To the extent that we can reproduce these elements in future cases, we can improve our ability to both ensure a fair outcome and educate the public at the same time.

Spot on analysis.

Here in Indiana, the murder statute only requires the intent to kill-no premeditation required. I much prefer that.

I suppose we should be glad the Court gave all the lesser offenses, that way the Defendant can not claim on appeal he should have received them. The jury received all the options-and chose the right, and most severe.