In addition, as a transgender woman, I have been in private situations with men where it would have been very, very easy for me to wind up as a victim. I have had the thought on more than one occasion: Am I about to die? (Fortunately, I'm now married to a wonderful woman and we're together forever.) So when Bil asked me for my take on the issue, I was intrigued into writing. The question I want to address is whether the Colorado judge in this case can and should ban such an argument from the trial.

This is slightly outside my usual area of research - transgender workplace issues. I'm not an experienced criminal attorney, though I've done some criminal work in the past. And yet, the two areas are related, in that prejudice against transgender identity is the crux of the problem in both employment law and in this criminal law situation.

"Only when Andrade grabbed at Zapata's crotch did he discover the truth. But when she smiled at him and said, "I'm all woman," it drove an enraged Andrade to commit murder, attorney Annette Kundelius said. "At best, this is a case about passion," Kundelius said. "When (Zapata) smiled at him, this was a highly provoking act, and it would cause someone to have an aggressive reaction."

The gay panic defense, and its cousin, the transgender panic defense, have been criticized by many, and yet it still survives to rear its ugly head again and again. Cases in which these defenses are raised become high profile, with prominent examples such as the murders of Matthew Shepard, Brandon Teena, and Gwen Araujo. In fact, there have been a couple of legal conferences on the issue of gay panic and trans panic defenses in the past several years, in which prosecutors have sought to learn how to defeat it.

I won't review the facts of the Zapata case here; Waymon Hudson discussed the Zapata case in great detail, Monica Roberts was eloquent about the social dilemmas inherent in the trans-panic defense, and Donna Rose was extraordinarily moving in her Bilerico post on the Zapata vigil.

The essentials of the trans panic defense

The trans panic defense is essentially a variation on the classic defense arguments negating two major elements of first degree murder - with which Andrade has been charged -- premeditation and intent. Each state has slightly different murder statutes, and calls the elements by slightly different names. In Colorado, where the Zapata case is pending, it's called "deliberation" and "intent". The prosecution is in the same position had Andrade murdered a non-transgender woman that he met on the internet - the state has prove deliberation and intent to cause death. As in any murder case, it will be the job of the prosecutor to say that the case is open and shut - that the evidence is clear that the defendant acted deliberately and with intent to cause death. It will be the job of the defense attorney to muddy the waters - to say that the evidence is ambiguous. He will argue that the defendant had no time to deliberate, and that he didn't intend to kill, but only to strike out after being provoked by the victim but going too far in the heat of passion.

The arguments would be the same if Zapata were a non-transgender woman. The prosecutor would say he deliberated and intended to kill. The defense would say he didn't deliberate, but only struck out at some provocation by the victim. Almost anything might constitute provocation - an argument, accusations of infidelity or impotence, a theft, or ridicule.

The trans panic defense is a vile variation of this standard defense argument. It says "yes, I killed, but I was provoked to such a degree by the victim's transgender identity that either I cannot legally be held responsible for my actions, or this is manslaughter (or second degree murder), rather than first degree murder." This takes advantage of the widespread homophobia and transphobia of many jurors and judges, who might think of their own reactions in such a situation, and their fears of being a homosexual. A variant of this is the claim that the killing was in self-defense from a sexual assault, which takes advantage of prejudices regarding gay and transgender propensity for sexual assault.

The stakes are very high here. For the defense attorney, his client is looking at the death penalty if convicted of first-degree murder. On the other hand, if he is convicted of manslaughter, the minimum for that crime is 2 years in Colorado. (I'm not taking in account any enhancements based on the hate crime statute. That's a whole different area, and it merits a longer discussion.) How will a jury determine whether he is guilty of first degree murder or manslaughter? It all comes down to his intent. Let's take a look at the Colorado murder statutes to see what the rules are. The legal jargon can give you a headache, so I'll give you a hint what to look for before each one.

Colorado murder statutes

First Degree Murder:

What to look for: the definition of "deliberation"

Sentence: Life in prison without parole or Death

A person commits the crime of murder in the first degree if after deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person... (Colorado Revised Statutes § 18-3-102) The term "after deliberation" means not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act. An act committed after deliberation is never one which has been committed in a hasty or impulsive manner. (C.R.S § 18-3-101)

Second Degree Murder:

What to look for: the definition of "provoking" and "knowingly"

Sentence: 8 to 24 years, or 4 to 12 years if the act causing the death was performed 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.

A person commits the crime of murder in the second degree if the person knowingly causes the death of a person. (C.R.S. § 18-3-103) A person acts 'knowingly' with respect to a result of his conduct when he is aware that his conduct is practically certain to cause the result. (People v. Lee, 30 P.3d 686, Colo. App. 2000)

Manslaughter:

What to look for: the definition of "recklessly"

Sentence: 2 to 6 years.

A person commits the crime of manslaughter if such person recklessly causes the death of another person (C.R.S. § 18-3-104) A person acts "recklessly" when he or she consciously disregards a substantial and unjustifiable risk that a result will occur. (People v. Medina, 71 P.3d 973, Colo. 2003)

Q&A about murder

So, class, let's review.

Q: Tell me the difference between "deliberately", "knowingly" and "recklessly."

A: "Deliberately" means he intended to kill his victim, and exercised reflection and judgment before doing so, rather than doing it hastily and impulsively. "Knowingly" means he didn't set out deliberately to kill his victim, but he was aware that his actions were practically certain to kill. "Recklessly" means he wasn't aware that his actions would kill his victim, but he didn't care that there was a strong risk of death.

Bonus Question: Why does first-degree murder merit the death penalty, but manslaughter only a paltry two years (min)? The victim is dead in both cases, right?

Answer: As a society, we have a great deal of aversion towards those who would kill in a premeditated fashion. The people of the State of Colorado want to remove people who kill deliberately from society permanently. However, if someone does so on impulse, rather than deliberately, it's still wrong, but not as heinous as the deliberate murderer. Colorado won't subject to them to the death penalty or life imprisonment, feeling that 24 years in jail is probably a sufficient punishment. Furthermore, if the killing is the result of a provocation or a reckless accident, then only a few years in jail is considered enough. The main distinction between these crimes is the intent of the murderer.

Hypothetical case: how do these statutes work in operation?

Let's look at a hypothetical case. A pulls out a hammer and hits B on the head. B dies. Is A guilty of first-degree murder?

Answer: As usual in the law, it depends on the defendant's intent. If the hammer is a sledge hammer, and A shouts "after thinking it over, I've decided to kill you," then yes, he is probably guilty of first degree murder. If A, however, acts hastily and impulsively after an argument with B, who called him a dirty so-and-so, then he is probably not guilty of first degree murder.

However, he was aware that his actions were practically certain to kill, so even if there was an argument that prompted A to act impulsively, A is still guilty of second-degree murder. (This usually carries a sentence of 8-24 years, but only 4-12 years if A were sufficiently provoked.)

What if, however, the hammer was a rubber mallet that wouldn't kill with a single blow, but A, angered by the so-and-so comment, hit his victim forty times? Then it's arguable that he is only guilty of manslaughter because he wasn't aware that his actions were certain to kill.

Now back to the real world, in which a real victim, Angie Zapata, has been assaulted by a real killer with a fire extinguisher. Did he deliberate, and exercise reflection and judgment? Andrade's argument that he did not deliberate, or exercise reflection, might have had some traction if he had he hit her once. But Andrade hit Zapata many times, and when she recovered consciousness minutes later, he attacked again until she was dead. This indicates deliberation and intent to kill. As it so happens, the judge was asked to throw out the first degree murder charge, but he refused, apparently because he is unsympathetic to the trans panic defense.

Provocation

The next issue is that of provocation. Provocation changes the fact pattern in two ways. First, it negates "deliberation" by positing that the killer did not act deliberately and after reflection, but hastily and impulsively. If the jury buys it, then he's down to second-degree or manslaughter. Secondly, even if he gets second degree, the statutory provocation defense means he's out in 4-12.

The statute above defines "provocation" as "a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person." In other words, it has to be something that would drive any reasonable person to an irresistible impulse to murder.

Cases of legal provocation

Let's take a look at the types of acts that the Colorado courts have considered legal provocation. For example, in Cassels v. People (92 P.3d 951, Colo. 2004), the Supreme Court of Colorado took a look at the issue. Cassels was unemployed and struggling when Morris, a former co-worker, agreed to let him move into his one-bedroom apartment. Three months later, their relationship had become tense and volatile, and Cassels agreed to move out shortly.

One day when Morris returned home, he started screaming at Cassels, shouting that he was a no good son of a bitch and a low-life, and threatened to beat the hell out of him and put him in the hospital. Morris started pushing and shoving, and positioned himself in front of the only exit from the apartment. He stood next to an iron bar that he had previously boasted would make a good weapon. Cassels, afraid of an imminent assault, retrieved a loaded gun with the intent to frighten Morris and cause him to calm down and stop threatening and pushing. However, when Cassels exited his room with the gun, he "freaked out" and "lost it." He shot Morris nine times, emptying the gun.

Cassels did not remember shooting Morris, but when he saw Morris lying on the floor of the living room, he called 911 and told the dispatcher that he shot his roommate. Morris did not survive the gunfire.

Cassel's attorney attempted to argue provocation. He wanted the judge to tell the jury that they could reduce the charge if there was provocation. The trial judge wouldn't let him do it, saying that it didn't meet the requirements of the statute. As you may recall from the second-degree murder statute listed above, it has to be something that would drive any reasonable person to an irresistible impulse to murder. The trial judge thought that shouting and pushing wasn't something that would drive any reasonable person to murder. But the verdict was reversed on appeal.

The Colorado Supreme Court said that the attorney had to be allowed to argue provocation. "A provocation instruction is warranted whenever a defendant shows some supporting evidence -- regardless of how incredible, unreasonable, improbable, or slight it may be -- to establish each factor described in the second-degree murder statute." So now, in Colorado, when a prosecutor wants to limit argument on provocation, she must show that the evidence rules out one of the elements of provocation.

As noted above in the second-degree murder statute, the five elements of a provocation defense requires that the act resulting in death 1) be performed upon a sudden heat of passion, 2) caused by a serious and highly provoking act 3) of the intended victim, 4) affecting the defendant sufficiently to excite an irresistible passion 5) in a reasonable person. If Andrade can bring evidence (including his own testimony) to support these five elements - regardless of how incredible, unreasonable, improbable or slight it may be - then he is entitled to raise the provocation defense.

But can he? The provoking act of the intended victim must be "serious and highly" provoking for a "reasonable person." Is it? From the Cassels opinion, one would think that all a defense attorney has to do is raise any act of the intended victim, regardless of how incredible or unreasonable, and the judge must allow the provocation argument to go to the jury to decide.

It doesn't make sense, however, to state that the act must excite an irresistible passion in a reasonable person, and then allow something totally unreasonable. For example, if the intended victim says hello, or sneezes on the defendant, or wears a miniskirt, and the defendant claims the act was a provocation, does the court have to allow it? In fact, the answer is no.

Cases in which provocation defense is barred

Colorado judges have decided that, in some cases, a provocation for which there is evidence is nonetheless not permissible and cannot be argued in court. For example, four years after Cassels, in People v. Valdez (183 P.3d 720, Colo.App. 2008), the Colorado appeals court held that a provocation argument could be ruled out. Here's what happened:

The defendant drove to his wife's house, from whom he was separated, saw a car there of a friend of his whom he suspected was having sex with his wife. He broke into the basement, went out into the yard, picked up a metal pipe, re-entered the house, and grabbed a knife. He walked upstairs to the bedroom, hit the boyfriend in the face with the metal pipe, and stabbed him in the chest. Defendant then woke up his estranged wife and told her that her boyfriend was dead and that he was going to get rid of her, too. He said if he could not have her, nobody was going to have her. The boyfriend survived, and defendant was arrested.

The provocation defense in the Zapata case

Okay, wife having sex with friend of husband's - not a crime but nonetheless "provocation" within the meaning of the statute, satisfying all five elements. The appeals court did not dispute this, but nonetheless held that the provocation defense was barred. The court said that where a person places himself in a position, by his own actions, to encounter the provoking act, then the provocation argument is barred. Thus, while the Cassels case seems to indicate that a provocation argument must be allowed no matter what, no matter how vile or prejudicial, that is not, in fact the law in Colorado. Under the Valdez doctrine, it is clear that a provocation defense may be ruled out in certain circumstances, even where the intended victim committed an act that fits the statutory definition.

To my mind, Andrade's argument that Zapata's act of smiling is a provocation should be barred from the trial. Firstly, there is no evidence, aside from the defendant's self-serving account, of this alleged smile. But we must put that issue aside under the Cassels rule. But more importantly, the argument fails to satisfy the statutory requirement of reasonableness: would this excite an irresistible murderous passion in "a reasonable person"? What reasonable person would have an irresistible murderous passion because of a smile?

I often have to tell people that I am transgender. If I smile while doing so, and someone murders me, would a court agree I did something to provoke them? It should not. Is the situation changed if I allowed them to dance with me, or touch my hand, or kiss me, or have sex? It is not changed, certainly not by any act of mine.

What does the term "reasonable" mean here? Does it mean a reasonable homophobe? It does not. It can only mean a reasonably balanced person. If the situation involved someone who murdered an African American, and the provocation offered was that the racist murderer was incensed at the victim's smile, no reasonable court would allow the argument. Nor would the situation be changed if the murderer had sexual relations with an African-American woman whom he thought was White, who then revealed with a smile that she was African American.

I am not aware of any court rulings on the question of whether the trans panic defense satisfies the elements of provocation. I have also not exhaustively researched Colorado law on the provocation defense, and my knowledge of how it works in Colorado is limited to an hour's worth of research. An experienced Colorado criminal attorney would be much better equipped than I to discuss this issue. The prosecutor in the Zapata case may have many cogent reasons not to try to bar the provocation defense. But that doesn't stop me from wanting to see justice done.

I would like to see the prosecution present a motion in limine (before trial) barring the introduction of the trans panic defense. Interestingly, there was a law passed in California a few years ago that would instruct jurors to disregard such defenses. In the California Assembly Bill Analysis of the Gwen Araujo Justice for Victims Act, AB1160,, it stated that experts estimate that nationally, similar panic strategies have been used in over 45 cases, often with success. There is an interesting law review article on trans panic defense in the Boston College Third World Law Review, which argues that judges should not allow trans panic arguments.

I hope and pray that this is not one of those cases. If a man met a non-transgender woman on the internet, and he killed her because she smiled at him, and then he stole her credit cards and her car, no judge would allow a provocation argument. None should be allowed here.