# Gwen Araujo **URL:** \ **Category:** The BBQ Pit\ **Created:** [June 23, 2004, 6:06am UTC](https://boards.straightdope.com/t/gwen-araujo/251770 "2004-06-23T06:06:15Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [June 23, 2004, 6:06am UTC](https://boards.straightdope.com/t/gwen-araujo/251770/1 "2004-06-23T06:06:15Z")
I’m not even sure where to start with this. Let’s start here: [http://www.mercurynews.com/mld/mercurynews/news/world/8984781.htm?1c](http://www.mercurynews.com/mld/mercurynews/news/world/8984781.htm?1c) Conclusions: - It’s OK to **beat someone to death** if you had sex with them and they misrepresented who they were. - “Gay panic” is an affirmative defense for violent action of any sort. > [@](#): > > Thorman acknowledged his client played a role in the attack but said the slaying was no more than manslaughter because it was provoked by Magidson’s “shame and humiliation, shock and revulsion” upon learning he had had sex with a man. :smack: ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [June 23, 2004, 6:51am UTC](https://boards.straightdope.com/t/gwen-araujo/251770/2 "2004-06-23T06:51:44Z")
Ah, but if [this](http://boards.straightdope.com/sdmb/showpost.php?p=4994897&postcount=20) is true, then this might not be as discouraging as one may think… ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [June 23, 2004, 6:58am UTC](https://boards.straightdope.com/t/gwen-araujo/251770/3 "2004-06-23T06:58:12Z")
Yeah, as much as it sucks that the jury was hung, I don’t think your conclusions are valid. The jury emphatically rejected the notion that it’s OK to beat someone to death over misrepresenting the status of one’s genitals and they also rejected the gay panic defense. The gay panic defense has been on a serious decline in recent years, to the point where I seem to recall reading that a number of jurisdictions have disallowed it. ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [June 23, 2004, 12:45pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/4 "2004-06-23T12:45:34Z")
Gwen’s mother has specifically asked people not to call her “Eddie (Gwen)” or other combinations of her chosen name and her original birth name. A petition changing her name posthumously is still pending. Please respect her wishes and ask a mod to change the title of this thread. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [June 23, 2004, 2:23pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/5 "2004-06-23T14:23:46Z")
> [@Otto](#): > > Yeah, as much as it sucks that the jury was hung, I don’t think your conclusions are valid. The jury emphatically rejected the notion that it’s OK to beat someone to death over misrepresenting the status of one’s genitals and they also rejected the gay panic defense. That’s certainly the way this is being spun by the prosecutor, but to be fair, the jury did no such thing. They made no decision at all. And the quotes coming to light certainly seem to indicate that Gay Panic was an affirmative defense: > [@](#): > > Jurors said they were deadlocked 10-2 in favor of acquitting Merel and Cazares on first-degree murder charges and 7-5 in favor of convicting Michael Magidson. So the jurors felt that 1) hatching a plan to find out that person’s gender then, 2) beating that person over a period of several hours until they died was **not** premeditated? This wasn’t a crime of passion – it was cold and calculated. The only defense seems to be that this person had somehow “asked for it” by being transgendered. I’m not proud at all of this jury. > [@KellyM](#): > > Gwen’s mother has specifically asked people not to call her “Eddie (Gwen)” or other combinations of her chosen name and her original birth name. A petition changing her name posthumously is still pending. Please respect her wishes and ask a mod to change the title of this thread. Point taken. I’ve e-mailed a mod. ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [June 23, 2004, 2:35pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/6 "2004-06-23T14:35:09Z")
So now that it’s a hung jury, do they re-try? If so, when? If not, why? ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [June 23, 2004, 2:47pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/7 "2004-06-23T14:47:30Z")
There’s a huge middle ground between “premeditated” (murder one) and “crime of passion” (manslaughter) – it’s called “second degree murder,” and it’s what the prosecutor should have sought. While a split-second of premeditation has occasionally been held to satisfy the definition of first-degree murder, formally it calls for “planning and deliberation.” There was some planning (exposing gender), but I don’t get from the story that the murder was planned, nor even the beating. Remember also that garden-variety “intent to kill” murder is second-degree murder; premeditation goes beyond that. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [June 23, 2004, 2:48pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/8 "2004-06-23T14:48:37Z")
**Kalhoun** Heard on the news that the prosecution vows to retry, which they’re allowed to do. ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [June 23, 2004, 3:06pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/9 "2004-06-23T15:06:03Z")
The jury is required to consider the lead offense of the indictment first and reach a conclusion as to that offense before it can consider lesser and included offenses. Since the jury hung on the charge of murder one, it was not allowed to consider murder two or manslaughter, and so we know nothing at all as to where they would have come out on those charges had they been allowed to consider them. In other words, in order to convict on murder two, they must first acquit on murder one, and they failed to do that. We don’t know why the jury was hung on murder one, but we can guess. The jury asked the judge for further explanation of their charge, specifically the terms “willful, premeditated, and deliberate” (part of the charge for murder one), which suggests that they were hung over whether those terms applied to the defendants’ conduct. We cannot, however, conclude that they were also undecided on the other elements of the murder one charge with respect to any of the defendants merely because they asked for guidance on this point. ---
**Author:** ![Troy\_McClure\_SF](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/troy_mcclure_sf/32/4150_2.png) [@Troy\_McClure\_SF](https://boards.straightdope.com/u/Troy_McClure_SF)\ **Post date:** [June 23, 2004, 3:31pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/10 "2004-06-23T15:31:12Z")
> [@J. Tony Serra](#): > > One or two jurors did not deliberate like rational human beings. Yeah, bub. The jurors are the irrational ones here. Jackass. [Chronicle’s story](http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/06/23/MNGVR7AI771.DTL). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 23, 2004, 3:40pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/11 "2004-06-23T15:40:12Z")
> [@KellyM](#): > > The jury is required to consider the lead offense of the indictment first and reach a conclusion as to that offense before it can consider lesser and included offenses. Since the jury hung on the charge of murder one, it was not allowed to consider murder two or manslaughter, and so we know nothing at all as to where they would have come out on those charges had they been allowed to consider them. In other words, in order to convict on murder two, they must first acquit on murder one, and they failed to do that. This comment is incomplete and misleading. First, juries often deliver both legally inconsistent and logically inconsistent verdicts - some of which can stand. And in any event, a jury may hang on murder one, but convict on murder 2. This merely means that the jury found each and every element of murder 2 (the lesser-included offense) as proven beyond a reasonable doubt, but failed to agree that each additional element of murder 1 was so proven. This is neither legally or logically inconsistent. - Rick ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [June 23, 2004, 4:04pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/12 "2004-06-23T16:04:31Z")
> [@Bricker](#): > > This comment is incomplete and misleading. First, juries often deliver both legally inconsistent and logically inconsistent verdicts - some of which can stand. And in any event, a jury may hang on murder one, but convict on murder 2. This merely means that the jury found each and every element of murder 2 (the lesser-included offense) as proven beyond a reasonable doubt, but failed to agree that each additional element of murder 1 was so proven. This is neither legally or logically inconsistent. This jury was not permitted to consider the lesser charge until the greater charge was disposed of. This may or may not be normal in California procedure, but it is the instructions that were given to them in this case. We simply don’t know what the jury, in this case, might or might not have found with respect to murder two because they weren’t allowed to enter a finding on that charge. In other words, take it up with the judge, not with me. Apparently his understanding of the law differs from your own. ---
**Author:** ![Lynn\_Bodoni](https://avatars.discourse-cdn.com/v4/letter/l/e47c2d/32.png) [@Lynn\_Bodoni](https://boards.straightdope.com/u/Lynn_Bodoni)\ **Post date:** [June 23, 2004, 4:10pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/13 "2004-06-23T16:10:22Z")
> [@KellyM](#): > > Gwen’s mother has specifically asked people not to call her “Eddie (Gwen)” or other combinations of her chosen name and her original birth name. A petition changing her name posthumously is still pending. Please respect her wishes and ask a mod to change the title of this thread. I have changed the thread and post title at **squeegee’s** emailed request. Lynn For the Straight Dope ---
**Author:** ![Skywatcher](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/skywatcher/32/254_2.png) [@Skywatcher](https://boards.straightdope.com/u/Skywatcher)\ **Post date:** [June 23, 2004, 4:27pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/14 "2004-06-23T16:27:47Z")
In similar news, [Braulio Hernandez](http://washingtontimes.com/upi-breaking/20040608-030340-9032r.htm) shot at the woman he brought home when she turned out to be a man. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 23, 2004, 4:55pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/15 "2004-06-23T16:55:50Z")
> [@KellyM](#): > > This jury was not permitted to consider the lesser charge until the greater charge was disposed of. This may or may not be normal in California procedure, but it is the instructions that were given to them in this case. What is your source of this information? ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [June 23, 2004, 5:18pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/16 "2004-06-23T17:18:08Z")
> [@Bricker](#): > > What is your source of this information? From [the San Francisco Chronicle](http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/06/22/ARAUJO.TMP): > [@](#): > > Because they could not acquit the three men of first-degree murder, the judge would not allow them to consider whether the men were guilty of the lesser charges of second-degree murder or manslaughter. From an NTAC press release: > [@](#): > > As they were not able to acquit the three men of first-degree murder, the judge would not let them consider whether the men were guilty of the lesser charges of second-degree murder or manslaughter. About two-thirds of the press coverage of the mistrial has had reference to the judge’s instructions in this regard. The media coverage prior to the declaration of the mistrial doesn’t appear to clearly state what the judge’s instructions are; it’s possible that the judge is misinterpreting his own instructions. I don’t have access to the court file to find out what the actual instructions were, although I’ve asked an acquaintance who might to see if he can get them. In other news, according to some reports, the DA has interviewed the jurors, and he states that they were unanimous on finding the defendants guilty of second degree murder. (Report to be made public tomorrow: I have this by an inside source.) ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [June 23, 2004, 7:12pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/17 "2004-06-23T19:12:45Z")
> [@squeegee](#): > > That’s certainly the way this is being spun by the prosecutor, but to be fair, the jury did no such thing. They made no decision at all. And the quotes coming to light certainly seem to indicate that Gay Panic was an affirmative defense I’m not saying that in this particular case “gay panic” wasn’t advanced as a defense. What I’m saying is that had the jury accepted the defense the defendants would have been acquited. Had the jury wanted to say it was acceptable to beat someone to death for genital misrepresentation they would have acquited. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [June 23, 2004, 9:14pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/18 "2004-06-23T21:14:13Z")
> [@Otto](#): > > I’m not saying that in this particular case “gay panic” wasn’t advanced as a defense. What I’m saying is that had the jury accepted the defense the defendants would have been acquited. Had the jury wanted to say it was acceptable to beat someone to death for genital misrepresentation they would have acquited. Well, I certainly can’t claim to read the jury’s minds, but you really have to wonder if intent was the only hangup on convicting for 1st degree, or if “gay panic” had the desired affect that the defence was seeking: to ameliorate the fault of the killing and transfer some of that fault to the victim. If that’s the case, and it seems like there’s at least some of that operating, then it’s deplorable. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [June 23, 2004, 11:32pm UTC](https://boards.straightdope.com/t/gwen-araujo/251770/19 "2004-06-23T23:32:14Z")
Oh for god’s sake… Look, as I understand it, even the _defense_ acknowledged that these people killed her. The defense was saying that they knew their clients were guilty of _something_ but that because of Gwen’s “deception” and the “panic” it engendered they were guilty of manslaughter. It appears from the published news reports that the jury _rejected_ the charge of manslaughter, which means that they rejected the gay panic defense. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [June 24, 2004, 12:46am UTC](https://boards.straightdope.com/t/gwen-araujo/251770/20 "2004-06-24T00:46:47Z")
So, the “gay panic” argument couldn’t work to pursuade the jury not to convict on murder 1? I agree, that’s not how the defense framed thier argument – they pushed that defense as an argument for a manslaughter conviction. But surely we all realize that juries don’t always act rationally. I know the prosecution is trying to spin the jury verdict as some sort of victory – they would have convicted of some murder charge, just not murder 1 – but I’m not sure I’m buying it. [Next page](https://boards.straightdope.com/t/gwen-araujo/251770.md?page=2)