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Jillian T. Weiss, Bilerico Project: What The Hung Jury Means In The Larry King Murder Case

What The Hung Jury Means In The Larry King Murder Case
by Dr. Jillian T. Weiss | September 02, 2011

The jury in the trial of Brandon McInerney, who killed Larry King because he was gay or trans, has notified the judge of their inability to reach a verdict, and has been discharged. There will either be a plea deal or a retrial. But the question that must be on everyone’s mind is what the jury was thinking.

My guess as to the likely reason that the jury could not reach a verdict is that there was disagreement as to whether McInerney acted in the “heat of passion.” The other potential interpretations don’t make any sense. The “heat of passion” defense, when the “passion” offered is that the victim was gay or transgender, is what we colloquially know as the “gay panic” defense, or “trans panic” defense. (Although there is some evidence that King was questioning his gender identity and even referred to himself by a female name at times, the crux of the defense is based on alleged sexual advances and McInerney’s homophobia, and so I refer to the defense employed here as a “gay panic” defense rather than a “trans panic” defense.)

The charge against McInerney was first degree murder. The definition of first degree murder in California law is the unlawful killing of a human being, or a fetus, with malice aforethought. “Malice aforethought” essentially means, in this context, that the defendant formed the intent to kill prior to the act that caused death. First degree murder is punishable by death (not applicable here due to McInerney’s age), imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life, depending on aggravating or mitigating circumstances. (If the crime was committed because of the actual or perceived sexual orientation of the victim, then the minimum punishment is life imprisonment without parole.)

The first degree charge in this case is justified by the fact indicating that McInerney formed an intent to kill prior to the act that caused death. These include remarks made to another student the day before the murder suggesting that McInerney was going to murder King. There was also the fact that McInerney brought a gun to school, which was not revealed until seconds before it was discharged into the body of Lawrence King.

In California, the lesser offenses of second degree murder and voluntary manslaughter are automatically included in a first degree murder case. Second degree murder refers to an intentional killing, but the intent was not formed prior to the act that caused death. It is punishable by imprisonment in the state prison for a term of 15 years to life.

If McInerney had, on the spur of the moment, gotten into a fight with King and then killed him, there could be an argument that there was no “malice aforethought.” That is not, however, the case here. The gun was brought to school, hidden, and brought out second before discharging it directly into the back of the head of Lawrence King. There cannot be any reasonable argument that McInerney’s gun was simply intended to intimidate or threaten Lawrence King, and that it all went horribly wrong. In addition, the gun was discharged directly into King’s head, not his body, arm or leg. It was therefore brought and used based on the intent to kill, not to threaten or maim. There was no testimony during the trial, as far as I am aware, about McInerney’s intent being something other than killing.
Thus, it is unlikely that any reasonable juror would be holding out for second degree murder.

The other lesser included offense of first degree murder is voluntary manslaughter. That means, under California law, that the killing occurred “upon a sudden quarrel or in the heat of passion.” It is punishable by 3, 6 or 11 years imprisonment, depending on aggravating or mitigating circumstances. It is likely that this was the sticking point for the jury. Some jurors must have felt that McInerney was acting “in the heat of passion” based upon the alleged taunts of Lawrence King, in which King allegedly blew McInerney kisses, said “what’s up, baby?”, and suggested to others that McInerney was his boyfriend. Perhaps they did not credit the testimony that these were a response by King to McInerney’s bullying, or felt that, nonetheless, it was reasonable for McInerney to feel harassed.

As I discussed in my post last month, If Larry King Had Been A Girl, it was clear that the defense was banging away at a gay panic defense, suggesting that King’s sexual “advances” were the trigger for McInerney’s actions. But there are certain things we are not prepared to accept as a “reasonable” provocation. The fact that someone hates people of a particular race or ethnicity, for example, is not generally accepted as “reasonable” provocation. It might have actually acted as a factor that provoked the defendant, but our law does not consider that as a reason for diminished responsibility. A defense lawyer would not be allowed to make such a case, ask questions insinuating as much, or argue it to the jury. It is also clear that, had King been a girl that McInerney had killed because he didn’t like her sexual advances, such an argument would also be deemed inappropriate. And yet, such an argument happened just now in the Larry King case, and the judge said nothing and did nothing to stop it.

As a side note, there was much hullabaloo about a law passed a few years ago in California against the “gay panic” and “trans panic” defenses. However, it was nothing more than a law requiring a jury instruction that the jury shouldn’t consider the victim’s personal identity, including, among others in a long list, sexual orientation. That’s a meaningless law as demonstrated by this case. Jury charges can be pages and pages long and simply stating that one should not take the victim’s sexual orientation into account is meaningless in the context of a trial such as this. Of course they took Larry King’s sexual orientation into account. How could they not, when the defense presented 100 witness and weeks of testimony about Larry King’s sexual orientation and the judge allowed it? The law that’s needed is a law that says that evidence pertaining to a victim’s sexual orientation or gender identity is deemed irrelevant and prejudicial, and therefore inadmissible. But I digress.

There is no reasonable argument here that McInerney acted “in the heat of passion.” The classic “heat of passion” case is the example of a husband who comes home to find his wife naked in bed with another man, and the husband picks up a weapon close at hand and kills. The law’s judgment in such a case is that the defendant’s killing is motivated by “heat of passion” and thus less culpable. But if the husband waited a day and then killed his wife, he would not be entitled to a heat of passion defense. In the case of Brandon McInerney, he waited a day and then killed King. The idea of a “heat of passion” defense here is ludicrous.

What makes the “heat of passion” defense particularly egregious here is the fact that a crime motivated by the sexual orientation or gender identity of the victim is considered a “hate crime,” which carries an enhanced penalty. Thus, shooting King because of his sexual orientation or gender identity is both a reason for an enhanced penalty (as a hate crime) and a reason for a reduced penalty (as a murder committed in the “heat of passion” because McInerney was “disgusted” by King’s sexual orientation or gender identity).

Some people make the point that McInerney was 14 at the time of the shooting, and should not have been tried as an adult. Be that as it may, the jury’s job was to decide whether McInerney committed premeditated murder or whether the killing was “in the heat of passion,” and thus voluntary manslaughter. There is no reasonable argument here for “heat of passion,” unless one is homophobic. That’s probably why the jurors who believed that McInerney premeditated the act, and did not act “in the heat of passion” refused to cave, and thus the jury could not reach a decision.

The point here is that the “gay panic” defense is alive and well and living in California. Based on the results in this case, legislators ought to take strong action to stop this type of defense from occurring again by taking stronger legislative action to stop it.



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