Attorneys used new strategies this time (Araujo case)

Attorneys used new strategies this time
Jury to continue deliberations today

By Ben Aguirre Jr., STAFF WRITER
Daily Review
09/06/2005

http://www.insidebayarea.com/dailyreview/localnews/ci_3004432

Prosecutor Chris Lamiero must have learned a lot from the first
time he tried three men in the killing of a Newark transgender
teenager, because he's shifted his strategy, one attorney said.
But since a jury deadlocked in June 2004 over the fates of
Fremont resident Michael Magidson and Newark residents Jose
Merel and Jason Cazares of Newark — who are awaiting a verdict
in their retrial — defense attorneys also have changed their
strategies, making this year's court proceedings "more of a
standard murder trial," said attorney Chris Daley, director of
the Transgender Law Center in San Francisco.

Daley has been a regular at the Hayward Hall of Justice during
the past two years as Deputy District Attorney Lamiero has
sought a conviction in the killing of 17-year-old Gwen Araujo,
who was beaten, bound and strangled in Merel's home on Oct. 4,
2002, after it was learned she was biologicallymale, then buried
in a shallow grave in the Sierra foothills.

At the end of the first trial, Lamiero and the defense attorneys
were able to poll jurors, and since then they've been able to
make changes to their strategies that could affect the outcome,
Daley said.

The three most important changes Lamiero has made have been the
presentation of more physical evidence, a change in the order in
which his witnesses have appeared and referring to Araujo as
"she" in the courtroom, Daley said.

In the first trial, the prosecutor relied heavily on testimony
to tell jurors what happened, but this year Lamiero produced
items such as a piece of wall cut from Merel's home — which
Araujo's head allegedly struck — and the ropes that were tied
around her body.

"There were a lot of missing pieces in 2004," Daley said.

A second change that could resonate with jurors is that Lamiero
called his key witness, 22-year-old Jaron Nabors, to the stand
early.

Last year the prosecutor had numerous police sources testify
before Nabors — who also was originally charged in the killing,
but pleaded guilty to voluntary manslaughter as part of a plea
agreement. For his testimony, he will be sentenced to 11 years
in prison.

But Nabors was the first or second witness on the stand this
year, Daley said.

"He told his story, and jurors were able to follow it through
(using the evidence)," he said. "It made it more believable."

Another change in Lamiero's strategy has been his reference to
Araujo throughout the trial as "she" rather than "Eddie" (her
birth name) or "he."

"It's helpful for the jury to understand Gwen as she understood
herself," Daley said. "It's also important to be able to counter
the claims of (sexual) deception."

Trickery has been one of the claims that defense attorneys have
made in both trials. They have argued that their clients were
duped into having anal and oral sex with Araujo.

But while attorney Michael Thorman, who represents Magidson, has
continued to stress that issue, others have strayed from it,
Daley said.
"We've seen a huge shift in the defense," he said. "Last year we
saw a unified defense of blaming Gwen. But this year they broke
apart. Each attorney is defending his (own) client.

"The unified defense could not hold together."

Instead of using the "transgender panic" tactic to appeal to
jurors' lack of knowledge about the transgender community, each
attorney presented facts while trying to minimize the roles of
his client, resulting in a lot more finger pointing, Daley said.

The switch in defensive strategies was first apparent at the
onset of the trial when jurors were told that all three
defendants would testify. In 2004, only J. Tony Serra's client,
Cazares, took the stand.

In July, Merel spoke for the first time in any court about the
killing. By the time he was finished, onlookers and even the
district attorney were blown away.

Under questioning from his attorney, William Du Bois, Merel told
jurors that he had feelings for Araujo and said he was
intimidated into hitting her with a frying pan.

"It really felt like he was telling the truth," Daley said.
"(Was) it a tactic? A ploy? A truth? We have no idea."

Merel's testimony seemed to spark a change of heart in Lamiero,
who later asked jurors to decide Merel's level of guilt instead
of seeking first-degree murder convictions for all three men.

The decision to have Magidson and Merel testify may have had an
impact on the jurors as they were treated to more pieces of the
puzzle, Daley said.

"This year I felt like there was a clearer picture," he said.

Perhaps the most overlooked element that has changed in this
trial has been Judge Harry Sheppard's gag order, which prohibits
attorneys from discussing the case with the media.

"The gag order really did help. It added an air of seriousness,"
Daley said. "Some defense attorneys couldn't get away with
saying things in court (last year), but they were still able to
say them to the media.

"(This time) they didn't have that stage to perform on."

However, even with all the shifts in strategy, Daley hopes there
is still one change yet to be revealed — the outcome.

"The jury hung last time because there were certain jurors not
willing to go for less than first-degree murder. You have to
respect that," he said.

But the family needs resolution, and it may come at the end of
this trial, he said.

"I think (Lamiero) has opened the door for lesser charges."

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Staff writer Ben Aguirre Jr. covers police and the courts for
The Argus. He can be reached at (510) 353-7011 or
baguirre [at] dailyreviewonline.com.

© 2005 ANG Newspapers