Criminal - Panic Defense

Episode Date: December 6, 2019

In 1995, two men filmed an episode of the daytime talk show, The Jenny Jones Show. A few days later, one of the men was dead. The shooter later claimed he’d committed the murder “in a panic that he was being falsely accused or identified as a gay person.” We speak with Cynthia Lee, Carsten Andresen, and Paul Howard about so-called “gay panic” and “trans panic” defenses, and we discuss the murders of Scott Amedure, Islan Nettles, Larry King, Ahmed Dabarran, and Matthew Shepard. Thanks to Thomas Curry, who helped co-produce this episode. Say hello on Twitter, Facebook and Instagram. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts: iTunes.com/CriminalShow. We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop.  Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Please use discretion. Now, which of these ways would you choose to reveal your secret crush on someone? A, would you write that person a letter? B, would you tell the person in private in case he rejects you? Or C, would you tell that person that you're gay and you hope he is on national television? On March 6, 1995, the daytime talk show host Jenny Jones filmed this episode about secret crushes. People were invited to come on the show to learn on television who had a crush on them. One of the guests was 32-year-old Scott Amador.

His friend, Donna Riley, appeared on the show with him. I want you now to meet Donna and Scott. Now, Donna has been helping Scott pursue his secret crush on John. John's backstage. He can't hear us. How bad is the crush? Tell me about the first time you met him. Where was he? Basically, well, he was under a car working on her brake line. Yeah? And that was your first time? What was your first impression?

Well, I only saw the lower half of him, so you get a map. The three of them, Scott, Donna, and John, were all friends. Jenny Jones then asked Scott more about why he liked John, what exactly he liked about him. She asked if he had fantasies about John.

He did. One included champagne and whipped cream. Now, John, he knows you're gay, right? Yes. Do you know that he is? No. Anything's possible. Let's see if he really is. Get the headphones off of John and let's have John come out here and see who has the crush on him. Here's John. John Schmitz comes out on stage and kisses Donna on the cheek and gives Scott an awkward looking hug. Did you think Donna had the crush on you? Did I? No, we're good friends.

Well, guess what? It's Scott that has the crush on you. You lied to me. He covers his face with his hands. Jenny Jones then shows him a playback of the fantasies Scott described earlier on the show. Did you have any idea that he liked you this much? Um, no, no, no. Can you tell us what your status is? I mean, are you involved with anybody? Um, no, but I am definitely a heterosexual, I guess you could say.

After the show, Scott, Donna, and John flew home to Michigan together. They went out drinking that night. Three days after appearing on the show, John found an anonymous, suggestive note on his door. It read, If you really want to get it off, I'm the one who has the right tool. John went to the bank, took out money, and bought a shotgun. Then he went to Scott's house. When Scott answered the door, John asked if he had left the note.

According to court documents, Scott smiled. Then John went back to his car, got the shotgun, and shot Scott two times in the chest at close range. John left the scene and called 911. He told the operator he had just shot someone. When the operator asked why, he said, because he picked me on national TV and he's a homosexual. John was charged with first-degree murder.

His attorney argued that he was suffering from diminished capacity when he killed Scott because he was dealing with depression and a thyroid condition. And his feeling that he had been humiliated on the Jenny Jones show when Scott confessed his crush pushed him over the edge. Here's one of his lawyers,

Fred Gibson. I think we have to ask ourselves, if we were in that same situation, how would we react? And one never knows how they would react unless you, in fact, are confronted with a particular situation. Another one of Scott's lawyers said in a later interview that John was in a panic that he was being falsely accused or identified as a gay person. He argued in court John should be convicted of a lesser charge than first-degree murder because his actions were impulsive, not premeditated. Others argued that there was no way John's actions could be seen as impulsive. There was tons of evidence that Jonathan thought about killing Scott in advance. George Washington University law professor Cynthia Lee. For one thing, after he received the note, he went to his bank to withdraw enough money to buy a shotgun. He then drove to a store to purchase the shotgun, and he purchased the ammunition that he ended up using to kill Scott.

Another thing is that he left the shotgun in his car when he went to Scott's place. And then only after Scott admitted that he left the note at Jonathan's house, did Jonathan go back to his car, get the shotgun, and then come back to shoot Scott twice in the chest. Well, I mean, that seems about as premeditated as it gets. Absolutely. And despite this huge evidence of premeditation and deliberation, which is necessary for a first-degree murder conviction, the jury found persuasive

Jonathan's claim of diminished capacity and found him guilty of second-degree murder. John Schmitz was sentenced to 25 to 50 years in prison. He was released on parole in 2017 after 20 years. Scott Amador's family sued the Jenny Jones show, arguing that the show was partly responsible for his death. They were awarded $25 million, but the decision was later reversed.

The episode never aired, but the case drew national attention, and there was debate about whether the Jenny Jones show was at fault. Talk shows that specialized in these surprise reveals came under attack. LGBTQ activists said there wouldn't be as much blame on the show if the victim hadn't been a gay man. Jeffrey Montgomery, the president of a gay and lesbian advocacy group, said, If the person who came out with the secret was a Jewish woman, or a black woman, or an Asian woman, and he went over to her house the next day and killed her because he was so repulsed that she'd embarrassed him that way on national television, nobody would be writing stories on the TV show's responsibility.

Everyone would be writing stories about this racist, this anti-Semite. A New York Times opinion piece read, immediately, hands were being wrung about the state of television talk shows. But the circumstances of the killing seemed almost to be taken for granted, as if there was nothing all that mysterious or confounding about so violent a response to an expression of unrequited affection man to man. John Schmitz wasn't the first defendant whose attorney used what's called the gay panic defense, and he wasn't the last.

Gay and trans panic defense strategies are still being attempted by lawyers in courts across the country. I'm Phoebe Judge. This is Criminal. In gay panic cases, typically the defendant is a man who has killed a gay man. The evidence that he was responsible for the killing is very strong. And the defendant claims that he got so upset that he lost his self-control after the victim made a sexual advance upon him, and therefore the jury should find him not guilty of murder, but instead guilty of voluntary manslaughter. In a transpanic case, typically the defendant is a man who has killed a transgender woman.

The evidence against him is very strong, and the defendant claims that he became so upset after finding out that the victim's biological sex was male that he totally lost his self-control and therefore should be found not guilty of murder, guilty instead of voluntary manslaughter. The idea of gay panic has roots in a hundred-year-old theory about latent homosexuality as a mental disorder. In 1920, a psychiatrist named Dr. Edward Kampf

observed that some of his patients who identified as heterosexual became anxious when they were around others of the same sex. And this, he theorized, was caused by tension between their feelings of attraction to members of the same sex and their belief that they should be attracted to members of the opposite sex. So Dr. Kamp concluded that these patients of his were latent homosexuals, gay and lesbians, suffering from what he called homosexual panic disorder. So criminal defense attorneys representing male defendants, male murder defendants who had killed gay men began utilizing this concept of homosexual panic in the late 1960s and early 1970s.

But in contrast to Dr. Kampf, they would argue that their clients lost their mental faculties when the victim, a gay man, made a sexual advance upon them. The first case they usually cite is 1967. Karsten Andreessen is an assistant professor of criminal justice at St. Edwards University in Texas. And it was this case in California, Rodriguez versus California, I believe. And that was a case where a young man was out with his friends. He was a teenager, and they were kind of raising hell.

And he went into an alley to pee, to urinate. And an old man got mad and walked up and grabbed his arm, like, why are you peeing in my alley? And this individual, he beat that man to death. And then he argued that, well, I thought the man was making a pass at me. I lost my mind. And then I used the gay panic defense. It was unsuccessful when he used it, but people have been trying to use the gay panic defense ever since. Even though it's referred to as the gay panic defense, it's more of a tactic used to bolster

other traditional criminal law defenses. There are four main ways lawyers use it. The first is part of an insanity defense. Somebody basically says, I murdered this person because they made a pass or an overture at me, and that pass or overture was so threatening to me that I lost my mind, I lost my sanity temporarily, and I killed that person. The second one is diminished capacity, and that's a case where somebody is maybe depressed

ordinarily, and what they would say is that when this person made a pass at me, it took my fragile state of mind and temporarily pushed it over the edge, and I killed that person. Gay panic has also been used as part of a self-defense argument. The defendant may say that the victim was trying to sexually assault them, and so they had no choice but to kill them to protect themselves. And some of the attorneys are quite candid in how they describe it. Some of the attorneys sound like candid in how they describe it. Some of the attorneys sound like they've almost won the lottery because they can't believe that it actually

worked. So they sort of tried something and they're like, oh my gosh, this worked. So there's this terrible case in Denton that happened in 1995. And that attorney, it was an individual who stabbed somebody to death, I think 39 times and said that they were defending themselves from a sexual assault. And that attorney, when he was interviewed later, he said, I couldn't believe that this worked. This guy had a criminal history. I thought He was sort of trying to sexually assault my client. There's a few cases where if the person is alleged to have HIV or has HIV, they'll bring that in and say you have the right to defend yourself against somebody who has a deadly weapon. So they are pretty explicit and over the top. The fourth way a gay or trans panic defense is used is as part of what's called a provocation defense. For provocation, probably the most famous case is this case in New York where a man was hitting on a woman. And the woman said to the man in front of his friends, I don't think you'd even be interested in me because I'm trans. This was in 2013. The woman's name was Islan Nettles.

And then the man's friends laughed at him, like you're hitting on somebody and she is trans. And so the man was so offended, his masculinity was so threatened, that he attacked the person, attacked the woman and beat her to death. He only got 12 years in prison for that. And he had a very famous quote where he said something to the effect of, I don't care what they do. She threatened my pride. And so I had to do something about it. The American Medical Association has called violence against the transgender community an epidemic.

As Cynthia Lee writes, when a man is charged with murdering a transgender woman, a common defense strategy is the trans-panic defense. She says that most often, gay and trans-panic defense strategies are seen as part of a provocation defense. And what a defendant claiming provocation will do is say that he or she was provoked into a heat of passion by legally adequate provocation. Now, originally at early common law, legally

adequate provocation was limited to certain categories. These were things like mutual combat, the defendant suffering from an extreme assault or battery, the defendant catching his wife in the act of adultery. But over time, the courts abandoned the early common law categorical approach to provocation and moved to what's called the modern approach to provocation, under which a defendant claiming provocation can receive a mitigation from murder to manslaughter if the jury finds that he was actually provoked into a heat of passion, if the reasonable person in the defendant's shoes would have been provoked into a feat of passion, if the defendant didn't have sufficient time to cool off,

and if the reasonable person in his shoes would not have cooled. And at least in some circles, this type of argument might have currency if the jury thinks that an ordinary or typical man would also become upset if they became the subject of a sexual advance from a gay man. I mean, this really seems to be potentially stirring up the homophobia of the jury. Oh, yes. Karsten Andreessen says juries in different parts of the country have different attitudes. He's been studying cases in Texas, where he lives, and where he says

attitudes towards gay and trans people aren't always, quote, friendly. And in Texas, it's evolved to such a sense that if somebody were to say, I'm gay, I think that would be seen as a combative action. Everything that that victim is is sort of put on trial. So I think just saying that somebody's gay, that's the first step in sort of bringing a whole host of images. Everything in your life will be turned over and cast in a sinister light by a defense attorney in the gay panic case. So I think when you have that environment in the state and then you have a defense attorney that knows how to use these defenses, you are looking at a really lethal mixture.

In 2008, a 15-year-old named Larry King was shot and killed by a classmate, 14-year-old Brandon McInerney, in Oxnard, California. Larry King had recently started wearing high heels and makeup to school, and Brandon McInerney claimed that Larry had asked him to be his valentine. A couple of days later, Brandon brought a gun to school and shot Larry from behind in the computer lab. He had told at least three classmates

he was planning to kill Larry. Brandon McInerney was tried as an adult for first-degree murder. Defense attorneys introduced a photograph of the victim, Larry King, holding a green prom dress. They put a psychologist on the stand, who later said in an interview, of course, if a boy comes on to another boy, that would be like the ultimate humiliation. The assistant principal at Brandon and Larry's middle school, Joy Epstein, testified in the trial. She later said,

The entire trial was about Larry. It wasn't about Brandon or what Brandon did. Everything was always about Larry. How he dressed, how he acted. The trial focused so much on Larry's sexual orientation. The prosecutors criticized the defense strategy, calling it gay panic. The judge specifically told jurors not to allow prejudice based on sexual orientation or gender identity to affect their decision. But the jury deadlocked. And some jurors later said they thought Larry had sexually harassed Brandon and was, in part, responsible for his own death. And we have a great, great show for you,

and we're going to have a whole lot of fun, but for a minute, I need to talk to you about something that's really serious and really sad. Ellen DeGeneres in 2008. And if you know me, it's hard to talk about sad stuff without getting emotional, but this is really important to talk about. On February 12th, an openly gay 15 year old boy named Larry who is an eighth grader in Oxnard California was murdered by a fellow eighth grader named Brandon. Larry was

killed because he was gay. Days before he was murdered Larry asked his killer to be his Valentine. This is personal to me. A boy has been killed and a number of lives have been ruined. And somewhere along the line, the killer, Brandon, got the message that it's so threatening and so awful and so horrific that Larry would want to be as Valentine, that killing Larry seemed to be the Support for Criminal comes from Apple Podcasts. Each month, Apple Podcasts highlights one series worth your attention, and they call these series essentials. This month, they recommend Wondery's Ghost Story, a seven-part series that follows journalist Tristan Redman

as he tries to get to the bottom of a ghostly presence in his childhood home. His investigation takes him on a journey involving homicide detectives, ghost hunters, and even psychic mediums, and leads him to a dark secret about his own family. Check out Ghost Story, a series essential pick, completely ad-free on Apple Podcasts. Hey, it's Scott Galloway, and on our podcast, Pivot, ad-free on Apple Podcasts. Riley Robeson, the senior AI reporter for The Verge, to give you a primer on how to integrate AI into your life. So, tune into AI Basics, How and When to Use AI, a special series from Pivot sponsored by AWS, wherever you get your podcasts. There are some really startling cases that I can't believe have never attracted public attention. And I'll find them, and how did nobody notice this? How come nobody's talking about that?

He just never met anyone who he did not immediately convert into a friend. Paul Howard's been the district attorney in Fulton County, Georgia, since 1997. Fulton County has the highest population in Georgia. It includes Atlanta. He's speaking about his colleague and friend, Assistant District Attorney Ahmed Dabaran. How did you interact at the office? Tell me about what it was like interacting with him. Well, it was really strange because he would come by and he would ask to see me.

And when he would come in, he would just say, hey, Mr. Howard, how are you doing? But he asked as if he really wanted to know how you're doing. And I just thought it was so unusual. He always seemed so happy just to be alive and so happy to do what he was doing. So he was always the person that you could count on to be at work. So when he didn't show up for work, we said, hey, you know, this is really unusual that he has not shown up for work. And that's when we finally made an effort to try and locate him. We started calling him. We started to call the numbers that we had from him.

We didn't get an answer. And during those days, we utilized digital pagers. And so we actually paged him or beat him to see whether or not we could get him to return the call. They did get a response to their page, but there was something odd about it. If it had been Ahmed, we would have expected whatever message we received to have been quite different. What was the message on the pager? I don't remember exactly what it was. It might have been something like,

who is this, Or something of that sort, as I recall. But it was just not Ahmed. And it was very strange that if you were returning a pager to our office, that you would ask, who is this? And that immediately tipped us off that something was up. It didn't sound like him. Yeah, not at all. Paul Howard called the chief investigator for the county and asked him to go to Cobb County, where Ahmed lived. Then my chief investigator called me back and said, I got some bad news. And I said, what's going on? And he said, I think that Ahmed is dead.

What did you think had happened? Well, of course, I mean, I'm thinking it's got to be some accident or you guys made a mistake, but couldn't be our man. I mean, I just my thought was it's got to be some kind of accident of what's going on. And then my investigator began to give me some of the details. And we then, of course, called the police department in Cobb County, and they started to look into what had happened. And that's when we started to piece together, apparently, what had was a stranger to him, and that he had apparently met this young man someplace in Atlanta. And the young man had accompanied him back to his apartment.

And apparently, the reason that he brought him back was for the purpose of having sex with him. According to court records, Ahmed was hit on the head with a lamp or other blunt object between 13 and 15 times while he was sleeping. When they arrived at the scene, police noted that Ahmed's cell phone was missing, along with his car. Police followed information from Ahmed's stolen cell phone. They were able to track down his stolen car. Eventually, they located a suspect, a man named Rodriguez Rashad Reed. And we were informed by the police department that once he was brought in, he gave a statement. And what he told the police is, is that Ahmed had in fact picked him up.

And but he said that Ahmed had attempted to sexually assault him. And and he says that he was defending himself from this sexual assault, and that's what led him to kill Ahmed. Was there any indication that Ahmed was attacking the defendant? No, there was no indication. In fact, I believe the evidence shows that Ahmed was in a sleeping position on his sofa, or that he might have, in fact, been asleep. But there was no evidence to show that he was attacking the defendant. Police interviewed acquaintances of Rodriguez Rashad Reed during their investigation.

One said that he had bragged about killing a man in Cobb County. Two others said he had told them that he had killed a man by striking him on the head and that he had stolen his car. Rodriguez Rashad Reed later confessed that he attacked Ahmed while he was asleep. He was charged with felony murder, malice murder, and armed robbery. later confessed that he attacked Ahmed while he was asleep. He was charged with felony murder, malice murder, and armed robbery. Did you attend the trial? I attended the trial for several days. Yes, I did. How did you expect the trial to go, given the evidence that was out there?

My expectation was that he would be convicted, the defendant would be convicted, based upon the evidence that showed that Ahmed would not have been in a position to attack him. This whole story about him defending himself seemed to me not to be legitimate when after that takes place, many of Ahmed's personal items were removed. So why would you steal items from someone who is trying to attack you? I thought it was a not a very good defense.

And so we thought and I thought that the defendant would be convicted. I was totally shocked when I started to see the way that the case would even allow this, what I term as a gay panic defense, the notion that if Ahmed was homosexual, that he somehow prompted, was responsible for this death. And I was surprised that the prosecutors did not make a more substantial effort to keep that whole defense from even being discussed.

And I just thought that that was just strange. And it was just not what I thought was the appropriate way that it should have been handled. It was frustrating, not only because of the defense, but the way that it was termed as if being gay somehow made you a proper subject for death or murder, which I just thought was just totally ridiculous. Rodriguez Rashad Reed was acquitted of all charges. He was free to go home. Paul Howard says he won't forget the image of him walking out of the courtroom, waving and smiling.

Ahmed's colleagues established an annual award in Ahmed's honor. In 2005, Paul Howard held what might have been the first conference for prosecutors to practice and plan for what to do if opposing counsel attempts gay panic strategies. Since Ahmed's case nearly two decades ago, Paul Howard says the defense has been raised once or twice in his jurisdiction, but not in a substantial way in many years. I think it's a reprehensible defense. I think that a man who kills another man based on a nonviolent... First of all, I think that it's not reasonable to kill in response to a nonviolent sexual advance.

And I think that to say that it is reasonable to be provoked, if I were sitting on a jury, I would not find that persuasive. In 1998, in Laramie, Wyoming, a cyclist saw what he thought was a scarecrow. It turned out to be University of Wyoming freshman Matthew Shepard. Unconscious and tied to a fence, after having been tortured and set on fire by two men he'd met in a bar, he died six days later. One of the defendant's attorneys attempted to use gay panic as part of their defense, but the judge said no. But despite this ruling, the defense was allowed to call two witnesses to the stand. One was a man who was at the fireside lounge the night that Matt Shep to the jury, look, here's a heterosexual man, and he was uncomfortable when Matt Shepard, a gay man, sat down next to him and licked his lips suggestively. The second witness they called was a man who had been at a lake party with Matthew Shepard several months before Matt Shepard was

killed. And this witness testified that Matt kept asking him to go for a walk around the lake. And he kept telling Matt, no, I don't want to go for a walk. And Matt kept persisting. And finally, after Matt was tugging on his shirt sleeve and asking to go for a walk around the lake, he got so upset that he punched Matt. Now again, why was this witness brought forth by the defense? To show or signal to the jury that the reasonable, or i.e., ordinary heterosexual man would be provoked into a heat of passion if sexually advanced upon. Even when a judge explicitly rejects a defense team's effort to employ gay panic strategies, defendants and other witnesses are still able to take the stand

and talk about how they felt. Gay panic can still end up being part of a trial in subtle and less subtle ways. And this is what's complicated about legislative attempts to ban the strategies altogether. One argument against banning the gay panic defense is that even with a ban in place, the defendant has the right to testify and can take the stand and still get the idea that he was in fact provoked by the victim's sexual advance across to the jury. And if the jury is inclined to sympathize with the defendant, they are likely to find in his favor even if a ban is in place, or they can find in his favor even if a ban is in place. In 2013, the American Bar Association officially asked each state legislature

to ban gay and trans panic defenses. Not many have. Critics have said that lawmakers should address the underlying social issues that lead judges or juries to accept these defenses, rather than simply ban the defenses themselves. But when New York passed its ban this summer, Senator Brad Hoylman said,

I don't think we can leave it to judges and juries, given the record of homophobia that we've seen in courtrooms. Cynthia Lee has been teaching law since 1993, and talking to law students about gay and trans panic defenses, she says that in that time, she's noticed a change. I think before, when students would hear about the gay panic defense, they would actually sympathize with the defendant. But in more recent years, I see an opposite reaction. I think most of my students are appalled that this kind of defense is used

and that it would be successful. They don't find it persuasive that a reasonable man would be provoked into a heat of passion. Earlier this year, New York, Connecticut, Hawaii, Maine, and Nevada enacted bans of gay and trans panic defenses, joining California, Illinois, and Rhode Island. Thank you. Anna Robertson is our assistant producer. Audio mix by Rob Byers. Thanks to Thomas Curry, who helped co-produce this episode with us. Julian Alexander makes original illustrations for each episode of Criminal. You can see them at thisiscriminal.com.

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