Tara-Lloyd Burton, PhD.
Professor Emeritus, School of Public Affairs, University of Colorado Denver
July 22, 2020
The View. There’s a rooftop patio here at the Center. Over the years, it’s been the scene of many a gathering to celebrate events of significance to the LGBTQ+ community. It affords a pleasant view of other neighborhood landmarks, and of the colorful life along inner-city Colfax Avenue.
But on July 13 of this year, the view was truly stunning. Jared Polis, our state and our nation’s first out governor, chose this symbolic setting to sign into law several bills the Colorado Legislature adopted this session to better ensure Rainbow rights (legal protections for all of us who embody diverse gender identities and sexual orientations).
Among these measures, S.B. 221 carries the greatest legal significance. It eliminates the so-called “panic defense” from being argued in homophobic and transphobic felony assault and murder trials. Colorado’s first out transgender legislator, Brianna Titone (D. Arvada) championed the bill, but so too did Republicans and Democrats from both rural and urban districts throughout the state.
The final vote in the House was 63-1. With the signing of the bill, Colorado becomes the 11th state in the nation to disallow this defense for violent crimes victimizing members of the LGBTQ+ community.
For those familiar with the history of the panic defense, this signing ceremony on the Center rooftop invited another view as well—a look back in time, and northward to the Weld County Courthouse in Greeley. For on April 22, 2009, a jury there handed down its verdict in the murder trial of eighteen-year-old Angie Zapata, a young transgender Latina on the threshold of her adult life.
It turns out that many things were actually on trial in that case. The first was the defendant, 32-year old Allen Andrade. The second was Angie’s gender identity. And the third was the panic defense itself.
This Comment is about the historical link between People v. Andrade (2009), and S.B. 221 (2020). We begin with an overview of the court case, highlighting how it provided focus and determination to the legislative effort that culminated in S.B. 221 becoming state law. Then we turn from the past to the future: what the law does, and how it will guide the prosecution of homophobic and transphobic prosecutions going forward.
People v. Andrade (2009). Angie Zapata and Allen Andrade met online at a dating site known to include posts from users across the range of gender identities and sexual orientations. Soon thereafter they spent 3 days together at her Greeley apartment.
It was only on the third day, Andrade later alleged, that he learned of Angie’s transgender identity while in her apartment. In a fit of rage, he killed her. He then fled in the car she’d been using. He later sought to make purchases with her stolen identity.
On being apprehended, the Weld County District Attorney charged Andrade with first degree (premeditated) murder. Defense counsel moved to reduce the charge to second degree murder (an impulsive “crime of passion”). The motion failed.
Prosecutors presented a case showing that Andrade had ample opportunity to learn of Ms. Zapata’s transgender status during the days they spent together, which included sexual encounters. And when he attacked her, they showed, he first beat her with his fists; then seized a lethal weapon (a heavy steel fire extinguisher) and repeatedly bludgeoned her in the head until he crushed her skull.
It was one thing to strike out impulsively on learning one had been duped, prosecutors argued. But it was quite another to then look around for a potentially lethal weapon, and then use it to deliberately and methodically take the life of another human being.
The defense responded by deploying the panic defense to its full extent. The first step was to attack Angie Zapata’s gender identity itself. Angie was not even Angie, the defense argued. Instead, “he” was Justin (the male name given at birth, before the parents learned that within this little boy’s body was a daughter).
Throughout the trial, the defense referred to the victim as Justin, and used only male pronouns. The strategy was to turn the case upside down: to make the victim the predator and the murderer the innocent victim. Angie was not in fact a transgender woman, the defense argued. “He” was a gay man secretly impersonating a woman, luring unsuspecting straight men into sexual liaisons to satisfy his homoerotic desires.
By this logic, Allen Andrade was the real victim here: unwittingly enticed into a sexual encounter with another man. In this narrative, he was basically acting in violent and impulsive self-defense of his heterosexuality.
As much of a stretch as this logic might seem, it actually continues to carry the day in many a trial courtroom around the country—especially in those states with anti-transgender laws on the books or pending before legislatures.
In this alternative reality, a criminal defendant’s murderous, homophobic/transphobic bigotry magically morphs into his legal defense. Plea deals to lesser charges with relatively light sentences and split verdicts from sympathetic juries are not that uncommon.
But in Weld County Colorado, in April of 2009, the jury was having none of it. It took just two hours of deliberation for them to return a verdict of murder in the first degree. And on top of that, they also found that animus against LGBTQ+ people—that is, hatred—was a motivating factor in Angie Zapata’s brutal murder.
This was the first time Colorado’s hate crimes sentencing law (which adds three years to whatever sentence is levied in a criminal conviction) had been applied to a transgender murder case. Its importance in this case was mostly symbolic, however. A murder one conviction in Colorado carries an automatic sentence of life without parole, which is what Mr. Andrade received.
S.B. 221 (2020). Several aspects of the Andrade case informed the advocacy for Colorado’s new law disallowing the panic defense in homophobic and transphobic criminal proceedings. These include prosecutorial discretion, the contested concept of transgender identity itself, and community cultural values.
Northeastern Colorado’s Weld County is a semi-rural area heavily dependent on resource-extractive industries such as oil and gas and large-scale corporate agriculture for its economic vitality. Its current political culture is decidedly conservative.
So when this heinous crime was committed in the county seat of Greeley, Rainbow rights activists across Colorado and the nation were concerned as to how this gruesome transphobic murder would be handled in its legal system. Would there be a robust prosecution, or would the defendant get off with a “crime of passion” plea deal?
The Weld County district attorney in 2008 was Ken Buck. In today’s political circles, he’s best known as northeastern Colorado’s arch-conservative Congressional representative, and head of the Colorado Republican Party. Debating Michael Bennett in Buck’s unsuccessful run for a U.S. Senate seat in 2010, he once analogized homosexuality to alcoholism.
But conservatism in Colorado also has a libertarian streak, just as does liberalism, which helps explain why S.B. 221 passed with such overwhelming bipartisan support. The principle here is that everyone has a right to be who they want to be.
The suspense over how Allen Andrade would be charged was owing to the fact that prosecutors in Colorado generally have a lot of leeway in determining what charges to bring against a criminal defendant. They take into account the weight of evidence, the letter of the law, community values and sentiment, and (though most are loathe to admit it) their own political fortunes, since D.A.s are elected officials in Colorado.
In this case, D.A. Buck made the decision to prosecute Allen Andrade to the full extent of the law on a charge of first-degree murder. During trial preparation, he and his deputy prosecutors met frequently with Angie Zapata’s family and friends, as well as Lambda Legal, GLAAD, and other Rainbow rights advocacy groups. By the time they went to trial, they were well aware that transgender identity as both a cultural phenomenon and a lived reality for transgender women would be under attack, and they needed to be ready to defend it, even though they were the prosecutors.
At trial, the prosecution always referred to the victim as Angie or Ms. Zapata, both in laying out their case and in examining their witnesses. By contrast, the defense repeatedly and consistently referred to the victim as Justin, and using male pronouns. Family and friends appearing as prosecution witnesses had to repeatedly correct defense counsel’s use to language to reaffirm and reassert Angie’s identity.
That the panic defense failed utterly in this case speaks well for the Weld County justice system—for D.A. Buck and for a jury of Angie Zapata’s peers, who voted to honor who she was by a condemnation of her hate-motivated murderer.
At the same time, what this trial made clear was that in a different part of the state, with a different district attorney and different community attitudes toward transgender identity, such a case might have taken a different direction. Prosecutors might have accepted a manslaughter plea based on the panic defense, or a juror sympathetic to that argument may have hung a jury on a more serious charge.
S.B. 221 eliminates that possibility here in Colorado. Transgender identity will no longer be on trial in transphobic (or homophobic) felony assault and murder cases. And family members and friends of these crime victims will no longer have to endure the kind of attacks on their loved one’s gendered existence in the way that Angie Zapata’s did in Greeley eleven years ago.
With this new law, Colorado again affirms its position as among those states most protective of Rainbow rights. It’s been almost 30 years now since the national news media were calling Colorado the “hate state”, after voters approved a constitutional amendment forbidding local jurisdictions from passing LGBTQ+ rights ordinances. In 1996, the U.S. Supreme Court struck down Amendment 2, holding that its only evident purpose was the denial of equal political rights on the basis of queerness.
The word the high court used in Evans v. Romer (1996) was “animus”, which is a polite legal term for bigotry. It’s a tribute both to Rainbow rights advocates and growing public support for us being who we truly are, that we have gone from being a state hostile to our legal protections to one that embraces them.
The law is now on the books. Now is the time to manifest its intent on the streets. Criminal statutes are by their nature reactive. They prescribe punishments for acts already committed. In closing the door on the panic defense, the intent was to show that there will be no easy out for one who commits a homophobic/transphobic crime.
Ultimately, however, the goal must be to keep the crime from being committed in the first place. Transgender women of color like Angie Zapata fall victim to felony assault and murder at rates several times higher than the general population. Programs intended to halt this tragic form of intersectional oppression need greater support, and their stories need to be more widely told.
[Author’s note: Description of the proceedings in People v. Andrade is sourced largely from a news archive of the case maintained by GLAAD]
The views expressed herein are those of the author and do not necessarily represent the views of The Center on Colfax.