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When San Francisco’s district attorney throws a conference here later this week on how to combat bias in the courtroom � in particular what some call the gay or transgender panic defense � she’ll be spotlighting an issue that has elicited mixed responses, even among prosecutors. The free event, being held Thursday and Friday at Hastings College of the Law, was an idea borne in part from District Attorney Kamala Harris’ discussions with her counterpart in Atlanta, she said. Noting San Francisco’s sizable lesbian, gay, bisexual and transgender population, she added, “it’s always a concern that there may be people in the LGBT community that might be targeted because of prejudice and hate.” No doubt this week’s event � which includes a reception and town hall meeting at an LGBT community center on Thursday evening � will add to Harris’ standing on gay-friendly issues. At the same time, a bill to address so-called panic defenses � a strategy described by critics as a state-of-mind argument in which a defendant claims, for example, that his actions were provoked by the discovery a victim was transgendered or homosexual � is continuing an extended journey through the state Legislature. The latest published version of AB 1160 would allow instructions to specifically warn jurors not to be influenced by bias based on gender, sexual orientation or other characteristics. The bill is likely to come up at this week’s event as an example of efforts to combat bias in court, particularly since its sponsor, Assemblywoman Sally Lieber, plans to attend. Prosecutors’ response to the bill illustrates the sometimes mixed reactions discussions over panic strategies can evoke. Though Harris says she supports the “spirit” of the bill, the California District Attorneys Association has not taken a position on it one way or the other. Its critics include the defense attorneys’ group California Attorneys for Criminal Justice � as well as a former Orange County prosecutor now in the Assembly. Both the prosecutor and two defense attorneys from last year’s well-publicized Alameda County trial over the killing of transgender teenager Gwen Araujo will take part in a case-study panel at the conference. Interestingly, Alameda County Deputy District Attorney Christopher Lamiero doesn’t support the bill, either. “I don’t think a change in the law at the legislative level is necessary,” said Lamiero, who prosecuted the Araujo killing. “I think that the discretion of a judge to withhold the giving of a manslaughter instruction if he or she does not believe [it] is supported by the evidence is a sufficient check, if you will, on the ability of the defense to advance absurd arguments.” In the Alameda case, one defendant, Michael Magidson, initially admitted responsibility for Araujo’s killing, but argued he’d done it in the heat of passion because he’d had sexual relations with Araujo believing she was a female, and then found out she was biologically male. Two other defendants denied responsibility but used similar manslaughter arguments as a fallback. Lamiero said he didn’t fight the defense’s right to present a manslaughter argument. His attitude was that if the defense wanted to present that argument, let them, “because I didn’t think that a jury was going to buy it.” Both sides agree that that particular manslaughter defense was a failure in the Araujo case. (Last year, a jury convicted Magidson and Jose Merel of second-degree murder and deadlocked on Jason Cazares, who then pleaded no contest to voluntary manslaughter.) Lieber’s original bill would have changed California’s voluntary manslaughter law to say that a heat-of-passion argument couldn’t be used if a defendant’s actions were related to his discovery of a victim’s sexual orientation, gender or other characteristics such as ethnicity. But the bill has evolved. The current version would provide money to develop training materials for prosecutors on fighting panic strategies used to appeal to societal bias. And it would allow parties to request a special instruction at trial that jurors not let their decision be influenced by sympathy, prejudice, public opinion or bias based on disability, gender, nationality, race or ethnicity, religion, gender identity or sexual orientation. Defense lawyers, not surprisingly, are fighting the idea. But Assemblyman Todd Spitzer, a Republican former prosecutor from Orange County, is also against it � so much so that he spoke out in opposition on the Assembly floor. The bill, which passed the Senate’s Public Safety Committee with a 4-2 vote last month, is before that house’s appropriations committee. “Obviously, it’s a very emotional, sentimental issue, especially in large gay communities like San Francisco or Palm Springs,” Spitzer said in an interview last week. Though he calls such defenses “ludicrous,” he thinks the bill’s original aim � to bar them from trials � would have trod on defendants’ constitutional rights and led to reversals by appellate courts. “When I get a conviction,” he said, “I want to know that the defendant has exhausted his defenses, so the conviction sticks.” Others, though, see a need for reform even if the frequency and efficacy of the defense can be tough to gauge. Christopher Daley, the director of the Transgender Law Center in San Francisco, a co-sponsor of this week’s conference, said many transgendered people think the mere use of the defense puts transgender people at risk � even if they don’t believe it has real traction with Bay Area juries. Brad Sears, executive director of the Williams Institute at the UCLA School of Law, said his research center on sexual orientation law and public policy has identified about 45 written judicial opinions in 22 states that have involved homosexual panic arguments since 1967. By his institution’s analysis, eight of them were successful. But the overall use and effectiveness is difficult to track, he noted, because most criminal cases, especially plea bargains, don’t prompt a written opinion. Sears likens the fight against the panic defense to the gay community’s battle against sodomy laws � it’s not that they were widely prosecuted, he said, but they conveyed a message about gay and lesbian people. Lawyers can earn Minimum Continuing Legal Education credits for attending the two-day event, which is co-sponsored by the California District Attorneys Association and the National District Attorneys Association, according to Harris’ office.

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