DA to seek new trial in Calif. gay teen killing

Associated Press
Defense attorney Scott Wippert right, hugs private investigator, Kathryn Lestelle outside court where a mistrial was declared in a gay student murder trial, Thursday Sept. 1, 2011 in Chatsworth, Calif. A judge on Thursday declared a mistrial in the case of California teen, Brandon McInerney, who shot a gay classmate in the back of the head during a computer lab class as stunned classmates looked on. Jurors were unable to reach a unanimous decision on the degree of McInerney's guilt for killing 15-year-old Larry King.(AP Photo/Thomas Watkins)
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Defense attorney Scott Wippert right, hugs private investigator, Kathryn Lestelle outside court where …

LOS ANGELES (AP) — There was no question that Brandon McInerney, who had just turned 14, shot a gay classmate at their middle school, but finding the appropriate degree of punishment proved to be troublesome this week for a jury that was inundated with factors to consider.

They heard testimony that McInerney was beaten by his father; was a budding white supremacist who doodled swastikas in his notebook; and a bright student who became unmotivated and couldn't control his emotions when 15-year-old Larry King made unwanted sexual advances toward him.

Most notably in the jury's inability to reach a unanimous decision on a first-degree murder charge sought by prosecutors was McInerney's age at the time of the shooting in February 2008. One juror, who spoke with The Associated Press but declined to be identified, said he and several jurors felt McInerney shouldn't have been tried as an adult.

Some legal observers say while most people approve of stiff penalties for minors who commit violent crimes, they aren't as inclined to support a lifelong prison sentence if they discover the child was abused or had other problems growing up.

"I think it's about what the just punishment is," said Aaron Kupchik, a sociology professor at the University of Delaware, of the deadlocked jury. "They still look at someone who was barely 14 when he did this. Though he may deserve a harsh punishment, it would be senseless to treat this child if he was as fully blameworthy as an adult."

The case drew worldwide attention because of its shocking premise: McInerney, in a fit of homophobic rage, killed King in front of horrified classmates at E.O. Green Junior High School in Oxnard because King stood up for himself and threw taunts back at one of his tormentors. Comic Ellen DeGeneres, who is a lesbian, weighed in on her talk show shortly after the shooting and said gays shouldn't be treated as second-class citizens.

Jurors were apparently torn over how severe McInerney's sentence should be. The nine-woman, three-man panel said they took a series of votes — the last one with seven in favor of voluntary manslaughter and five jurors supporting either first-degree or second-degree murder.

A first-degree murder conviction carries a maximum sentence of more than 50 years in prison, while voluntary manslaughter has a 21-year maximum prison term. To find McInerney guilty of voluntary manslaughter, jurors had to find him not guilty of first- and second-degree murder.

Defense attorneys do not deny McInerney killed King, but lawyer Scott Wippert said jurors had told him they weren't convinced by prosecutors' assertions the killing was a hate crime.

Prosecutors said Friday that they planned to ask Ventura County Superior Court Judge Charles Campbell for a new trial during a hearing scheduled for Oct. 5.

Over the next month, prosecutors will decide whether to pursue the same set of charges or drop some of them, said James Ellison, the chief assistant district attorney.

"We don't know at this point if we will modify the charges," Ellison said. "The jury's inability to reach a verdict in this case will be a factor. We'll consider everything."

An option could be punting the case back to juvenile court if prosecutors are willing to drop the special allegation of lying in wait, which could carry a more severe penalty. If convicted in juvenile court of murder, McInerney would likely be released no later than his 25th birthday. He's now 17.

Prosecutors also could offer McInerney another plea deal. His attorneys have previously passed on an agreement that would have sent McInerney to prison for 25 years to life. Defense lawyer Robyn Bramson said they wouldn't consider a plea deal that had an indeterminate sentence.

"We want a date certain that he can look at a calendar and say, 'On this date, I am going to get out,'" Bramson said.

The district attorney's office was criticized in a report last month released by the Center on Juvenile and Criminal Justice that showed cases involving youths under the age of 15 are nearly 14 times more likely to be tried in adult court than anywhere else in California.

Ellison said his department was looking into the claims made in the report.

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Associated Press writer Thomas Watkins contributed to this report.

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