Brandon McInerney will be retried in killing of gay classmate

Ventura County prosecutors, trying for a second time to convict a former middle school student of fatally shooting a gay classmate, will drop the key allegation that the crime was motivated by a hatred of homosexuals.

The announcement came Tuesday as several jurors from the original trial, which ended last month in a hung jury, expressed strong misgivings about the prosecution’s case. They said they didn’t believe Brandon McInerney killed Larry King because the boy was gay and urged that he be tried in Juvenile Court instead of as an adult.

“Brandon got a raw deal,” said Nancy Shulman, who along with several other jurors are speaking out for the first time this week.

Shulman and two other jurors stood in the audience during Tuesday’s hearing, wearing light-blue rubber bracelets stamped “Free Brandon” and saying they were there to support McInerney.

Prosecutors still plan to try McInerney as an adult for first-degree murder. But dropping the hate crime charge marks a significant shift in legal strategy. The move is puzzling because in the first trial both prosecutors and defense attorneys acknowledged homophobia as a central issue.

Prosecutors portrayed McInerney as a budding white supremacist who hated homosexuals and was enraged by King’s sexuality and aggressive flirtations.

The defense argued that McInerney was the product of a violent and dysfunctional home and suffered from “gay panic” in response to King’s advances.

McInerney was 14 when he carried a .22-caliber handgun to school in a backpack on Feb. 12, 2008, took a seat behind King, 15, and shot him twice in the back of the head.

The case has drawn national attention and has generated debate about how middle schools should deal with openly gay students.

Prosecutors declined to comment on the reasons for dropping the hate crime charge, but one juror said that none of the 12 panelists in the original trial believed the shooting was a hate crime.

One juror, identified only as Lisa S. because she did not want her whole name used, said many jurors came to believe that King was bullying McInerney by making unwanted sexual advances

“This wasn’t about him being gay,” she said. “This was about bullying. There was a ton of evidence that Larry was acting inappropriately with other kids at school, and they didn’t do anything to stop him.”

As for the new case, she added: “It was overcharged and an abuse of power, and I don’t think a new jury will see it any different.”

A national gay rights group said prosecutors should have done the “just and merciful thing” and reached a plea deal in the case.

“Brandon McInerney killed Larry King and should go to jail for his crime,” said Eliza Byard, executive director of the Gay, Lesbian & Straight Education Network. “However, the first trial subjected everyone — especially Larry and Brandon’s peers — to a painful spectacle that accomplished nothing.”

A defense psychologist who interviewed McInerney in juvenile hall testified that the youth admitted to having “homophobic” feelings after King, in makeup and 4-inch boots, came up to him and said “What’s up, baby?” on campus the day before the shooting.

Later on the same day, King “paraded” back and forth in front of McInerney while McInerney’s friends laughed nearby, a teacher testified. McInerney told a friend that he was going to bring a gun to school the next day, and told his psychologist that he was upset all night.

At trial, several teachers testified that King had become increasingly bold in his behavior in the weeks before the shooting. One of the teachers, Jill Eckman, demanded that the school’s administrators do something about rising tensions but was told to teach tolerance for King’s gender expression.

During closing arguments, Ventura County prosecutor Maeve Fox told jurors the case was a “tragedy on all levels” but that the evidence showed McInerney was guilty of premeditated murder.

“What possible chance did the boy have against this defendant?” Fox asked. “He was killed by someone who was full of hatred.”

In the end, seven of the jurors leaned toward voluntary manslaughter and five toward murder charges.

Legal experts said the change in strategy by prosecutors suggests they doubt they can convince a jury that gay hatred was the overwhelming motivation for the crime.

“A hate crime is a hard thing to prove, especially when there could be other motives for the crime,” said former Los Angeles County prosecutor Dmitry Gorin. “He may have simply disliked the boy. But that doesn’t make the motive for the crime his sexual preference.”

Gorin, however, said McInerney still stands to spend life in prison if he is convicted of first-degree murder with a special allegation that he was lying in wait. That could be another barrier for prosecutors, he said.

“Sending a kid to prison forever is hard,” he said.

catherine.saillant@latimes.com

richard.winton@latimes.com