Retrial in gay teen killing poses challenges

Prosecutors vowed to immediately retry a former middle school student who shot a gay classmate, maintaining that the incident was a premeditated murder and a hate crime despite doubts by some jurors who deadlocked in the case.

But prosecutors said they are considering whether to again try Brandon McInerney as an adult, a choice that legal experts believe made it harder for them to win a conviction.

McInerney, who was 14 at the time of the killing, would face up to life in prison if he were convicted as an adult. In the juvenile system, even convicted murderers are typically released at 25.


“We will consider the fact that this was a very significantly split jury. We will consider everything,” said Chief Assistant Dist. Atty. James Ellison. “There are obviously very strong reactions on both sides and we will consider all those in how we proceed.”

In the next few weeks, the district attorney’s office will debrief jurors and the prosecution team before announcing a decision on new charges, Ellison said. An Oct. 5 court hearing has been set to discuss the matter.

Jurors said Thursday that they were deadlocked on a verdict, with seven favoring a voluntary manslaughter conviction and five pushing for first- or second-degree murder. One juror told the Associated Press that they had difficulty accepting the fact that McInerney was being tried as an adult. And jurors told defense attorneys they did not believe the killing amounted to a hate crime.

Prosecutors on Friday disagreed and said they continue to believe it was motivated by victim Larry King’s sexual orientation. They also believe McInerney was lying in wait to kill King, an allegation that automatically makes him eligible to be tried as an adult, Ellison said.

Still, prosecutors may face an uphill fight in retrying McInerney, said former Ventura County Dist. Atty. Michael Bradbury.

“These are extremely difficult cases,” said Bradbury, who was district attorney for 24 years.

“The public may see a straightforward murder case but this case is far more complex, firstly, because of the age of the defendant … and the manner in which he was raised by his parents, which was clearly dysfunctional and by all accounts horrific,” Bradbury said.

The raw emotions of the case make the outcome “highly unpredictable,” the former prosecutor said.

Laurie Levenson, a Loyola Law School professor and former federal prosecutor, said she believes jurors thought the charges were too harsh.

“Jurors felt prosecutors overcharged and they were clearly not comfortable putting the boy away for life. They probably believed the dynamic between two adolescent boys is not the same as two adults,” Levenson said. “This was a shooting but not a traditional coldblooded killing. It had an emotionally complexity, especially one associated with adolescents.”

Defense attorney and former prosecutor Dmitry Gorin agreed.

“In a hate crime there is typically clear and convincing evidence that it was motivated by hate,” Gorin said. “Children tend to have a myriad of reasons for killing. He may have had issues with the victim being gay but that interaction was probably a lot more complex and jurors saw that.”

Gorin added: “Just like Casey Anthony, here the evidence did not support the charge but the public perception and pressure has prosecutors trying their hardest to persuade jurors and again they have failed.”

Prosecutors say McInerney, now 17, brought a .22-caliber handgun to school on Feb. 12, 2008, took a seat behind King and shot him twice in the back of the head. Prosecutor Maeve Fox described McInerney as a coldblooded, predatory killer who was motivated in part by his budding interest in white supremacist ideology.

Gay-rights advocates who followed the trial said in the past that McInerney’s attorneys were attempting to fall back on the “panic defense.”

The panic defense became a flash-point after the 2002 slaying of Gwen Araujo, a Bay Area transgender teenager who was beaten and strangled by three men. Defense attorneys for the suspects argued that their clients panicked after learning Araujo was a biological male and won a mistrial.

Defense attorneys for McInerney took a similar path and conceded that their client shot King but argued that the youth, dressed in women’s high heels and makeup, provoked McInerney by flirting with him in front of school friends.

McInerney was angered and didn’t think the school was going to do anything to stop King, so he brought a gun to school, defense attorney Scott Wippert told jurors. He began having second thoughts as he sat behind King, but when King told a girl sitting nearby that he was changing his name to Latisha, McInerney snapped, Wippert said.

Before 2000, a Juvenile Court judge would have decided whether McInerney would be tried as an adult. But that year’s voter-approved Proposition 21 transferred that power to district attorneys.

Wippert said Thursday that the initiative was passed as a gang-enforcement act to put away youthful gang criminals. But district attorneys have used it to charge defendants as young as 14 with no prior criminal records, he said.