Thursday, April 21, 2016

Daryl Kirk: Victim or Villian?

At 19, Daryl Kirk didn't look like a killer, and a year later, she still doesn't, not really.  But when you look closely, you notice the hard lines of her mouth, the somewhat staunch looking posture as she stands in the defense box and the challenging gaze as she faces the court.  Daryl Kirk has seen pain and violence, she's seen drug use and abuse, she's seen more than anyone should have seen at the age of 20.  

In 2015, when Daryl's mother Kelly's violent and drug-addled boyfriend, Adam Watkins, chased Daryl with a meat cleaver, threatening to kill her and her mother with it, she picked up a .22 semi-automatic rifle and shot Watkins.  Ironically, the rifle was Watkins gun, which he kept to protect himself from some local gang-members who had been causing him trouble.

Daryl has just been convicted of the manslaughter of Adam Watkins, who she claims she shot in self defense.  But the Crown had pushed for a murder conviction, and pushed hard, alleging that Daryl was not acting in defense of herself or her family at all, but had snapped and killed Watkins out of rage.  

The jury agreed with the defense, that Daryl had some justification for her actions that day, and was a scared teen who shot the violent thug who was terrorising her and her family. Much of the evidence presented in the case backed up that version of events.  Daryl has no prior history of violence, and is apparently a quiet, rather shy young woman who has experienced years of domestic abuse from her mother's violent partners.  She's also witnessed her mother's ongoing struggle with drug addiction, and yet seems to have stayed out of trouble for the most part, herself.  To me, she comes across as very sympathetic.  

So why did the Crown push so hard for a conviction that, in U.S jurisprudence, would be called Malice Murder, a murder committed with malicious intent?  The Crown seems to believe that Daryl Kirk had plenty of malice towards Adam Watkins.  But why would the Crown think this about a 19-year-old girl who has been subjected to a life surrounded by domestic violence, and drug abuse?

I'll come back to that, but first lets look at what happened in the lead up to Watkins murder....

On the day he died, Watkins was high on a cocktail of illegal drugs, including methamphetamine.  Witnesses backed up Daryl's testimony that Watkins had picked up a meat cleaver and chased and threatened a number of people with it.  There were at least seven people in the home at the time, Watkins, Kelly Kirk, Daryl Kirk and Daryl's boyfriend, Kyle Barndon, as well as some friends who were visiting.  

According to witness testimony, Watkins began verbally abusing Kelly Kirk, and when one of the visiting friends intervened on Kelly's behalf, Watkins "lost it."  He picked up the meat cleaver and waved it around violently, chasing the others in the house while screaming threats at them.  Neighbours who lived across the road heard the shouting, and saw Watkins and a number of other people running around the property.  

These witnesses said that they saw Watkins and others run out of and back into the house a number of times, and that it definitely looked as if Watkins was chasing them.  They also confirmed that Watkins was holding some kind of weapon, though they weren't able to conclusively identify it, and thought it looked like some kind of axe, or possibly a machete.

Daryl Kirk's version of events states that Watkins chased her back inside the house from the driveway, where she'd fled to escape him.   Once back in the house, Daryl ran her bedroom, and Watkins followed her, trapping her in the bedroom, still swinging the cleaver and making threats.  Daryl grabbed the .22 rifle and, in fear for her life and the lives of her mother and the others on the property, shot Watkins three times.  

Later testimony, from the same neighbours who saw and heard the initial conflicts on the property, stated that they saw a distraught teen girl with barefeet leave the residence and run away down the street.  Daryl, scared and in shock after the shooting, ran to a relatives home not knowing that Watkins was already dead.  She thought she'd only wounded him, and in court told the jury that she hadn't wanted to kill him, just stop him from terrorising her and her family.

When Daryl finally learned that Watkins was dead, the Aunt, who's house Daryl had run to, testified that Daryl began sobbing hysterically and saying that she never meant to kill Watkins.  This is not the behaviour of a person who has snapped and killed someone in a fit of rage.  There are discrepancies in parts of Daryl's account of the shooting, but those discrepancies, according to the defense, can be attributed to the chaotic scene, the fear that Daryl was in, and to shock due to the fact that she'd never shot a person before.

For me, the witness testimony of Daryl's behaviour both before and after shooting, fits much better with the defense's version of events than with the Crowns.  Daryl fled the scene crying and afraid, and she was a shy, quiet girl who had no history of violence or of angry outbursts.  

Victims of domestic violence can snap and kill, but in a number of those cases, the fact that these killers are also victims, many of them suffering years of abuse, is recognized and acknowledged by the Crown when charging these women.  They are often charged with the lesser crime of manslaughter, and may also agree to plead guilty in exchange for greatly reduced sentences.  Why not this time?

The concern for me is that the Crown chose to go after Daryl Kirk because of her mother, and her run-ins with the law over the years.  

Kelly Kirk has a long history of violent relationships and drug use.  In 1992, Kelly, who was 15 at the time, was dating now-convicted double murderer, Graeme Burton, when he stabbed a nightclub lighting technician in revenge, after bouncers at the same club had thrown him out.  Burton was jailed for that murder, but was released on parole in 2006, where he went on a six month, meth-fueled crime spree which culminated in a shooting rampage in the hills of Wainuiomata, outside of Wellington.  Burton shot at a number of mountain bikers, killing Karl Kuchenbecker.  He then aimed his shotgun at police, who shot first, hitting him in the leg.  Burton survived the injury and was given a life-sentence with a minimum 26-year non-parole period.

It took Kelly a year to find the courage to use the opportunity presented by Burton's inprisonment, and break up with him from the safety of a prison visiting booth.  Despite the protection offered by the safety glass, Burton still launched himself at it in a futile effort to physically attack Kelly.  Prison staff would not allow Burton to write to Kelly, so he got friends and family who visited him in prison to drop his threatening notes directly into her letterbox.  When he briefly escaped from prison in 1998, the police whisked Kelly and her children (not Burton's) into protective custody because, despite being in prison for six years at that point, his anger at Kelly for breaking up with him, and his desire for revenge against her, had not diminished. 

Kelly Kirk spent years living in fear of Burton, but many of her other boyfriends could be just as dangerous.  Thanks to the damaging influence of Burton and subsequant boyfriends, Kelly was introduced to hard drugs and became addicted to morphine.  Something that has played a role in the kind of men she let into her, and her kids, lives.  Many of those men were not just violent, they too were drug addicts, a dangerous and volatile combination.

Kelly has become well known to police over the years, she's been jailed a few times, and her previous partners have all had long rap-sheets.  So did that history cause the police, and the prosecutors to stop seeing her daughter, Daryl, as a victim, and instead see her as a member of a "bad" family?  Did they assume like mother, like daughter?  Did they believe perhaps that Daryl was the product of a violent upbringing and, therefore, must be a violent person?

I will conclude by saying that I think the jury got it right in this case.  I believe that Daryl Kirk was terrified, in fear of her life, her mother's life, her boyfriend's life, and the lives of the other people in that house.  She shot a man who had brutalised her and her family, just like all the other men her mother bought into their lives.  Daryl Kirk was trying, in the only way she could, to stop that vicious cycle of violence.  It wasn't the right response, we know that from the safety of our non-violent homes, but Daryl had known nothing but violence for her entire life.  What possible chance did she have to realise that violence can be stopped in other ways, that there are people and organisations out there that can help?  

I believe the jury got it right, and the Crown and the police got it wrong.  They allowed themselves to see this family as a stereotype, instead of seeing them as real people, as victims of a violent, drug-fueled thug who was one more in a long line of violent, drug-fueled thugs who had victimised this family.  I just hope the judge also sees Daryl Kirk as a real person, and a victim, and imposes a sentence that will take that into account, and hopefully, give her a chance to rebuild her life instead of becoming just one more prison statistic.

Accused Claims Self-Defense in Shooting Death 
Accused Still Has Nightmares About Murder
Defense says Scared Teen, Crown says Rage-filled Murderer  Daryl Kirk's Mother on Past with Graeme Burton
Wikipedia entry on Graeme Burton

Monday, April 4, 2016

Victim or Predator: The Gay Panic Defense

On the evening of December 27th, 2014, staff at the Ascot-Epsom Motel in South Auckland discovered one of their guests, bleeding and disoriented, staggering across the courtyard.  The man's name is Ihaia Gillman-Harris.
His assailants, two teenage boys he'd offered a lift and a room for the night.
But within minutes of checking in to the Ascot, Gillman-Harris was viciously assaulted with a baseball bat.  He died in surgery later the same night from multiple head injuries.

The trial for those teenage boys began today and their defense is a familiar one for members of the LGBT community, and it's a defense that makes my blood boil every time it's trotted out. 

It even has it's own name, the "gay panic defense".

I'm a straight woman, I'll put that out there right now, because it's going to help me make an important point about this case.  Lets imagine that I've murdered someone, another woman, and that woman happens to be lesbian.  The police come and I tell them that I was only acting in self-defense because she was a lesbian, she tried to rape me, and I panicked and killed her.

Ridiculous right?

Don't get me wrong, I'm not saying that women can't be perpetrators of sexual violence, because they absolutely can.  I'm also not saying that women can't rape other women, because they absolutely can.  What I am saying is that if I, as a straight woman, used that defense in a criminal court on a murder charge, I would have to show pretty overwhelming evidence for my claim to slide that defense past a jury. 

But when a man claims that another man tried to rape him, and that's why he resorted to murder, that's somehow a legitimate defense, and one that often needs very little evidence to be upheld.  Here are some examples....

In 2011, South Australian man, Michael John Lindsey, bashed and stabbed an aquaintance, Andrew Negre, to death.  At trial, he claimed he was provoked by Negre's unwanted sexual advances but was found guilty of murder, and sentenced to 23 years in prison.  But in 2015, Lindsey successfully appealed his conviction to the High Court, where he was granted a new trial based on his claim that "gay panic" is a legitimate defense, and that the judge didn't make it clear to the jury just how much provocation could be used as a mitigating factor to murder charges.

Hold on to your koalas, it gets worse.  In the wake of Lindsey's appeal, there were renewed calls to ban the gay panic defense as some other Australian states have done.  Sounds like a good idea right? Not according to the South Australian Law Society, who had this to say in a letter to Legaslative Review Committee...

“It is surprising...that the occasion of the delivery of Lindsey v R has been met with renewed calls for reform concerning the regrettably coined ‘gay panic defence'.  The common law partial defence has a rationale which, when properly explained to the community, would be seen to be acceptable and consistent with social norms.  Importantly, the partial-defence works to avoid an inappropriate murder conviction.” - Rocco Perotta, President of the Law Society (and probably a giant, homophobic douche-canoe)

Australian bigotry at it's finest folks.

In Cook County, Illinois in 2009, 30-year-old Joseph Biedermann stabbed his neighbour Terence Hauser 61 times.  Biedermann claimed self-defense, telling the jury at his murder trial that Hauser had threatened to rape and murder him just hours after the pair had first met in a local bar.  

Biedermann's claims of a violent struggle with Hauser, who he alleged attacked him with a sword, were not backed up by the evidence.  Hauser's apartment, where the murder occurred, showed no signs of such an epic struggle, and many of Hauser's 61 stab wounds were to the back.  

Police said Hauser's death looked more like an unprovoked and brutal slaughter than an attempt to fend off an attack.  Despite this, a jury found Biedermann not guilty, accepting his "gay panic defense" as legitimate, and the vicious murderer who stabbed a single father 61 times walked free.  

This defense has been extended to excuse the murder of transgendered victims too.

In 2015, US Marine, Lance Cpl. Joseph Scott Pemberton, was arrested for the murder of 26-year-old Filipino woman, Jennifer Laude.  Laude, who was transgendered, was discovered strangled and drowned in a toilet bowl at a hotel in Olongapo City.  Pemberton had met Laude in a nightclub the night before she was found dead, and admitted accompanying her to the hotel for sex.  Pemberton testified that he was not aware Laude was trans, and had "panicked" after discovering she had a penis.  He then claimed that he strangled her, but left her unconscious but alive.  I presume we're expected to believe she drowned herself in the toilet, because that makes soooo much sense.

That last sentence was all sarcasm, in case anyone couldn't tell.

Jennifer Laude

Why is this ridiculous defense still being allowed in our courts? or in ANY court anywhere in the world?

It's 2016, and it's well past time to put the "gay panic defense" in the trashbag of history once and for all.

 Day One of Gillman-Harris Murder Trial

 Law Society Supports "Gay Panic Defense."

Green MP Calls for "Gay Panic Defense" to be Abolished

"Gay Panic Defense" Used to Aquit Illinois Man 

 Marine Claims "Gay Panic Defense" In Murder of Trans Filipino Woman