Break out the tiny violins for Sen. Jeanette White, who’s had a rough week and change. Her inflammatory comments at an April 2 hearing of the Senate Judiciary Committee went viral, and prompted an avalanche of critical emails and voice mails. One week later, she opened another committee hearing by reading a written statement that hit all the notes in the fakey bullshit “apology” playbook.
Yeah, it’s a shitshow. Strap in.
The committee was discussing H.128, a bill to ban the so-called “gay panic” defense, in which a defendant argues that their crime was excusable because of the gender identity of the victim. The argument has led to acquittals, convictions on lesser charges, and/or greatly reduced sentences – or should I simply say “gross miscarriages of justice.” The bill passed the House on a 144 to 1 vote. (For those keeping score at home, the only “No” vote came from Republican Rodney Graham.)
One hundred forty four. To one. Don’t forget that.
(At this point I’d like to mention the shining star of this clusterfuck: First-term Rep. Taylor Small, the bill’s co-sponsor. On April 9, she gave Senate Judiciary a clear, concise argument in favor of H.128, and did so in an unwaveringly respectful tone. And she may have actually swayed the outcome of the committee’s vote.)
The bill has run into trouble in Senate Judiciary, with two of its five members speaking against it and one — Alice Nitka — never uttering a word in committee deliberations. One opponent is Republican Joe Benning, a defense attorney by trade. He’s fine with a ban on the “gay panic” defense during criminal trials, but he wants it to be in play during the sentencing process. Not that he approves of the tactic; he’s just opposed to any limit on defense arguments at sentencing.
(I’d like to get one thing on the record here. Benning may oppose the ban, but the American Bar Association passed a resolution eight years ago urging “federal, tribal, state, local and territorial governments to take legislative action to curtail the availability and effectiveness of the ‘gay panic’ and ‘trans panic’ defenses.” So his own profession’s largest organization doesn’t share his concern.)
The other opponent is Windham County Democrat Jeanette White. Here’s where things went off the rails.
“I don’t think I like the bill at all,” White said at the beginning of the April 2 hearing. “Why would you eliminate the ability to use something as a defense and trust the jury and the judge to take that into account?” White then referred to “three high-profile cases” in which the gay panic defense resulted in gross miscarriages of justice, and said “We shouldn’t be responding to high-profile cases but to look at the totality of the cases.”
And then she put her foot squarely in it.
What if I’m the nice little white woman and I get attacked by, um, or I think I’m getting not attacked but, um, a Black man is coming on to me and I say, that’s, I-I, it just made me so nervous that I had to shoot him? I mean, shouldn’t we, or, um, a guy from, with a motorcycle jacket on was coming on to me, so I, I’m so afraid of motorcycle people because I know about the Hell’s Angels, so I had to shoot him. I mean, isn’t, aren’t we going down some kind of a, a slippery path here that ——
At that point, committee chair Dick Sears cut her off and changed the subject. He knew.
White seemed to realize what she’d said, since she quickly changed the hypothetical from scary Black man to scary motorcyclist. (Later on, she tried it in a case of shooting a scary politician.) But she didn’t take it back; she just blundered around, citing farfetched hypotheticals to explain her opposition to the bill. Often descending into word salad, like so:
If we start prohibiting information that the judge can look at and we’re talking here about a specific victim identities, but there are all kinds of victim identities that we could then tell the judge that you couldn’t, you can’t consider this, and I fear that one of the things that Rebecca talked about was having categorical exclusions for information to come to the judges is harmful and I do understand that Philip’s concern that we do have judges who have bias. That is absolutely true. But I think we have to put some trust in our judges and I’m okay with not, I would prefer not having it excluded from the jury part of it either, but I’m okay with that, but I’m not okay with prohibiting the judge from having any information that is, could be presented. That’s where I am.
“Rebecca” is Rebecca Turner of the Defender General’s office, which opposes the bill. “Philip” is Sen. Phil Baruth, committee member who supports the bill. Not that those identifiers help you understand whatever the hell White was getting at.
Fast forward to April 9, when she opened the Judiciary Committee hearing by reading her written statement. It was a doozy. I’ll reproduce it in full; for those who want to skip it, I’ll list the lowlights afterward.
Over the past few days, I’ve received numerous emails and phone messages, some of them pretty vitriolic, accusing me of being racist, homophobic, and in general not a good person. First, let me apologize to anyone I offended for anything I said. My comments and questions were not meant to be hurtful, nor offensive.
As legislators, we need to examine all aspects of proposed laws for consequences we may not anticipate. That might mean asking questions that, when taken out of context, seem inappropriate. As an example, this one single sentence that was pulled out of, a question that I asked that has been used in form letters sent to me, proving that I am racist.
I believe what I was trying to wrap my head around was, um, whether we should, whether we should, why should a prohibition on panic defense shouldn’t be broadened to include more than just gender. That’s what I was trying to wrap my head around by that example.
As we grapple with important and complex issues, we must be able to ask questions that might seem inappropriate or hurtful when taken out of context. If we can’t, we will not continue to learn and grow, and our legislation will not be the best it can be.
So again, my sincere apologies to those who were hurt by anything I said. They were not in any way meant to be, to convey any racial or gender slurs.
Whew. Let’s unpack, shall we?
She begins by portraying herself as the victim. Then she gets to the non-apology: “I apologize to anyone I offended for anything I said.” Nope. A real apology would include a specific acknowledgment of where you offended, and would not put the onus on those who took offense. “Anyone I offended for anything I said” strips the statement of all value.
Next, she cites her role as a thoughtful legislator. Problem is, it’s entirely possible to perform that role without being offensive to whole classes of people. As an added bonus, she makes the tired old “out of context” excuse.
Problem is, some things are offensive regardless of context. I’d say pretend-shooting a Black man qualifies.
She then pats herself on the back for giving committee members a chance “to learn and grow.” To judge from her statements, I’d say it’s Senator White who has some learning and growing to do. And she wraps up with the bullshit non-apology “to those who were hurt.”
Judiciary chair Sears immediately came to White’s defense. “Having worked with you for many years, your heart is always in the right place,” he said. He then lamented the fact that the hearing was posted on YouTube, where her offensive comments were unfortunately dragged into the light of day.
Don’t gloss over that. It may turn out to be the final nail in the coffin of livestreaming and archiving Statehouse proceedings after the pandemic is over. It would be a great public service, but senators don’t like to be made fools of. Even when they did it to themselves.
This is when Taylor Small stepped in, and neatly debunked White’s arguments (and Benning’s). She outlined the “bias that already exists in our communities toward LGBTQ,” and noted that violence against LGBTQ persons is on the rise.
But the capper in her presentation was her citation of a large-scale research project on the use of the “gay panic” defense. In one-third of cases reviewed, she said, “the defendant received a lesser punishment” ranging from reduced sentence to outright acquittal. The rate of acquittal was five percent.
So the influence of the “gay panic” defense is far more pervasive than Sen. White’s “three high-profile cases.” It is, in fact, a considerable obstacle in the path to justice.
Small’s presentation appeared to have some effect on White, who called Small’s testimony “helpful.” That’s crucial. Throughout most of the hearings, there were two clear “yes” votes (Sears and Baruth), two clear “no” votes (Benning and White) with no comment, questions or commitment from Alice Nitka, the fifth and final member.
Just as a reminder, a bill that passed the House ONE HUNDRED FORTY-FOUR TO ONE faces an uncertain fate in the Senate because of the prejudices of Jeanette White and the reticence of Alice Nitka.
It would be nice to believe that White has learned something from all this, but I doubt it. Many of our senators, especially those with long tenure, are firmly convinced that their shit doesn’t stink. And her grab at the mantle of victimhood indicates that she has learned absolutely nothing.
Wondering where you got your Benning is a “clear no vote” on this bill from. I know this is your blog site, but I still wish you would have asked me to flesh out my thoughts.
First, let’s be clear about the differences between the “trial” phase of a criminal prosecution and the “sentencing” phase. With respect to the trial, where guilt or innocence is determined, I was pretty clear that I agreed with the need to ban the so-called “gay panic defense.”
I came to that conclusion this past fall, when a constituent asked me to propose a bill which would allow judges to issue a jury instruction prohibiting discussion of this topic during jury deliberations. I had to confess to my constituent that, after 37 years as a defense attorney, I had honestly never heard of this defense. She provided me with ample research, some of which was likely the same material Representative Small was citing, which convinced me of the need. My plan was to mirror the original bill in California. That was what the ABA resolution that you’ve linked us to in your article was all about. As I said in committee, I think it is quite appropriate to ban this defense from the trial stage.
I truly believe society should not tolerate this “panic” being used as an excuse during trial. But Senate Judiciary is moving to amend the bill to make it clear that this extends to sentencing, which is where I started to become uncomfortable. I believe it is at least worthy of discussion that we distinguish the two stages. The trial stage sets society’s priorities; the sentencing stage requires individual circumstances, both aggravating and mitigating, for proper punishment and rehabilitation.
Extending this, or any other, ban to the sentencing stage via legislative fiat is dangerous precedent. If anything, we should walk very carefully when considering such legislation. In the instant case we inhibit consideration by a judge of a component that may be necessary for determining what to do with a convicted defendant.
I asked Representative Small to consider herself sitting next to me at defense counsel table. She’s been convicted of simple assault for slugging a member of the Westboro Baptist Church. The way I read this amendment, she and I can’t make a complete argument about how she should be sentenced, As a defense attorney, that leaves me uncomfortable. Generally speaking, we leave it to judges to consider the totality of circumstances. We trust them to make that decision, and remove them during retention when they show us they can’t. I’m uncomfortable using the legislature to hamstring a judge in trying to fashion an appropriate sentence. I agree with your assessment of Representative Small’s argument and presentation, which left me thinking more about it in reflection.
So I turned to my defense attorney colleagues on the Defender General’s list serve. If for no other reason, I wanted to make sure I wasn’t alone in my concern. I asked two questions. First, had anyone ever used the defense or even heard of it. Second, was anybody as queasy about the legislature restricting a judge during sentencing. The majority of respondents (about a dozen in total, but very experienced) either knew nothing, or very little, about the defense during trial. None had ever tried to use it. As best as I can tell, the defense has never been tried in Vermont. One colleague pointed out that, if such a defense were raised, the defendant would immediately be threatened with an enhanced hate crime and/or an enhanced penalty by the sentencing judge. Respondents were universal in not liking the idea of a sentencing judge being hamstrung by legislative fiat.
I also asked legislative counsel to go back to review those states who had similar laws to determine whether any of them included the sentencing phase, but I have not heard back yet.
In any event, I’ve concluded that this bill is worth voting for because the time is ripe for society to make a statement that this behavior is unacceptable. I’ve given up my worry about the sentencing judge, because no defense attorney in their right mind would threaten their client (or their own malpractice insurance rates) with an enhanced charge or an enhanced sentence by trying to use “gay panic” as a defense. Hope that “clears” up my vote.
As for my colleague Senator White, your comments about her come without any knowledge of the kind of emails she was getting. She really does have a heart of gold. If legislators cannot take the time to express their thoughts and reflect without somebody taking offense, we’ve got a much bigger subject to talk about.
I appreciate your thorough account, Senator. You express your position more accurately than I did.
I can’t say I take back any of my comments about Senator White. Her original comments on April 2 are extremely difficult to explain or excuse, and her “apology” was defensive, self-centered and insufficient.
First, that’s a solid reply from Sen Benning and I’m glad to read today he will probably support the bill. He appears to be a thoughtful guy.
Second, I know Sen. White has done some good work over the years. But at this point in view of her pathetic comments, she should just resign.
Benning kinda-sorta approves the bill. There are two versions floating around: One would ban the gay panic defense at trial but allow it at sentencing. The other would ban it at all phases. Benning would vote for the former but not the latter. That’s what he said in committee yesterday, if my notes are correct.