One of the more disturbing trends in our justice system is courts forcing the parties in front of them to refer to women as men and men as women, sacrificing truth on the altar of transgender ideology. We think it is the most odious when the case is about whether so-called transgender rights, because it amounts to forcing one side to concede to the other before any ruling has been rendered.

But this is pretty bad, too, because it seems to have robbed a defendant of a fair trial:

The cut off text:

At prosecutors’ request, the Shelby County trial judge barred any mention that Lee was male, ordered everyone to call him ‘Ms. Lee,’ and redacted his autopsy.

The appeals court said that misled the jury and ordered a new trial.

We took the time to actually look up the opinion and you can read along, here:

But you don’t really have to read it because we are here to ‘Lawsplain’ it to you.

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A man named Samuel Ward Jr. was convicted of manslaughter. He appealed that ruling. The Court of Criminal Appeals of Tennessee, a mid-level appeals court, overturned the conviction and held that he was entitled to a new trial, because the trial court not only lied to the jury about the victim’s sex, but because the trial ordered everyone in the case to lie about the victim’s sex and even allowed evidence to be altered to keep the jury from discovering ‘she’ was a he.

There is seemingly no dispute that Mr. Ward shot Paris Lee. Lee is a man who has deluded himself into thinking he is a woman. But Ward claimed that he did so in self-defense. From the article:

On the night of June 29, 2022, Samuel Ward Jr. called police to report he had shot someone. According to the court’s opinion, he told officers he and a friend had argued after sex, and the friend pulled a gun on him. Ward said he drew his own gun and fired back as he fell down a staircase.

In short, Ward claimed that he shot Lee in self-defense and wanted to point out that he shot a man, not a woman. This is because whether or not Ward acted lawfully depends on whether he had ‘a reasonable belief that there is an imminent danger of death or serious bodily injury’ (quoting the Court) at the time he shot Lee. It is up to the jury to make this determination and the Court said that the factors that they could consider includes: 

any previous threats of the alleged victim, the alleged victim’s character for violence, the animosity of the alleged victim for the defendant, the manner in which the parties were armed[,] and their relative strengths and sizes.

(Emphasis added.) The defense argued that if the jury knew that he had shot a man, and not a woman, that would change how the jury saw Lee in their minds. Ward believed that this would make him more likely to win, because they would see a big man in their minds, and not a woman. But the trial judge ruled that everyone in the case had to refer to Lee as a woman, and no one could mention that he was a man, and the trial judge even allowed for evidence to be altered to conceal that fact:

the trial court later admitted redacted crime scene and autopsy photos which concealed the victim’s male genitalia and a redacted written autopsy report which blocked all information relating to the victim’s sex.

As if that is not bad enough, this decision to actively lie to the jury influenced Ward’s decision not to testify on his own behalf. From the opinion:

When asked whether he wished to testify, Defendant stated, ‘I would like to testify if I could tell the whole truth.’ Defendant expressed his concern that ‘the jury might hold that against [him]’ that he ‘did something to a woman.’

At another point in the opinion, it noted that ‘Defense counsel stated that if Defendant chose to testify, he would be in a position to have to lie to the jury, ‘either by omission or just a straight-out lie.’’ You get that? Because of this transgender madness, a trial judge thought she could order a defendant to commit perjury and that might have influenced Ward’s decision not to testify on his own behalf.

And that alone could have obviously changed the outcome of the trial. It is not impossible to win in a self-defense case where the defendant doesn’t testify on his own behalf. George Zimmerman is probably the most prominent example of a defendant successfully claiming self-defense without taking the stand. But very often the evidence the defendant can give is very useful in winning such a case, because very often there are only two witnesses to what happened and the other is the alleged victim — who is often dead. Even when there were multiple witnesses and video — including one living ‘victim’ — Kyle Rittenhouse chose to testify on his own behalf, and the results speak for themselves.

The judge’s excuse for excluding the evidence is Rule 403 of Tennessee’s Rules of Evidence, which has an analogue in every American jurisdiction that we are aware of. It says, in relevant part, that:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]

So, the judge said that whatever relevance the evidence had was outweighed by the concern for unfair prejudice, because gosh, the jury might be prejudiced against the trans person. 

The defense countered by saying that even if the jury was prejudiced towards trans people, they were just as likely to take it out as much on Ward as Lee, since Ward was having sex with Lee, knowing he was a man.

The prosecution countered with an interesting argument. This author has said for years that guns are a great equalizer. A small 95-pound woman is about as dangerous with a gun as Arnold Schwartzenegger would be, even in his prime, with a gun. So, the prosecution argued that basically it didn’t matter if Lee was a man or a woman, because the gun was just as deadly either way. And the appellate court had an answer to that, sort of:

While a gun might equalize differences in physical strength and size, there are other inherent physiological differences between the sexes that science continues to reveal and that we choose not to ignore. A detailed discussion is not necessary for our analysis; it suffices to acknowledge that these differences exist. However significant or insignificant these differences are, the Tennessee Rules of Evidence set the threshold test for relevance low: evidence is relevant if it has any tendency to prove a consequential fact. … We decline to hold that the biological sex of the victim is not relevant to a claim of self-defense.

(Citations omitted). Except, well… they don’t have any cogent explanation for why Lee’s sex matters. If it was a fistfight, or even a knife fight, Lee’s physical size and strength would be important and that is influenced by sex. But in a gunfight, which is what Ward said it was? We could imagine scenarios where it might be relevant, but it's not inherently, obviously relevant, and the Court doesn’t make the case that it might be relevant in this case. It just kind of punts on the issue.

That leads us to suspect the actual reason why the Court wanted Ward to be able to tell the jury he shot a man is this: To avoid the prejudice Ward might have faced if the jury thought he shot a woman. We can’t absolutely prove it, but this author tends to think that on otherwise identical facts, a man is more likely to be able to successfully plead self-defense, if he is claiming that he is defending himself against a man rather than a woman. We think that is true, even in a gunfight like this. Fair or not, juries probably have a harder time believing a man when he said he had to shoot a woman to save his life, versus when he says he had to shoot a man. It is even reflected in Ward’s statement when he explained why he didn’t testify: ‘Defendant expressed his concern that ‘the jury might hold that against [him]’ that he ‘did something to a woman.’’

And of course, this author is not convinced it is unfairly prejudicial to point out the alleged victim is trans. We think a defense attorney could make the strong case that there have been a lot of violence by transgender people (especially mass shootings) and that, as a group, this is a bunch of people who irrationally deny basic facts of their lives, leaving them fragile, mentally, at best. And, in any case, we have seen enough photos of the alleged victim to wonder if the jury couldn’t figure it out, anyway. 

But we can see why Ward’s defense attorney wouldn’t make that argument. Throughout this piece, we have refused to pretend Lee is a woman. But that was not the position Ward and his defense team took. From the opinion:

Defendant filed a response to the State’s motion, stating that defense counsel would ‘respect [the v]ictim’s chosen sexual identity throughout trial and w[ould] refer to [the v]ictim as female, using the proper `she/her’ pronouns’ when referring to the victim. Defendant argued, however, that the victim’s biological sex was relevant to Defendant’s claim of self-defense.

In other words, unlike this author, they weren’t going to call Lee a man constantly as we just did. They just wanted to be able to say, ‘biologically, she is a man’ or something to that effect, when explaining why Ward had a reasonable fear of death or serious bodily injury.

In any case, the appellate court found it was an error to exclude the evidence that the alleged victim was a man, and ordered a new trial. There were other arguments that Ward made on appeal, but by our count, he lost on all of them. Still, winning on this issue was enough to get him a new trial, which is the best outcome he could have hoped for under these circumstances.

Some reactions:

The courts seem to have forgotten that the First Amendment applies in courtrooms, too. While trial courts can restrain speech more than the law can in most other contexts to keep order, maintain decorum, respect for the process, and similar concerns, the number of times when the government can force a person to lie without violating the First Amendment are few and far between.

(It might not even be possible under the First Amendment to force a person to lie, outside of the military, but we will follow the aphorism ‘never say never.’)

We are frankly annoyed that the appellate court was so courteous to this nonsense.

Well, Ward wasn’t surprised he was sleeping with a man. The opinion makes it clear that Ward knew Lee was a man, even if Ward’s defense team used terminology like ‘assigned sex at birth.’

That being said, we think it is generally speaking a terrible idea to enter into a sexual relationship concealing any fact the other person is likely to care about — whether it is a trans person concealing that ‘she’ is actually a man, or a man concealing from a woman that he is actually married. That can leave the other person feeling angry and betrayed. While those feelings don't justify violence, violence is one very predictable result. And yes, the person who gets violent in that scenario might end up in prison, but will that be any comfort to the people who love you if you are dead? Is that worth a ‘roll in the hay’ under false pretenses?

The Court is not even going that far. But yes, the Advocate is already freaking out:

From the article:

Using discomfort with LGBTQ+ identity as a defense in court cases about violence against LGBTQ+ individuals is commonly known as a panic defense, and is widely condemned by legal groups including the American Bar Association. This approach to criminal defense gained notoriety after it was used by defendants in the brutal 1998 murder of gay college student Matthew Shepard by two men in Laramie, Wyoming. Today, the LGBTQ+ panic defense is still not banned in Tennessee.

First, we are not convinced that Shepard was killed over gay panic. Second, this is not a ‘panic’ defense. Shooting at someone when they are aiming a gun at you, is pretty clean self-defense. And revealing Lee’s actual sex avoids the uncomfortability the jury might have with Ward killing a woman in self-defense.

And the fact that the American Bar Association agrees with this nonsense is further evidence it has been hopelessly compromised and deserves no institutional respect.

The cut off text:

Calling trans-identified men women intentionally introduces a falsehood into a process meant to discern truth. It’s stupid.

And as we pointed out on the subject of men in women’s sports, even if you buy into transgender ideology, and think that a man can magically become a woman and that man starts taking female hormones, that isn’t going to erase years of growing biologically to be built like a man, in terms of muscle mass, height, etc. Lee didn’t suddenly become just like he would have been if he had been born with XX chromosomes rather than XY.

Finally:

Ward was heard shouting ‘THIS IS MAGA COUNTRY!!!’ Jussie Smollett swears it happened that way.

Heh.

(And for the record, we are pretty sure 'Save the Tomboys' is joking, too.)

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