Psychosis Not Preventable

Neither medication nor psychotherapy is effective in improving the prognosis for youngsters considered to be at high risk of developing psychosis, according to a major study just published.

The idea of identifying and treating young people at risk of becoming psychotic - because of a family history of schizophrenia, or because they're showing some mild symptoms - has become very fashionable lately. But can we really do anything to pre-empt the disorder?

In this trial, 115 "ultra-high risk" Australian subjects were randomized to three different treatment conditions, or if they didn't agree to treatment, they were just followed up to see what happened.

The treatments didn't work. . . .

The other lesson here is that even "ultra-high risk" folks usually don't get psychotic: only about 10-20% of them, in fact, became ill in the first two years of this study; the British results I mentioned are very similar.

So is this really "ultra high"? Relatively, yes it is; even a 10% risk is far higher than the chance that a random person on the street would have. But in absolute terms, perhaps not.

A concern here is that rounding these folks up, labelling and 'treating' them might make their lives worse, or even increase the risk of psychosis.  

From Neuroskeptic.

Genes, Enviroment and Developmental Biology

It has long been known that psychosis has a very strong genetic component, but since a large share of all genetic conditions lead to a phenotype (observable characteristic) via a gene x environment mechanism, it isn't unreasonable to think that genes that predispose someone for psychosis merely create vulnerability to whatever environmental triggers cause psychosis to manifest.

On the other hand, studies of the mechanisms of schizophrenia, which usually manifests in late adolescence, point to a process of neurological system reorganization that happens as part of the usual developmental process as being one of the key triggers for the onset of the condition in people who are genetically predisposed to it. 

So, unless a treatment actually suppresses the biochemical process of adolescence (something that is done in the case of some transgender individuals, so that irreversible adolescent transformations of the body into a gender mold that undermine gender reassignment efforts can be suppressed until the individual is old enough to make his or her own decisions about sex reassignment treatments as a chronological adult), the treatment may be powerless to prevent the genes involved in schizophrenia from being triggered.

Non-Treatment Benefits Of Early Diagnosis

Similar issues come up in efforts to diagnosis autism early in the hope of treating it, despite the fact that it isn't clear yet that any of those treatments really work.

Now, this doesn't necessarily mean that early diagnosis is a bad idea. 

Knowing that a serious mental health condition is likely to manifest at a particular point in someone's life helps families make sensible plans, even if those plans may be entirely non-medical in nature (e.g. arranging to have inheritances from a grandparent placed in protective trusts rather than distributed outright), or are purely of the harm reduction variety rather than constituting true "treatment" (e.g. keeping weapons out of the house where there is a risk that a psychotic condition may manifest).

How Do Treatment Myths Form?

But, these kinds of results do call into doubt approaches to dealing with these conditions (and the risk that they may develop in the case of individuals at high risk for them) that are practically articles of faith among members of communities of family members of affected individuals.

It is easy to see how these belief systems could form.  Any form of "treatment" whatsoever is likely to be 80%-90% effective even among the highest risk individuals, and a run of good luck in a small study can easily get better results than that simply due to random chance.  But, "success rates" at those levels don't actually mean anything.

How Much Risk Is Too Much?

The statistical issues involved are similar to those involved in cousin marriage or a decision of an older father to have more children. 

Both marrying a cousin and having a child at an advanced age greatly increase the risk of cogenital genetic problems for the resulting child.  But, a huge percentage of children in both cases are perfectly normal anyway, because the risks that are magnified by cousin marriage and advanced paternal age are so small in the absence of a risk factor.  Is a risk that is increased ten-fold or more worth heeding, if there is a 90% or 95% or 98% chance that eveything will be fine despite the heightened risks?  Those are decisions that scientistists and doctors can't make for people (or at least shouldn't make for people).

I personally have made medical decisions for myself to receive treatments with a chance of success in the 90% to 98% range, knowing that there is a real risk of serious side effects, when the benefit to be obtained if the treatment works well is great.

Even More Rare and More Different

Considerably less common than homosexuality (crudely defined as sexual attraction to members of the same sex as opposed to members of the opposite sex), are transgender individuals, who perceive themselves to be members of a gender different from the one to which they physically appear to belong.

But, there are gender situations more rare and more complicated than either of these relatively easy to grok conceptions, which Neuroskeptic reports from a new pioneering study of more complex gender identities:

Under the transgender umbrella, a distinct subset of "Bigender" individuals report blending or alternating gender states. It came to our attention that many (perhaps most) bigender individuals experience involuntary alternation between male and female states, or between male, female, and additional androgynous or othergendered identities ("Multigender")... A survey of the transgender community by the San Francisco Department of Public Health found that about 3% of genetic males and 8% of genetically female transgendered individuals identified as bigender. To our knowledge, however, no scientific literature has attempted to explain or even describe bigenderism; a search of PsychInfo and PubMed databases returned zero results.

If the percentage estimates are accurate, the frequencies are on the order of one individual out of a hundred thousand, or even a million (i.e. on the order of 300 to 3000 individuals in the United States).

The American Psychological Association recognized the concept in 2008.

To be clear, this isn't simply a survey of people with androgenous gender (i.e. people who are gender ambiguious) (another heavily overlapping notion is that an individual is an intersex individual or "hemaphrodite"), which is quite a bit more common (perhaps 0.1% to 1.7% of births depending on definition and research method, with at least seventeen different understood causes that differ from each other in important ways). Nor is it a survey of the much more common group of individuals who are "bisexual" (i.e. crudely defined as people attracted sexually to both men and women).

This is a survey of people who may self-perceive themselves to be male one day, female the next day, and sometimes androgeneous on another day (the actual duration of the phases varies) and is dubbed by the researchers "alternating gender incongruity" (AGI). Obviously, this would be a mite inconvenient if one wanted to try to reconcile one's self-perception of one's gender and one's physical appearance (the most commonly used medical resource for transgendered individuals) either with hormone treatments or gender reassignment surgery.

The total sample was small, because this situation is rare to the point of being undescribed in the literature, and based on surveys from a transgender Internet forum:

Of the 32 alternating bigender respondents included [some were excluded for diagnoses of DID etc], 11 were anatomically female (identified as female at birth)... One respondent identified as intersex, but only for reasons of androgynous facial appearance...

10/32 respondents agreed that their gender switches were "predictable." The period of gender switches was highly variable, ranging from multiple times per day to several times per year. A majority (23/32) of respondents, however, reported that their gender switched at least weekly [with 14 saying it switched at least once per day].

The paper is: Case, L., and Ramachandran, V. (2012). Alternating gender incongruity: A new neuropsychiatric syndrome providing insight into the dynamic plasticity of brain-sex Medical Hypotheses, 78 (5), 626-631 DOI: 10.1016/j.mehy.2012.01.041

Obviously, this is something of a first stab in the dark and its causes and nature are unknown. Is this etiologically more along the lines of multipersonality conditions where the individual does not completely lose continuity between phases, or some kind of psychosis, or is it simply an extended and more complex dimension of the same kinds of causes and phenomena associated with a transgender identity. For example, "ordinary" trangender identities are often described as prototypically manifesting in early childhood and being very stable over time. There is a formal diagnosis associated with what is commonly called multiple personality disorder, although it is a controversial diagnosis, and that condition is sometimes associated with extreme childhood trauma. We don't know much about when a bigender manifests, whether there is any particular set of other set of commonalities in the lives of these individuals, or much of anything else.

Many cases of multiple personality diagnosis after the syndrome was popularized were later considered doubtful, but the last century of so of psychiatry, psychology, neuroscience and gender studies have also caused us to recognize that individuals who are pscyhologically and perhaps neuropsychologically atypical can be rare without being non-existent. The article is not open access and not published in a particularly high profile journal.

Before making any definitive conclusions about what is happening, one would want, at a minimum, to have extensive case studies of as many individuals presenting as bigender or multigender as possible.

For that matter, a single, feature length article in a newspaper or magazine, interviewing an AGI individual, or a short autobiographical piece, would add far more insight than a simple write up of a single survey. But, one has to start somewhere and start asking questions before knowing that there is something to know.

The authors make the preliminary case for an understanding rooted in neuroscience (i.e. "hardware") rather than psychology (i.e. "software"):

We present descriptive data suggesting that many bigender individuals experience an involuntary switching of gender states without any amnesia for either state. In addition, similar to transsexual individuals, the majority of bigender individuals experience phantom breasts or genitalia corresponding to the non-biologic gender when they are in a trans-gender state. Finally, our survey found decreased lateralization of handedness in the bigender community. These observations suggest a biologic basis of bigenderism and lead us to propose a novel gender condition, “alternating gender incongruity” (AGI).

We hypothesize that AGI may be related to an unusual degree or depth of hemispheric switching and corresponding callosal suppression of sex appropriate body maps in parietal cortex- possibly the superior parietal lobule- and its reciprocal connections with the insula and hypothalamus.

This is based on two lines of reasoning.

First, bigender individuals in our survey sample reported an elevated rate of bipolar disorder, which has been linked to slowed hemispheric switching. We hypothesize that tracking the nasal cycle, rate of binocular rivalry, and other markers of hemispheric switching will reveal a physiological basis for AGI individuals’ subjective reports of gender switches. Switching may also trigger hormonal cascades, which we are currently exploring.

Second, we base our hypotheses on ancient and modern associations between the left and right hemispheres and the male and female genders. By providing a case of sharp brain-sex shifts within individuals, we believe that the study of AGI could prove illuminating to scientific understanding of gender, body representation, and the nature of self.

It is unclear from the abstract just how elevated for example, an "elevated rate of bipolar" is in the sample. Just two cases would probably be a statistically significant elevation relative to the baseline rate in a sample of thirty-two bigender individuals.

The second author is best known for prior research on phantom limbs. Associations with bipolar disorder and being ambidextreous, are interesting, at the very least.

The study also provides one more datapoint in the continuing psychological question of whether to think of gender as a construct with a small number of fixed categories, or as something involving more of a continuum, even though most people are on relatively extreme points in that continuum.

For more background, see in particular prior posts at this blog from March 1, 2008, and December 22, 2011. This post at another blog also provides a great deal of well informed grist on a variety of related subjects for your consideration.

Masculine v. Feminine Personality Traits

A new open access paper, Del Giudice M, Booth T, Irwing P, "The Distance Between Mars and Venus: Measuring Global Sex Differences in Personality." (2012) PLoS ONE 7(1): e29265. doi:10.1371/journal.pone.0029265, finds that looking at combinations of multiple personality traits as measured by a fifteen factor personality test of 10,000 roughly gender balanced subjects in the U.S. shows only a 10% overlap between the masculine and feminine sets.

The fifteen factor approach utilized is summarized as follows:

The 15 primary scales can be further organized into 5 global scales: Extraversion (Warmth, Liveliness, Social Boldness, Privateness, and Self-Reliance), Anxiety (Emotional Stability, Vigilance, Apprehension, and Tension), Tough-Mindedness (Warmth, Sensitivity, Abstractedness, and Openness to Change), Independence (Dominance, Social Boldness, Vigilance, and Openness to Change) and Self-Control (Liveliness, Rule-Consciousness, and Perfectionism). The global scales of the 16PF are similar to the 5 FFM domains; in particular, Extraversion overlaps considerably with FFM extraversion, Anxiety with Neuroticism, Self-Control with Conscientiousness, and Tough-Mindedness with (negative) Openness. The Independence scale, however, has no clear-cut analogue in the FFM.

(Agreeableness is the FFM without a clear 16PF analog.)

This is much larger than the the overlap that can be observed for individual personality traits analyzed one at a time, and by using less fine grained personality measurements such as "Big Five" personality traits (aka the Five Factors Model aka FFM). The authors provide some examples of the gender distinctions that are obscured in highly aggregated personality measurements:

For example, FFM extraversion has loadings on two narrower dimensions, warmth/affiliation (consistently higher in females) and dominance/venturesomeness (consistently higher in males). These two effects of opposite sign result in a small overall sex difference in extraversion, with females typically scoring (slightly) higher than males. A similar pattern of crossover sex differences has been found in openness to experience, with males scoring higher on the “ideas” dimension and females on the “aesthetics” dimension of this trait. Sex differences in Conscientiousness are also confined to just some of its components.

At the individual, fine grained personality trait level the study found that:

[T]he largest differences between the sexes were found in Sensitivity, Warmth, and Apprehension (higher in females), and Emotional stability, Dominance, Rule-consciousness, and Vigilance (higher in males). These effects subsume the classic sex differences in instrumentality/expressiveness or dominance/nurturance.

The statistical methods used in the latent variable analysis are basically the same ones used to discern patterns in large quantitites of genetic data is large population samples by breaking it down into dimensions of variable or hypothetical ancestral components. It also account for measurement error issues. From the perspective of someone familiar with linear algebra, the concepts used are kindred to eigenvector analysis. According to the study authors:

When observed scores were used and univariate effect sizes were aggregated by simply averaging them (the weakest methodology), the overall male-female difference was “small” and consistent with Hyde's meta-analytic results. However, when univariate effect sizes were estimated on latent variables and aggregated in a multvariate index (the strongest methodology), sex differences increased about tenfold and became extremely large.

The controversial conclusion of the study's authors in Italy and the U.K. is that the "idea that there are only minor differences between the personality profiles of males and females should be rejected as based on inadequate methodology." The leading meta-analysis of JS Hyde in 2005 found a 75% between men and women on a wide variety of personality traits.

Probably the most important potential issue with this analysis relative to other studies of gender difference in personality, which the authors appropriately identify is that:

Estimating group differences on latent variables is clearly preferable to relying on observed scores, but this methodology depends on the assumption of measurement invariance, i.e., the assumption that the construct being measured is actually the same in both groups. Booth and Irwing found that between-sex invariance was violated for the five global scales of the 16PF (analogous to the Big Five), but satisfied for the 15 primary factors of personality. There is evidence that the same may apply to FFM inventories. Measurement invariance is thus another reason to measure sex differences at the level of narrow traits, instead of focusing on broad traits like the Big Five.

In their conclusion they argue that there are measurement invariance issues, but that tend to underestimate rather than overestimate the gender differences because people who complete self-reported personality inventories tend to interpret questions with reference to others of the same gender, but the suggestive evidence that they offer on that point isn't a particularly rigorous refutation of the point.

The fact that a more fine grained set of personality traits and simultaneous multivariate analysis dramatically increases gender differences in the data analysis is strong support for their hypothesis. While even random noise in data will necessarily heighten gender differences when this kind of analysis is done, relative to a less fine grained set of personality traits and univariate analysis, the magnitude of the differences is dramatic enough to lend weight to their hypothesis that apparent male-female similarities in personality are to a significant degree products of methodologies that blur the differences like aggregation of subtraits with different gender biases and tendencies to ignore corrolations that are both statistically important and influence how the combination of personality traits present and interact as a whole.

The margins of error claimed in the main output of the study as compared to prior metastudies, which is the a measure "D" that can be equated to the percentage of overlap in personality space between men and women revealed by the analysis is about +/-5%. The margin of error in the old 75% overlap estimate isn't entirely clear, and appear to be greater since it was binned in three large categories that each spanned a magnitude difference of factors of two or three on an equivalent measure. But, by any measure, the effect was huge.

In the kind of language physicists like to use, there was a roughly 32 sigma difference between the global level gender differences seen in the new analysis and the differences found in the most disparate of the individual traits in the leading metastudy of personality differences between genders. Not a three point two sigma difference, a thirty-two sigma difference, in a study which does not suffer from common defects in behavioral science research like small sample sizes. Large sample sizes should greatly reduce the amount of statistical noise in the effects.

Physicists tend to insist on five sigma effects before they are considered significant, and social scientists tend to be quite a bit more lenient in their standards of statistical significance.

It is also worth noting that neither result (the old similarity hypothesis or their strong difference hypothesis) is congruent to a feminist or anti-feminist view. While some of the earlier notions of feminism that were pivotal in motivating an end to legal sex discrimination in most forms of education and employment focus on breaking down gender stereotypes and de-emphasizing gender differences, more modern feminist scholarship has had more of a different but equal character to it, recognizing strong differences in masculine and feminine ways of conceptualizing situations and moral issues and arguing for a perspective that gives greater weight than traditional social and legal arrangements to perspectives that are more feminine. Likewise, this research doesn't begin to probe the extent to which more complex than binary desconstruction of masculine-feminine differences impact their analysis or the extent to which atypical gender identities and sexual orientations could be driving some of the remaining overlap between gender and personality that they observe. Ten percent overlaps start to reach scales where bimodal continuums of sexual orientation and gender identity at reported levels could materially impact the result.

A Story About Mirror Twins And The Mysteries Of Gender

We aren't quite sure how gender identity works. Hormones play a part, but they aren't the whole story, and genes aren't the whole story either.

If you've read growing up stories about transgender children, this story in the Boston Globe, about twins in Maine (purportedly identical twins), one of whom is transgender, and the other of whom is not, rings true and is extremely familiar. This post recaps a lot of the same issues I addressed with more research rigor three years ago in response to some news stories in Colorado, and covers a lot of the same grounds, with the exception of the data point provided by the identical twin aspect of the Boson story.

Questions Of How and Why

In some ways, the notion that the two identical twins have such different personality is more notable than that they have different gender identity. While it isn't safe to generalize, certain most of the time transgender involves having XY genes and feeling certain that you are a girl, or having XX genes and feeling certain that you are a boy. Ergo, there is nothing conceptually impossible about genetically identical people not having identical gender identity.

But, twins aren't just clones of each other - genetically identical people who may be born to different gestational mothers at different points in time. Not only are they genetically identical, they also gestated in the same womb at the same time. And, yet, almost uniformly in the instances I've heard described, a conclusion that someone has a transgender identity manifests in a way that is almost impossible to ignore, even if you try very hard to do so, by preschool age - the article says the matter was absolutely undeniable by age four and manifested to some extent well before that point. And, given how difficult it is to make any sense of what infants are about in personality beyond one or two very basic dimensions, the inference that a transgender identity is probably congentital, even though it is probably not genetic (or at least, is probably not exclusively genetic) is a strong one.

The typicality of the case that the Boston Globe describes, in just one of two identical twins, suggests just a few possibilities.

1. Something within the gestational environment was different for one twin than the other, even though they were in the same womb. Thus, gestitational microenvironment might be involved. Maybe there was a different hormone balance at one end of the womb than the other at a critical moment for some reason like a residual estrogen accumulation from oral contraceptives taken at some point, or maybe a well placed kick to one of them during gestation took out the "turn into a male" circuit in one child but not the other by physically damaging it.

2. Something within the twining process wasn't perfectly symmetrical. Maybe one of the twins is a chimera of a lost fraternal triplet and the living twin, and the other is not, but genetic testing was at a locus where only the fraternal twin's genetic trace was detectable. Maybe there was a random hiccup in a key male or female identity moment of the development process that 99.99% of the time matches the genetic rule book but sometimes, in a rare process akin to a mutation but involved in the expression of that genome (perhaps an epigenetic mutation), there is a departure from the plan.

3. The trigger to a transgender identity happens post-natally in early childhood for who knows what reasons, perhaps related to some environmental exposure that happened to one child but not the other - maybe it was something not so unlike spiderman, maybe a mosquito carrying a particular rare version of a virus bit one and not the other, or bit both but only made it past the immune system of one of them due to something as random as having a cold at the time.

For what it's worth, if I had to, I'd put my money on an epigenetic mutation of unknown origin during gestation, quite possibly limited to neural epigenetics, as the likely cause, but I wouldn't bet the farm on any one of those options. My thought is that if there was a one time hormone exposure (which is possibly a more plausible mechanism for sexual orientation) that the XY genes would reassert themselves to some extent, albeit "out of tune."

For example, the notion that there might be a rare gene that makes it possible for the epigenetic mutation to happen, and that if that gene is present that the odds of an epigenetic mutation actually happening are one in six or something like that, is somewhat attractive, although I've near heard of transgender identities running in families in any of the literature on the subject.

Making Sense Of The More Complicated Than It Seems Gender Concept

All of this makes clear that the more subtle aspects of gender are real and inherent in people from some very early point in life, not simply a product of social conditions and environmental cues. I don't think that anyone who has seriously looked at the efforts that have been taken scientifically to determine if that is the case disagrees with that position at this point, although there are certainly differences in degree.

The conclusion may seem obvious, but after being taken for granted in a far simpler, two bin theory of gender that has been predominant for a lot of the time for a lot of history in a lot of cultures, from the 1960s through roughly the 1980s, the assumption that the aspects of gender pertaining to the mind were predominantly environmental and social in origin had a lot of currency.

Yet, the reality of transgender individuals is for gender what muons are for physics, something that nobody ordered or expected but that happens to exist. This reality takes nice simple grand unified theories of what gender is that fit 99.99% of the data and blows them out of the water. Sorry, Nature is telling us, explaining the last 0.01% (and these numbers are meant merely in the sense of very small number, not a specific actual value), is going to take a vastly more complex theory, but that is the reality of gender identity in the real world.

One can imagine a universe in which there are transgender and cisgender individuals. Indeed, in a lot of ways transgender identity is a much simpler to understand concept than the various concepts associated with sexual orientation. You have male hardware and genes but you mind and whole being insists that you are female, or visa versa.

Indeed, the profiles of people who are born androgonous but are genetically male, who are surgically modified in infancy to appear physically female and are raised female are remarkably similar to those of transgender individuals. The surgery never, or almost never, works, and despite all parental efforts the child made to look like and raised like a girl feels like a boy deep inside and nothing anyone can do can stop that train.

If you are willing to put the mechanism by which transgender identity happens in a black box (and you pretty much have to, in practice, because all of the usual suspects are ruled out) and simply get comfortable with the fact that there is a mechanism that isn't any of the usual suspects and that the mechanism in question is the one that really matters, it is all very straightforward to grasp.

Most of the cases described under the header of transgender identity fall neatly into a binary notion of gender. There just happens to be a mind-body discontinuity in these individuals, and since the mechanism by which sex chromosomes translate to gene expression in the body seems to be almost entirely mediated by sex hormones in the time period after birth, interrupting that process seems to be quite straightforward in theory, even if timing and technique require some doing.

If that were all there was to the story of gender it would be simple enough, but of course, it is not. The most obvious addition to the dimensions of the gender of the mind (which matches sex chromosomes in androngeous individuals surgically modified in infancy, and contradicts it in transgender individuals) and the gender of the body, is sexual orientation, which is crudely, if functionally summed up in the notion of sexual attraction, but is quite a bit more complex.

A gay man is not really even remotely the same thing as a male to female transgender individual, even though gender atypical behavior in both at an age consistent with the trait being congenital is very common. A gay man doesn't generally feel internally that he is a woman (although a transgender gay man is a conceptual, if extremely rare, possibilty), and a lesbian woman doesn't generally feel internall that she is a man. Homosexual and hetrosexual sexual orientation would seem to leave four kinds of self-concepts, gay male, straight male, lesbian female, straight female. But, in fact, sexual orientation isn't as simple as a binary thing. There are quite a few non-straight women, and not as many non-straight men, who have stable bisexual identities. There is some sense that there is stability in the characterization of butch or femme lesbian, and an analogous distinction for gay men, although what is going on in these contexts has as much basis in the intuition of people who live in the situation as it does in any consensus description of the reality.

The whole sexual orientation concept also turns out to be far more deep rooted than one might expect, and in some cases very simple. One can flip a genetic switch in a fruit fly or mouse and make him gay. Blamo, scientists have identified single tweaks in single biological systems that will do the job every time. Apparently, our genes carry both male and female instruction books on instictual gendered behavior in one or more domains (including, of course, sex), but generally we only have the fortune, or misfortune, to have access to just one of those sets of gender programing in our lives.

There are continuum and binary notions of sexual orientation. It isn't at all obvious that what we call sexual orientation in men and what we call sexual orientation in women are precisely equivalent concepts flipped only by a body gender-mind gender coupling to sexual orientation. There are scholars, I'll call them gender theorists for want of a better term, who think that what is going on in bisexuality, in particular, is very different between men and women, and that sexual orientation is more binary in men than it is in women. It also isn't at all clear whether there is one master "sexual orientation switch" that is behind all of this, or if multiple mechanism lead someone to consider himself, for example, to be a gay man, and all of the different categories of people who consider themselves to be gay men seem to be in one group simply because the phenotypes are similar enough to be compatably treated that way and we don't really understand what is going on.

But, anyway, in addition to the point that sexual orientation is a much more conceptually fraught thing than cis- versus trans- gender identity, there is the point that there is more to sexual orientation than attraction, and that a gay man is very much not, for example, either a straight man or a straight woman.

Then, there is the question of whether a transgender identity is really binary. In an extreme, obvious kind of case, like the one described in the Boston Globe; the archaetypal case, it is that simple. But, what about tom boys who still unambiguously think of themselves as women and are attracted to boys, and what about men who have some steroetypically feminine interests or personality traits but unambiguously see themselves as male and are attracted to women. Is this different in kind than what we see in transgender individuals, or just different in degree? Is there any deep down commonality between someone who cross-dresses for shits and grins with their same gender pals because that is normal for their culture, and someone who cross-dresses because it reflects their conception of who they are as an individual deep down?

And, all of this doesn't yet address the question of people whose bodies are androgynous or whose genes have extra chromosomes (or lack chromosomes) associated with one gender or the other. Furthermore, don't forget people who are hormonally neutered in some way (e.g., castration, disease, chemically), who themselves differ based on the point in life at which this happens, and differing cultural roles for men and women.

One starts out with an extremely two bin system that explains 90% of reality, and before you know it, you've got a blur of concepts - chromosomonal gender, hormonal gender, body phenotype gender, self-perception gender, attraction gender, personality style and inclination gender, and other blends and mashup of these dimensions.

Managing Daily Life Like A Decent Person

Practically speaking, modern, reasonably tolerant people tread cautiously, take people's self-identity at face value, and do what is practical to realize workable arrangements that make everyone happy. this works quite well in real life, respects the dignity and worth of everyone involved, makes people happy most of the time, and has the virtue of not necessitating an understanding of precisely how any of it works, which we don't have available to us. And, people who haven't happened upon that realization cling to the two bin classification system, try to fit everyone into it, and reserve words like disgusting and abomination to anyone who is a round peg that won't fit in a square hole. But, the writing is on the wall in the Western world and the people in the first category are becoming culturally dominant in a transformation that has already been dramatic in basically two generations.

Post-puberty, without medical intervention, trying to follow the "go with the flow" game plan all gets much more inconvenient for transgender indiviudals. Puberty brings about irreversable changes in a person's body, and bringing about some sort of congruity between the gender identity of the mind, which transgender individuals usually want to have honored in daily life, and the way one presents at first glance, can be a devilishly difficult matter to manage, particularly so in the male to female dimension, since it is in practice easier for a woman's body to pass for not particularly masculine young man or old boy, than it is for a very masculine man's body to pass for a woman's.

Sexual orientation, which doesn't have the same kind of disconnect between your body and who you perceive yourself to be, doesn't post the same kinds of problems. A gay man may have a different instinctual playbook than a straight man or a straight woman, but he generally doesn't want anyone to treat him entirely as a woman, so there isn't the same need to tinker with one's body physically via medical professionals.

Looking forward, the big questions in my mind are whether our conceptual framework for these concepts will become better defined at some point in an accurate way, whether we will every learn how this comes to be from a mechanism point of view, and how our culture will continue to adapt.

As they say, interesting times.

LWOP Sentence For Zapata Murder Upheld On Appeal

The Colorado Court of Appeals has upheld the convictions of a man charged with first-degree murder and other counts in what prosecutors said was the bias-motivated killing of a transgender Greeley woman.

Allen Andrade of Thornton was convicted in 2009 of deliberately beating 18-year-old Angie Zapata to death with a fire extinguisher in 2008 after learning she was biologically male. Defense attorneys argued Andrade had planned to meet Zapata for sex and snapped after learning she was born male.

From here.

Adrande was sentenced to life in prison without possibility of parole. His main appellate arguments, an argument that the jury should have been giving an instruction mitigating his criminal culpability because he was drunk, and seeking to suppress the murder weapon from evidence, were mundane. My post from the day that he was convicted on April 22, 2009, is found here.

Given the fact that Adrande had at least three prior felony convictions in his fourteen years of adult life, and was charged as a habitual offender and was taped making a telelphone call from jail admitting to the killing (albeit arguably with a lower level of intent), made a confession to police (albeit arguably with a lower level of intent), and was arrested in possession of Zapata's stolen car, 32 year old Adrande would have gone to prison for 40 years to life, and also faced the 24 year sentences on other charges that he received, even if the appellate court had reversed the first degree murder conviction. He was convicted of a hate crimes charge, but given his first degree murder and other convictions, any appellate issues he could have raised related to that conviction wouldn't have mattered because they would have constituted harmless error at their worst.

The August 11, 2011 opinion of the Colorado Court of Appeals in case 09CA1310 People v. Allen Ray Andrade, was unpublished. It appears that the case was argued on the basis of the briefs with no oral argument in the case available in the Colorado Court of Appeals online archive of oral arguments.

Andrade could make a discretionary appeal to the Colorado Supreme Court, could make a state level collateral attack on his conviction after that, and could bring a federal habeas corpus petition after that according to strict procedural limitations. But, given the lack of a death sentence, the lack of a right to counsel for collateral attacks, the lack of a credible claim that he was not the one who killed Zapata, his long criminal history, and the weakness of his arguments on direct appeal and the weight of the multiple damning pieces of evidence against him, none of those efforts are likely to be successful. There is a good chance that he won't even bother with further appeals, although he does have nothing else to do for the rest of his life. And, Adrande is extremely unlikely, given the fact that he was not sentenced to death, has a long and serious criminal record, and there is no doubt that he was guilty of some serious crimes this time around, that he will ever receive executive clemency.

American Criminal Justice: Cheap, Final, Harsh and Fast

In practice, it is astoundingly unlikely anywhere in the United States, in the state or the federal system, that someone who is convicted of a crime and not sentenced to death, whose conviction is affirmed on direct appeal, will not have that conviction later overturned or will have that sentence commuted.

I'll also restate a note that I made in a previous post:

The speed with which very serious criminal cases like this one progress is notable. The murder took place on July 15, 2008, and was discovered two days later. Thirteen days after the murder was discovered, there was an arrest. Pre-trial dismissal for lack of evidence was ruled out less than two months after the discovery of the body.

The trial was completed, the jury convicted, and the sentence imposed on April 22, 2009, nine months and one week after the murder was committed, and less than nine months after he was arrested. The direct appeal of right was resolved yesterday, fifteen months and twenty days after he was convicted, and thee years and twenty-seven days after the murder was committed. For all intents and purposes, the criminal justice system is now done with this case and he is the Colorado Department of Corrections' problem until he dies.

The sentence is rarely this long, but the general timeline in this case isn't unusual for a serious violent felony. Not every criminal case is so swift, but a very large share of all criminal convictions do result from arrests very shortly after the crime is committed and are based on convictions after trials where the evidence is overwhelming or guilty pleas, which move cases even faster. The constitutional right to a speedy trial rarely makes headlines, and isn't something most people are even aware of, but it has a pervasive effect on the pace of criminal proceedings in the United States.

Also, while the exact number will probably never be determined, the marginal cost of this criminal justice system of investigating and litigating this case to trial was almost nil, as most of the people involved, the police, DA who prosecuted the case, the judge and court clerks who handled the case, and the defense lawyers in the case, are on the public payroll on a salaried basis, and even if the personnel costs for everyone involved was prorated on an hourly basis, this case probably cost less to investigate and litigate through an appeal than a typical serious automobile accident that results in some injuries but not a death or a six figure contract dispute. All of the investigation and litigation costs combined for all parties were probably less than the costs associated with nine months of pre-conviction incarceration.

Of course, incarcerating this murderer for the rest of his life will cost the people of the State of Colorado something on the order of a million and a half dollars in today's funds after adjusting for inflation, and the State of Colorado probably spent hundreds of thousands of dollars incarcerating him before his most recent conviction on prior felonies and no doubt, for juvenile offenses as well.

If the death penalty had been sought and secured, it probably would have cost the State of Colorado more in additional litigation costs and death penalty implementation than it would save in incarceration costs from his premature death, or at least wouldn't have saved very much. It is also worth recalling that death sentences are overturned much more often than murder convictions. For example, the results in all the cases that produced post-conviction reversals of death sentences that were finally resolved between April 1973 and 2000, 54 cases were retried and produced a death sentence on retrial, 223 led to a murder conviction with a sentence other than the death penalty, and 22 cases ended with a determination that the defendant was not guilty of a capital crime. Thus, more than twelve out of thirteen death penalty sentence reversals ultimately kept a capital murder conviction in place, and some of the one in thirteen cases where a capital murder conviction was itself reserved still left some serious felony conviction in place rather than leading to a finding of outright innocence of any crime (the cases where there is a chance of innocence on all counts due to factors like mistaken identity or police frameups are the ones groups like the Innocence Project prioritize).

Deprived of any hope of release, little meaningful activity to carry out in prison, convicted of a sex related crime, and marked with a long track record of violent offenses, one can expect that Andrade will start his prison career at a very high security level and stay there, and that he will not be a model inmate.

One would like to think that people serving long prison sentences provide some benefit to society while they are there apart from staying out of the lives of law abiding citizens while they are incarcerated, although our system of criminal justice certainly doesn't make that a priority and is perfectly happen to simply waste and right off any contribution that incarcerated people could make for the most part.

For all the twists and turns of the criminal justice system that make headlines and feature in crime fiction, reality is that the vast majority of criminal prosecutions produce convictions for something, that a minority of cases go to trial and a minority of those cases that are appealed are reversed on direct appeal, that it is fairly unusual for even a criminal sentence to be reversed on appeal, and that executive clemency is almost non-existent. Also, the percentage of people who escape from incarceration in a state prison is infinitessimal, and is even smaller in the case of prisoners in the highest security environments who have committed serious violent crimes (a large share of all escapes are walk aways from community corrections facilities, work release programs or minimal security facilities housing the least serious offenders). And, convicting someone of escape once they are rearrested, given the availability of prison records, DNA evidence, fingerprints, photographs and so on, is little more than a formality.

By the time the police make an arrest and a prosecutor files charges the probable future is usually very clear, and the vast majority of the time that there is a conviction it sticks. And, it is done very cheaply.

Pretty much the only way to have a reasonable chance of escaping some punishment for a crime is to not get arrested in the first place, and of course, that usually is what happens.

Why point all of this, which is obvious to those familiar with the system except politicians, for the most part?

First, there has been a lot of criticism that the Warren revolution in constitutional criminal procedure has made it easy to escape punishment from the criminal justice system. The reality is that there isn't much merit to that assertion. People who are arrested for serious crimes are usually convicted of something and usually get long prison terms if they have criminal records and committed really serious crimes, indeed, longer terms than anywhere else in the world pretty much.

Second, there has been a strong conservative movement to cast doubt on the capacity of the criminal justice system to handle terrorism suspects. But, there is extremely little evidence to suggest that it is not an effective way to punish them and there is considerable evidence to show that the due process protections and fairness of the criminal justice system, relative to more draconian approaches proposed to deal with terrorism, is better at preventing incapacitation of one terrorist from causing future terrorist acts inspired by action taken against the first terrorist. The claimed need for deprivations of civil liberties is premised on the incapacity of the civilian criminal courts to secure convictions and impose long sentences for terrorist acts which is simply not supported by experience in these cases.

Flu Attacks

Both my kids have had the flu and they are now almost recovered. One of my colleagues and one of her daughters also have the flu. This is notable this year because flu fear is high since H1N1 (aka swine flu), which first surfaced last year, has killed the kind of people for whom flu is normally just an inconvenience. For example, a healthy 25 year old who died from flu in Colorado this month. Absences are high at the local elementary school, and the recreation center's cross country team has had notable numbers of participants out every week due to flu.

I've had a season flu shot, but not an H1N1 shot, and I'm crossing my fingers. I suspect that I will soon learn if I'm feeling less than wonderful due to flu, or just from lost sleep from everyone else being sick and waking up in the middle of the night.

It isn't terribly reassuring that I also learned from an article in virology yesterday evening that one of the main ecological purposes of viruses is to kill things so that they biomass can re-enter the food chain. Viruses kill 20% of the plankton in the ocean every single day (which, fortunately, grow right back). The white cliffs of Dover? A grave yard of diatoms killed by viruses.

Of course, that isn't their only purpose. Viruses are also "gene brokers." They are probably responsible for the fact that there is a slug which can perform photosynthesis with the cooperation of algae organelle that it harvests by eating them. Indeed, most plants and animals have DNA that can probably be traced to viruses.

Viral Genetic Change

The power of viruses in action in their gene broker role is humbling. For example, scientists gave male monkeys in a species where male monkeys are always red-green color blind a virus that carried a gene for red-green color sight. Suddenly, and for the rest of their lives, they could see red and green. In the middle of their lives, a virus permanently changed their genes. You usually think of as one of the quintessential and immutable parts of the definitions of "you." But, this isn't always the case. Humans genes are sometimes changed by viruses as well. At least one such virus has been documented in modern Latin America.

How Far Should Gene Therapy Go?

So far, gene therapy via intentional infections with custom designed viruses is still in the experimental stage. Fewer than a couple dozen people, all in the 21st century, have been treated using it. But, the principle has been established. Sooner or later, it will become one more prevention and treatment modality along with medical treatments like antibiotics, vaccination, surgery, physical therapy, vitamins, radiation treatments, anti-viral drugs, and chemotherapy.

Author Kate Elliott's Jaran series took this theory to a logical extreme where the entire civilized human race intentionally altered its genome with gene therapy to give itself incredible longevity, fixing a host of disease causing genetic flaws.

Are we smart enough to decide what to change? It is hard to fault science for dramatically reducing (and in some cases virtually eliminating) small pox, polio, diphtheria, measles, mumps, rubella, and more by engineering our immune systems.

Would it be so bad to make available genes closely associated with longevity found in the existing population? Haemophilia (a blood clotting disorder) is the first well understood genetic disorder; it is genetically simple and well understood. Would a gene therapy to treat haemophilia be a bad thing? More frivolously, what would be so bad about giving healthy people, who wanted it and gave their informed consent, a gene that allowed them to see ultra-violet colors (a trait found in butterflies, most birds, some fish and possibly even very rare human beings)?

I think it is fair to say that our society no longer sees modifications designed to improve physical health as a sacred frontier that should not be crossed. There are utilitarian concerns about unintended consequence and side effects, similar to those involved in prescription drugs, but not deep moral concerns.

Mental health is another issue. Lots of mental health conditions have a strong genetic component.

Some of these appear to be far too complex to treat with gene therapy, because they seem to involve the cumulative effect of many small genetic issues, rather than a small number of particular genes (bipolar disorder and schizophrenia are examples). But, surely, other genetic mental health conditions are far more straight forward.

Some anxiety conditions are symptomatic almost from birth, and fairly simple genetic models may explain many anxiety disorders. Blood testing for panic disorders may be around the corner. The U.S. Army has been doing blood testing on new recruits for vulnerability to stress related disorders for about three years now. About 40% of people with agoraphobia (often crudely described as a fear of crowd), for example, have a relative with agoraphobia, which has been linked to a chromosome 3 trait. Many panic disorders and obsessive-compulsive disorder may likewise have relatively straight forward genetic origins. If a safe, effective gene therapy for agoraphobia were developed, how many agoraphobics would happily allow the gene that causes this condition to be altered in a way that would permanently end this condition?

Under what conditions is it worth tinkering with our genomes to mitigate these traits, which may have historically had adaptive value but may be maladaptive now? Anxiety disorders are currently one of the most common mental health issues. Would it matter if some subset of the population chose to forgo gene therapy for anxiety disorders with simple genetic models, keeping those traits in the gene pool, but at lower frequency rates? At what point does anxiety become a personality trait rather than a disorder? And, it is right to use gene therapy to change one's personality as opposed to curing a disorder?

Are we brave (or foolish, as the case may be) enough to address these traits permanently through gene therapy, much as we do temporarily through drug therapy? Are the risks of declining neurodiversity too hard to evaluate relative to the risk of declining physical diversity associated with genes that have less of a mental health impact?

Are there mental traits, IQ perhaps, that are simply better in almost all cases? Who decides? Is a brain-body distinction even something that makes sense?

There is already a history, which is decidedly mixed, of people intentionally altering gender and hormonal identity through castration and more recently chemical castration. This has been done to preserve male soprano voices, to create trustworthy eunuch servants, to tame violent sexual predators, and the purify holy men. What if this was done with gene therapy instead?

Suppose that a ten year old clearly had a transgender identity? Would it be inappropriate to use gene therapy to change that child's genetic gender before puberty through gene therapy to match that child's self-identity?

These decisions are no longer in the distant science fiction future. If my generation does not face them, my children's generations probably will.

Forty Years After Stonewall

The Stonewall Riots (over the shutdown of a gay bar in New York City), forty years ago this Sunday, marked the beginning of the modern gay rights movement, and the Colorado Democratic Party's gay, lesbian and transsexual interest section (like that of many Democratic Party entities with the same purpose) bears its name, the "Stonewall Democrats."

Growing up in small town Ohio in the 1970s and 1980s, even though it was a college town, this was just background noise to me. I don't remember being really aware of the gay rights movement until I went to an even smaller college town in Ohio (Oberlin) after graduating from high school and encountered people who were out as gays and lesbians for the first time (transgender was part of the acronym commonly used on campus at the time but that concept was not something I had encountered personally, or a possibility that part of my consciousness or that I understood, until later). The notion that someone might take a term like "dyke" or "fag" and embrace it, was a revelation. I knew what the terms meant literally, in high school, but not in a way that had any really context or meaning to them.

More than anything else, the gay rights movement owes its success to that same thing that opened my mind, exposure. The "present company excluded" concept is more than a rule of etiquette. Your brain simply can't help treating people you know differently. Theoretical knowledge is all fine and good, but your gut works on the particularistic experiences you've had in real life. One of the most visible early gay rights groups, ACT-UP, didn't make a lot of friends with its militant and often law breaking tactics, but it made you pay attention and acknowledge that gay rights and AIDS were serious issues at all, and just as important, that gay and lesbian people really existed, and were not just some theoretical construct invented by philosophers (well actually, some queer studies scholars still do say that gender is just a theoretical construct, but that's another story).

Still, the biggest impact didn't come from anything flashy or carefully planned. It came from ordinary but brave people living daily, ordinary lives and choosing to embrace their identity instead of hiding it, even though this involved risks of serious harm to their personal safety and reputation. I learned about what "gay" and "lesbian" meant while serving in student government doing things like brokering disputes over office space between the gay and lesbian student group, the Evangelical Christian group, the sex co-op (it provided contraception, counseling, practical sex tips and other information from a basically pro-sex perspective) and the seven Republicans on campus (some of whom I was also on a debate team and bipartisan student publication with). And then there was the drag ball, one of the highlights of the annual campus social calendar. And then there was walking across campus to dinner or a class or a dorm and seeing people of the same sex embracing like all the other lovers on campus and getting used to it (much more easily than I did to the sweet but very loud young woman in a passionate heterosexual relationship down the hall from me in my second year on campus).

At the time, in the Midwest, there weren't a lot of gay role models and there were no guarantees that there wouldn't be serious backlash. People then (and now) have been attacked, killed and ruined socially and professionally by coming out as homosexual or transgender. Many graduate school bound fellow students who were not only out, but incorporated their sexual orientation into their scholarship, had to gamble that they would be embraced rather than shunned by academics who got their PhDs when "Stonewall" was a descriptive non-proper noun and "gay" meant carefree and happy. The science bound future graduate students on campus often didn't have to be quite so obvious in their application materials, but also faced a group of prospective advisers and colleagues with a lot less predisposition to be welcoming as a matter of principle.

In the fact, most people were not punished for their openness while I was in college in our insular community, although not every place else at the time in the outside world was so welcoming. It was a good time to be out, although we didn't know that then. The safe bet at the time for those who didn't know any better was that this coming out was just a localized, temporary fad that would soon go the way of barbershop quartets, flappers, disco and bell bottom jeans.

I know that I was not so brave or self-assured at that point in my life. I spent all three of my years as a residential undergraduate living a lie (not a terribly uncomfortable one to be sure) as a parishioner of the local Episcopal Church and member of the Christ Church's quite active college student's group (even serving as a Sunday school teacher my last year there), despite having quite definitively ceased to believe in God while I was still in high school. The conclusion on religion only became only more firm as I studied church history and science in the classroom, but I wasn't about to let anyone know that in public. I could easily have simply been negligent regarding church attendance and not been noticed at all (which is what I did in law school), but I erred on the side of caution and habit and self-doubt. Maybe I'd change my mind in a different denomination than the Evangelical Lutheran Church in America that I grew up in (and was confirmed in while I was in high school at a time when I didn't believe). I wasn't ready to face my social fears, even after I eventually figured myself out.

The risks haven't ended. The U.S. military, even in the Obama administration, is still drumming people out of the service for their sexual orientation. Public attitudes have changed, with a lot of that change hitting the average person on the street only in the past few years as the gay marriage issue has influenced people's thinking. Laws have changed. Any backlash will have to contend with a nation of Generation X and Generation Y and Millennials for whom homosexuality isn't something to be afraid of. But, transgender acceptance is still probably at least as far from reality now than acceptance of gays and lesbians was then, and the possibility that we may be at the tolerant side of a social pendulum swing is real. In Europe, Jews sometimes lived in peace for decades in an area, only to face a pogrom that left some dead and most of the rest of the community exiled. (In 1543, Martin Luther wrote On the Jews and Their Lies, which urged people to conduct pogroms; modern Lutherans do their best to ignore these teachings, generally with great success.)

My neighborhood and its immediate neighbors have now sent at least two openly gay legislators and at least one openly lesbian legislator to the state legislature (I beg forgiveness if I've missed someone), and I count many Stonewall Dems (and a few of their Republican and unaffiliated counterparts) among my friends, colleagues and clients (about 30% of my estate planning clients are gay, lesbian or transgender). Even though I'm aware intellectually that two steps forward can be followed by one step back, I don't subconsciously believe it. A belief that you are right about something, reinforced by personal experience, creates a sense of inevitability.

When Time magazine reported on the Stonewall riots in 1969, gay rights must have surely seemed like a misguided, absurd lost cause to almost everyone. But protesters picketed, made seemingly impossible demands (many still unsatisfied), and demanded that politicians take sides anyway. A sexual revolution was underway, but it would take most intellectuals a couple of decades to come to the conclusion that the sexual revolution and other cultural upheavals of the 1960s (much of which actually spilled over into the 1970s), had as much to do with identity as they did with sex. A counter-revolution of fundamentalist Christian morality, sexually transmitted disease fears driven by AIDS and increased pre-marital sex, a distaste of young marriage and pregnancy driven by increased economic opportunities for women, and increased concerns about acquaintance rape and sexual harassment in an increasingly gender mixed world would start to take hold in the 1980s, taking the shine off the "sex" part of the sexual revolution. But, the gay rights movement did not retreat. It would take another decade still for people to discover the the ironic fact that the anti-gay policies of the U.S. military, which by bureaucratic happenstance dumped many people discharged for being gay in San Francisco, played a pivotal role in creating a queer community with more critical mass than anyplace since early 20th century Berlin. Gay marriage, which seemed like a pipe dream a decade ago, is now reality for tens of thousands of couples in many states, including the bulk of the Northeast. Popular culture portrayals of gays and lesbians have gone from being remarkable and groundbreaking to almost cliche, if they aren't talking about something more than mere sexual orientation.

Another reason for hope is that progress for gay rights hasn't been confined to the United States, which is actually something of a laggard in the developed world on gay rights issues. In the countries that are the usual suspects in the developed world, not just in Europe, but in Japan as well, attitudes are changing.

Progress has not been universal. In Iran and Iraq dozens of gays are executed or subjected to governmentally tolerated extrajudicial killings every year. Africa is as awash with anti-gay hate as any rabidly conservative evangelical Christian congregation in the American deep South. But, no struggle for toleration and acceptance is ever really won everywhere and forever. There are places on this Earth where they still burn witches in the 21st century too. There are still American elected officials who use the Internet to proclaim that Galileo was mistaken when he proclaimed that the Earth revolves around the Sun. The Church of Latter Day Saints of Jesus Christ spent last fall pouring money and its doctrinal clout into opposing gay marriage in California and was starting to turn the Boy Scouts of America into a publicly anti-gay organization just around the time I became an Eagle Scout. Life is struggle and the struggle over gay rights is not over. But, gay and transgender rights (and acceptance) are making progress as we start to understand better who we are in a more inclusive way.

In the meantime, viva la revolucion!

UPDATED Jury Finds Angie Zapata Murderer Guilty

Defendant Allen Andrade killed Angie Zapata. Even the defense argument admits this fact. Now, the Greeley, Colorado jury is deciding which counts to convict Allen Andrade of, if any.

A jury acquittal, even if not supported by the evidence and the admissions of Andrade at trial, would make Allen Andrade a free man (although the federal government, in theory, might be able to charge him with something). This would be called jury nullification. Acting in the heat of passion impacts the sentence for murder, but is not a legally valid defense to a murder charge.

A conviction of any homicide crime will put Andrade behind bars for a very long time, if pre-trial accounts that he is a habitual criminal and subject to recidivist sentencing are correct. And, he was not facing the death penalty in this case.

There are two plausible theories under which Andrade could face the longer life in prison without possibility of parole sentence for first degree murder in this case. One is to show intentional pre-meditated murder, and that is what the testimony at trial focused upon. The other theory would be to prove that the murder was part and parcel of another serious felony (e.g. that it amounted to an aggravated robbery resulting in death). There was plenty of evidence at the trial to support this theory, and this theory has more unequivocal factual support. But, it is not clear from newspaper accounts if this theory was actually presented to the jury either in closing arguments or in the jury instructions. The live blog of the case seems to indicate that there is not a felony-murder count, although there are separate property crime charges in the case, but is not entirely clear.

The transgender hate crimes count, also supported by abundant evidence, while symbolically important and perhaps relevant if Andrade is convicted of a lesser murder count is comes before a parole board several decades from now, will not materially lengthen the sentence that Andrade faces as a habitual offender convicted of murder. But, the property crime charges, enhanced with habitual offender sentences, is considered to be acts separate from the murder itself and hence served concurrently, could lengthen the sentence enough to make it effectively a life without possibility of parole sentence.

The judge's decision to exclude a challenged part of Andrade's confession to police, and the abundant physical evidence and jailhouse telephone call tapes in the case, make it likely that an legal error in the trial will be considered "harmless error" that will not reverse a conviction, even if an appellate court finds that mistakes were made by the judge or prosecutor at trial.

UPDATE: The jury has found Andrade guilty of first degree murder and a hate crimes count (and all other counts) in a very short deliberation of just two hours. Allen Andrade will be sentenced to life without parole in the near future, and will have few strong arguments to make on appeal. In all likelihood, this will be served in a maximum security Colorado prison. The jury was apparently unconvinced by Andrade's heat of passion argument and found that this was a bias motivated crime.

The tail end of the Westword live blog linked above reports:

3:05 p.m.: The judge says the court will be recessed until 4 p.m. At that time, Andrade will be sentenced for first-degree murder. First-degree murder carries a mandatory life sentence.

Update: The reason the sentencing has been delayed until 4 p.m. is so that prosecutors can explain to Zapata's family what happens next and give them some time to absorb the verdict.

3:03 p.m.: The verdicts: Guilty of first-degree murder. Guilty of a bias-motivated crime. Guilty of motor vehicle theft. Guilty of identity theft.

When the judge read the verdict of first-degree murder, there was an audible sob from Andrade's family. Zapata's family is crying. But the courtroom is mostly silent, as the judge requested. He warned he wouldn't tolerate outbursts.

3 p.m.: The jurors just entered the courtroom and sat down. None of them are looking at Andrade. The jury foreman, a man in his forties, is handing the verdict to a court staffer.

2:55 p.m.: Andrade is led into the courtroom and his handcuffs are removed. He sits down between his lawyers. He glances at his family seated three rows back but his gaze doesn't linger.

2:45 p.m.: The jury has reached a verdict after just two hours of deliberating. Everyone is back in the courtroom. It's completely full. As usual, Andrade's family and friends sit on one side and Zapata's sit on the other. Andrade is not yet in the courtroom. Neither are the jurors or the judge. All of the lawyers are here. Zapata's family has already been wiping away tears.

12:40 p.m.: The two alternate jurors were excused. Both were men, one who appeared to be in his twenties and one who appeared to be in his forties. Eight men and four women remain.

The jury just left the courtroom to start deliberating.

Keep in mind that Greeley, Colorado is not some remarkable well head of transgender understanding and tolerance. While there is a university in town, this is also the county that elected a Republican member of the Colorado General Assembly who argued with bible quotations in a public legislative speech that gays deserve to die in accordance with biblical law during a debate on the legal treatment of same sex couples during which a fellow legislator who was a member of a same sex couple was present.

But, clearly, the attitude that an admitted murderer needs to be punished severely for this act won the day with this jury. Conservative also means tough on crime.

Heat of Passion Case In Zapata Trial

The defendant in the Angie Zapata murder trial appears likely to argue (based on comments during jury selection) that he did kill Zapata but only did so in the heat of passion, rather than intentionally and deliberately. A heat of passion defense is not grounds for an acquittal under the applicable criminal law.

The defense is likely making this limited case primarily because enough of the defendant's confession will come into evidence, and this confession is supported by enough physical evidence (e.g. the defendant was in possession of Zapata's car) to corroborate it, to make a more ambitious case unlikely to succeed.

An open request to the jury from the defense that it ignore the law, moreover, would probably produce a mistrial charged to the defense (and hence not subject to double jeopardy limitations), although the defense will likely do what it can to make a sympathic case that could move the jury to ignore the law without being expressly asked to do so.

Pre-trial proceedings indicate that the Defendant is a habitual offender and that the prosecution is not seeking the death penalty in the case. Thus, the jury may acquit (in what would amount to a jury nullification of the applicable law, but is not reviewable on appeal), convict of murder in the heat of passion (a 40 year to life sentence for a habitual offender) or convict of first degree murder (a life without possibility of parole sentence).

The defendant, Allen Andrade, is 32 years old, so he will be an old man when he leaves prison, if he ever leaves prison, unless the jury disregards the law. The trial is scheduled to begin tomorrow.

A key open qustion is whether Andrade will choose to testify. This would probably open the door to allowing the prosecution to let the jury know that Andrade is a career criminal, which makes him much less sympathetic the jury and less trustworthy. This could harm a jury nullification bid and a mere shorter sentence may be something that Andrade does not live to enjoy anyway. But, if Andrade testifies about the events in question, there will be no other eye witnesses who can question him, so it will be easier for him to argue his intent, something physical evidence can only suggest inferrentially. Testifying could also humanize Andrade who otherwise is just a scowling face and admitted killer at the defense table to the jury. I suspect that in this case, the pros of testifying will outweigh the risks for Andrade.

Zapata Trial Begins

The Angie Zapata murder trial begins today.

Stakes Raised In Angie Zapata Murder Case

Prosecutors have added a habitual offender count to the charges brought in the Angie Zapata murder case. A judge ruled that the case should proceed to trial at a September 18 arraignment. A jury trial is set to begin April 14, 2009.

The habitual offender count implies that prosecutors believe that the Defendant has been "three times previously convicted" of felonies, "upon charges separately brought and tried, and arising out of separate and distinct criminal episodes." See Section 18-1.3-801, Colorado Revised Statutes. Felony drug offenses that would be misdemeanors under current Colorado law are excluded. This is known in criminal justice circles as the "bitch."

The case has attracted national attention because Angie Zapata, age 18, was a transgender women, born male but living as a female, an identity she had held since age twelve. The defendant's discovery of her transgender status, following a consentual sexual encounter, is alleged to be the main reason for the murder.

Impact

The habitual offender count has the effect of lengthening any sentence imposed four fold. If the conviction is for murder (including heat of passion murder) the sentence would be life in prison with a possibility of parole after forty years.

Given the Defendant's age, 32, there is little difference between a forty years to life sentence as a habitual offender for heat of passion murder, and a life without parole sentence as a result of a first degree murder conviction (presumably for felony murder because he allegedly stole Zapata's car immediately after killing Zapata).

Given the fact that the defendant has reputedly confessed to, at least, heat of passion murder, was taped making incriminating statements in a telephone call to his girlfriend from jail, and that he is linked by some physical evidence through possession of the victim's car to the crime, it will be very difficult, absent any successful claim of an improperly obtained confession or improperly gathered evidence, for him to escape conviction and a life sentence.

The habitual offender count also means that even if he is convicted only of a lesser charge, such as felony car theft or felony identity theft, he could easily spend more than a decade in prison.

The charge also makes almost any plea deal that drops the habitual offender count and the first degree murder count, or drops the murder counts entirely even without dropping the habitual offender count, more attractive than going to trial.

California Compared

While Colorado's habitual offender statutes are stiff, they are modest compared to those of California, where the California three strikes and your out law produced one of the few cases where a non-capital sentence has been held to violate the 8th Amendment protection against cruel and unusual punishments under the constitution.

In the California case, a sex offender's conviction for failing to complete a change of address form within five days of his birthday (he was acquitted of a parallel failure to register within a year of a change of address, and the evidence at trial revealed that parole officers actually did know where he lived even though he didn't register formally), drew a 28 years to life sentence. The plea bargain he has been offered was two years in prison, a fact notable for the indication it gives of how serious prosecutors felt the case was to them.

A comparable conviction in Colorado probably wouldn't have been eligible for habitual offender status at all (he had three prior convictions, at least one of which was more than ten years old), and would have produced a nine year sentence, rather than a life term, if the convictions had been recent enough.

Other cases involving California's three strikes and you're out statute have sent individuals to prison for life for what amount to shoplifting charges.

Other Colorado Habitual Offender Provisions

In addition to Colorado's four fold habitual offender sentence awarded to those with three prior felonies who commit another felony, Colorado has at least three other habitual felony offender provisions.

One imposes a 40 years to life sentence for someone with two prior convictions for Class 1 (first degree murder or first degree kidnapping), Class 2 (e.g. ordinary murder or drug kingpin drug dealing) or Class 3 felonies that are crimes of violence (like heat of passion murder or a serious aggravated assault), who are again convicted of such serious crimes.

Another imposes a three fold sentence one an offender with two prior convictions of felonies punishable by three or more years in prison, within the past ten years.

A third imposes a double sentence for an offender convicted of aggravated burglary with a prior aggravated burglary conviction within the past ten years.

Footnote On Timing

The speed with which very serious criminal cases like this one progress is notable. The murder took place on July 15, 2008, and was discovered two days later. Thirteen days after the murder was discovered, there was an arrest. Pre-trial dismissal for lack of evidence was ruled out less than two months after the discovery of the body. Yesterday's added count comes five months after the arrest. It is likely that a trial will be commence, or that a plea bargain will be struck, within nine months of the murder. A sentencing hearing could be completed within a year of the murder.

Day of Remembrance

Too much to remember, including Angie Zapata and Aimee Wilcoxson, very close to home:

2008

January 8th - Patrick Murphy, Age 39 - Albuquerque, New Mexico, United States - Shot multiple times in the head.

January 22nd, in her 20s - Fedra - Kota Kinabalu, Malaysia - Found dead in a pool of blood.

January 23rd - Adolphus Simmons, Age 18 - North Charleston, South Carolina, United States - Shot to death while taking out the trash.

February 4th - Ashley Sweeney - Detroit, Michigan, United States - Found dead in Detroit's East Side, shot in the head.

February 10th - Shanesha Stewart, age 25 - The Bronx, New York, United States - Stabbed to death.

February 12th - Lawrence King, age 15 - Oxnard, California, United States - Killed by a fellow student after being asked to be Lawrence's valentine.

February 15th - Cameron McWilliams, age 10 - South Yorkshire, England, United Kingdom - Suicide by hanging.

February 22nd - Simmie Williams, Jr, Age 17 - Fort Lauderdale, Florida, United States - Killed by two gunmen.

March 15th - Luna, Age 42 - Lisbon, Portugal - Beaten to death, and thrown in a dumpster.

May 26th - Felicia Melton-Smyth - Puerto Vallarta, Mexico - Stabbed.

July 1st - Ebony Whitaker, Age 20 - Memphis, Tennessee - Shot to death.

July 11th - Rosa Pazos - Sevilla, Spain - Stabbed in the throat in her apartment.

July 17th - Angie Zapata, Age 17 - Greeley, Colorado, United States - Beaten to death.

July 29th - Samantha Rangel Brandau, Age 30 - Milan, Italy - Beaten, raped and stabbed.

September 21st - Ruby Molina, Age 22 - Sacramento, California, United States - Found floating in the American River.

November 3rd - Aimee Wilcoxson, Age 34 - Aurora, Colorado, United States - Found dead in her bed.

November 9th - Duanna Johnson, Age 42 - Memphis, Tennessee, United States - Found shot and left on a street.

November 11th - Dilek Ince - Ankara, Turkey - Shot in the back of the head.

November 14th - Teish Cannon, Age 22 - Syracuse, New York, United States - Shot

Ali - Iraq - Executed

Unknown - Iraq - Executed

Unknown - Iraq - Executed

I'm bitchy. Who knew?

I have it on good authority from the Internet, here, and here, that I am bitchy. And, if it's on the Internet it must be true. Who knew? (Honestly, in context, it was all said in good fun, and I don't take offense.)

Another Internet source, however, concludes that I am merely 45% bitchy. But the second source, surprisingly, reveals that I am also a woman. You learn new things every day on the Internet.

You Are 45% Bitchy

Generally, you're an average woman, with average moods. But sometimes... well, watch out! Sometimes, you let your mean side get the better of you. And you enjoy every minute of it.

How Bitchy Are You?

Gotham and Tokyo

The Dark Knight, which is the latest movie in the Batman franchise, presents a Gotham as troubled as it can be without being post-apocolyptic. Families and hard working people live their lives there, but one is left wondering why they bother.

The Joker in the The Dark Knight is perhaps the most terrifying, ultra-violent villains known to the silver screen. His terrorism is on the scale of the cold mass violence that afflict New York City in Under Siege, but with the utter lack of larger cause of the villain in Speed. His elaborate schemes and attacks on individuals make Hannibal Lector seem like a dilettante. He undermines justice and secures power by targeting individual public servants and rival criminals more flagrantly than in The Godfather. The level of gory, personal, psychopathic violence he takes joy in, and the overall darkness of the film are unrivaled outside Frank Miller's Sin City. This Joker isn't interested in massive practical jokes that happen to hurt people; he loves violence and mayhem simply for the chaos and fear that they spawn.

Much of the violence takes place off screen, merely implied and without the visible gore of countless other movies, but this simply brings it to the very limits of our imagination, rather the dulling it. The intensity the film achieves with unconventional cinematic techniques rivals Saving Private Ryan and Platoon. The producers must have bribed the ratings board to get a PG-13 rather than an R rating for The Dark Knight, or perhaps this is simply proof that no level of violence alone can make a movie rated R.

The Gotham that spawned and suffers under such a villain is naturally enough exceedingly dark, gothic and troubled. The last Batman movie depicted a Gotham that approximated the despair of Detroit at its most troubled. This Gotham, which more closely resembles New York City, endures mayhem on a level comparable to contemporary Baghdad. This movie is too intense for corny jokes or melodrama. The romances are tragic. Our introspective hero is vulnerable, overwhelmed, morally conflicted and soon doubts himself. Evil doesn't triumph, of course; this is a superhero movie. But Superman is sometimes brought low by kryptonite that allows villains to do what they will and when that happens the people whom he protects suffer less than the people of Gotham do with Batman still in action.

Like the Iron Man recently portrayed by Robert Downey Jr., Batman is just a man with hangups, empowered by nothing more than the technology that a defense contracting tycoon's billions make possible. The Dark Knight makes several innovative and worthy contributions on this front as well. But, informed by the lessons of the post-9-11 era, The Dark Knight makes clear that technology can't solve problems by itself and that trying to maintain some sort of moral code while operating outside the law is frought with contradictions and poses a grave risk of being counterproductive. Our hero is chastened by the events the Joker puts in place.

Not every movie portray of the underside of the modern city has to be so devoid of hope, however. Satoshi Kon's 2003 anime film Tokyo Godfathers, a Japanese language movie with subtitles, while displaying more of the dirty laundry of Japan's largest city than most films, is a basically light hearted morality tale. It probably earns its PG-13 rating mostly as consequence of having a transvestite as a main character. It has the emotional punch and cartoon violence of the better Disney and Pixar animated films, but won't leave many children old enough to read English language subtitles with nightmares (there is also Spanish spoken in the film, but without subtitles as the character that hears it doesn't speak that language).

At the heart of the story is a cardboard box vagrant household made up of a broken drunk of a middle aged man, runaway teenage girl, and a flagrantly religious transvestite. [Ed., "homo" is the translation used in the subtitles, which is used self-referrentially by this character, but the anime portrayal is not of a real life-like transexual woman, or of a homosexual man, but of a very pure version of the "transvestite" stereotype.] All of them are resigned to their current state, from happier early days, we learn, out of personal shame for their own past actions. They try to do right by a newborn baby, abandoned in the trash on Christmas Eve, that they discover and redeem themselves in the process.

Beyond the melodramatic core story of the anime, it is worth seeing because this is a rare Japanese film directed at Japanese audiences available in the U.S., which is set in a contemporary Japan no more different from real life than your typical American Christmas special.

Individual snippets like the health care taken for granted, with a $300 charge for an ER visit and hospital stay redeemable should our vagrant produce a health insurance card, and the opening portrayal of a Christian Christmas service in an overwhelmingly non-Christian society are precious in and of themselves.

Even more striking, however, not just in this anime film, but also in manga in translation, and in webcomics set in Japan by knowledgable U.S. residents, is the prevasive sense of duty felt by everyone with the possible exception of young adult male scions of wealthy families. Everyone from vagrants, to taxi drivers, to gangsters, to a hit man's wife, to a baby stealer's husband, to neighborhood association gossips feels acts with an intense sense of civic obligation that overrides their personal self-interest. Those who don't act that way regret it and punish themselves.

No wonder the trains are safe at night in Tokyo.

Arrest Made In Angie Zapata Murder Case

"Greeley Police have arrested Allen Ray Andrade, 22, of Thornton. He faces charges of second-degree murder and aggravated murder vehicle theft" in connection with the murder of Angie Zapata (previously blogged).

UPDATE: Police claim to have a confession from Andrade to a beating death that actually took place two days before the body was found, on July 15, 2008, immediately following a sexual encounter gone wrong in connection with Zapata's transgender status.

If this confession was secured in compliance with Miranda, probably all that remains is for defense counsel and prosecutors to negotiate over where the case lies on the spectrum from heat of passion murder (a class 3 felony) to felony murder (a class 1 felony), all of which are crimes of violence and sentenced more seriously as a result, and in turn, what sentence is appropriate for the crime of conviction. Alternately, defense counsel might take the case to trial and hope for jury nullification or a lenient verdict based upon prejudice against Zapata.

The normal sentencing range for heat of passion murder is sentence set by the judge somewhere between eight and twenty-four years in prison, followed by five years of mandatory parole, restitution, court costs, and possibly also a fine of $3000 to $750,000. Typically, no more than 25% of the sentence could be reduced for good time. The sentence for felony murder is life imprisonment without possibility of parole, or if sought by the prosecution and additional proceedings are conducted, the death penalty (unlikely in this case). There would also be a sentence on the lesser felony charge of aggravated vehicle theft, possibly served consecutively rather than concurrently with the murder charge.

Realistically, the lowest plausible sentence would be about seven years of time actually served in prison, and much longer sentences are possible.

While the murder immediately followed sexual activity according to police, it isn't clear from the description given by police that any sex offense (and the associated punishment for those types of offenses) would be involved in this case.

Mourning Angie Zapata

Eighteen year old Angie Zapata was murdered in Greeley, Colorado on July 17, 2008 in her apartment.

One possible motive for the crime is that, at one time, she was known as Justin Zapata. It could have been a hate crime targeted at her because she was a transgender women.

She "craved friends, family and teen pursuits such as talking on the telephone and using a camera. . . . and dreamed of being Miss Latina. 'Her appearance meant everything to her other than being on her phone or taking pictures,' according to the obituary."

A public funeral service was held July 23, 2008, at The Healing Place, in Brighton, Colorado (an affiliate of The Foursquare Church). At the bilingual religous service she was remembered by friends and family:

The way she would spoil her niece and nephew, even quitting a job to take care of them, as two friends reminisced during the service. The way she loved roses, the colors red and black, and way she always made sure her makeup was good -- even simply when taking a trip to Wal-Mart.

Perhaps, most of all, however, was the way she never backed down from who she was, instead saving the energy to care for her friends and family.

"She was always happy," said Alicia Portillo, one of Angie's friends. "She loved music. She didn't care what people thought of her. She always just wanted to be who she was and that was female and to be loved."

Portillo even said Zapata's courage helped her with her own identity as a lesbian.

"Angie gave me the power to not care what people thought of me."

The statement released by Angie Zapata's sister Monica Zapata on behalf of her family stated:

We want the whole community involved to find this person who hurt my sister and to let everyone be aware that all she wanted was to be beautiful. We want this violence to end. Transgender people deserve to be treated with respect.

According to the Greeley Tribune:

A search warrant for Zapata's apartment in the 2000 block of 4th Street indicates the victim suffered fatal wounds to the head and face. . . .Her body was found Thursday [July 17, 2008] in the apartment, according to the warrant. After family members were unable to reach her by telephone, her sister went to the house and got a key from the landlord. She found Zapata lying on the living room floor, covered by a blanket. She was already dead.

The identity and motives of her killer are unknown, although one blog states that:

Police indicate that they have information that might lead to an arrest and have not ruled out that this might be a hate crime but they have also indicated that the killer or killers might be acquaintances of the victim.

The police have asked for help from the public:

Police are looking for Zapata's car, a green 2003 Chrysler PT Cruiser with Colorado license plate number 441-ORN. There is a hubcap missing on the front passenger side and paint missing on the front bumper of the driver's side under the headlight. . . . Anyone with information about Zapata's murder should call Greeley police at 970-350- 9600.

According to this blog (repeated at a couple of other places):

Donations in Angie Zapata’s honor maybe made at Academy Bank in Wal-Mart, 60 W. Bromley Lane or checks made payable to Monica Murquia may be mailed to Colorado Anti-Violence Program, P.O. Box 181085, Denver, CO 80218.

This world seems to have too many senseless tragedies. Angie Zapata's murder was one of them. There are too few answers.