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CeCe McDonald Trial Preview of Day 1

CeCe McDonald Trial Preview of Day 1
Tom Léger

The trial for trans woman CeCe McDonald officially began today at 9am in Minneapolis. We will be doing our best to follow the case closely and post updates here on PrettyQueer. If you have additional items to report, email or tweet us @prettyqueer.

The judge is expected to rule on two outstanding motions today, first on whether the defense can use the fact that Dean Schmitz, the deceased, had a swastika tattoo on his chest. The second motion that is still pending is the defense motion to have an expert witness on transgender issues speak to the “climate of violence perpetrated on the trans community and to educate jurors on trans issues.”

If you’d like a full history of the case, check out Support CeCe! or if you’re a legal buff, download the case history in PDF form, from June 7, 2011 to today.

According to reports by the local support team, a number of whom attended the pretrial hearing on Friday, a number of items were decided. The full text is below, but we’ve extracted and color-coded the items of note here as well. Items colored green were beneficial to the defense, regardless of who entered the motion. Red items show that they were decided in a manner that would be unhelpful to the defense.

Motion Presented by Outcome
Against individuals wearing supportive t-shirts, buttons or other items in the courtroom Prosecution GRANTED
To admit into evidence Dean Schmitz’s swastika tattoo Defense PENDING
To admit into evidence Dean Schmitz’s prior convictions for domestic assault Defense DENIED
To admit criminal records (theft) of witnesses who will be testifying against CeCe Defense DENIED
To admit criminal records of witness against CeCe who provided false information and a false name to police Defense GRANTED
To admit into evidence CeCe’s conviction regarding a bad check to show dishonesty Prosecution GRANTED
Expert witness to discuss toxicology reports that show the deceased had cocaine, methamphetamine and alcohol in his systems Defense GRANTED
Expert witness on transgender issues to show climate of violence against trans people Defense PENDING

Full text of update from support team:


On Friday, April 27th, CeCe McDonald appeared in court for her final pre-trial hearing. Both the defense and the prosecution argued motions on which  evidence could be admitted or not, whether or not to allow expert witnesses, and whether or not supporters can wear Free CeCe gear in court.

The prosecution motioned to prevent people in the courtroom from wearing any t-shirts, buttons or anything that shows support for CeCe in any way. The motion was granted. (This means that we cannot wear support wear during CeCe’s trial.)

The defense motioned to admit evidence that the deceased, Dean Schmitz, had a swastika tattoo on his chest and prior convictions for domestic assault. The prior convictions cannot be brought up in court and the judge will rule on the swastika tattoo by Monday morning.

The defense motioned to admit the criminal theft record of witnesses against CeCe. These motions were denied. Another motion to admit the convictions of one witness against CeCe for providing false information to the police and using a false name was granted. Notably, however, the prosecution motioned to admit into evidence that CeCe was convicted of writing a bad check to speak to her dishonesty as a witness. This motion was granted.

The defense motioned for the inclusion of an expert witness to speak to the deceased’s toxicology report to explain the potential effects of chemicals such as cocaine, methamphetamine, and alcohol in his system. The judge will allow the expert to testify about these chemicals and their effects in general.

The defense motioned for the inclusion of an expert witness on transgender issues to speak to the climate of violence perpetrated on the trans community and to educate jurors on trans issues. A full decision on this motion will happen on Monday, April 30th. These rulings are helping determine how CeCe’s trial will play out, so keep your eye on these announcements for the latest updates. Trial proceedings are still scheduled to begin on Monday, April 30th at 9am, although things won’t really be underway until Tuesday. So plan to start coming to court Tuesday, May 1st at 9am wearing purple in solidarity with CeCe!

Leslie Feinberg is in attendance, as are dozens of other supporters. From Leslie’s twitter feed:



  1. Bryn Kelly

    Wow. Conviction of bouncing a check > conviction of domestic assault as more predictive of who is more likely to have killed someone. I will never, ever understand the law.

    • Not to mention apparently being more clearly of relevance to the trial than the fact that the man who instigated a fight with a group of POC had a swastika underneath his shirt. I thought the fight was started over racism/bigotry, not bad checks, but what would I know??

      So now let’s sit here and all think real hard about whether or not that tattoo might be relevant to what happened….. try to keep an open mind kids, we wouldn’t want to introduce prejudice into these hearings………

    • Wygrif

      It’s about a little about honesty, a little about the general unreliability/unfairness of character evidence.

      There is a bar against admitting evidence tending to show that a person is ‘x’ kind of person, so they must have behaved in ‘x’ way. The thought is that we want to convict because of what somebody *did* not who somebody *is*. Even scumbags are sometimes the victim.

      There is an exception to that when ‘x’ is dishonesty, because acts of dishonesty are thought to help the fact finder make determinations of credibility (you’ll note that the witnesses against her will be confronted with their lies to the police.)

      There is another exception in a criminal case when you’re talking about the propensity of the alleged victim to violence against the alleged offender; IMO the swastika will probably be in. Legitimately it is a close call though, because people fucking hate nazis*, and knowing that the vic is one is likely to be substantially prejudicial.

      Usually the law is baroque, not completely insane. I think the judge’s rulings are pretty solid so far.

      *(not without cause, obviously)

      • The swastika bears directly on the case because the “victim” (as you say) initiated the confrontation on the basis of racial prejudice and bigotry.

        Personally I do not refer to Dean Schmitz as the victim, I think PQ’s designation of him as simply “the deceased” is pretty fair. Because as far as I can tell, the reality is that Schmitz is just a guy who initiated a violent confrontation and lost.

        • Wygrif

          As I said, I do think that swastika passes the 403 test (not substantially more prejudicial than probative). I just don’t think that it’s crazy to argue that it is the sort of thing that would cause the fact finder to decide on the basis of prejudice rather than evidence.

          As for vic/decedent terminology I take your point and will refrain from referring to him as “victim” in the future.

          • NB: We took our cue from the support team, who uses the term deceased.

      • To my understanding, Judge Moreno may not allow the swastika as evidence because it was not discovered until days after the event, during the deceased’s autopsy. Therefore, it had no bearing on the incident in terms of intent/fear/provocation. Of course, I PERSONALLY think it speaks volumes as to who the deceased was..

        I’ve been spotty in my ability to be in the courtroom, so another support committee member may be able to speak more about this.

      • I can understand denying the swastika tattoo as prejudicial evidence. Allowing it as evidence would show that the deceased held a particular view in regards to non-white (and non-cis) people (404(b)). It could also inject bias against the deceased before everything else was heard (403). My first thought when I heard about the deceased’s tattoo was, “Hate-mongering genocidal Nazi scum!” Rule 404(b) is a murky one and I cannot fault Judge Moreno if he excluded it because he judged that it would impart even a slight balance in favor of unfair prejudice. I can understand it, but I don’t like it.

        Why deny the motion to include the deceased’s criminal record of domestic abuse? It would show that the deceased had a propensity for violence and not be unduly prejudicial.

        • Thanks for the clarification on the law. I understand it, but I also don’t like it. If knowing he had a swastika tattoo makes people judge him as a neo-nazi sympathizer (or neo-nazi himself) then too bad for him. Shouldn’t had got the tattoo. Bleh.

          Also, (again, only my understanding) Judge Moreno isn’t letting the deceased’s prior 3 domestic assaults to be used because they were in the suburbs (this incident was in the city) and he saw DV as separate from street (random) violence. Again, the support committee members who were in the room when he made this statement could speak more about it.

          • How is a propensity to violence in the deceased, regardless of the situation, not an important indicator in a self defense case?

            It boggles the mind.

            • I feel like this is what people mean when they say that the legal system is rigged.

          • The city/suburb domestic/public reasoning seems very specious to me. If the deceased had a tendency to react violently, any proof of that behavior pattern should be admissible.

            I would like to see a detailed description of Judge Moreno’s reasoning on this subject. On the surface, it appears very weak logically.

            • MJ

              Like I said below, the Minnesota Rules of Evidence govern the admissibility of these types of things. Here, Rule 404(b) applies: “Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.”

              It may be that CeCe’s prior conviction would be admissible if her attorney was bringing evidence to show she was a trustworthy person. Then they opened the door for the prosecution to bring evidence to rebut that claim, under Rule 404(a)(1): “Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.” Additionally, if they planned to put CeCe on the stand as a witness, they could bring evidence to show her truthfulness (hence the prior conviction) under 609(a)(2): “For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime…involved dishonesty or false statement”

              Like I said, the rules of evidence are VERY complex, and should be carefully studied, before we jump to any conclusions about these rulings. They judge may be biased, but they are also bound by these rules, first and foremost. Here is the link to the rules of evidence, if you’re interested in reviewing them:

              • My complaint was never with allowing CeCe’s prior conviction for a bad check. I understand that. My comment was not about that at all. I cry red herring.

                404(a)(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused… [is admissible].

                With 404(b), you stop at the first sentence. It continues thus: It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal prosecution, such evidence shall not be admitted unless (1) the prosecutor gives notice of its intent to admit the evidence consistent with the Rules of Criminal Procedure; (2) the prosecutor clearly indicates what the evidence will be offered to prove; (3) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; (4) the evidence is relevant to the prosecutor’s case; and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant.

                By the Minnesota court rules, the deceased’s conviction for domestic abuse could be admissible. 403 does not apply because the judge ruled that the deceased’s DV conviction was not relevant, a domestic crime in the suburbs. I find this reasoning to be both specious and logically weak, as I stated in my previous comment.

                I read and reread the rules before I commented. I believe that I have a good layman’s grasp of them. As to a list of MN court rules, I prefer , the layout is easier to navigate.

                • MJ

                  Just so I understand you correctly (I don’t want to mistaken your application of 404(b)): you are applying 404(b) to the deceased’s prior DV conviction, as showing proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident…is that correct?

                  Although my education has focused mostly on the federal rules of evidence, as well as my own state’s, the rules are nearly identical. Having done a little research on MN’s rules and prior cases via WestLaw, I find that this application of 404(b) doesn’t typically work. Evidence or prior crimes must be “substantially similar.” (State v. Robinson 536 N.W.2d 1). This relies on similarity in place, time, and MO. Historically, courts have taken a hard line on this, requiring an extremely “close relationship” between the acts in question and prior crimes. (State v. Frisinger, 484 N.W.2d 27). Here, the link between domestic violence and his attack of CeCe, would likely have been too weak for a judge to allow in.

                  Furthermore, in cases of self-defense, MN Supreme Court has previously held that “when a defendant claims self-defense, evidence of the victim’s prior specific crimes and bad acts may be admissible to show that the defendant had a reasonable apprehension of serious bodily harm provided that the defendant was aware of the victim’s prior violent behavior.” (State v. Charles 634 N.W.2d 425, 431). That last clause is what was likely at issue here: there needs to have been a link between the prior crimes and the CeCe’s knowledge of those bad acts. This interpretation is supported by U.S. v Gregg (451 F.3d 930), and others.

                  Thus, the combined weakness of the link between the similarity of crimes as well as the unknown knowledge of prior crimes likely makes this evidence inadmissible in court.

                  However, please don’t misinterpret my analysis as a support for these acts. As an activist for trans* rights, as well as human rights, I find this case utterly heart-wrenching, and highlights the violence trans* people face on a far t00 common basis. I simply wanted to provide legal analysis of these matters, to better my own understanding of the rulings.

  2. Gus

    I’m glad this is here and getting (some of) the attention it deserves. Free CeCe!

  3. Francesca Bongiorno Fortunato

    Tom: I have been following this story on FaceBook and am glad to see your writing about it here. I hope that more publicity and sympathetic perspectives will help CeCe’s case. Nothing to add except that I agree with your take on things. “Rigged” indeed!

    • Thanks Francesca, so glad you’re keeping up on the trial. I can’t really take credit–there are a ton of people helping getting us information, including the support staff there in MN and Red Durkin and Julie Blair here in NYC making it all happen. So glad you’re enjoying the coverage and please keep spreading the word!

  4. MJ

    I highly recommend people review the Minnesota Rules of Evidence (particularly rules 403, 404, 405, 608 and 609) before they jump to conclusions about these rulings. As WYGRIF mentioned, there are rules about evidence that are extremely complex, but govern the way the court can approach character evidence. Here is a link if you’re interested:

  5. You actually make it seem so easy with your presentation however I find this matter to be actually something that I feel I might never understand. It kind of feels too complicated and extremely wide for me. I am having a look ahead to your next put up, I?В¦ll try to get the hang of it!

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