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Ex-Marine guilty of manslaughter while armed

D.C. jury acquits on second-degree murder in case involving anti-gay slur

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Marine Barracks, gay news, Washington Blade

Lance Corp. Phillip Bushong was stabbed to death across the street from the Marine Barracks. (Washington Blade file photo by Michael Key)

A D.C. Superior Court jury on Monday found a 22-year-old former U.S. Marine guilty of manslaughter while armed for the April 2012 stabbing death of a fellow Marine following an altercation in which he allegedly shouted an anti-gay slur.

After four days of deliberations that began prior to the Thanksgiving holiday weekend the jury found then Pfc. Michael Poth not guilty of a more serious charge of second-degree murder while armed.

Judge Russell Canan, who presided over the trial that lasted nearly 10 days, scheduled a sentencing hearing for Poth on Feb. 7. A conviction on manslaughter while armed carries a maximum penalty of 60 years in prison, although voluntary sentencing guidelines allow judges to hand down a significantly lower sentence.

A second-degree murder while armed conviction could have resulted in a 70-year prison sentence.

Poth has been held in jail since the time D.C. police arrested him on April 21, 2012, minutes after witnesses said he stabbed Lance Corp. Phillip Bushong, 23, in the upper chest with a pocketknife on 8th Street, S.E., across the street from the Marine Barracks.

“Today a District of Columbia jury held Michael Poth accountable for stabbing a fellow Marine to death on a public street near their barracks,” said U.S. Attorney Ronald Machen under whose office the case was prosecuted.

“Their guilty verdict makes clear that our community will not tolerate the deadly violence that so often arises from petty disputes.”

The lead prosecutor in the case stated at a pre-trial hearing last year that the stabbing appeared to be a hate crime. But the government never formally classified the case as a hate crime, a designation that could have resulted in a more severe sentence.

Marine Corps officials discharged Poth from active-duty service on less than honorable circumstance shortly after his arrest. Poth had been stationed at the 8th and I Streets, S.E. barracks at the time of the incident. Bushong, who was stationed in North Carolina, was visiting friends in D.C. at the time of the altercation that led to his death just days before he was scheduled to be honorably discharged from the Marines.

Poth’s defense attorney argued that Poth, who admitted he stabbed Bushong, did so in self-defense following a verbal altercation that turned violent. The attorney, Bernard Grimm, told the jury that Bushong was the aggressor and that he followed Poth after the two got into a verbal exchange.

One witness, a friend of Bushong’s who testified that he’s gay, told the jury Poth called him and Bushong a faggot. The witness, congressional staffer Nishith Pandya, said Bushong was straight and the two were platonic friends. Pandya testified that he did not know how Poth could have known he’s gay, although at least one witness said Poth may have seen Bushong and Pandya hugging each other on the sidewalk as they left a bar.

Grim argued that Poth was smaller than Bushong. He cited testimony by a Marine guard who witnessed part of the altercation and who said he saw Bushong put one hand on Poth’s shoulder and pulled back his other hand as if he were about to throw a punch. It was at that point that Poth stabbed Bushong, according to witnesses.

Grimm also argued that at least one witness testified that Bushong was ordered to leave one of the bars along the street where the incident took place because he was intoxicated and was acting in a boisterous manor. Poth was also believed to have been intoxicated, witnesses said.

Assistant U.S. Attorney Michael Liebman, the lead prosecutor in the case, said Poth hurled the anti-gay slur with the intent of provoking Bushong into a confrontation to give Poth an excuse to stab Bushong. Liebman cited testimony by witnesses that Poth became angry over a remark that Bushong made to Poth when the two Marines first crossed paths on 8th Street sometime earlier in the evening.

He noted that a witness testified that she heard Poth say to himself that he planned to stab someone as he walked along 8th Street after the earlier exchange of words between Poth and Bushong. A D.C. police detective testified that Poth said shortly after his arrest that he hoped Bushong would die when he overheard someone say over a police radio that Bushong was being taken by ambulance to a hospital.

Prosecutors said Bushong was pronounced dead at the hospital about two hours after the stabbing. An autopsy showed he died of a single knife wound that punctured his heart.

“He announced his intention,” Liebman told the jury in disputing Poth’s claim of self-defense. “He is looking for Lance Corp. Bushong. He wants to do what he said he would do. He wants to stab him.”

In concluding his closing arguments, Liebman said, “You don’t get to proclaim self-defense when you proclaim intent to stab someone before you come into contact with them. The law doesn’t allow you to use deadly force before you have contact.”

Local attorney Dale Edwin Sanders, who practices criminal law in D.C. and Virginia, said the verdict appears fair in a case where the victim was shown through witness testimony to have decided to engage in an altercation rather than walk away from it, even though the stabbing was unjustified.

“I’m sure the prosecutors think this is a major victory,” Sanders said. “They didn’t get their second-degree murder conviction but in D.C. the penalty for manslaughter is nearly as great as it is for Murder II,” he said.

“This sounds like a well-reasoned verdict, a compromise verdict,” said Sanders. “The jury didn’t buy the self-defense claim because they would have acquitted him on both charges if they accepted self-defense.”

Sanders added, “This is not like the jury gave him a pass…He’s convicted of a deliberate homicide. They’re just saying it wasn’t pre-meditated. Manslaughter is a form of murder without pre-meditation.”

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National

GLSEN hosts Respect Awards with Billy Porter, Peppermint

Annual event aims to ‘inspire a lot of people to get active’

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Billy Porter is among guests at Monday’s Respect Awards in New York.

GLSEN will host its annual Respect Awards April 29 in New York, with guests including Miss Peppermint and Billy Porter. 

Respect Awards director Michael Chavez said that the event will be moving. 

“It will inspire a lot of people to get active and take action in their own communities and see how much more work there is to do, especially with all of the harmful things happening,” he said. 

At the event, they will recognize the Student Advocate of the Year, Sophia T. Annually, GLSEN recognizes a student from around the country who is impacting their community. 

“Sophia is doing incredible work advocating for inclusive sex education that is LGBTQ+ affirming, working with Johns Hopkins University to implement curriculum.” Chavez said. 

Chavez calls the students that attend the Respect Awards the “biggest celebrities” of the evening. 

“It is really important for the adults, both the allies and the queer folks, to hear directly from these queer youth about what it’s like to be in school today as a queer person,” he said.

GLSEN is a queer youth advocacy organization that has been working for more than 30 years to protect LGBTQ youth.

“GLSEN is all hands on deck right now, because our kids are under direct attack and have been for years now,” said actor Wilson Cruz.

Cruz is the chair of GLSEN’s National Board, which works to fundraise and strategize for the organization.

“I think we are fundamental to the education of LGBTQ students in school,” he said. “We advocate for more comprehensive support at the local, national, and federal levels so our students are supported.”

Chavez is one of the students that was impacted by this work. He led his school’s GSA organization and worked with GLSEN throughout his youth. 

Cruz said Chavez is doing what he hopes today’s GLSEN students do in the future, which is pay the work forward. 

“There’s nothing more powerful than people who have experienced the work that GLSEN does and then coming back and allowing us to expand on that work with each generation that comes forward,” he said. 

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Florida

Homeless transgender woman murdered in Miami Beach

Andrea Doria Dos Passos attacked while she slept

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Andrea Dos Passos (Photo courtesy of Equality Florida)

Gregory Fitzgerald Gibert, 53, who was out on probation, is charged with the second-degree murder of 37-year-old Andrea Doria Dos Passos, a transgender Latina woman who was found deceased in front of the Miami Ballet company facility by a security guard this past week.

According to a Miami Beach Police spokesperson the security guard thought Dos Passos was sleeping in the entranceway around 6:45 a.m. on April 23 and when he went to wake her he discovered the blood and her injuries and alerted 911.

She was deceased from massive trauma to her face and head. According to Miami Beach police when video surveillance footage was reviewed, it showed Dos Passos lying down in the entranceway apparently asleep. WFOR reported: In the early morning hours, a man arrived, looked around, and spotted her. Police said the man was dressed in a black shirt, red shorts, and red shoes.

At one point, he walked away, picked up a metal pipe from the ground, and then returned. After looking around, he sat on a bench near Dos Passos. After a while, he got up and repeatedly hit her in the head and face while she was sleeping, according to police.

“The male is then seen standing over her, striking her, and then manipulating her body. The male then walks away and places the pipe inside a nearby trash can (the pipe was found and recovered in the same trash can),” according to the arrest report.

Police noted that in addition to trauma on her face and head, two wooden sticks were lodged in her nostrils and there was a puncture wound in her chest.

Victor Van Gilst, Dos Passos’s stepfather confirmed she was trans and experiencing homelessness. 

“She had no chance to defend herself whatsoever. I don’t know if this was a hate crime since she was transgender or if she had some sort of interaction with this person because he might have been homeless as well. The detective could not say if she was attacked because she was transgender,” said Van Gilst. 

“She has been struggling with mental health issues for a long time, going back to when she was in her early 20s. We did everything we could to help her. My wife is devastated. For her, this is like a nightmare that turned into reality. Andrea moved around a lot and even lived in California for a while. She was sadly homeless. I feel the system let her down. She was a good person,” he added.

Gregory Fitzgerald Gibert booking photo via CBS Miami.

The Miami Police Department arrested Gibert, collected his clothing, noting the red shorts were the same type in the video and had blood on them. Blood was also found on his shoes, according to police. He was taken into custody and charged. 

“The suspect has an extensive criminal record and reportedly was recently released from custody on probation for prior criminal charges. Police apprehended the suspect in the city of Miami and the investigation is currently ongoing. This case is further evidence that individuals need to be held accountable for prior violent crimes for the protection of the public. We offer our sincere condolences to the family and friends of the victim,” Miami Beach Mayor Steve Meiner said in a statement. 

Joe Saunders, senior political director with LGBTQ rights group Equality Florida, told the Miami Herald that “whenever a transgender person is murdered, especially when it is with such brutality, the question should be asked about whether or not this was a hate-motivated crime.”

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Federal Government

HHS reverses Trump-era anti-LGBTQ rule

Section 1557 of the Affordable Care Act now protects LGBTQ people

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U.S. Department of Health and Human Services Secretary Xavier Becerra (Public domain photo)

The U.S. Department of Health and Human Services Office for Civil Rights has issued a final rule on Friday under Section 1557 of the Affordable Care Act advancing protections against discrimination in health care prohibiting discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics), in covered health programs or activities. 

The updated rule does not force medical professionals to provide certain types of health care, but rather ensures nondiscrimination protections so that providers cannot turn away patients based on individual characteristics such as being lesbian, gay, bisexual, transgender, queer, intersex, or pregnant.

“This rule ensures that people nationwide can access health care free from discrimination,” said HHS Secretary Xavier Becerra. “Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.”

The new rule restores and clarifies important regulatory protections for LGBTQ people and other vulnerable populations under Section 1557, also known as the health care nondiscrimination law, that were previously rescinded by the Trump administration.

“Healthcare is a fundamental human right. The rule released today restores critical regulatory nondiscrimination protections for those who need them most and ensures a legally proper reading of the Affordable Care Act’s healthcare nondiscrimination law,” said Omar Gonzalez-Pagan, counsel and health care strategist for Lambda Legal.

“The Biden administration today reversed the harmful, discriminatory, and unlawful effort by the previous administration to eliminate critical regulatory protections for LGBTQ+ people and other vulnerable populations, such as people with limited English proficiency, by carving them out from the rule and limiting the scope of entities to which the rule applied,” Gonzalez-Pagan added. “The rule released today has reinstated many of these important protections, as well as clarifying the broad, intended scope of the rule to cover all health programs and activities and health insurers receiving federal funds. While we evaluate the new rule in detail, it is important to highlight that this rule will help members of the LGBTQ+ community — especially transgender people, non-English speakers, immigrants, people of color, and people living with disabilities — to access the care they need and deserve, saving lives and making sure healthcare professionals serve patients with essential care no matter who they are.”

In addition to rescinding critical regulatory protections for LGBTQ people, the Trump administration’s rule also limited the remedies available to people who face health disparities, limited access to health care for people with Limited English Proficiency, and dramatically reduced the number of healthcare entities and health plans subject to the rule.

Lambda Legal, along with a broad coalition of LGBTQ advocacy groups, filed a lawsuit challenging the Trump administration rule, Whitman-Walker Clinic v. HHS, and secured a preliminary injunction preventing key aspects of the Trump rule from taking effect.

These included the elimination of regulatory protections for LGBTQ people and the unlawful expansion of religious exemptions, which the new rule corrects. The preliminary injunction in Whitman-Walker Clinic v. HHS remains in place. Any next steps in the case will be determined at a later time, after a fulsome review of the new rule.

GLAAD President Sarah Kate Ellis released the following statement in response to the news:

“The Biden administration’s updates to rules regarding Section 1557 of the ACA will ensure that no one who is LGBTQI or pregnant can face discrimination in accessing essential health care. This reversal of Trump-era discriminatory rules that sought to single out Americans based on who they are and make it difficult or impossible for them to access necessary medical care will have a direct, positive impact on the day to day lives of millions of people. Today’s move marks the 334th action from the Biden-Harris White House in support of LGBTQ people. Health care is a human right that should be accessible to all Americans equally without unfair and discriminatory restrictions. LGBTQ Americans are grateful for this step forward to combat discrimination in health care so no one is barred from lifesaving treatment.”

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