Saturday, June 7, 2008

Legal Persecution of Gay and Lesbian Professionals in California

In August of 2006, a well respected and openly gay, San Francisco Bay Area high school physical education teacher, Norm Burgos, was charged with a crime after an ex-student Googled him, found out he was gay, and complained to authorities that he remembered feeling “creeped-out” two years earlier while receiving a sports massage from coach Burgos.

Coach Burgos was suspended from teaching pending the outcome of a preliminary hearing, and twenty-two months later, a bitter legal battle is still being waged in Marin County Superior Court. The outcome of this case may impact thousands of gay and lesbian professionals state wide, and perhaps create a nation wide impact as well.

After twenty-two months, making it the longest preliminary hearing in California’s history, the prosecutor has failed to produce a shred of evidence that any crime was committed. Yet, instead of dropping the charges, the prosecutor’s office has requested that the judge presiding over the case create a “new law” which will allow them to bring Coach Burgos to trial on felony charges.

This “new law”, if the judge grants the prosecution’s request, will have grave consequences for gay, lesbian, and even straight teachers, doctors, chiropractors, coaches, physical therapists, dance instructors, and any other profession that requires physical contact between professionals and clients/students. This “new law” would allow gay and lesbian, as well as straight, professionals to be charged with a felony restraint with intent to sexually assault charge, over someone’s “uncomfortable feelings” during any kind of physical contact.

This case is nothing short of legal persecution of gay professionals, and it must be stopped here in Marin County before it can spread.

Please read the following editorial article that activist John Robertson submitted to the Marin Independent Journal. If you wish to support their case or can offer assistance in publicizing this issue, please contact John Robertson via email,, for an information packet detailing the case events over the last two years.

Prosecutor Lori Frugoli Makes California History

For at least the sixth time, Prosecutor Lori Frugoli refused to give closing arguments, in what has turned into the longest and perhaps costliest preliminary hearing in California history. In April of 2008, in an effort to reign in the prosecution, Judge Faye D’Opal finally denied the prosecutor’s request for even more time, and did not allow her to file any new motions. After twenty-two months of granting Frugoli endless opportunities to gather together a case, the judge announced, “It is time to put this matter to rest.” The judge then scheduled closing arguments for May 29th and instructed the prosecutor to keep her presentation under twenty-minutes. Contrary to the judge’s orders, Frugoli did not return to address the court until June 3rd.

Before a packed courtroom of the defendant’s supporters, Lori Frugoli once again defied the judge by starting new arguments instead of closing them. She urged the judge to create a “new law” which would allow her to finally charge the defendant with a felony, since currently no such existing law is on the books to have been broken by the defendant, and no existing case law supports her request. Prosecutor Frugoli essentially argued that the defendant’s insistence that he is innocent, and the victim of homophobic persecution for the last two years, and his refusal to accept her multitude of plea bargains, proved that Coach Burgos was of disreputable character and a danger to society. Frugoli argued, “We have made law in this courtroom before,” and urged the judge to do so again in order to finally establish some sort of chargeable felony.

Defense attorney, Douglas Horngrad, argued that while “her pontificating was novel”, even she herself conceded to the court that her request is legally unsupported. He said, “We are not here to moralize or judge my client’s character, your honor. We are here to uphold and apply existing laws.”

Judge Faye D’Opal wearily scheduled a court date for June 18th, at which time she will render her decision regarding the prosecution’s request. However, she did warn Prosecutor Lori Frugoli to be prepared next time to “present a closing argument which is not open ended.” Before adjourning the court she once again reminded Lori Frugoli to keep it under twenty-minutes.

Personally, I find Lori Frugoli’s argument to be an interesting insight into how she practices law. I think we can all understand that a lawyer’s job is to win, and certainly no one can doubt Prosecutor Frugoli’s efforts to do so. However, it is a special position that prosecutors are sworn to; for it is they who hold the power to take away liberty, reputation, and even to end lives, if not literally then certainly figuratively. The people blindly put their faith and trust into the hands of prosecutors and expect that all people will be prosecuted only with integrity. Good prosecutors understand that there is often times a disconnect between what is moral and what is legal, and the good prosecutor understands that the spirit of the law is to try to bridge the two together, even though no true connection actually exists.

History has proven that law is often times dictated by social prejudice, not morality, and history has also proven that many prosecutors will exploit those prejudices to accrue convictions and build up their careers. For example, in times past, “new laws” were created to criminalize marriages between mixed races. Many prosecutors were involved in creating those laws and they benefited for decades from the convictions that ensued. History has also shown that there are always at least a few good prosecutors; those who do not practice law in a self-serving way, and who are truly committed to protecting the community. Those are the prosecutors who may not have the most notches in their conviction belts, but they have bragging rights when the law is finally able to bridge itself with what is right, because they can genuinely say they were never part of the problem. Lori Frugoli, in my opinion, has proven herself over the last twenty-two months to be part of the problem.

This journey may have began for Lori Frugoli as just another investigation into an accusation, but once she realized that the evidence was incredibly weak and riddled with inconsistencies, a good prosecutor would have dropped the charges instead of becoming more determined to gain a conviction. Lori Frugoli, however, realized that she had a celebrated, honored and decorated member of the community, who just so happens to be gay; and either she decided that his sexuality was proof positive of his guilt, or she decided that his sexuality would be easily exploitable before a cherry picked jury. Either way, she stood to gain plenty from convicting such a well-known pillar of the community. The only problem facing her is a legal one: no existing felony has been committed by the defendant. Her solution: create a new felony law.

It is obvious to me that Prosecutor Lori Frugoli is akin to the many prosecutors through out history, as opposed to the good. I believe in the marrow of my bones that the community of Marin is mostly decent, enlightened and capable of critical thinking, and I believe that justice will prevail. I also believe, that like times past, this problem will not get resolved until the community creates a consensus and says enough is enough. No more stalling tactics, no more invented accusations, no more coached witnesses, no more attempts to win despite it all. Lori Frugoli needs to know that she is not practicing law in the spirit that Marin Count y wants to become synonymous with. If Judge Faye D’Opal chooses to make history on June 18th by creating special “new laws” to assist this prosecutor, and if this prosecutor chooses to make history by continuing forward with the same disregard for what is right and moral, then I predict that history will remember them and the community badly. We will all become akin to those communities and those prosecutors of days gone by that are now today only remembered for their fear, hatred and intolerance. Lori Frugoli has already etched her history into stone, but we can still choose how history will remember the rest of us.

John Robertson

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