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enlarge Here’s a fact set for your consideration: Two middle school boys. One a foot taller than the other. Both have difficult backgrounds. One is struggling with his sexuality and working it out publicly, which makes others around him uncomfortable. He been bullied in his past for his appearance and sexual orientation. The other one is about a foot taller, and has been raised by a homophobic, abusive, alcoholic father. It is possible, but seems to be unproven, that the taller one is also experimenting with involvement in white supremacy groups, but whether that is true or not seems to be at issue. Here is what isn’t in dispute: Brandon McInerney took his father’s Saturday night special from wherever it was stashed in the house. He loaded it with hollow-point bullets. He put it in his backpack and went to school. The day before he said he was going to bring his gun to school . When he got to school, he went to the computer lab, pulled out the gun, and shot Larry King in the back of the head. That is not in dispute. All sides agree. You would think, with that fact set, a jury could come to a verdict. And yet, they didn’t. Thursday the judge declared a mistrial after the jury deliberated 15 hours because seven jurors wanted to convict him on voluntary manslaughter and five wanted to convict him of first or second degree murder. What’s even weirder? Suddenly all the usual law-and-order conservatives have turned into merciful Pollyannas, including the Ventura County Star itself, whose reporting mirrored their editorial belief that McInerney should have been tried as a juvenile and not an adult, and the hate crime charge should not have been part of the trial. I’m not sure what you call it if it’s not a hate crime, to be honest. Despite the defense team’s best efforts to paint it as a “gay panic” defense , it really came down to one kid taunting another with his sexual orientation. If he were not dead from bullets that exploded his head like a watermelon, perhaps we could debate the wisdom of allowing the types of interactions between the two that happened. But he is dead. He is dead after a classmate shot him in front of all of the other classmates and the teacher. He is dead and he is gone and Brandon McInerney is very much alive and in jail and on trial. McInerney breathes. King doesn’t. And still, there is this weird, strange, counter-intuitive vibe here in Ventura County about how McInerney is as much a victim as King. I can only attribute it to the usual homophobic tendencies of many in this area. The sly implication is that King had it coming. That the victim, the one cold in his grave, deserved what he got because, well, he was gay. Or looked gay. Or acted gay. I’m not sure any of us really know whether he was or wasn’t. And in more reversals, the conservative kings and queens of personal responsibility are whispering and crying that McInerney was the victim of a school administrator and “lax attitudes.” As if stepping on Larry King would have prevented the whole thing. As if a kid who dared to be different, and perhaps in a way that offended or got in others’ space, deserved to have hollow point bullets put in his head. As if being gay is a reason to be dead. James Gilliam directs the Seth Walsh Students’ Rights Project , a project of the Southern California ACLU. Here’s what he has to say about the defense that ultimately succeeded enough to hang the jury. A toxic and dangerous environment has festered for years in California schools, where any student perceived as having a different sexual orientation or gender orientation — or simply perceived as different — can be teased and abused, often with impunity. But bullies don’t exist in a vacuum — they’re acting on messaging they learn from parents, from churches, even from educators themselves that LGBT people are somehow less than equal. It’s a message expected to be reinforced in the Chatsworth courtroom as McInerney’s attorneys assert that he was driven to temporary insanity following unbearable and humiliating sexual harassment on the part of King; that revulsion and violence are the natural responses to homosexual behavior. And also that anyone who may not fit someone else’s idea of how a member of a certain gender should behave perhaps brings that hostility on him or herself. About that messaging thing: Here is my open letter to “SaveOurKids.net” , a LaHaye production. That followed my discovery that petitions to put Proposition 8 on the ballot were in church lobbies everywhere. Messaging, indeed. Words matter, but apparently guns matter more. And even more apparently, the prosecution in this case couldn’t manage to muster enough passion or facts to get a verdict of murder for someone who indisputably pulled the trigger and unloaded into Larry King’s head. If we’re honest with each other, would there be any doubt of a verdict if it had been South Central LA? Or a hispanic defendant? Would there? No. They’d have been tried as an adult, tossed in jail and the key tossed. But in this case, when it’s a couple of white kids and one has daddy’s gun, they can’t decide whether he actually meant to pull the trigger or not. Daddy may have been a mean sonofabitch with a temper and an attitude, but hey — Daddy wasn’t on trial here. Brandon was. And Brandon should have been held to account. It defies logic. My other posts on this case can be found here , here and here . Firedoglake has more on it, too. Crossposted from odd time signatures