A straight man who beat a gay man to death was just acquitted after he said that he felt “violated” because the gay man posed as a woman in order to have sex with him.
Virginia Tech football player Isimemen Etute, 19, was found not guilty on a charge of second-degree murder in the death of Jerry Paul Smith, 40, after the jury deliberated for three hours.
Related: Virginia banned the gay/trans panic defense on the Transgender Day of Visibility
Smith pretended to be a woman on Tinder in order to have oral sex with straight men. Etute went to see him for oral sex in April 2021 and said that he didn’t know Smith’s gender, so he went back on May 31 with two former teammates to find out.
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Etute testified that he felt in his “gut” that something wasn’t right with Smith as he was outside Smith’s apartment that night. The two teammates didn’t go in with him, but Etute went in and he pulled off Smith’s hoodie.
“I felt violated,” Etute testified about learning that Smith wasn’t a woman. “I was just in shock, in disbelief that someone tricked me and lied to me.”
Etute claimed that Smith tried to punch him and then reached for something. Etute said he thought it was a gun. Smith did not own a gun, but he did have a knife hidden under his mattress for self-defense, which Etute didn’t see and that police only found days after the attack took place.
Etute testified that he punched Smith five or six times, but expert witnesses testified to the extensive nature of the beating. They said that most of the bones in Smith’s face were broken. Multiple teeth were knocked out and he had swelling in his brain. A shoe print was found on his face that a forensic detective testified would have required “at least two” blows to make.
The experts said that Smith coughed up blood on a closed door after he fell to the ground. They discussed a “frothy” liquid that came out of his mouth and ran down his sweatshirt.
Jensen died as he inhaled his own blood while on the ground. His body was found two days later.
“Who is the real victim here?” Etute’s attorney Jimmy Turk told the jury, implying that the person who died was not the real victim. “This was a wicked sexual ruse.”
Turk called Smith a “deceitful and dishonest man” who “defrauded young men for his own sexual gratification.”
The defense asked the judge to disregard Virginia’s ban on the gay and trans panic defense, which was banned by a law passed last year. The gay or trans panic defense is when a defendant argues that they panicked when they were either hit on by a man or found out that a woman they had sex with was trans because it made them question their own sexuality.
Judge Mike Fleenor did not instruct the jury on the gay or trans panic defense because the law took effect in July 2021, a month after the killing took place.
“It would have been applicable, but this is purely procedural,” Judge Mike Fleenor said.
The defense argued self-defense, which the prosecution objected to, saying Etute’s claim that he saw Smith reach for something wasn’t enough to show that he was really defending himself.
Prosecutors argued that Smith weighed about 150 pounds, was not carrying a gun, and was not likely to have tried to start a fight with a 200-pound college football player. Moreover, they said that Smith fell to the ground after the first punch, where he wouldn’t have been able to reach for a gun anyway and Etute could have just left.
Turk argued that Smith was “more likely to resort to violence” because he had hidden a knife under his mattress.
“Everything he [Smith] did was evil,” Turk said.
Prosecutors noted that there wasn’t even a dispute that Etute killed Smith and that Smith’s extensive injuries showed that it was a one-sided assault.
“One person went inside that apartment, the defendant, one person left the apartment, the defendant,” the prosecutor said.
If he had been convicted, Etute would have faced five to 40 years in jail. He was suspended from Virginia Tech’s football program when he was arrested last year.
