The defense in the trial of Davawn Robinson, the accused killer of Edgard Mercado, may argue that Mercado’s 2009 death resulted from an accidental strangulation while the two men were having sex.
“You’re going to hear evidence in this case that Mr. Robinson and Mr. Mercado engaged in the practice of auto-erotic asphyxiation and that practice led to Mr. Mercado’s death,” one of Robinson’s Legal Aid Society attorneys told prospective jurors on November 30.
Robinson, a 24-year-old gay man, faces one second-degree murder count in the Mercado homicide. The Manhattan district attorney charges that Robinson intended to kill the 39-year-old gay man when he strangled him in the older man’s Avenue C apartment. The defense is arguing that Robinson never had the legally required intent to convict him of murder.
“We’re not disputing that his actions led to Mr. Mercado’s death,” Robinson’s attorney said. “What we’re disputing is his state of mind.”
At a break in questioning for jury selection, the attorney declined to give her name saying, “You’ll hear it on the record.” The Legal Aid Society press office did not respond to an email asking for the attorney’s name.
In his statements to police, Robinson said he met Mercado at Chi Chiz, a now closed West Village gay bar. They purchased cocaine and took a cab to Mercado’s apartment. Once there, Mercado said they would be joined by someone named Tony, though Tony never arrived. Mercado, who did not speak after that, Robinson said, then produced a length of rope. The younger man said he felt threatened by Mercado and acted in self-defense.
“It was just either me or him,” he told police. “He had some kind of look in his eye. He just turned towards me. He had the rope in his hand. He never said anything.”
After he strangled Mercado, Robinson took Mercado’s laptop computer, which he left in a cab, and cell phone and fled the apartment for his New Jersey home. The defense appears to be preparing to tell jurors that parts of Robinson’s statements to police were lies.
“Would you agree that there are a whole variety of reasons why people lie and it doesn’t necessarily mean they’re guilty?” the attorney asked jurors. “Knowing that Mr. Robinson lied about aspects of this case, would you be able to listen to an explanation about why he lied?”
While comments from the attorney suggested that Robinson will not testify, the defense is expected to put on a case.
After the killing, and while he was still in Mercado’s apartment, Robinson called 911 on his cell phone and said he might have killed someone. He did not identify himself. Police tracked Robinson to his New Jersey home roughly 24 hours later through his cell phone.
Altogether, he made seven different statements to police and prosecutors. He also gave police a document that was described as a “letter” or a “poem” entitled “I Killed a Man Dead.” The defense unsuccessfully sought to suppress those statements.
The prosecutors appeared to be mostly concerned with finding jurors who could convict even if their case never explains why Robinson killed Mercado.
“It’s not going to bother you if at the end of this case you don’t know why?,” John A. McConnell, an assistant district attorney, asked jurors. Leila Kermani is the second assistant district attorney on the case.
Motive is not an element of the crime that prosecutors must prove, though juries can consider it, or its absence, in their deliberations.
The Legal Aid Society attorney who questioned jurors is the second such attorney who declined to give her name. At an August 22 hearing, another Legal Aid lawyer who is representing Robinson, who Gay City News has since learned is Annie Costanzo, also refused to give her name.
Opening statements in the Robinson trial are expected to begin on December 5.