Edgard Mercado was killed in his East Village home in 2009 by a man who claimed the death was caused by rough sex gone wrong.
Using a defense that appears to be growing more common in the killings of gay and transgender people, the two men who are accused of killing John Laubach may argue that the 57-year-old was accidentally choked to death during rough sex.
“He payed for sex,” Edwin Faulkner, 32, wrote in a 2012 statement, which is filled with misspellings, he gave to police following the homicide. “He wanted to have sex, rough sex, excelation. So while I was choking him, letting go for him, to give air, suddenly he stopped breathing. I paniced, scared, because I have a record and was on parole. Tied him up with tape. Took the labtop and other things and left. My boyfriend did not know nothing about anything.”
Faulkner and Juan Carlos Martinez-Herrera, 34, are facing murder, kidnapping, and robbery charges in the killing. Laubach was found dead in his Chelsea apartment on March 2. He was bound and gagged. Faulkner called Laubach “Jack” and had known him for some time prior to the killing. In his statement, Faulkner claims that the three of them were having sex in Laubach’s apartment when the older man died.
Claims made in 2012 gay man’s death part of an emerging trend
“Jack liked rough sex, which included choking and asphyxiation,” Faulkner wrote. “While Jack was lying in front of me performing oral sex on Carlos, I was lying behind Jack, with Jack in a choke hold… After doing this for some time, Jack appeared to have stopped breathing.”
In an admission that may harm the defense, Faulkner wrote that they panicked and decided to stage the scene after realizing that Laubach was dead.
“I decided that we would tie Jack up and make it look like ‘kinky sex’ gone bad,” Faulkner wrote.
The couple stole jewelry, a laptop, and Laubach’s ATM card and fled the apartment. They took a bus to Florida where they were arrested on March 15 of 2012.
Gay City News found three other recent cases in which defendants claimed the gay or transgender victims they killed died from accidental choking during rough sex.
In San Francisco this year, David Munoz Diaz was found guilty of involuntary manslaughter, which has a maximum sentence of four years in prison, in the 2011 choking death of Freddy Roberto Canul-Arguello. Diaz faced a murder charge in that case, according to the San Francisco Examiner.
“David is a sweet kid who never meant to hurt anyone,” Alex Lilien, Diaz’ attorney, told the Examiner. “Freddy’s death was a terrible, tragic accident.”
In 2012, a Manhattan jury found Davawn Robinson guilty of second-degree manslaughter, instead of murder, in the 2009 killing of Edgard Mercado. Robinson first claimed he was defending himself when he strangled Mercado then said the killing came during rough sex. His first trial ended with a hung jury. Sentenced to four to 15 years following his second trial, Robinson had his first parole hearing in 2013 and will have additional hearings every two years. If he cooperates with state prison rules, he is eligible for a conditional release in 2019.
While a Brooklyn jury found Larry Davis guilty of murder in the 2010 choking death of Denise McCoy, who was called Richard McCoy in mainstream press reports, a state appeals court reduced that conviction to second-degree manslaughter this year and sent the case back to a Brooklyn judge for resentencing, saying that Davis acted “recklessly” but did not intend to kill McCoy. At his 2012 trial, Martin Goldberg, Davis’ attorney, told jurors that McCoy’s death came during rough sex.
“You won’t be able to say with certainty that this was an intentional murder as opposed to kinky sex that went too far,” the Daily News quoted Goldberg saying.
Davis is serving a 25-to-life sentence in the 2011 killing of his grandmother. After his arrest in that case, police linked his DNA to the McCoy homicide.
Claims of accidental deaths during erotic asphyxiation are “generally rare,” Dr. Jason Graham, the deputy chief medical examiner, said during testimony at Robinson’s second trial for killing Mercado. At that time, Graham said he was aware of “a couple of case reports.”
Graham supervised Laubach’s autopsy, which was performed by Dr. Jessica French in the medical examiner’s office, according to the arrest warrant for Faulkner and Martinez-Herrera. In that warrant, Graham is paraphrased saying, “The mechanism of death is asphyxiation consistent with tape ligature applied to the victim’s head and face causing airway obstruction.”
That contradicts Faulkner’s assertion that it was his choking that caused Laubach’s death and that the older man was bound and gagged after he died.