Ky Peterson brushed off the stranger hitting on him outside a convenience store in Americus, Ga., without a second thought. It's not like he hadn't rebuffed a stranger's advances before. But as he walked home past an unoccupied trailer on October 28, 2011, something hard struck the back of his head. He blacked out. When he came to, the stranger from the sidewalk was on top of him, naked and spitting homophobic slurs at the 20-year-old black trans man as he forced himself inside Peterson.
"I freaked out," Peterson tells The Advocate. "I screamed." He kept screaming — in pain, in fear. Perhaps, also, in surprise: It was happening again. He was being raped on his walk home, and no one would help him. Especially not the police. Last time he was attacked in his own neighborhood, the cops could barely be bothered to file the report, and thinking they’d investigate? Maybe even arrest the guy? A fantasy.
This was reality. This moment. Live or die.
Peterson hollered again. Adrenaline kicked in, an animal instinct: fight or flight. He struck out at the man, who struck back. They struggled, and in the split seconds Peterson’s thoughts fought for attention in his pounding head: How long was I unconscious? How do I get to the door? What hit me in the back of the skull?
Is he going to kill me?
Suddenly, the pitch black of the trailer revealed a slice of murky light. Peterson heard two familiar voices shouting: his younger brothers. They must have trailed home from the store a few minutes after him, following the trio’s usual path back through the trailer park. He heard the two boys call his name; he heard the sound of their sneakers scuff on the floor as they pulled at his attacker. He took a gulp of air as the stranger’s weight was thrown off of him, heard their voices raised in an argument. He knew he couldn’t lay still there, even as his injuries revealed themselves to him in a wave of aches.
He stood up, now on one side of the trailer with his two brothers flanking him. He saw the shadowed figure of the naked stranger charging forward. He didn't have time to think as his fingers grasped the smooth metal of the gun he'd started carrying in his backpack as a nighttime precaution ever since his first rape.
Then Peterson made a decision he'd hoped he’d never have to. He pulled the trigger.
The trailer filled with an impossibly loud bang. A silence descended, an eerie stillness after the hellish scraping and grunting that had filled the air moments earlier. The stranger’s body slumped over and became motionless. Three sets of wide eyes looked at each other.
Panic set in, settling down in Peterson’s gut alongside feelings of shock and trauma. There was no way out between this rock and hard place, it seemed: His brothers both had criminal records, and whether Peterson went to the police or waited for them to discover the stranger’s body in the trailer, he knew the young black men would be painted as murderers. Damned if he did, damned if he didn’t ... unless the police never found out, he considered.
Shaking and terrified, sitting next to the dead man contemplating his fate for an hour, Peterson then made the second unthinkable move that night: He walked to his mother’s nearby trailer and retrieved her car, put the body in the trunk with his brothers’ assistance, stuffed the man’s scattered clothes into a bag he would later discard, and drove to a quiet, tree-lined street. Although Peterson had brought a shovel and planned to bury the body in the woods, the headlights of a passing car startled the 20-year-old, prompting him to leave the body on the side of a rural road with no means of identification. He hoped this nightmare would all go away.
"I didn't go out looking for trouble," Peterson recalls in a recent phone call from Pulaski State Prison, where he is currently serving a 20-year sentence for involuntary manslaughter. He tells The Advocate that he and his brothers often hung out at the convenience store just 50 yards outside the entrance to the trailer park they called home. And while Peterson carried a gun for protection, he'd never had to use it — until that average night turned into a living nightmare.
"THEY DIDN'T LISTEN"
When Peterson awoke the next morning, he knew nothing was going to turn out like he and his brothers had feverishly hoped in the dark hours of the night before. He was waiting for the cops when they knocked on the door of his family’s mobile home that morning. Part of him knew to expect them.
They hadn’t found the first man who raped him, no. He didn't believe the cops would have any interest in looking for his second rapist. But Peterson knew that when three black men had killed another man, the cops were certain to show up bright and early.
"I tried to explain my story to [the police] and they didn’t listen, and that was the main reason I attempted to cover up what had happened," Peterson says. "It was because I knew they wouldn’t listen — that’s just the way the system is."
"It doesn't surprise me to hear that in a situation in which a trans person of color is targeted, that they are not comfortable turning to the police," says Chase Strangio, a staff attorney with the American Civil Liberties Union's LGBT and HIV project. "Because the police have been a force of oppression and not assistance for communities of color generally, and particularly black trans communities."
David Grindle, who no longer practices law but was working as a public defender in Sumter County, Ga., was assigned to Peterson's case in 2011. He tells The Advocate that he believed Peterson's rape allegations.
"But [just because] I believe you," Grindle says, "that doesn't mean that we're going to win in front of a jury."
"YOU DON'T SEEM LIKE A RAPE VICTIM"
When the cops arrived at Peterson's family trailer that morning, Peterson was still shaken, and the trauma of being violated by a strange man — again — was beginning to sink in, making him drift into a peculiar numbness.
In the cold light of morning, two officers were now sitting across from him with stern poker faces. Their eyes didn’t seem to take in his bruises.
Peterson told the officers that he had been attacked and that three unknown Mexican men had pulled his attacker off him, according to investigative records obtained by The Advocate. Those same reports indicate that Peterson's brothers told investigators that the entire incident was a scheme of Peterson's design; that Peterson asked them to help him rob the stranger after Peterson lured him in with a promise of sex.
Peterson continues to deny that version of the story — and wasn't aware his brothers had turned on him in their own interviews with police until The Advocate inquired about his case.
After a brief interview with officers inside the trailer where his mother lived, Peterson found himself standing up as he was asked to accompany the officers down to the station for questioning; his brothers were detained too. In the hours that followed, he sat in a bare, cold room across from cops each seeming to ask him the same few questions in endless permutations.
He insisted, again and again, that he never planned to interact with the stranger, that he never left his house intending to fire his gun. He reminded them that he was, in fact, the victim of sexual assault in the first place, and that he’d discharged the weapon in fear for his life. But Peterson’s new reality began to register: The police were convinced that he and his brothers had committed armed robbery. They couldn’t be persuaded otherwise. The three would not be going home.
But just when the interrogation seemed over for the day, the cops asked Peterson to accompany them to a waiting police vehicle. By the dark gray tint of the sky, he gauged it was the wee hours of the morning. The car stopped outside a neat little building with glowing windows and doors: a clinic.
Peterson walked in flanked by officers. The clinic’s staff greeted the cops and then looked at Peterson with more human concern than he’d seen all day; he sat down for what turned out to be a rape kit exam.
Peterson was poked and prodded, and answered yet another seemingly endless stream of questions. At least he was being handled gently by the clinic's staff, a welcome change from the officers’ unrelenting gruffness. Still, one counselor’s comment cut through Peterson’s fog.
"You don't seem like a rape victim to me," Peterson recalls her saying. "Something else has to be going on."
What else could be going on? He hadn’t mentioned he was transgender — it was something he’d kept to himself so far, thinking it might only bias the police further against him — but now he wondered if his gender nonconformity had influenced his caretakers’ perception of him.
By sunrise, the clinic delivered results to the police that corroborated Peterson’s story: The rape kit came back positive, indicating that Peterson had recently experienced forceful vaginal and anal penetration. An autopsy performed by the Georgia Bureau of Investigation and obtained by The Advocate confirmed that Peterson's DNA was found on the dead man's penis.
Peterson was interviewed three separate times in the days immediately after the incident, according to investigative records. Each time, Peterson revealed more of the truth about what happened and apologized to officers for misrepresenting the events in earlier statements. Peterson acknowledged that the young men who pulled his attacker off him were his brothers, not unknown Mexican men. He acknowledged that he had fired the gun, and that he was frightened and tried to clean and move the body. But Peterson never claimed the sexual contact was consensual — his allegations of rape were consistent.
Peterson remained under arrest for possession of a firearm and shooting the attacker. And the clinic counselor’s question remained with him, haunting Peterson in the years to come. Was the whole system stacked against him?
"What this case highlights, is from both a legal and a public perspective, how difficult it is for trans people of color to claim the status of victim," says Strangio, the ACLU attorney. "In so many ways, our conception of victimhood has always been taken away from people of color and taken away from gender-nonconforming people and taken away from women."
Peterson spent the next 366 days in a county jail. During that year-long detention, he says he was never formally advised of the charges against him, nor was he offered meetings with the public defender who would ultimately encourage him to take a plea deal, he tells The Advocate.
In 2003 a statute had created the Georgia Public Defenders Standards Council, establishing a statewide policy mandating that every person arrested be offered a meeting with an attorney within 72 hours of being detained.
"Waiting a year to see a public defender is not something that the state of Georgia standards really contemplate," Tiffany Roberts, an Atlanta-based attorney and former public defender now in private practice who specializes in criminal defense and civil rights law, tells The Advocate.
"If you have been in jail for 72 hours and you have not seen a judicial officer, you are supposed to be released on bond, or bond is supposed to be considered," says Roberts, who did not work on Peterson's case. "And I'm guessing that may not have even taken place in his case."
The man who Peterson shot — the man he says raped him — was 29-year-old Samuel Chavez. Numerous investigative documents indicated that Chavez, a Honduran immigrant whose legal status in the U.S. is unclear, worked as a "chicken catcher" on several poultry farms around the country. Just 13 months before he died, Chavez was arrested in Baltimore on charges of second-degree assault, possession of a dangerous weapon with intent to injure, and resisting or interfering with arrest. A request for the police report surrounding the Baltimore incident received no response by press time.
On the night Chavez and Peterson crossed paths, Chavez had been drinking heavily, according to statements his family and friends made to investigators — and corroborated by the Georgia Bureau of Investigation's autopsy report, which found Chavez's blood alcohol level to be .165 when investigators arrived to process the body. That number is high enough to indicate legal intoxication.
Chavez's sister, who lived in the same trailer park as Peterson and his family, told investigators that neighbors told her Chavez had come to visit her and her newborn child; she was not home at the time. After consuming "several alcoholic beverages," Chavez told a family member he was going to the convenience store at the trailer park's entrance, saying he would return later that night, according to investigative reports. The number listed in investigative reports for Chavez's sister has since been disconnected, and there is no publicly available record of the woman's current residence.
The initial indictment — filed February 27, 2012, against Peterson and his brothers, Adam Peterson and Clarence "Deon" Coleman — charged the trio with crimes including armed robbery, aggravated assault, and malice murder. The latter-most charge can carry a lifelong prison sentence or the death penalty. The indictment handed down by a grand jury listed eight counts in all: armed robbery, aggravated assault, malice murder, two counts of felony murder, and three counts of possession of a firearm during the commission of a felony, according to court documents.
In August 2012, Peterson signed a deal that saw him plead guilty to involuntary manslaughter, which carries a maximum sentence of 10 years in jail, according to Georgia law. But Peterson was sentenced to 20 years, with 15 to serve in confinement.
When asked about this discrepancy, Grindle was caught off-guard.
"My memory is it was a voluntary manslaughter plea," Grindle says. "But if what the plea agreement says is involuntary, then I effectively committed ineffective assistance of counsel. And if that's the case, I apparently made a major mistake."
"I'm disappointed in myself if that's what I let happen," Grindle sighs. "But if that's the case, and the maximum … is 10 years, then I screwed up. So did the [district attorney], and so did the judge."
The Advocate requested transcripts of Peterson's sentencing colloquy before a judge, only to be told no such transcript existed. A separate written request to produce the transcript received no response by press time. Sentencing documents from Sumter County Superior Court and Peterson's sentencing sheet from the Georgia Department of Corrections, both list Peterson's crime as "involuntary manslaughter," with a sentence of 20 years.
Grindle's recollection of the case led him to believe that Peterson was ineligible for an involuntary manslaughter plea, he says. Pointing to the alleged attempted robbery, the shooting, and the moved body, Grindle says "there was no way the DA would have agreed to involuntary manslaughter consciously."
Grindle suggests that the "involuntary" plea may have slipped in accidentally, or been the result of a clerical error made by the court recorder. "I would have jumped up and down beforehand if I had known that I had gotten it down to involuntary — that would have been a miracle in this case," he says. "But, and even if it was an accident, and I did hear it, I sure as hell wasn't going to correct it. Because there would have been some way that the sentence could be adjusted on appeal."
Grindle's admission may well provide the grounds for Peterson to file a habeas corpus appeal. Because Peterson signed a plea deal that included pleading guilty to the killing, his best chance of seeing his case retried or his sentence reduced is to allege ineffective assistance of counsel, says Roberts, the Atlanta-based attorney who is also the deputy director of the National Institute for Teaching Ethics and Professionalism at Georgia State University College of Law.
"There is no mandatory incarceration with either of the manslaughter [charges]," explains Roberts. "So the fact that he was sentenced to such a long term of imprisonment … I think that is problematic."
But with two eyewitnesses — his own brothers — at least previously prepared to testify against him, Peterson still faces an uphill battle on appeal.
"There's a possibility … that he could get a new trial, but you're still going to run into the same legal issues that you would have run into before," explains Roberts. "He just could make different decisions regarding how he was to move forward. And there's also always a possibility that the DA could say, 'Screw the reduction, I'm going to go for it on murder.'"
"GAY ISSUES ARE VERY TOUCHY"
It turns out Peterson's fears about being perceived as a "thug," a troublemaker from a "family of criminals," according to his public defender, weren't exaggerated.
His youngest brother, Clarence Coleman, was already well-known by local law enforcement after numerous violent outbursts at school landed him in juvenile detention, where he allegedly assaulted a correctional officer. In October 2011, Peterson's brother Adam, then 16, was being monitored by the state with an ankle bracelet after being found guilty of burglary.
Peterson himself had a prior criminal record dating back to his juvenile years, and was brought into the Sumter County Sheriff's Office on four occasions before that fateful October night. A clerk in the Sumter County Sheriff's records office told The Advocate that Peterson's prior interactions with police stemmed from a 2008 probation violation, disorderly conduct in 2008 and 2010, and civil contempt in August 2011.
The probation (initiated while Peterson was a juvenile) stemmed from a domestic dispute at home when the police were called, Peterson says.
Prior to the October 2011 incident, the only time Peterson's name had appeared prominently in local papers was when he was 13 and saved a classmate from choking by using the Heimlich maneuver. At the time, Peterson told the newspaper that he wanted to be a lawyer or perhaps a doctor.
But by the time he was 20 and facing a murder charge, even Peterson's public defender acknowledged he had "two strikes against him" before saying a word to a judge or jury.
"Number 1, you're African-American," Grindle recounts saying to Peterson. "And these little old white ladies in South Georgia think that if [they] see an African-American outside their own neighborhoods, [they] need to be careful."
The second "strike," Grindle says, is that Peterson looked "stereotypically gay." "The fact you're gay will be an issue that I have to address early on," Grindle recalls telling Peterson. "That's two strikes that are against us from the get-go. And that factored extensively into my and my investigator's discussions about the case."
Peterson never told his public defender that he identified as trans — the first time Grindle heard Peterson's preferred name was when The Advocate inquired about the case. "As far as I knew, [he] was a lesbian," Grindle says. He says Peterson may have been the first transgender client he's ever represented, though he did recount an experience with a witness in a police brutality case who was a transgender woman.
"She was a great witness," Grindle recalls of the woman who was ready to testify in the mid-1990s case. But "I was afraid to put her on the stand dressed as a woman — I wanted to stay as far away from that as possible."
"I've only met a few transgenders south of Atlanta in my entire life," Grindle tells The Advocate. "But it's a very touchy subject the further south you go, or the further you get removed ... gay issues are very touchy when you get outside of any metropolitan area."
"This is kind of a prime example of what's happening in public defense," says Roberts, the Atlanta-based former public defender and current civil rights attorney. "When you have attorneys with limited resources, limited training, and clients with needs far outside of the bounds of those resources."
"I really don’t like how [my public defender] defended me, because I feel like he could have done more," Peterson says. "He could have at least came more [often] and tried to talk to me. I feel like he really didn’t do a good job at representing me."
Peterson says he only met with Grindle twice — a charge Grindle denies.
"I think it was more than that," Grindle says when asked if he had just two consultations with Peterson. "But I will admit that it was not a substantial number of times."
Peterson's case was one of more than 200 on Grindle's active caseload at the time. Nevertheless, Grindle also readily acknowledges that he was not eager to take Peterson's case to trial. Despite filing 23 motions alleging myriad constitutional violations — what the former public defender says is standard practice in Georgia for defense attorneys hoping to protect their clients — Grindle says his own investigation led him to believe none of those motions were "viable."
"The bottom line is, in a criminal case, the client is presumed guilty, even though that's not the law," Grindle explains.
Further, Peterson says Grindle never informed him about Georgia's self-defense laws, which include a "Stand Your Ground" provision, which allows a person to use lethal force if he or she "reasonably believes that such force is necessary to prevent death or great bodily injury" to themselves or another.
"If you believe that you will either be killed or receive a very serious bodily injury, you can be justified in using deadly force," explains Roberts. "You're especially protected if you're not the aggressor up-front, which [Peterson] wasn't."
Grindle tells The Advocate he did consider a self-defense argument in Peterson's case and used the claim as leverage in securing a plea deal.
"There's a good chance, if you believe his story, that it was self-defense," Grindle recalls telling the DA. "And there's enough in there, possibly, for an open-minded juror to possibly find him not guilty. So I played that card with the DA, even though I knew it was a loser."
Before being informed of the maximum sentencing discrepancy in Peterson's case, Grindle told The Advocate he was "pleased" with the outcome of the case, explaining that Peterson would likely be out of prison before he reaches middle age.
But when presented with the sentencing discrepancy, Grindle's tone changed markedly. He promised to cooperate with any habeus or other appeal hearing.
"Tell Ky I said 'good luck,'" Grindle concludes. "And anything I screwed up on, I definitely apologize for."