A jury acquittal, even if not supported by the evidence and the admissions of Andrade at trial, would make Allen Andrade a free man (although the federal government, in theory, might be able to charge him with something). This would be called jury nullification. Acting in the heat of passion impacts the sentence for murder, but is not a legally valid defense to a murder charge.
A conviction of any homicide crime will put Andrade behind bars for a very long time, if pre-trial accounts that he is a habitual criminal and subject to recidivist sentencing are correct. And, he was not facing the death penalty in this case.
There are two plausible theories under which Andrade could face the longer life in prison without possibility of parole sentence for first degree murder in this case. One is to show intentional pre-meditated murder, and that is what the testimony at trial focused upon. The other theory would be to prove that the murder was part and parcel of another serious felony (e.g. that it amounted to an aggravated robbery resulting in death). There was plenty of evidence at the trial to support this theory, and this theory has more unequivocal factual support. But, it is not clear from newspaper accounts if this theory was actually presented to the jury either in closing arguments or in the jury instructions. The live blog of the case seems to indicate that there is not a felony-murder count, although there are separate property crime charges in the case, but is not entirely clear.
The transgender hate crimes count, also supported by abundant evidence, while symbolically important and perhaps relevant if Andrade is convicted of a lesser murder count is comes before a parole board several decades from now, will not materially lengthen the sentence that Andrade faces as a habitual offender convicted of murder. But, the property crime charges, enhanced with habitual offender sentences, is considered to be acts separate from the murder itself and hence served concurrently, could lengthen the sentence enough to make it effectively a life without possibility of parole sentence.
The judge's decision to exclude a challenged part of Andrade's confession to police, and the abundant physical evidence and jailhouse telephone call tapes in the case, make it likely that an legal error in the trial will be considered "harmless error" that will not reverse a conviction, even if an appellate court finds that mistakes were made by the judge or prosecutor at trial.
UPDATE: The jury has found Andrade guilty of first degree murder and a hate crimes count (and all other counts) in a very short deliberation of just two hours. Allen Andrade will be sentenced to life without parole in the near future, and will have few strong arguments to make on appeal. In all likelihood, this will be served in a maximum security Colorado prison. The jury was apparently unconvinced by Andrade's heat of passion argument and found that this was a bias motivated crime.
The tail end of the Westword live blog linked above reports:
3:05 p.m.: The judge says the court will be recessed until 4 p.m. At that time, Andrade will be sentenced for first-degree murder. First-degree murder carries a mandatory life sentence.
Update: The reason the sentencing has been delayed until 4 p.m. is so that prosecutors can explain to Zapata's family what happens next and give them some time to absorb the verdict.
3:03 p.m.: The verdicts: Guilty of first-degree murder. Guilty of a bias-motivated crime. Guilty of motor vehicle theft. Guilty of identity theft.
When the judge read the verdict of first-degree murder, there was an audible sob from Andrade's family. Zapata's family is crying. But the courtroom is mostly silent, as the judge requested. He warned he wouldn't tolerate outbursts.
3 p.m.: The jurors just entered the courtroom and sat down. None of them are looking at Andrade. The jury foreman, a man in his forties, is handing the verdict to a court staffer.
2:55 p.m.: Andrade is led into the courtroom and his handcuffs are removed. He sits down between his lawyers. He glances at his family seated three rows back but his gaze doesn't linger.
2:45 p.m.: The jury has reached a verdict after just two hours of deliberating. Everyone is back in the courtroom. It's completely full. As usual, Andrade's family and friends sit on one side and Zapata's sit on the other. Andrade is not yet in the courtroom. Neither are the jurors or the judge. All of the lawyers are here. Zapata's family has already been wiping away tears.
12:40 p.m.: The two alternate jurors were excused. Both were men, one who appeared to be in his twenties and one who appeared to be in his forties. Eight men and four women remain.
The jury just left the courtroom to start deliberating.
Keep in mind that Greeley, Colorado is not some remarkable well head of transgender understanding and tolerance. While there is a university in town, this is also the county that elected a Republican member of the Colorado General Assembly who argued with bible quotations in a public legislative speech that gays deserve to die in accordance with biblical law during a debate on the legal treatment of same sex couples during which a fellow legislator who was a member of a same sex couple was present.
But, clearly, the attitude that an admitted murderer needs to be punished severely for this act won the day with this jury. Conservative also means tough on crime.