The judge called Kenne McFadden a 'nuisance' — and let the man accused of killing her walk free
SAN ANTONIO – It is a warm spring evening along San Antonio's River Walk, an urban waterway lined with towering cypress trees, and a 26-year-old woman named Kenne McFadden is dancing and singing. She wears a pink lace shirt with hoop earrings, her long red dreadlocks swinging as she moves in the balmy night.
The River Walk is one of her favorite places in the city, and she is a fixture here. McFadden's older sister Telina Kuykendall once asked why she liked going down to the river so much, with its themed restaurants and tourist hordes. McFadden responded simply, "Sister, it is really beautiful."
She loved the popping music and the energy of the crowds, she told Kuykendall. She loved meeting people there. The River Walk was just where she felt comfortable.
McFadden had always been drawn to music, filling notebooks with lyrics and poems. Sarah Lopez, a high-school friend, said that as teens they'd stage performances, singing Britney Spears and Christina Aguilera. On her YouTube page, McFadden uploaded covers of songs by Miley Cyrus and Katy Perry. She'd break out into song while shopping at Walmart.
That April night in 2017, McFadden was hanging out in her favorite place with someone she knew: Mark Daniel Lewis, 19, lanky and shirtless, a black hat covering cropped hair. She'd met Lewis while spending a couple days in jail, her mother, Joann McFadden, said, on charges of public intoxication. While there, to pass the time, she cut Lewis' hair.
When Joann first heard that the young white man wanted to take her daughter out, she was concerned, especially after McFadden said she felt unsure about him. "If you don't feel like you should be there, then don't go," Joann told her daughter.
But McFadden didn't follow her mother's advice. Joann last saw her daughter, who lived at home, around 3 o'clock that afternoon, catching a nap. When Joann returned that evening, some six hours later, McFadden was gone — music still blasting from her bedroom.
Surveillance video obtained by the San Antonio Police Department captured snapshots of Lewis and McFadden's date that night. The pair stand close together and share a cigarette; later McFadden dances while drinking a beer. A park police officer saw them hugging in the early hours of the morning. At some point, police records indicate, they kissed. McFadden was visibly drunk and Lewis would later say he helped keep her steady on her feet.
McFadden struggled with alcoholism, her mother said. McFadden's aunt, Betty Jones, said it was hard to fully comprehend what her niece had to deal with on a daily basis as a transgender woman of color. Joann said it broke her heart when people laughed at or picked on her daughter. Drinking, Jones said, may have eased her mind.
A couple hours after the park officer, Terry Hardeway, first saw McFadden and Lewis together, Lewis approached him outside a Whataburger, according to a police report. "Do you know the guy I was with on the River Walk?" Lewis said, misgendering McFadden. "Well, I kind of pushed him in the river."
Lewis knew how inebriated McFadden was, and he said she fell almost headfirst into the river. Yet it was clear from Lewis' subsequent interview with police that he never tried to help her out of the water, nor did he return to check whether she had climbed out on her own. According to police records, Lewis said he thought he saw her swimming toward the bank and assumed she was OK. But McFadden couldn't swim. When Hardeway went to the spot where Lewis said he pushed her in, around 3:30 that morning, she was nowhere to be found.
A few weeks earlier, McFadden told her mother she'd had a strange dream. In it, somebody had killed her. She tried to ignore the dream, and Joann prayed about it, but neither of them could shake the ominous feeling it gave them. McFadden's dreams always came true, Joann said, so she feared the worst. Still, when she asked her daughter not to go out, McFadden answered, "I can't live my life in fear."
Two days after Lewis allegedly pushed McFadden into the river, as Joann desperately searched for her daughter, a tourist visiting from Austin called 911. He had spotted McFadden's body in the water.
Read Insider's "Deaths in the family" series
investigating five years of transgender homicides
A spike in homicides
A culture of transphobia
Intimacy turns lethal
The precarity of sex work
Death by cop
Unsolved cases
A failure to protect
Bias in the legal system
Lewis wasn't brought in for an interview until a few weeks later, after Hardeway approached him while on patrol near the Alamo, saying he looked familiar. "You're the cop that think that I pushed somebody in the river," Lewis said, according to Hardeway's subsequent testimony.
Yet when Lewis first sat down with a detective, he apparently lied and claimed not to know anything about the incident. After the detective, Raul Juarez, asked whether he recalled telling Hardeway that he had pushed someone in the river, Lewis said he was only "bullshitting" to sound "badass," according to police records.
"I did not believe he was being completely honest with me," Juarez noted in his report.
Lewis eventually confessed to pushing McFadden into the river, according to police records, explaining that he was offended she called him cute and grabbed his butt.
In the end, Lewis was charged with manslaughter in connection to her death. But the prosecutor made an unusual, widely criticized choice in how to try the case. Instead of bringing the case before a jury, he decided to bring the charge before a judge at a probation hearing, since Lewis was on probation at the time of McFadden's death.
At that three-hour hearing, nearly a year after McFadden was found dead in the river, a judge ruled that Lewis' actions did not rise to the level of criminal conduct. Lewis walked free, and local protests led by LGBTQ advocates erupted.
Criminal justice failures
Insider examined 175 homicides of transgender and gender-nonconforming people between 2017 to 2021 and found that in 16 cases, including McFadden's, prosecutors either dropped charges against the suspect or declined to charge them at all. At least 61 additional cases remain unsolved. The majority of the killings — many of them linked to young men like Lewis who targeted young Black women like McFadden — never resulted in a murder conviction.
At all stages of the criminal-justice process in these cases, from the police investigations to the prosecution and grand jury rulings to decisions by judges and juries, Insider found stark failures. In some cases police and prosecutors appeared complacent about solving the crime and seeking justice. In others, there were clear indications that transphobia had colored the outcome.
Incomplete police investigations cropped up in small towns like Prichard, Alabama, where officers failed to interview multiple witnesses after the shooting death of Jaheim "Bella" Pugh, 19, instead telling Pugh's mother that her own child was to blame. The same is true in major metropolitan areas like Washington, DC, where the murder of Ashanti Carmon, 27, is still unsolved after more than three years, despite detailed information provided by an eyewitness.
Insider unearthed questionable judgment calls by prosecutors not to bring charges in several cases, including five police killings of transgender people while they were in the midst of mental-health crises. These cases also include a vehicular homicide in 2021 in Los Angeles, where prosecutors identified the driver the night of Rayanna Pardo's death but declined to bring charges against him until nearly a year later — after Insider began to ask questions. That charge, driving under the influence, was ultimately dropped. Prosecutors later filed a manslaughter charge.
Insider obtained documents in that case showing that Pardo was in a fight with an abusive partner at the time of her death and that she had previously been assaulted by Los Angeles Police Department officers.
The day after the alleged police assault, Pardo posted a video to Instagram of officers trying to arrest her as she protested. She tagged the video #policebrutality and #transgenderharassment. The department has denied multiple requests by Insider for records of the incident, and an LAPD spokesperson declined to discuss it.
A spokesperson for the Los Angeles district attorney said it took a year for initial charges to be brought because they sent the case back to California Highway Patrol for further investigation. That agency, the spokesperson said, then generated reports over the course of seven months.
Investigations "vary in time based upon the amount of evidence discovered, interviews required, and complexity of the incident," a CHP spokesperson said. When a driver is arrested for driving under the influence, she said, the results of blood or urine tests may take several months.
In other homicide cases, grand juries declined to indict. This was the case in 2017 in Waxahachie, Texas, half an hour outside of Dallas, where a grand jury accepted Robert Mosher's claim that he shot his daughter, Gwynevere River Song, 26, in self-defense after she allegedly stabbed him. Song's mother, Marcy Sutton, said in 2018 that she believed Mosher, an Army veteran whose Facebook page is peppered with racist and misogynistic rhetoric and conspiracy theories, killed his daughter because of her gender identity. "He has gotten away with murder," she told the Dallas Voice.
In text messages with Insider, Mosher misgendered and misnamed his daughter and wrote that she died "while attempting to commit a heinous crime." He called his ex-wife a "liar" and said he did not have an issue "with anyone's sexual orientation or habits," adding, "it's disgusting to converse about such issues with anyone but your partner."
Cynthia Walker, the first assistant district attorney at the Ellis County district attorney's office, said her office couldn't comment on a grand jury proceeding.
Leigh Goodmark, a professor at the University of Maryland School of Law, told Insider that bias against those considered "imperfect victims" is pervasive across the criminal-justice system. Transgender people, she said, are often seen as unsympathetic, untrustworthy, and lacking in credibility because law-enforcement officials and juries often believe they are lying about their gender identity.
That credibility bias is rampant in the courts, Goodmark said, where attorneys, judges, and juries often appear to think "people of color are inherently suspect, and trans women are inherently suspect, and substance users are inherently suspect."
"When you have an 'imperfect' victim, it's a whole lot easier to assert self-defense," she said.
Insider's analysis shows the impact of these biases: Killings of white transgender people were twice as likely to result in murder convictions as killings of Black transgender people, like McFadden.
Blatant transphobia appeared to influence the trial of Desmond Harris, then 20, who was charged with second-degree murder in the shooting death of his girlfriend, Jaylow McGlory, 29, in central Louisiana in 2017. Harris and his attorneys referred to his girlfriend as a man throughout the trial, in an apparent gambit to paint her as the aggressor. Harris claimed he shot McGlory in self-defense, testifying without corroboration that she had threatened to rape him. The jury found him not guilty.
Goodmark works with survivors who've been criminalized for defending themselves, and she said judges and juries routinely reject her clients' self-defense claims. She said she found it striking that Insider had uncovered cases where self-defense claims by cisgender men had been accepted by juries at face value. "If you are 'fighting off' a trans woman and you're a cis guy, then all of a sudden you're entitled to self-defense," she said.
As with McGlory, the fate of McFadden's case appears to have been decisively influenced by bias, with the police, prosecutor, and judge all viewing her as unsympathetic. The defense arguments in both cases, Goodmark said, show the hallmarks of the so-called trans-panic defense, a transphobic argument that portrays transgender victims as deceptive sexual aggressors. That defense has now been outlawed in 15 states and the District of Columbia, but not in Texas, where McFadden was killed.
Lewis claimed he pushed McFadden because he was offended by her advances, according to police records, despite asking her out that night and engaging in consensual hugs and kisses. Throughout his interview with police, he misgendered her, calling her a "gay black guy," and painting her as the aggressor. He couldn't explain why they made out, telling officers he "was not gay and had a girlfriend."
Rayna Momen, a queer criminologist and a consultant on Insider's Deaths in the Family project, said that misgendering a transgender woman victim can influence the outcome of a case. "You're referring to a trans woman as a male, and then you're also making assumptions about what males are capable of," they said.
Lewis, who was recently arrested on a weapons-possession charge and is currently housed in the Bexar County jail, didn't respond to a letter from Insider requesting comment.
Jesse Salame, a police captain and the LGBTQ liaison at the San Antonio Police Department, told Insider that "it doesn't seem fair" that Lewis wasn't found liable for McFadden's death, since he admitted to pushing her in the river.
"I would've liked to see her have her day in court and I would have liked to see a jury hear all the evidence and make a determination," Salame said. "It just feels like there's no justice."
A prosecution strategy backfires
When Bexar County prosecutor Jason Goss pursued the Kenne McFadden case by filing a motion to revoke Lewis' parole, no one who was keenly following the case understood why. And no one — not McFadden's family, nor San Antonio's LGBTQ leaders — understood that the unusual legal maneuver risked preventing Lewis from ever facing a jury.
At the time of McFadden's death, Lewis was on probation for failure to register as a sex offender. Goss thought he had a chance to quickly prove that Lewis had violated the terms of his probation by recklessly causing McFadden's death. At a parole hearing, Goss knew he would only have to meet a "preponderance of evidence" standard — easier than convincing a jury "beyond a reasonable doubt."
But Goss' strategy backfired, as the San Antonio Express-News reported at the time. The judge ruled for the defense, and because of a double-jeopardy provision known as "collateral estoppel," Lewis could not be tried again.
Robert Salcido Jr., the executive director of Pride Center San Antonio, described the district attorney's office as dismissive and said prosecutors never briefed members of the community about their plan. "It brought up a lot of questions about the effectiveness of the DA's office at that time as to how they would let this happen," Salcido Jr. said. "They pretty much let somebody go scot-free."
When McFadden's mom, Joann, heard the judge's decision, she passed out.
He said when he examined the events that led to McFadden's drowning, he believed Lewis was criminally responsible for the crime — and he didn't buy Lewis' self-defense claims. It's not outlandish to grab somebody's butt who's consensually hugging and kissing you, Goss figured, and Lewis never told McFadden to stop. Instead, he pushed her into the river and walked away.
But Goss, who is now in private practice, anticipated that this case would be difficult in a county that was "reliably self-defense oriented." He said he worried that a jury would be prone to believe Lewis had acted in self-defense.
"We had the theory of like, look, if you go to first base, you can't push them in the water for second base," Goss said. However, a juror could also think, "I don't care who it is, if you grab my ass and I don't want you to, I'll push you in the river," he said.
That's what Daniel Rodriguez, Lewis' attorney, argued. "He was simply just using reasonable force to get her off him and didn't anticipate that this would happen," Rodriguez told Insider.
But what, exactly, shaped Goss' view that he couldn't convince a jury to convict Lewis?
In his conversation with Insider, Goss expressed apprehension about how a potential jury would view McFadden. In Texas, he said, defendants can introduce a victim's prior conduct in order to claim the victim was, in fact, the aggressor.
He feared Hardeway's testimony could hurt his case, as the park officer had seen McFadden get intoxicated and dance with or hug random men. "Now whether or not the cop would have noted that if Kenne wasn't a Black transgender female, I mean, I don't know," he said.
Goss told Insider a jury might have seen the case in another way if McFadden was more petite and "was born a woman."
"I do think that yes, maybe a jury would look at that different," he said, and maybe a judge or jury would also see it in a different light. They "would not necessarily feel like that was such a threat that you needed to push Kenne into the water," Goss said.
It began to seem obvious that if McFadden wasn't who she was — if she wasn't Black or transgender — the case might have turned out very differently.
But McFadden was who she was, and Goss chose not to gamble on how a jury would judge her.
Instead, Goss came up with his unorthodox plan: He would avoid the "beyond a reasonable doubt" standard by proving to a judge that Lewis had violated his probation by recklessly causing McFadden's death. Lewis would go back to prison for two years on the probation violation. After that, Goss believed, Lewis would be inclined to accept a plea bargain for manslaughter in McFadden's death.
"It would guarantee that he would take responsibility and he would be held accountable for Kenne's death," Goss said.
"Until the judge said not true, I thought he was going to find it true and I thought he was gonna sentence the guy."
The credibility of a white man
On an early October afternoon in San Antonio, the weather was still sweltering when Insider sat down with Joey Contreras, the former judge, in his office.
He's a private attorney now and presides behind a large wooden desk, with a photo of him shaking hands with George W. Bush displayed on a wall unit behind him. He left the bench after losing a Republican primary in 2018 and was later publicly admonished by the State Commission on Judicial Standards over his treatment of a defense attorney while presiding over a murder trial.
When asked about the McFadden case, he said, "I remember it pretty clearly."
Though Lewis had confessed to pushing McFadden in the river, the evidence that he intended to drown her was "skimpy," Contreras said. "Lewis had the right to defend himself against being accosted, and that includes using force," he said. "I don't think it's a difficult concept."
He also didn't believe it mattered that the two had been together all evening. Instead, he brought up McFadden's past, describing her as a "nuisance" whose history as a fixture at the River Walk "made Lewis' story more credible."
During the hearing, according to a transcript obtained by Insider, Hardeway, the park officer, approached Lewis to make sure McFadden wasn't "harassing" him, because he'd previously seen her coming onto men along the River Walk. But the officer said the pair appeared to be getting along.
That didn't sway Contreras either. "If McFadden, let's say, came from the nice part of town and ended up in the river with no history, would I view it differently?" he asked.
"I think I would've probably scrutinized Lewis' story more in order to dig into the credibility of it," he said. "I'm not saying I automatically believe Lewis because McFadden had this history. It's just that they fit together, this pattern."
Though Contreras said he was well acquainted with the McFadden case, he repeatedly misgendered her as he spoke. ("I should be saying 'she,' right?" he said early on in the conversation. "I'm old, it doesn't come reflexively to me.")
During the 2018 hearing, it was the same. Though Goss in his opening statement described McFadden as a transgender woman, she was otherwise mostly misgendered by the defense attorney, the witnesses, and even by Goss himself.
At one point, Rodriguez, the defense attorney, told Contreras, "You have a person who is intoxicated, and the defendant didn't put that person in a situation where they became intoxicated. That person, himself — or herself, sorry — got herself intoxicated, became offensive, is known for being offensive to other people."
From judges to attorneys to jurors, Momen, the criminologist, said, key players in the criminal legal system "do not value trans lives, do not care to understand them, do not have any interest in humanizing these individuals as victims, and instead often really view them as blameworthy."
Rodriguez appeared to do so throughout the hearing. While questioning the medical examiner, for example, he asked whether he had ever encountered accidental drownings involving alcohol, as if that might explain why McFadden died. Rodriguez also asked the examiner a leading question — whether he "couldn't rule out the fact whether a person fell into the river, got out of the river, and then fell back into the river three blocks later" — despite presenting no evidence that such a sequence of events might have happened.
"This comes back to a transphobic culture and transphobia in every aspect of the criminal legal system," Momen said.
Contreras likewise appeared to blame McFadden for her own death. At one point, Goss argued that Lewis' response to McFadden's advances was unreasonable, and that once he pushed her in the river he had an obligation to make sure she was OK. Contreras was dismissive. "What you're saying, if I hear you right, is when you allow somebody to kiss you, you also allow them to grope your buttocks and for you to respond is unreasonable?" Contreras asked.
"If you've entered into a consensual, romantic relationship, you need to at least tell them first to stop," Goss said. "You can't just immediately go push them into a river and then leave them there knowing they're too intoxicated to stand up."
McFadden's uncle, Alvin Brown, recalled his discomfort with Contreras' behavior throughout the hearing. "The judge's reaction and behavior to me was as he already had his decision," Brown said. "Like, 'Let's just get this over with.'"
Contreras, when asked about this, responded, "I made a decision based on the facts."
When the judge issued his decision, Goss' heart dropped. Contreras told the courtroom that while this was "a terrible tragedy that occurred," he thought there was "a great deal of irresponsibility to go around" and that it was "not true" Lewis had violated his probation.
Sitting down with Insider more than four years later, Contreras said he thought the case had been "politicized" and that his decision took courage. "Their only reason for saying that this was unfair was because this was a transgender woman," he said.
He described the backlash to his decision as "identity politics at its worst."
"This judge saying people only care because she was trans, I think it's the exact opposite," Goodmark, the law professor, told Insider. On the contrary, she said, Lewis probably "thought he could get away with it because she was trans and nobody would care."
Three hours of justice
Joann still struggles to accept her daughter's death. For a long time, she protected McFadden's bedroom as a shrine, refusing to allow anyone to enter. Even now, she can't comprehend why Lewis got off. She's deeply frustrated by the handling of the case and doesn't understand why justice for her child was decided in a few hours during a probation hearing.
Goss, the prosecutor, also hasn't gotten over the judge's decision. He still remembers specifics of the case because he views what transpired as wrong and unjust. He believes the judge applied a higher standard of proof than what was legally required.
He doesn't begrudge Kenne McFadden's family their frustration, saying that Joann, as a grieving mother, has every right to be upset.
"I know that my decision-making robbed them of the ability to see Mark go to trial," Goss said. "I wouldn't have done it any differently, but I'm really sorry that it turned out that way."