Hate crime law results? Few convictions and lots of disappointment - Salon

This originally appeared on ProPublica.

Lance Reyna was assaulted in a school bathroom in 2010. Reyna — who is transgender and gay — was a student at Houston Community College when an attacker held a knife to his throat, called him a ‘queer’ in a falsetto voice, then kicked and beat him and left him on the bathroom floor.

In Austin the following year, it didn’t take long for Akbar Amin-Akbari to sense that the man who climbed into his cab shortly after midnight was drunk and angry. But Amin-Akbari drove on, and minutes later, with the cab going 65 mph on I-35, the man suddenly grabbed him by the hair, yanking out a fistful and violently pulling his head toward the backseat. “I’m a white boy. I’m going to kill you sand nigger,” the passenger yelled.

More recently, John Gaspari was walking home from a bar in Houston at around 3 a.m. on Valentine’s Day 2015. He was three blocks from home when a car suddenly swerved onto the sidewalk, trying to run him over. Three men jumped out of the car and shouted, “Get the fag!” They tackled, punched and kicked Gaspari. Then one of them pumped two bullets into him and left him unconscious on the side of the road.

Each of the incidents were recorded by Texas police as potential hate crimes. Since 2001, Texas has had the James Byrd Jr. Hate Crimes Act on the books, named after a black man who’d been killed by white supremacists in 1998. The law allows prosecutors to attach what’s known as a sentencing enhancement to alleged hate crime cases, adding time behind bars if authorities prove the perpetrator intentionally acted out of bias toward the victim’s perceived race, color, disability, religion, national origin or ancestry, age, gender or sexual preference.

The bill’s sponsor, then-state Sen. Rodney Ellis, declared at the time that Texas had “sent a message that our state is not a safe haven for hate.”

But neither Reyna’s assault, nor Amin-Akbari’s beating nor Gaspari’s shooting were successfully prosecuted as hate crimes. Indeed, a ProPublica analysis shows that such cases in Texas almost never are.

From 2010 through 2015, there were 981 cases reported to police in Texas as potential hate crimes. ProPublica examined the records kept by the Texas Judicial Branch and confirmed just five hate crime convictions. In the course of reviewing dozens of other individual case files for potential convictions, we found another three. How many additional cases were missed by the state agency is unclear.

To be sure, the 981 cases varied widely, as did the reasons for their outcomes comprise a wide variety of reports. Interviews with law enforcement make clear that some number of the reports wind up dismissed because of too little evidence — or evidence that suggests that the alleged crimes didn’t happen at all. Another considerable number are cases that fail to produce an arrest and thus go unsolved. But while ProPublica could not comprehensively break down the universe of 981 cases — the two separate state agencies that track incident reports and convictions do not track what happens in between — there is widespread agreement among prosecutors, legislators and others in Texas about why there have been so few successful convictions under the hate crime statute:

It is extremely hard for prosecutors to prove the intent of the accused.
Individual prosecutors either lack the will to pursue the enhancement or make the calculation that it’s more advantageous to seek significant sentences but without the hate crime allegation.
Police officials often do not have the training to help build successful hate crime cases.
In some very violent cases that carry the most severe sentences — murder or rape, for instance — prosecutors opt to drop the hate element because there is no additional punishment available.

In Reyna’s case, his attacker was convicted of aggravated robbery with a deadly weapon, but the hate crime element was dropped during prosecution.

In Austin, prosecutors asked a grand jury to indict Amin-Akbari’s assailant on hate crime charges, but it declined. The attacker’s trial on aggravated assault charges ended with a hung jury.

The men who beat and shot John Gaspari have yet to be apprehended.

“In most hate crimes, no suspect is ever identified, arrested or charged,” said Shannon Edmonds, director of governmental relations with the Texas District and County Attorneys Association. Edmonds pointed to cases of vandalism, like a swastika painted on a synagogue, in which law enforcement rarely finds a suspect.

“Usually it’s done in the dead of night. Nobody knows who did it,” he said.

Data from Travis County offers support to the claim. Out of the 71 potential hate crime offenses identified by law enforcement in the county from 2010 to 2015, police did not identify a suspect in more than half.

Not surprisingly, the eight cases ProPublica found that were successfully prosecuted with a hate crime element involved cases with convincing evidence of intent.

On June 29, 2014, for instance, a onetime Dallas City Council candidate spray-painted “666” on a prominent gay monument and the Cathedral of Hope, a predominantly LGBT church. In a Facebook post, Richard Sheridan said the vandalism, aimed at “strongholds of the Gay community,” was “both an act of love and a warning.” That warning? “THE SODOMITES ARE COMING!!!”

Another case involved a prison inmate in Lamar County using a crude shank to stab a prison guard because he was black. The inmate was allegedly a member of the Aryan Circle, a white supremacist group.

Kim Ogg, the district attorney in Harris County, said Texas has lacked statewide leadership for seeing that the hate crime statute lives up to its promise.

“Lawyers like clean cases they can prove and win,” Ogg said. “That’s understandable. But the community needs reassurance.”

Texas first passed a version of hate crime legislation in 1993. But the language in the original law was widely recognized as general and vague. Subsequent efforts to bolster the law were stymied by conservative concerns about extending hate crime protections to gays and lesbians.

James Byrd Jr.’s death changed all that. In 1998, Byrd was dragged by a pickup truck for miles in the town of Jasper and died after his head and right arm were severed. His murderers left what remained of his body in front of an African-American church and cemetery. Two of the three men charged were avowed white supremacists, and all three were either sentenced to death or life in prison.

The Texas statute bearing Byrd Jr.’s name was enacted three years later, signed by then-Gov. Rick Perry.

“Texas has always been a tough-on-crime state,” Perry said at the time. “With my signature today, Texas now has stronger criminal penalties against crime motivated by hate.”

Royce West, a state senator who worked to pass the legislation, announced in a release afterward, “Finally, it’s done.”

“The governor’s signature on that bill culminated efforts that have been in progress since my first Legislative Session back in 1993. Its signing brought forth both a sense of accomplishment and relief for many, but surely none more than the family of James Byrd Jr. The dignity that they have exhibited throughout the three years since their very personal tragedy is commendable.”

Now in Texas, frequently police officers filing a crime report can check off a box indicating the possibility it had been motivated by bias. The case can then be referred to prosecutors, who decide if a crime occurred and, if so, whether to attach a hate crime enhancement. There is no separate offense category of hate crime. If the accused winds up convicted of the crime with the hate enhancement — through a plea or at trial — the sentence gets bumped up a level, allowing for more time behind bars.

But as in other places that debated adopting hate crime laws, there has been worry in Texas about the appropriateness and the usefulness of the measures. Did sentencing enhancements such as the one enacted in Texas improperly punish people for their beliefs, as well as their actions? Was it wise to have police and prosecutors worried about proving not only guilt, but intent? Is a hate crime characterized by an epithet used during the commission of the crime? A background of questionable ideology? Neither or both?

ProPublica spoke with 15 current or former prosecutors in Texas about the statute. Virtually all said proving intent beyond a reasonable doubt is challenging.

“Now you have to crawl into somebody’s head,” said Andrea Austin, an assistant district attorney in Travis County, who tried the Amin-Akbari case.

In most criminal cases, prosecutors simply need to show the defendant committed the alleged act intentionally, knowingly, recklessly or with criminal negligence. The case does not require proving motivation. But pursuing a hate crime allegation inherently does.

“It definitely raises the burden on a prosecutor,” said Nathan Hennigan, a former assistant district attorney in Harris County.

But to Richard Cohen, president of the Southern Poverty Law Center, an organization that has tracked hate crimes for years, that argument is not always convincing.

“In many cases it’s obvious,” Cohen said in a telephone interview. “Many times there’s circumstantial evidence in connection with a crime that demonstrates that hate was the reason the victim was selected.”

Cohen’s point of view is one of many concerning the purpose of the state’s hate crime statute and its enforcement. Some say the mere existence of the statute is an important declaration to the residents of the state that expressions of hate will not be tolerated.

“In this community it’s an important issue to say this place is no place for hate,” said David Escamilla, the misdemeanor prosecutor in Travis County. “I’m sure there’s a number of cases that don’t get reported. That’s why the message is more important. For those people that are suffering to understand this is unacceptable and they should come forward.”

For some people, Escamilla added, the threat of added jail time “works.”

Assistant Special Agent in Charge of the El Paso FBI Keith Byers supervises federal hate crime case investigations. He said that, while zealots won’t be deterred by the specter of added prison time, “other folks that may not be in that category, they may make the mental decision, ‘I saw what happened to someone else so I’m not going to repeat the same type of behavior.’”

But others, especially defense attorneys who work most closely with alleged criminals, disagreed.

“I always roll my eyes when people talk about the deterrence effect,” said Mick Mickelsen, a prominent Dallas defense attorney who represented a client convicted of a vicious anti-gay hate crime attack in 2008.

“When you’re talking about heinous crimes, the people committing them are so disordered. I don’t think they respond in a logical fashion,” he said.

Several prosecutors said that, given the challenge in proving intent, they had chiefly come to use the prospect of a hate crime enhancement as a bargaining tool in plea negotiations.

Some law enforcement officials said the limited number of successful hate crime prosecutions owed at least in part to the nature of the initial police work in the cases. In at least a dozen other states, there is required training for police officers in how to investigate and document potential hate crimes. But Texas does not mandate such training and provides no funding for departments that might want to offer it.

Stephen Hughes, a detective in Rusk, a small town in east Texas, said he hasn’t been trained on hate crimes since he attended the police academy in 1998.

“To be honest with you, it was so long ago,” Hughes said. “For the most part, it’s basic common sense. You have to go on a case-by-case basis and hopefully would recognize it.”

Larger jurisdictions with more resources, such as the Houston Police Department, dedicate personnel specifically to review prospective hate crimes. An intake officer with the department pointed to the HPD’s hate crimes hotline, cultural diversity classes for officers and meetings with community groups as evidence the department prioritizes investigating such cases.

For all that, however, records show very few completed hate crime prosecutions in Harris County. Indeed, there have been none since 2007.

“It’s been terrible,” Ogg, the new district attorney who took office in Harris County at the start of 2017, said of her office’s record on hate crimes.

She said the small numbers — in her county and statewide — meant Texas was failing its minority residents.

The State of Texas v. Drew Anthony Nickason offers a look into how the hate crime statute is applied and the difficulty of making it pay off.

In 2011, Nickason was charged in an attack on a black man, Levi Drone, in Midland. Drone, who grew up in Midland, went to the Buffalo Wild Wings in town to catch up with a few friends. While leaving, they encountered a group of white men hanging out in the parking lot.

According to court documents, the white men shouted slurs at Drone and his friends, including “freaking n—-rs.” One lifted up his shirt to show a Confederate flag tattoo. Another pulled out a handgun. Drone and his friends tried to escape, heading to the alley beside the restaurant. A fight broke out. The man with the gun pistol-whipped Drone’s friend, Marcus Davis, who started vomiting blood. While Drone was attending to his friend, the attackers scattered.

But two returned with knives, including Nickason. They shouted, “We’ll beat you n—-rs up,” “N—-r f–k you” and “Heil Hitler!” Drone removed his belt to defend himself but stumbled and fell. Nickason stabbed him in the arm before fleeing with his friend.

Nickason was initially charged with aggravated assault. But in the course of preparing for trial, Rebecca Patterson, the local prosecutor on the case, concluded she needed to add a hate crime enhancement. The crime, she said, made more sense when seen that way. In fact, she thought, it could be a strategic advantage.

“Every jury wants to know why,” Patterson said. “If you can give them that missing puzzle piece and show them why someone would do something as heinous as this, now it makes sense, now it’s logical, and now they feel better about being able to convict.”

Although she hadn’t handled a hate crime case before — or since — Patterson said she felt confident going into the trial. She introduced the racist statements by Nickason. An expert testified that Nickason’s tattoos of swastikas, Hitler and two lightning bolts indicated his membership in the Aryan Brotherhood, a white supremacist gang.

But Mark Dettman, Nickason’s attorney, countered by moving to exclude evidence of his gang membership, claiming it would overly prejudice the jury against him and violate his free speech rights.

Patterson said she worried briefly as the judge considered the defense argument. The defense also argued that Nickason acted in self-defense, fearing for his life because Drone was wielding his belt.

“We said our prayers and crossed our fingers,” Patterson said.

“If we hadn’t been able to bring up the fact he was in the Aryan Brotherhood, it would have made our argument a lot weaker,” she added. “Just using the n-word during the incident itself alone might not have been enough.”

The judge rejected both defense arguments. The jury found Nickason guilty of aggravated assault and the hate crime enhancement, bumping his charge to a first-degree felony. In the end, Nickason received 25 years in prison.

Dettman, the defense attorney, said he’d tried his best.

“You defend the case,” said Dettman. “If you get down to it, every case is a hate crime.”

For decades, victims of hate crimes in Texas have had the added protection of a federal hate crime statute, one expanded in 2009 to cover victims targeted for their gender or sexual orientation.

But in Texas, as in the 49 other states, the number of federal hate crime convictions has been modest. ProPublica could find four in Texas, and just 45 nationwide since the 2009 expansion.

Current and former federal officials said it was up to U.S. attorneys whether to take on a local case, and that they surfaced through a mix of FBI investigations, media reports and direct complaints from victims. The four cases in Texas all involved serious assaults.

In one of the four cases, a suburban Houston man driving his car in November 2013 made a video of himself in which he made clear he intended to hit a black person. He did, striking a 79-year-old, and emerging from his car to declare, “Knockout!”

“We had evidence from the guy’s own mouth,” said former Assistant U.S. Attorney Ruben Perez.

The defendant was sentenced to nearly six years in prison under federal law.

The continuing federal interest in hate crime prosecutions, like so many others things involving the new administration in Washington, remains to be seen. But a 2009 U.S. Senate floor speech might offer a clue.

Jeff Sessions, the then-Alabama senator who is now the country’s attorney general, mounted an hourlong attack on the idea of a federal hate crime statute. Sessions argued that these “despicable” incidents had been successfully prosecuted locally, and that a national law was both unnecessary and unconstitutional.

Still, asked about the hate crime statute during his confirmation hearings, Sessions said, “The law has been passed. Congress has spoken; you can be sure that I will enforce it.”

This month, the U.S. Department of Justice unveiled a new task force, including a subcommittee to “appropriately address hate crimes to better protect the rights of all Americans.”

“The department’s Civil Rights Division will be reaching out to affected communities to hear directly what strategies and support are most needed to help reduce this particularly pernicious crime,” the department added.

In Texas, advocates have called on Gov. Greg Abbott to extend the state’s hate crime protections to transgender individuals. Instead, Abbott has so far trained his efforts on seeking to have law enforcement officers covered following the shooting of five Dallas police officers last year. A bill introduced in the Texas legislature would do just that. Its author, Jason Villalba, R-Dallas, declined to comment for this article but recently told Fox News he hoped it would deter attacks on police.

Former state Sen. Ellis, when asked whether the law he pushed has been fully enforced, wrote in an email:

“The heinous murder of James Byrd put an important spotlight on hate crimes in Texas and across the nation. Hate crimes have existed for centuries, particularly in the South,” he said.

“I certainly hope that any case that falls under the law will be prosecuted,” Ellis added. I do hope that prosecutors will aggressively pursue these charges where there is evidence of a hate crime, rather than allow a defendant to plea to a lesser crime. While I imagine some cases do go unreported, I think we are moving in the right direction.”

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