Wednesday, November 30, 2011

2011-11-30 "Hate Expectations: Police and Prosecutors Are Quick to Claim the Presence of Racism — but Juries Are Not So Sure" by Peter Jamison

The case looked like it was made. Two Mexican nationals, viciously beaten by three white men outside the Nite Cap, a dim Tenderloin bar at the corner of Hyde and O'Farrell streets. The accused were convicted felons. At least one admitted ties to white supremacists.
According to prosecutors, witnesses heard somebody scream "white power" and "run like you run across the border" as the men attacked Jose Omar Cauich and his cousin, Alex Cauich, who was kicked and punched into unconsciousness as he lay on the ground. Police found photos of swastikas in one suspect's home.
The San Francisco Police Department's special investigations unit, in conjunction with Assistant District Attorney Victor Hwang, decided to tack hate-crime allegations on to felony battery and assault charges. A conviction on such allegations, intended to punish crimes committed because of discriminatory bias against the victims, can bring an additional one to four years in state prison.
Anthony Weston, one of the three defendants, struck a deal with prosecutors, agreeing to plead guilty to a hate crime, testify against his friends, and furnish a list of local skinheads. Based on this information, the office of District Attorney George Gascón announced it had uncovered an underground ring of white supremacists based in the Tenderloin. As the case went to trial this fall, public television station KQED received special permission to film the proceedings for a documentary series on policing hate crimes called "Not in Our Town."
But in October, less than a year after the incident took place, Gascón called a press conference to deliver unexpected news: A jury had decided that a hate crime had not, in fact, been committed in our town.
Defendants Robert Allen and Justin Meskan were convicted of assault and battery. But the jury acquitted them of the hate-crime allegations that stoked widespread media attention. Gascón's claims about a shadowy network of white skinheads based in San Francisco suddenly seemed tough to swallow.
Jose Omar Cauich returned to Mexico, while Alex stayed in the U.S. (Alex had been treated at San Francisco General Hospital and released with multiple stitches to wounds on his face.) After headlines fueling fears of a skinhead invasion, the trial amounted to this: The DA's office had obtained two convictions for bar brawling.
Hate-crime statutes exist in almost all American states. California was a pioneer in this regard, adopting a statute in 1984 adding further criminal penalties to acts committed because of a victim's race, religion, or national origin. Like some other criminal statutes — such as that which distinguishes among various types of homicide based on level of premeditation — a hate-crime charge reserves special penalties for offenses committed with a particular motive or state of mind.
San Francisco is a culturally and ethnically diverse city with a reputation for meticulous political correctness. It looks like the dream jurisdiction in which to bring a hate-crime case, with a jury pool consisting of large blocs of Latinos, Asians, blacks, gays, lesbians, and transgender people.
The reality is different. Hwang says that since he was hired in 2009 to handle hate-crimes prosecutions for a special human-rights unit formed by former DA Kamala Harris, not one of the four felony hate-crime cases that proceeded to trial has resulted in a conviction on the bias charges. In some cases, as in that of Meskan and Allen, a jury delivered convictions on the underlying offenses but not hate-crime enhancements. Hwang says he can also recall two more minor cases that resulted in misdemeanor guilty verdicts at trial. Otherwise, the handful of felony hate-crime convictions obtained each year have come through plea bargains.
Hwang and other legal experts have at least one persuasive explanation for this: Hate crimes are not easy cases for prosecutors to win. In addition to the burden of proving a defendant's belief system, cases are often undermined by the overly simplistic popular notion of what a hate crime is, Hwang says.
"Motive is tough to prove. It's not something that's well understood by the criminal-justice system," Hwang says. "People will think of hate crimes as your standard 'KKK, let's go out and lynch an African-American.' That's the standard we have to face." Most hate crimes, he says, have more nuanced fact patterns: What looks at first like an ordinary crime is revealed as a hate crime once a defendant's underlying motivations are unearthed.
Jeannine Bell, an expert on hate crimes who teaches at the Maurer School of Law at the University of Indiana, agrees. She says that the high hurdles involved in winning a hate-crime case lead prosecutors in many jurisdictions to avoid bringing them in the first place. "The key is motivation, and this is hard to prove with juries," Bell says. "That is why prosecutors are so reluctant."
Others see more troubling explanations for the unsuccessful hate-crime trials in San Francisco: political ambition, bureaucratic expediency, or cops' and prosecutors' lust for publicity.
High-profile hate crime prosecutions have undeniable political undertones. These are crimes, after all, that are singled out for special punishment because of their unusual social consequences. Such cases' publicity is amplified by press conferences, which frequently attend hate-crime charges. Hwang calls such media events an effective tool for deterrence and community outreach. San Francisco's minority groups carry considerable political heft, particularly LGBT and Asian factions. In its endorsement of Gascón for DA, the Bay Area Reporter, the paper of record for the LGBT community, noted his aggressive tack on hate crimes.
"Hate crimes seem like the flavor of the month," says defense lawyer and former San Francisco prosecutor Floyd Andrews, who represented Allen in the skinhead case.
Data tracked by the state Department of Justice supports the contention that San Francisco takes a more aggressive approach to charging hate crimes. In 2010, the DA's office here filed 24 such cases, more than any other jurisdiction in the state except Los Angeles, which filed 69. Prosecutors in the larger city of San Diego charged 17 hate-crime cases, while those in San Jose, also larger than San Francisco, filed only 12.
Deputy Public Defender Vilaska Nguyen, who represented a defendant in another case where a jury acquitted on a hate-crime allegation, says that in a city short on bigotry, the hate-crimes unit at the DA's office has to justify its existence.
"If there are not a lot of cases — if there are no cases — then there's no justification for keeping this civil-rights, hate-crimes unit around. It really feels like these hate-crime cases are overcharged," Nguyen says.
Cases might be overcharged sometimes. San Francisco's juries have certainly thought so. But the prosecution of a handful of such cases over the course of several years hardly seems like a potent electioneering tool. Hate crimes as an issue got virtually no attention in the just-completed race for DA, which Gascón won.
"Every day, I deal with public defenders who say, 'You're doing this because it's politically motivated, you're trying to get Gascón re-elected,' and it's not true. I don't know what else to say," Hwang says.
Bureaucratic or political motives might contribute to charging decisions in local hate-crime cases, as they do in many other types of cases. But it seems just as likely that the questions arising from San Francisco's recent spate of failed hate-crime trials stem from the often complex nature of the crimes themselves, as well as broad philosophical puzzles about the application of criminal bias laws.
Exhibit A in this regard is the Nite Cap beating case, which was a lot less straightforward than it seemed at the outset.
Neither Allen nor Meskan look like skinheads. Meskan, 29, is tall, with a restless demeanor, large hands, and long, curly black hair. Allen, with his pallor, wide forehead, and short brown hair, could pass as an extra in a Hollywood tween vampire movie.
In interviews with SF Weekly from the San Francisco County Jail, both say that being accused of a racist attack on the Cauich cousins has been a surreal experience.
"The thing about that night is that it was just a drunken brawl, nothing else," says the 39-year-old Allen.
"It's off the hook," says Meskan, who has never acknowledged even being present for the fight at the Nite Cap. "The DA has blown this so far out of proportion. He wants everything to be a hate crime."
Neither man claims to be an angel. Both say they're recovering drug addicts. Both have a rap sheet. Allen has felony convictions on second-degree burglary and marijuana offenses, Meskan for receiving stolen property. At the time of the Nite Cap fight, both say they were staying clean and taking classes in automotive mechanics at City College of San Francisco.
Despite Allen's and Meskan's criminal records, the men's friends and relatives were surprised by news reports that the pair had committed a hate crime against Mexican men. "Justin is my stepson. I've raised him since the time he was 20 months old. He's had problems with the law," says Nancy Meskan, who was in close contact with Justin until he left San Diego, his hometown, at age 20. "And that is not my son. He is not that kind of person. This is not how he was raised."
Adam Chandler has known Allen, who is originally from Virginia, for years. He helped get him a job at the recycling center next to the Castro Safeway after he got out of prison. "In no way, shape, or form do I believe he was racist," Chandler says. "I'm very against racist bullshit. I wouldn't have gone to the trouble to get him this job."
The story recounted by law-enforcement officials about the defendants' skinhead affiliations certainly was not airtight. Neighbors who overheard the scuffle disagreed in their testimony over whether the words "white power" were used — one witness, when he took the stand, merely recounted having heard "white something," according to the San Francisco Examiner.
The Nazi paraphernalia in Allen's apartment — photos of swastikas and Adolf Hitler, some on a computer desktop — belonged not to him but to a guest. Weston, the defendant who turned state's evidence, had an Asian girlfriend. Meskan's girlfriend was part Mexican.
Even Weston, who pleaded guilty to committing a hate crime and was released on probation with credit for time served at the county jail, rejected the idea that bias was involved in the altercation at the bar. "It was Anthony's view all along that this wasn't a hate crime," says Stuart Hanlon, his attorney. "A couple of drunken white guys got in a fight with a couple of guys who happened to be Mexican."
A peculiarity of the case's outcome is that Weston, the man who supposedly had the most extensive ties to hate groups in the Bay Area, was the one allowed to walk free. Allen says that Weston started the fight with the Cauich cousins and was the most violent once the fisticuffs began. "In my mind, they gave the worst participant a deal in this case," Allen says. "If anyone was more guilty than anyone else, it was him." Weston could not be reached for comment. Hanlon said Weston has left San Francisco and would not be available to speak about the case.
The lasting coup to emerge from the case for the DA's office was a list, provided by Weston as part of his plea agreement, of roughly 40 "skinheads" based in San Francisco. Weston also gave the names of three groups that Hwang says are active in drug-dealing and other criminal activity: The South of Market Area Skinheads, Bay Area Skinheads, and San Francisco Independent Skins. Hwang acknowledges, however, that "our local skinheads are probably not as organized" as white-supremacist groups elsewhere.
The question of how seriously to take the local skinhead threat is further complicated by the defendants' backgrounds in the state prison system. In California prisons, racial segregation is the rule. Inmates will often offer nominal allegiance, without further involvement, to a race-based gang in exchange for protection. In the case of the Aryan Brotherhood and other white prison gangs, this is known as "running peckerwood." Meskan tells SF Weekly that this was the category he fell into during his time in prison.
Once they get back outside, some lower-rung hangers-on will maintain some of the trappings of those prison gangs' ideology, Meskan says, but it's no longer serious; the ex-cons are not foot soldiers in a criminal organization driven by racism. "I've been in this city quite a few years," he says. "I've been in quite a few scenes. Honestly, skinheads in this city? I don't think I can name five."
Mark Potok of the Southern Poverty Law Center, which tracks hate groups throughout the country, says that "40 skinheads in some kind of semi-organized group in San Francisco does sound unlikely." He acknowledges, however, that skinheads can be tough to track because they move arounda lot.
According to Andrews, Allen's lawyer, the three defendants ran with a social circle of drunks and meth-heads, some of whom might have had a fondness for Nazi schwag. "They're a bunch of speeders who hang around town," Andrews says. "The connection is basically drugs and alcohol. There's nobody sitting around reading Mein Kampf."
The very idea of a hate crime is controversial in some quarters. When hate-crime statutes were first established decades ago, civil libertarians argued the laws were criminalizing thoughts and beliefs, instead of actions. The early 1990s saw a flurry of constitutional challenges to states' hate-crime laws, which ended with the 1993 U.S. Supreme Court decision Wisconsin v. Mitchell.
The case was an interesting one, involving the beating of a white 14-year-old by a group of African-Americans who had just watched the film Mississippi Burning. Enraged by the film's depiction of racist violence committed by whites in the American South, they decided to "move on some white peoples," according to court records. Convicted of a hate crime, one of the perpetrators, Todd Mitchell, appealed the case on the basis that his First Amendment rights had been violated.
In a unanimous ruling, the high court decided that states had a right to punish hate crimes more severely because of their effects on the wider community, and that the statutes had precedent in federal anti-discrimination laws. Chief Justice William Rehnquist noted in the decision that the law did not target speech or belief except for that attached to criminal behavior.
The theoretical underpinning of hate-crime legislation is based on a few notions about why crimes motivated by bias should be punished more severely, according to Potok. For one thing, they hurt people beyond the immediate victim. If Klansmen burn down an interracial couple's house, he argues, every interracial couple within 100 miles will feel terrorized. Hate crimes are also more socially destructive than most ordinary offenses, since they tend to fracture communities along ethnic or religious lines.
"Prosecuting hate crimes as hate crimes essentially has a salutary effect," Potok says.
California's present-day hate-crime laws make it illegal to select the victim of a crime based on his or her race, color, religion, ancestry, national origin, sexual orientation, gender, or disability. But enforcing that law is more complicated than it sounds.
The state's current standard is that bias must be a "substantial" part of a perpetrator's motivation against a victim for a hate crime to have taken place. In theory, this means that if a black man robs a Chinese-American because he wants the $50 in the victim's wallet — but also has some bias against Asians that contributed to his selection of a victim — he could be subject to a hate-crime enhancement on a robbery charge.
Hate "doesn't even have to be a major reason why" a crime was committed, says Ryken Grattet, a sociology professor and expert on hate crimes at UC Davis. "It doesn't have to be a situation where bias is the sole element. I'm not sure that they have nailed down the question of what amounts to a 'substantial' factor."
It's a slippery slope, defense attorneys say, and one that requires greater-than-average discretion on the part of the prosecutor who makes charging decisions. "It can be a really awful sword against defendants, and the DA ought to be really careful when it is used," Hanlon says.
A former public defender in Los Angeles and civil-rights attorney with the Asian Law Caucus and Asian Pacific Islander Legal Outreach, Hwang insists that he exercises the discretion his position demands. Of the 26 hate-crime cases brought to him by police so far this year, he notes, he has filed charges on only 16. In at least two past cases, he says, he has actually dropped hate-crime allegations from ongoing prosecutions as new facts came to light.
"A 'substantial' motivating factor is defined by law as 'more than trivial or remote.' It's actually a very low standard," Hwang says. However, "There has to be a reason to charge the hate crime, and not just that it meets the basic elements. For me, it's about whether it's a larger assault on a community."
Two cases that went to trial last year illustrate the difficulties in establishing a defendant's bias, particularly when questions about motivation are muddied by apparent mental illness. One is that of Katherine "KKKatie" Dunbar, a 24-year-old woman arrested for spray-painting her suggestive "KKKatie" graffiti tag, as well as backward swastikas, on public and private property across the city. She was also alleged to have shouted racial epithets at Alton Moore, a black man who confronted her when he caught her in the act.
Nguyen, her attorney, says it was clear from the beginning that his client was a troubled kid, with a documented history of bipolar disorder, trying to gain recognition from local graffiti artists with provocative tags. Moore disappeared before the trial, after Nguyen unearthed evidence that Moore had been investigated by police for criminal activity in the past.
Dunbar was convicted on one felony and nine misdemeanor vandalism charges, but the jury found an additional hate-crime allegation to be untrue. (The DA's office dropped other hate-crime charges during the trial after it became clear that Moore would not testify.) She was given credit for time served and released on probation. Nguyen says she returned to her parents' home in Southern California and began a course of psychiatric treatment.
A jury found that Katherine “KKKatie” Dunbar had not committed a hate crime in a graffiti spree.

Assistant District Attorney Brian Buckelew, who prosecuted the case, says Dunbar's allegedly discriminatory graffiti crimes appeared to have a pattern. For instance, she spray-painted a swastika in the driveway of a gay couple, and wrote anti-Christian symbols on an Episcopal Church. He acknowledges the case would have been stronger with full cooperation from Moore, who testified at a preliminary hearing that Dunbar had called him "nigger" and "faggot."
Says Buckelew of such hate-crime cases, "They're inherently difficult cases to prove, but that doesn't mean you shouldn't try. Given the chance, I would charge (Dunbar) the same way again."
Another case that looked like a stretch was the prosecution of Chris Brymer, a former NFL lineman who had fallen on hard times and was arrested for punching a black man while saying, "Die, nigger," outside a Mission Bay soup kitchen. Brymer was the subject of a September 2010 SF Weekly cover story, which explored the possibility that he suffered from a degenerative brain condition caused by repetitive head trauma from his football career. According to family members, he endured hallucinations and uncontrollable mood swings.
His alleged victim, Shaun Parker, was a convicted felon who had himself gotten in trouble with the law for making racist threats. At a pretrial hearing in the Brymer case, deputy public defender Megan Burns cited a police report that Parker had told his former landlord "that he hates her white skin and that he is going to paint the walls of his hotel room with her blood." As a former USC and NFL lineman, moreover, Brymer had always had black friends and teammates. Some of those friends testified on his behalf at trial, and he was ultimately acquitted of all charges.
Deputy Public Defender Nicole Solis, who represented Brymer, railed against the DA's office during his trial, saying at the time that Hwang was engaged in a "malicious prosecution." Today, Hwang says he is still proud of how he handled the case. Parker struck him as a credible victim and witness, he says, and Brymer's rap sheet prior to the incident indicated a series of altercations with blacks and Latinos.
In the fourth felony hate-crime case that Hwang has overseen, a middle-aged man, Thomas Herman, was charged with a hate crime and criminal threatening. At about 2 a.m. on Sept. 15, 2009, Herman approached a security guard sitting behind bulletproof glass at the entrance to the Jewish Community Federation on Steuart Street and said, "I will kill you and exterminate the Jews." He began rattling the door until police arrived.
Hwang said the man was on felony probation for having stabbed a police officer, information that a judge ruled was inadmissible in his trial. Eventually the jury acquitted him of all charges. Hwang says he believes jurors thought the security guard was not in danger, and that Herman himself, when he showed up in court, seemed relatively harmless. "He looked very docile at trial," Hwang recalls.
Of course, defendants and law-enforcement officials are not the only figures with a stake in how hate-crime cases are handled. Statutes on bias-based crimes are built around the sentiments and rights of victims, who often have strong feelings about seeing a court of law recognize that an act of discrimination has taken place.
Victims in the aforementioned cases could not be reached for comment, but one recent victim of a hate crime in San Francisco did speak to SF Weekly. Transgender woman Mia Tu Mutch was beaten and robbed by two men in April outside the 16th Street BART station. Prior to the attack, she says, they made derogatory comments about her gender.
In June, at a preliminary hearing, Superior Court Judge Bruce Chan dismissed the DA's felony hate-crime allegations against defendants Lionel Jackson and Maurice Perry, ruling that their motive had simply been to steal Mutch's phone. However, Hwang dismissed and then refiled the case with a different judge, leading to a plea agreement earlier this month in which Jackson and Perry pleaded to felony assault and a misdemeanor hate crime.
"It was great to see they didn't give up," Mutch said of the DA's office. "If we can't get a hate crime prosecuted in San Francisco, where can we?"
Nguyen says that Dunbar was offered a fairly light sentence in exchange for a guilty plea to a hate crime, but was unwilling to cop to an offense with such a social stigma. Likewise, Allen and Meskan were both offered six months to a year of county jail time in exchange for pleas on the hate-crime charges against them. But they say admitting to the bias against Mexicans alleged by prosecutors was out of the question.
"It's a very unsavory offense, a hate crime," Allen says. "People look at you a lot differently if you're convicted of something of that nature." Meskan says he worried that the charge, if entered on his record, would have affected his future employment prospects. "What's it going to be like if I apply for a job? Like, 'Oh, hi, I'm the hate-crime guy!'"
By proceeding to trial, Allen and Meskan cleared themselves of charges of racism. But it was a vindication dearly bought. Last week Meskan was sentenced to eight years in prison for assault and battery. Allen awaits sentencing on the same convictions. Seems like a lot for a bar fight, Andrews says.
"If Weston had punched a white guy, and there had been no hate-crime allegation, it would have been disposed with probation, maybe county time," Andrews says. As it was, the attention called to the case made a light sentence — what Andrews would call a reasonable sentence — impossible for the DA's office to offer without coming under criticism for lassitude.
Hwang, for his part, says the case's outcome was partly successful, as Weston provided valuable intelligence on a heretofore unknown network of skinheads in San Francisco.
Allen and Meskan, meanwhile, say they're worried they've been branded for life as white supremacists, despite their victory on the hate-crime enhancements at trial. Cops, prosecutors, and the media "made it sound like I'm a Nazi walking down the street," Meskan says. "If you Google my name, what comes up?"
It's a valid point: Google Robert Allen or Justin Meskan and the headlines that pop up are, as Allen puts it, decidedly "unsavory" — "Accused White Supremacists Charged with Beating Mexicans in S.F." Or "Hate crimes on rise in S.F." Meskan and Allen may have been found guilty only of participating in a bar fight, but the decision to charge them with a hate crime means they'll be remembered for something else.

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