Legislator wants to know why there have been just 8 convictions since legislation passed in 2001
After 27-year-old Chris McKee was beaten by two men in December 2005, the Denton County District Attorney’s Office initially was reluctant to pursue the case as a hate crime.
McKee, who is gay, said his assailants had followed him after seeing him kiss another man, and anti-gay slurs were audible on a 911 call he made.
Still, after one of the suspects was arrested, prosecutors told McKee they feared turning the courtroom before what was likely to be a politically conservative jury – into a “gay circus.”
“They said this is just a random assault to a person at night on a crowded street in front of the bars, and they didn’t want to step on toes and make a big ruckus,” McKee said.
Although McKee’s case ultimately was prosecuted as a hate crime after a new district attorney took office in Denton, such attitudes among law enforcement officials may be indicative of a bigger problem, according to state Rep. Marc Veasey, D-Fort Worth.
Veasey’s HB 2612, which was heard by a House committee Monday, April 2, calls for the state to take a comprehensive look at implementation of the James Byrd Jr. Hate Crimes Act, named for the East Texas black man who was dragged to his death from a pickup truck by three white supremacists in 1998.
While there have been an estimated 1, 500 hate crimes reported in Texas since the act’s 2001 passage, only eight have been successfully prosecuted as such, resulting in enhanced penalties for offenders.
“The James Byrd Jr. Hate Crimes Law is one of the most important pieces of legislation Texas has passed in the last decade,” Veasey said via e-mail from Austin this week. “It’s a law that should address many issues of prejudice that Texas has struggled with for a long time. It was surprising that this important law, which should be a powerful tool against crimes of bias, hasn’t been used more. This study should reveal what’s holding our use of this law back, so that if we need to tweak the law to make it more effective we can do so.”
Equality Texas Executive Director Paul E. Scott said he believes the proposed study, which has not yet been voted on by the committee, is critical. In addition to race, the act covers color, disability, religion, national origin or ancestry, gender and sexual preference. “I think on its face, it’s a significant concern for anyone in any of the particular classes covered,” Scott said.
Equality Texas convinced Veasey, who is black, to carry the bill after the LGBT civil rights group began researching the issue last year, Scott said. “Our research was showing that we weren’t able to get answers very well.”
Equality Texas has gotten a few answers, Scott said, from the doctoral research of Beverly McPhail, now an adjunct professor at the University of Houston’s College of Social Work
Based on the findings of her dissertation, McPhail agreed Veasey’s proposed study would be beneficial.
“We pass laws, and we don’t follow up to see what happens,” McPhail said.
“Maybe there is a problem, and maybe there isn’t. I think we don’t know until we investigate.”
For her dissertation, McPhail interviewed 20 prosecutors from around the state.
She determined they typically are reluctant to file cases as hate crimes for a variety of reasons, including that it can muddy facts and increase the state’s evidentiary burden.
“It’s really hard to prove bias, and so they just don’t like to go there,” McPhail said. “They’re trying to get the guilty verdict.”
Also, she said, prosecutors are not trained to focus on victims’ overall identities or the histories of groups, but rather on the circumstances of individual crimes.
McPhail said she believes some Texas prosecutors members of a predominantly conservative profession in an overwhelmingly conservative state may bring their personal prejudices about minority groups to their jobs. And as with McKee’s case, they may often fear jury pools in Texas will be tainted by prejudices against minority groups a phenomenon she refers to as measuring a case’s “value to the community.”
“They worry they could lose their whole case,” she said of prosecutors.
McPhail said she believes the study should also focus on the educational components of the hate crimes act, which includes language calling for the Attorney General’s Office to offer instruction in schools and communities on the issue.
Lauri Saathoff, a spokeswoman in the AG’s office, said “Consequences,” an educational publication and interactive DVD that includes a chapter on hate crimes, has been distributed to more than 700 school districts and law enforcement agencies throughout the state.
“The curriculum is available from our office on request,” Saathoff said. “It is a free resource for communities.”
But based on his organization’s experience, Scott said, “Consequences” may not be enough.
Scott said in places like Dallas, law enforcement officers receive some of the best training in the country on LGBT issues and hate crimes. However, in more rural areas, he believes there is a problem.
Scott said Equality Texas recently received a phone call from a gay male in Johnson City who had been assaulted in a similar fashion to McKee. As it turned out, neither the police chief nor the mayor of the Central Texas town were even aware of the hate crimes act. Equality Texas responded by sending them a packet of information.
“We can’t do that for every jurisdiction,” Scott said. “This is really the responsibility of the state of Texas.”
As for the case of McKee, after Denton County District Attorney Paul Johnson took office Jan. 1, 2007, he assigned prosecutor Susan Piel as chief of his misdemeanor division. Piel said as soon as she read the McKee file, she was convinced his assault had been a hate crime.
“It was as clear as you’re ever going to get in a case,” she said.
Despite the conservative nature of Denton County, Piel said the state had nothing to lose by prosecuting the case as a hate crime, because McKee’s sexual orientation would be central to the trial regardless.
“That evidence was going to come out whether we filed a hate crimes notice or not,” Piel said. “There was no way to tell the story of what happened without those facts coming out.”
McKee claims they came out in a big way.
“Their whole defense was this is a gay man who has an opportunity to use this as an agenda for the gay and lesbian community,” he said.
The result of the strategy, an acquittal for the defendant, was reminiscent of another recent case Piel had prosecuted.
In May 2006, Joshua Aaron Abbott, now 21, was acquitted in the 2005 death of 40-year-old David Wayne Morrison, a gay Denton resident who was HIV-positive. Abbott stabbed Morrison more than 20 times in the face, neck and chest with a pocketknife.
Abbott, who is straight, had gone to Morrison’s residence for unknown reasons, and the pair ended up alone in Morrison’s bedroom.
At trial, Abbott claimed Morrison tried to rape him, and the jury ruled the defendant acted in self defense.
Piel said she chose not to prosecute the case as a hate crime because it was not clear that Morrison’s sexual orientation was the sole motivating factor behind the alleged murder.
Piel said she was very surprised by the verdict, given Morrison had been stabbed so many times. She also said Morrison’s sexual orientation and HIV-positive status were key.
“It played a huge role in the trial,” she said. “I think there’s certainly an argument that a jury could find it more shocking the notion of someone being potentially raped by a member of their own sex. But I think it was exacerbated more by his HIV-status than anything else.”
In many instances, there is little to be gained penalty-wise from successfully prosecuting cases as hate crimes, Piel said. For example, in both the McKee and Abbot cases, hate crimes findings would have resulted in enhanced minimums as opposed to enhanced maximums.
And many, like McPhail, question whether, in the minds of most prosecutors, the risk is worth the reward.
But McKee argued that oftentimes, it’s not so much about the verdict as the process sending a message that hate won’t be tolerated, and raising awareness about discrimination against the LGBT community and other minorities.
“I think even though we didn’t win literally, we still won,” McKee said of his case.
“I think it’s about time,” he added of Rep. Veasey’s proposed study. “I think it’s way overdue. I think it’s something that’s been ignored.”
This article appeared in the Dallas Voice print edition April 6, 2007