New York to use hate crime law in transgender case

Posted on 14 Jul 2009 at 1:49pm
By William Kates Associated Press

Trial started Monday for man accused of shooting trans woman at party

SYRACUSE, N.Y. — It was no secret to friends and family that Lateisha Green was born a boy. She had been living mostly as a female since age 16.

On a Friday night last November, Green — this time dressed as a man — and her brother, Mark Cannon, went to a party. Several guests objected because they thought the two were gay. Several started yelling "profane and vulgar comments," police reports said.

As Green and Cannon were sitting in their car a few minutes later, one of the partygoers emerged from the house with a .22-caliber rifle. Without a word, police say Dwight DeLee fired a single shot. The bullet grazed Cannon’s arm, and with a deadly thud hit Green, 22, in the chest.

"I’m hurt. Angry, upset. Mostly, I’m upset with society," said Albert Cannon, the victims’ father. "How do we let our kids get this angry this young? This was hatred."

Prosecutors agreed and charged DeLee, 20, with second-degree murder as a hate crime under the state’s nine-year-old law. The hate crime label could add years of additional time to DeLee’s prison term if he’s convicted.

Now, all prosecutors have to do is prove it was a hate crime when his case goes to trial, which started Monday, July 13.

Records kept by New York State’s Division of Criminal Justice Services show that’s no easy task.

Between 2000 and 2008, there were 6,151 hate crimes reported in New York. Comparatively, there were 462,829 crimes reported in New York in 2008 alone — 544 of them hate crimes, or about one-tenth of a percent of total crime.

During those same years, there were 787 hate-crime convictions, about 13 percent of the reported cases. The conviction rate in New York for all crimes is nearly 65 percent.

Criminal Justice Services spokesman John Caher noted that not all hate crimes reported by police were referred to prosecutors, and that some led to convictions on other charges.

"Still, the number suggests the difficulty in proving something is a hate crime," Caher said.

Under the New York law, a person can be charged with a hate crime if there’s evidence the crime was based on race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person. People convicted of a hate crime in New York receive additional prison time.

Second-degree murder in New York carries a minimum penalty of 15 years to life in prison. Conviction of murder as a hate crime carries a minimum penalty of 20 years to life in prison. The maximum penalty in either case is 25 years to life.

State hate crime laws vary considerably. Forty-five states and the District of Columbia have some form of hate crime statute, according to the Anti-Defamation League human rights organization. The federal government first passed hate crimes legislation in 1968.

The number of hate crimes has stayed consistent during the past several years, according to FBI reports. The FBI tallied 7,649 incidents nationwide in 2004 and 7,624 in 2007.

Neither the FBI nor the U.S. Department of Justice keep track of hate crime convictions by state. California reported the most between 2004 and 2007 but managed convictions as hate crimes in only about 10 percent of them, according to the state attorney general’s office.

The actual number of hate crimes is likely higher because there is no clear and uniform definition of such a crime, it’s often not possible to determine motivation, and data gathering is unreliable, said Robert Trestan, Eastern States Civil Rights Counsel for the Anti-Defamation League.

"In a hate crime, you have two victims," Trestan said. "You have the individual victim. But you also have a community that’s impacted by a hate crime in a way that differs from other types of crime."

When New York lawmakers debated hate-crime legislation in 2000, some argued that existing law addressed the anti-social behavior of defendants who committed crimes motivated by bias. Others said there was little or no evidence that bias-related crime was becoming so prevalent that it deserved special treatment. The harshest opponents said it represented little more than political pandering to minority groups.

For law enforcement, the crucial issue was the evidentiary problem raised.

"The difficulty is that it’s the only crime in the entire penal code that requires us to prove what’s in someone’s heart," said Richmond County District Attorney Daniel Donovan, president of the New York State District Attorneys Association.

Hate crime convictions also are difficult because the victim doesn’t typically report a crime as a hate crime, said Michael Cooper, an assistant Bronx County district attorney in charge of the office’s Bias Crimes Unit.

"We often have to divine a hate crime has occurred from what a defendant says. People seldom recognize when they are the victim of a hate crime," Cooper said.

In the Bronx, prosecutors have set up a hot line and distributed literature to get people to report suspected hate crimes. Bronx County prosecutors secured convictions in 46 of 87 hate crime cases between 2005 and 2008.

Even with a limited number of convictions, neither Donovan nor Cooper think the law needs changing.

"The law serves a purpose in those times when you can properly charge it," Donovan said. "Society has decided to hold people more responsible and dole out a more severe punishment if you select your victim because of who they are."

Syracuse prosecutors declined to discuss the DeLee case.

Defense attorney Clarence Johnson has challenged the hate crime murder charge. Green, who was born Moses Cannon, was not wearing women’s clothing on the night of the shooting, according to authorities. And, Johnson contends, there is no evidence that DeLee said anything or knew anything about Green’s sexual orientation.

Green, who was born Moses Cannon, often dressed in women’s clothing. But authorities said he was not wearing women’s clothing on the night of the shooting. Given that, and no evidence that DeLee said anything or knew anything about Cannon’s sexual orientation, defense attorney Clarence Johnson has challenged the hate crime murder charge.

If DeLee is convicted of committing a hate crime murder, it would be the second hate crime conviction involving the murder of a transgender person in the United States, said Michael Silverman, executive director of the Transgender Legal Defense and Education Fund.

Allen Andrade was convicted in May in Colorado of beating 18-year-old Angie Zapata to death with a fire extinguisher after discovering she was biologically male.

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