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Hate Crime vs. Ordinary Criminal Assault is in Eye and Ear of Beholder, Says New York Defense Attorney Steve Brill

Posted By Steven Brill || 16-Sep-2010

(NEW YORK, N.Y., Nov. 20) – Police on eastern Long Island are investigating reports that more than a dozen cars were spray painted with racist graffiti; 10 days later seven white teenagers reportedly insulted an Hispanic man with racial slurs before attacking and killing him at a Long Island Railroad station; St. Joseph and La Salle Universities are currently investigating two racially charged incidents over the last two weeks where a gang of white male students punched a young black woman on campus and used racial slurs to describe Barack Obama.

"There is no question that when people lose their jobs and make less or no money they look for someone to blame, and sometimes they resort to violence," warned Steve Brill, a New York defense attorney who has worked on numerous hate crime cases in his career."

In a recent New York Times editorial dated November 11, 2008, the writer points out that, "The atmosphere began to darken when Republican politicians decided a few years ago to exploit immigration as a wedge issue. According to the editorial, now that the economy is in free fall, the possibility of scapegoating is deepening Hispanic anxiety.

"Furthermore, "Brill emphasized, "If an individual is of the personal belief that his or her economic plight is due to another race or nationality, as irrational and mistaken as that is, you have the precondition for an escalation in the incidence of hate crimes."

The police in Patchogue, NY, said the seven teenage boys allegedly involved in the murder of Marcello Lucero had been driving around town looking for Latinos to beat up. According to The New York Times, a prosecutor at the arraignment quoted one of the young men as having said,"Let's go find some Mexicans."

In his experience, Brill said while there are no clear statistics on the subject, it is safe to say that most minorities end up on the losing end of hate-based criminal behavior.

"Over the years that I've been involved in criminal defense work in New York," he said, "I've learned that when a hate crime is charged, it is not always clear that race is the motivation for the attack. There is rarely a cut and dried motivation for a race-based attack. Most of the time when a non-race-related event occurs, like one that precipitates a fight, race creeps in during the course of that aggression, particularly in times when the preconditions for hate crime behavior exist."

Brill noted that while most hate crimes involve groups of individuals as the alleged attackers, in most instances not all of the members of the group are equally culpable.

"As a defense attorney in New York," he said, "I always make sure that the District Attorney doesn't automatically prosecute the case as a hate crime merely because a group had a fight and one member of the group felt emboldened to make racist comments. Others members of the group should not bear the same criminal responsibility as the instigator, or leader, of the group."

Brill points out that there is a fine line separating ones very strong political beliefs and committing crimes motivated by race.

"Simply because other members of the group are present when some of the group use racial epithets," Brill said, "does not mean that those racial epithets should be attributable to all.

"From the point of view of the alleged attackers in the Patchogue train station incident" he added, "the more evidence their lawyer is able to show the District Attorney, or the jury, that the crime was not about hate or racism, the degree of the crime and the underlying sentences could certainly be lessened.

Brill explained that the "degree" of the crime exposes defendants to less, or more severe, sentencing guidelines. The example he used is Assault in the Third Degree, an A misdemeanor, punishable by a maximum of one year in a city jail, like Rikers. On the other hand, if the incident is charged as a hate crime he said it becomes an E felony punishable by a maximum of 1-½ years-to-4 years in an upstate prison.

"In order for members other than the leader of the gang to be held criminally responsible for a hate crime," he said, "the prosecutor must prove that other gang members shared the same criminal intent as the main actors of the gang. Standing around and watching should not lead to criminal liability unless other gang members were acting in a way that furthered the crime."

Stronger gang members always lead the followers, he emphasized. "It must be remembered," Brill said, "that criminal law attempts to punish criminal intent. If less vocal followers of the group do not bear the same criminal intent as the leader, then their crime should not rise to the level of a hate crime. Once the case is no longer tried as a hate crime," Brill said, "the defendant is not exposed to enhanced sentences under the hate crime statutes."

Steven Brill, a partner in the New York law firm of Sullivan & Brill, tried the first ever "assault as a hate crime" case in Queens, New York.

"My client and his cousin, two Puerto Rican teenagers," he said, "had a dispute with two African American teenagers. During the course of the fight, the "N" word was used. In young urban society, that word has non-racist connotations. In fact, very often kids refer to each other more by that word than by their own names. In light of that fact, I was able to argue that in spite of the use of the N word, my client was not motivated in any way by racism. For better or for worse, the N word in certain circumstances can possess non-hateful and non-racist connotations. I did for my client what any defense attorney should do in these cases – make every word that sounds racist, non-hateful and non-racist.

"When you strip away the unintended racial overtones of words," he concluded, "it leads to doubt as to whether a defendant's motivation legally supports a hate crime. All that was left then,in my case, was a fight among teenagers, which is clearly a better place to be for my client than to be charged with a hate crime."