Bizarre attempt to "end around" NY hate crime law

[BrentRichards]

Sigh. This is not funny.

NY Trial Highlights Sexual Orientation
By DAVID B. CARUSO (Associated Press Writer)
From Associated Press
October 03, 2007 8:09 PM EDT
NEW YORK - Michael Sandy's killing had all the hallmarks of a hate crime: a gay man ambushed by a group of men, then chased into the path of a speeding car.

But the murder trial has produced a surprise twist: The man who first suggested going after a gay target says he may be gay too.

Taking the stand in his own defense, Anthony Fortunato testified about having a series of one-night stands with men he met online. He said he'd been having homosexual impulses since he was around 13, although he kept that hidden from friends.

"I was living two complete double lives," said Fortunato, 21. But he waffled when asked directly about his sexual orientation.

"I don't know," he said. "I could be homosexual. A homosexual. Bisexual."

The revelation - corroborated by three men who testified that they had sexual encounters with Fortunato - was intended to question the validity of charging him with a hate crime, an offense that could add years to his prison sentence if he is convicted.

Defense attorney Gerald Di Chiara said his client clearly had no hatred for gays.

Fortunato, one of four white men charged in the assault, acknowledged on the stand that it was his idea to enter an online chat room and find a gay man to set up.

He said the plan had been to try to trick Sandy, a 28-year-old black man, into giving them marijuana or money - not to attack him. Things got out of hand, he claimed, when a co-defendant who is being tried separately decided on his own to escalate the encounter to a violent mugging.

Brooklyn prosecutors argue that Fortunato's sexual orientation is irrelevant. Under New York law, they said, defendants can be convicted of a hate crime even if they bear no actual hatred for their victim.

The law only requires that they have singled out a person for a violent act because of some belief or stereotype about that person's ethnicity, gender, religion, age, disability or sexual orientation.

The judge overseeing the case backed that interpretation of the law before trial.

"This is a case where the defendants deliberately set out to commit a violent crime against a man whom they intentionally selected because of his sexual orientation," wrote state Supreme Court Justice Jill Konviser.

Legal scholars also said the law appears to be on the prosecution's side.

"The issue in the case is, why did they select this guy, as opposed to some other guy? They selected him because he was gay," said Arthur Leonard, a professor at New York Law School who has been following the case. Therefore, he added, it doesn't matter whether they actually hated him or merely thought he would be weak and vulnerable.

Queens prosecutors recently used the hate crimes statute to charge a man accused of trying to defraud several elderly victims - another case that matches the prosecution's theory in Fortunato's trial that the victim was chosen because he was easy prey.

One legal expert said it wouldn't be unheard of for a gay person to lash out in hatred at another gay person.

Research has suggested that at least some violent gay bashing is committed by people who are sexually confused themselves, said Ruthann Robson, a professor at the City University of New York School of Law whose specialties include gay sexuality and the law.

"It's self-hatred," Robson said. "That doesn't meant that they should be allowed to act out and hurt other people because they are confused about their sexuality."

Fortunato and one of his co-defendants, John Fox, are charged with a range of crimes. Closing arguments at their trial were scheduled for Wednesday and Thursday.

Jurors could convict them of murder or the lesser charge of manslaughter, or of only robbery and assault. On each count, the jury also has the option of convicting the pair of a hate crime, which would enhance any prison sentence, especially on the lesser charges. They face at least 25 years to life in prison if convicted of murder.

Another man accused of participating in the attack, Ilye Shurov, is to be tried separately. A fourth man, Gary Timmins, who was 16 at the time of the killing, pleaded guilty to attempted robbery and testified for prosecutors.

[Alecto]

Anyone catch that 60 Minutes about the Matthew Shepard case? I was wondering when that would pop up again. :-/

[Daniel]

Originally Posted by BrentRichards

Sigh. This is not funny.

Brent- You are right. It's not funny.

I've been reading about this case this past week. The man who was killed met the perpetrators online- and was looking for a hookup. And you know what? He left and came back a second time. Does that mean he deserved to be robbed and killed? No. It just means that his desire to have sex may have overwhelmed his common sense.

I agree with the prosecutors- whether one of the assailants is gay or not is irrelevant. It's the intention to rob a gay person which is at issue- he was considered an easy mark.

The defendant was cross-examined yesterday...

http://www.nytimes.com/2007/10/03/ny...=1&oref=slogin

Yesterday he faced questions from Anna-Sigga Nicolazzi, an assistant district attorney with an encyclopedic memory and an admiration for the TV prosecutor Jack McCoy. In the courtrooms of the real world, where defense lawyers rarely let their clients testify, opportunities for such confrontations are few. Ms. Nicolazzi wasted little time.

Working from a typed outline organized by category, she asked yes-or-no questions and cut off elaboration. Over and over, she confronted Mr. Fortunato with his own words, taken from direct testimony and online messages, asking, “That was another lie, yes or no?”

Mr. Fortunato watched her ask each question, then turned to the jury. As Ms. Nicolazzi led him through a binary narrative of the attack, he began to contest small details, to change the subject and to resort to sarcasm.

I can tell you one thing from having sat on three juries, sarcasm by a witness or a defendant is not only stupid, but fatal.

One gets the impression that the defense is straining the bounds of believability.

http://www.nytimes.com/2007/09/20/ny...ime.html?fta=y

New York
Brooklyn: Computer Messages in Trial

By MICHAEL BRICK
Published: September 20, 2007
Jurors in the trial of two men charged with murder as a hate crime saw transcripts yesterday of computer instant messages between the suspects and the victim. Prosecutors in State Supreme Court are trying to prove that the defendants, John Fox, 20, and Anthony Fortunato, 21, lured a gay man, Michael J. Sandy, 29, of Williamsburg, to a remote spot in Sheepshead Bay by pretending that the meeting was for a sexual encounter. Once there, prosecutors claim, Mr. Sandy fled and was hit by a car. Mr. Fortunato’s lawyer, Gerald J. Di Chiara, has said that his client is also gay and that the encounter was planned not as a robbery but as a misguided attempt to reveal Mr. Fortunato’s homosexuality to his friends.

Mr. Sandy may indeed be gay. But if I was a juror in this case, I wouldn't believe the logic of his defense.

[u-dog]

Its how "Law" is made. the legislating and voting is just the first step. then the law goes through years -- often generations -- of being refined by experience before judges and juries and then by new legislation and more experience and more litigation.

What happend to Michael is heinous! The hash that has been made of Mr. Fortunato's young life (especially if he is gay) is tragic. The baffoonery of Fortunato's lawyers is pathetic... But the process by which a society built on the rule of law shapes itself over the course of time? That's fascinating... and very cool.

[paul]

Here it is for everyone to see, in the court system: The irony that results from being gay in a repressive society. Anthony committed two hate crimes. One against Michael and one against himself.

Brent, I imagine you come in contact with this phenomenom daily in your life's work? The abused becomes the abuser.

The ignorant wonder why we have gay "pride" parades, have rainbow flags and equal signs. Until being gay is just as mainstream, just as "normal" as being straight, society will maintain the environment that fosters and promotes hate.