HATE CRIME A Prosecutor

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HATE CRIMEA Prosecutors Guide

• Presented by
• Governors Commission on Discrimination Hate
  Crimes
• Illinois Attorney General Jim Ryan
• Peoria County States Attorney Kevin W. Lyons
• Cook County States Attorney Richard A. Devine

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Cook County States Attorney Office Procedure

• All cases are vertically prosecuted in Community
  Prosecutions Division
• Notification to Supervisor and/or Deputy
  Supervisor of the Community Prosecution Division
• In each suburban district a designated Assistant
  States Attorney is responsible for notifying
  Supervisor and/or Deputy Supervisor of Community
  Prosecutions Division

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Approval and Tracking of Hate Crime Cases

• Felony Review
• Felonies
• Rejected felonies-misdemeanors
• Re-Review of rejected Cases
• Preliminary Hearings/Grand Jury
• Disposition
• Record Keeping

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Victims Rights and Civil Remedies

• Designated Victim Witness Specialist
• Notification to Victim of Their rights to pursue
  civil remedies- referrals
• Illinois Crime Victims Compensation Act

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Special Services

• Meaningful Community Service placement for hate
  crime offenders to include sensitivity training
• Increase in partnerships with victim service
  providers
• Police Training

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The Illinois Hate Crime Statute (720 ILCS
5/12-7.1)

• Enumerated misdemeanors become chargeable as
  Class 4 felonies
• First offense-Class 4 subsequent offenses are
  Class 2 felonies
• When committed by reason of the actual or
  perceived race, religion, national origin, sexual
  orientation physical or mental disability or
  gender
• When probation is imposed, mandatory community
  service minimum 200 hours

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Aggravated Factors/Extended Term Sentences

• If an offender is convicted of a felony or
  felonies other than hate crime, the States
  Attorneys Office can argue for a longer sentence
  because the crimes were motivated by the same
  factors, plus age.
• The bias can only be used once,either by charging
  hate crime or in aggravation at sentencing,
  because of double enhancement.

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Enumerated Misdemeanors

• Assault
• Battery
• Theft
• Criminal damage to property
• Criminal trespass to vehicle
• Telephone Harassment
• Disorderly Conduct
• Mob Action

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First Amendments Challenges

• R.A.V. v. City of St. Paul
• Wisconsin v. Mitchell

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Legal Issues

• Actual or perceived
• Mixed motives
• Association
• Accountability
• Dont have to prove actual hate or prejudice by
  reason of
• Defendant can be convicted of crime against group
  that he/she belongs to (in re B.C.)

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Pretrial Procedures in Hate-Motivated Cases

• Work closely with police investigators and offer
  guidance to help build the case
• Charge must be worded to indicate relationship
  between the hate crime and the predicate offense
• Ensure he safety of victims and witnesses

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REVIEWING AND FILING CHARGES
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Investigation

• Checklist of questions to ask.
• Did the offender(s) use words, symbols or acts
  that are may be offensive to an identifiable
  groups?
• 2. Are the victim and offender members of
  different racial or ethnic groups? If so, has
  there been past hostility or tension between
  these two groups? Has the victims group been
  subject to prior similar criminal acts or
  harassment?
• 3. Is the victim the sole member of his or her
  group, or one of a small number of members living
  or present in the neighborhood where the crime
  occurred?

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• 4. Has the victim recently moved to the area in
  which the incident took place?
• 5. Does the incident appear timed to coincide
  with any holiday or observance of significance to
  a certain group or community, such as a religious
  holiday or ethnic celebration?
• 6. Has the victim or the victims group been
  involved in recent public or political activity
  that makes the group a likely victim of
  hate-motivated violence?

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• 7. Does the offender appear to belong to or does
  the manner of the commission of the crime appear
  to involve an organized hate group such as the Ku
  Klux Klan or a Neo-Nazi organization? When the
  offender is wearing clothing that indicates
  membership in such a group, the arresting agency
  should seize the clothing as evidence. If the
  offender has tattoos indicating such an
  affiliation, photos of the tattoos should be
  taken at the time of charging.
• 8. Does the defendant, in a post-arrest interview
  or in statements made before of or during the
  commission of the crime, recognize the victim to
  be a member of a potential target group?

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• 9. Has there been recent news coverage or media
  exposure of similar events?
• 10. Does the defendant have a prior history
  involving hate-motivated conduct?
• 11. Is the attack particularly vicious?

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Victims have anxiety about filing a complaint
alleging bias on the part of their attacker
because

• not aware that the bias-motivation will affect
  the charges
• fear retaliation
• fear of discovery

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Defining Offender Motivation, Not Victim Status

• Motivation is an element of a hate crime which
  must be proved beyond a reasonable doubt
• Proof may be direct or circumstantial

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• Statutory requirement that the predicate offense
  be committed by reason of the ....will be
  satisfied where the crime is so motivated in
  whole or in part
• Statute criminalizes the selection of victims
  based on specified criteria and covers both the
  actual or perceived status of the victim

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Hate Crime charge in the indictment or
information should describe the elements of the
predicate offense as well as the hate motivation
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• The defendant committed the offense of _____ by
  reason of the victims actual or perceived
  _______ status
• Hate crime can be committed against persons
  because of their actual or perceived affiliation
  with persons in the classes protected by the
  statute

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Reluctant Victims and Witnesses

• Fear retaliation for bringing charges
• Humiliating publicity
• Indifference or
• Punishment from law enforcement officials
• Reluctance to prosecute can be overcome
• Community groups as a resource

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Filing Multiple Charges

• Additional counts and charges should be added
  with a more serious felony, prosecutor should
  approve both charges

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PRETRIAL RELEASE
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Bond Hearings

• Hate motivation for the defendants conduct must
  be brought to the attention of the judge
• Impose special conditions of bond
• Give to the victim

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Bail Requests

• Factors in seeking a substantial bond
•  
• The highly motivated offender is likely to repeat
  the conduct

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• The hate-motivated crime is in every sense a
  crime against the well-being of the entire
  community and warrants detention of any violent
  offender
• 725 ILCS 5/110-5(a) specifically states that
  whether the offense was based on racial,
  religious, sexual orientation or ethnic hatred
  is a matter that the court is to consider in
  determining bail or conditions of release

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TRIAL ATTORNEYS
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Contact and Support of the Victim and Witnesses

• involve the victim
• Victim-witness specialists

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Assuring the Safety of Victims and Witnesses

• Conditions of Bond and Orders of Protection
• Police Protection and Relocation of Victims

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Knowledge of the Hate Crime Statute

• Limited experience prosecutors and judges

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COURTROOM STRATEGIES
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Pretrial Motions and Preparation

• Motions (essentially the same as those in any
  felony case) there are three notable exceptions
• Suppress testimony or evidence regarding
  motivation along First Amendment lines
• Suppress the same by arguing a lack of
  sufficiency for the searches that uncovered such
  evidence
• Venue

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Prosecution is for violations of the criminal
code with a prohibited motive
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Preparations of Witnesses

• Standard trial preparation techniques used for
  any important felony case will apply with certain
  caveats
• Police witnesses
• Victim comes from an unpopular group

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Standard of Proof in Hate Crime Cases

• Each element of a hate crime must be proved
  beyond a reasonable doubt. A prosecutor need not
  establish that the defendants bias was the sole
  motivation for the offenses.

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Mixed Motive Cases

• Causation but for, a hate crime can be charged
  even if the underlying offense resulted from a
  mixture of discriminatory and nondiscriminatory
  motives.
• Premeditation is not a requirement under the hate
  crime statute.

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Other Crimes Used as Evidence

• Evidence of a prior act or offense is
  admissible if it is relevant to show motive,
  knowledge, intent, identity, absence of mistake
  or accident, common scheme, plan or design or
  modus operandi.

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Accountability

• Active participation in an offense is not a
  prerequisite to establishing accountability
• Words of agreement are not essential to establish
  a common purpose to commit a crime
• Evidence regarding the events surrounding and
  following the commission of the crime is
  competent to show participation in the crime
  itself

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• Defendant voluntarily and knowingly attached
  himself to a group bent on illegal acts supports
  the inference that he shared the common purpose
  and will sustain a conviction based on
  accountability principles
• Irrelevant that the defendant may not have
  intended to commit the particular crime with
  which he was charged

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JURY TRIALS
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Jury Selection

• In camera individual voir dire may be advisable.
• Ask Are you prejudiced against ______ people?
  When the defendants section in a case is
  directed against a group of people who are either
  generally or temporarily unpopular.

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Trial Issues

• Both hate crime and other felonies have been
  charges, go to trial on all charges or dismiss
  the hate crime or other charges

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COMMUNITY RELATIONS
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Community Representatives can be helpful by
providing the following services

• Locating witnesses and encouraging them to come
  forward.
• Locating victims.
• Emotional support to victims.
• Acting as informal interpreters during pretrial
  interviews and determining the effectiveness of
  the court-appointed interpreters.

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• Acting as expert witnesses at the sentencing
  hearing.
• Identifying significant dates relevant to
  premeditation of the perpetrator.
•   
• Informing prosecutors of other relevant
  information.