Lombard Victims of Heinous Hate Crimes: Unique Approaches For A Unique Type of Crime--Prosecuting Hate Crimes

Civil Rights Prosecutions: Hate Crimes Unique Approaches for a Unique Type of Crime: Prosecuting Hate Crimes by Benjamin B. Wagner, U.S. Attorney for the Eastern District of California Crimes motivated by hatred, whether directed at the victim because of that person’s actual or perceived race, ethnicity, religion, or sexual orientation, can have a disproportionate impact on communities and pose unique challenges for investigators and prosecutors. Understanding those challenges is critical to effectively preventing and prosecuting hate crimes. Some studies have indicated that assaults motivated by hatred are more violent, and more likely to result in serious injury to the victim, than other types of assaults. That is particularly so with respect to victims in the lesbian, gay, bisexual, and transgender (LGBT) community. Studies have also shown that most hate crimes are carried out by persons who do not know their victim, and that the victims are selected based on how they are perceived rather than something they said or did. The arbitrary manner in which victims are targeted in hate crimes can be profoundly unsettling, because victims can do nothing to change their appearance or how their characteristics are perceived by others. Hate crimes also have a much broader impact within communities than many other types of violent crimes or property crimes. Because they are motivated by bias, hate crimes are often intended to, and do, send a broader message of violent intolerance toward a broad class of persons. Like terrorist incidents, the “message” aspect of the offender’s motive can be profoundly threatening to people far removed from the actual scene of the crime. The fact that the victims of such crimes are selected based on characteristics such as their race or religion can cause all those in the community who share that characteristic to experience similar feelings of vulnerability and secondary victimization. In its impact on the community, the fear of becoming a victim of violence can be nearly as debilitating as suffering through an actual crime. The message of intolerance that is communicated through a hate crime can have broadly disruptive social effects as well, and can lead to greater distrust of law enforcement or friction between racial or religious communities. Investigating and prosecuting hate crimes is a challenge. Victims are often afraid to come forward or lack the confidence that law enforcement will vigorously pursue the offenders. Some victims are reluctant to acknowledge their sexual orientation or immigration status to law enforcement. There may be cultural or linguistic impediments to effective cooperation with law enforcement. Because establishing motive is a key aspect to proving the crime, investigations often must range far beyond the criminal act itself to locate evidence relevant to the defendant’s state of mind before and during the crime. In late 2009, the first significant new federal hate crimes legislation in many years was signed into law by President Obama. The Shepard Byrd Hate Crimes Prevention Act increased penalties for violent hate crimes, broadened and simplified federal jurisdiction, and for the first time recognized certain violent acts directed at individuals because of their actual or perceived sexual orientation as federal hate crimes. The Shepard Byrd Act provides investigators and prosecutors with important new tools to deploy against hate crimes. Before the passage of the Shepard Byrd Hate Crimes Prevention Act in October 2009, there was no single federal hate crime statute, and prosecutions were based on a variety of civil rights statutes or other violent crime statutes. The scope of federal jurisdiction under some of these statutes was often unclear and, as a result, hate crime prosecutions frequently involved extensive litigation regarding collateral jurisdictional elements. For example, in a case prosecuted in the Eastern District of California in the 1990s that involved a racially-motivated assault at a 7-11 store, the case went to the Ninth Circuit Court of Appeals on the issue of whether the 7-11, because of the presence of video games in the store, was technically a “place of entertainment,” as defined in Section 245 of Title 18–a civil rights statute that covers certain bias-motivated conduct that occurs in hotels, restaurants and other places involving in interstate commerce. It is difficult to determine whether the actual number of hate crimes is increasing or decreasing. According to FBI statistics for 2009, the most recent year for which full data has been released, the number of hate crimes reported by state and local law enforcement agencies to the FBI was down slightly in 2009 from 2008. This is good news, but hate crimes are notoriously under-reported, which makes small changes in statistics a less than reliable indicator. In addition to reluctance by many victims to report hate crimes for the reasons mentioned above, some law enforcement agencies do not report crime data at all to the FBI, or do not effectively report separately on hate crimes. Hate crimes are defined differently from state to state, which also affects reporting to the FBI. Some states include crimes motivated by the victim’s perceived sexual orientation, for example, and others do not. Finally, because a hate crime by definition involves a conclusion as to the motive of the perpetrator, many crimes in which the perpetrator cannot be found, or his motive cannot be established based on the facts of the incident itself, are not reported as hate crimes. We do know, however, that hate crimes continue to be a major problem, and that they tend to increase when the political or social environment becomes emotionally charged in ways that can be associated with particular communities. After the tragedy of 9/11, for example, there was a spike in reported hate crimes targeting Muslim Americans and Sikh Americans (who are often mistaken for Muslims). In recent years, amid considerable acrimony in debates over immigration and related state legislation, there has been an increase in reported hate crimes against Latinos. The Southern Poverty Law Center counted 1,002 active hate groups in the United States in 2010. Many of these groups use the Internet to promote their extremist ideologies, and to extol those who commit or advocate acts of violence. The U.S. Attorneys’ offices have long been active in prosecuting hate crimes, together with our partners in the Department’s Civil Rights Division. As an Assistant U.S. Attorney prior to becoming the U.S. Attorney for the Eastern District of California, I prosecuted cross-burning cases, a case involving arson attacks on synagogues in Sacramento, and other civil rights matters. But more is being done now than ever before to combat hate crimes. Prosecuting hate crimes is one of the highest priorities in the Justice Department, and this emphasis has been reflected by the work being done in the U.S. Attorneys’ offices. A number of offices have established new units consisting of prosecutors dedicated to civil rights and hate crime prosecutions. In the Eastern District of California, we have appointed hate crime coordinators in both of our offices, and have recently prosecuted several violent hate crimes, including an incident in which a young south Asian couple was assaulted on a beach in South Lake Tahoe, and another in which an African American man was suddenly attacked and beaten without provocation in a bar in Chico. The defendants in both cases were convicted and sentenced to prison. Our office is currently prosecuting a man who is alleged to have vandalized a mosque and left threatening messages there. To win the trust of victims and their communities, which is critical to the success of hate crime prosecutions, several U.S. Attorneys are engaged in active outreach efforts involving Muslim and south Asian communities, the Latino community, and others. To build more effective coalitions with local law enforcement and relevant communities to better prevent and prosecute hate crimes, and to ameliorate the effects of such crimes on both the direct victims and the affected communities, U.S. Attorneys in multiple districts have held hate crime summits and conferences to share information and best practices, to discuss victims’ rights, and to provide training for local agents and prosecutors. In the Eastern District of California, we have long had a Greater Sacramento Hate Crimes Task Force, which regularly brings federal and local law enforcement representatives together with community representatives and civic organizations to share information and address community concerns. A second hate crimes task force was recently constituted in the Fresno area. Investigating and prosecuting hate crimes poses unique challenges, but these challenges are better understood now than ever before. With greater experience, new statutory tools, and an unshakable commitment to seeking justice for victims of hate crimes, the U.S. Attorneys’ offices will continue to be at the forefront of the struggle against hate crimes. Achievements in Courtrooms Nationwide Arkansas Men Convicted of Hate Crime Violations Under Newly Enacted Shepard/Byrd Hate Crimes Prevention Act of 2009 Western District of Arkansas A Western District of Arkansas jury convicted Frankie Maybee, 20, in the first case in the nation tried under the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act of 2009. Maybee was convicted by a jury in May 2011 of five counts of violating 18 U.S.C. 249(a)(1) and (2), willfully causing bodily injury with a dangerous weapon because of the actual and perceived race and national origin of five Hispanic victims, and aiding abetting the commission of that crime; and one count of violating 18 U.S.C. 371, conspiracy to commit hate crimes. Maybee’s co-conspirator and co-defendant, Sean Popejoy, 19, pled guilty the day before the trial to one count of conspiracy and one count of 18 U.S.C. 249(a)(1). Both men are in custody pending sentencing. In June 2010, Maybee, Popejoy and another Arkansas man observed five Hispanic males at a gas station in Alpena, Arkansas. Trial testimony revealed the Hispanic men stopped in Alpena for gas while en route to their homes in another part of the state. Popejoy hurled racial epithets at the men while they bought gas and snacks at the gas station. After the victims drove away, Maybee, Popejoy and the third man pursued their vehicle, with Maybee and Popejoy continuously yelling racial slurs. Maybee, the driver, repeatedly rammed the rear of the vehicle the victims were in it, violently forcing their vehicle from the road. The vehicle the victims were in crossed into the opposite lane of traffic, rolled and ejected three passengers before the vehicle erupted in flames. All five victims were injured and one was airlifted to a Level I trauma center in life threatening condition. All five victims survived their serious bodily injuries. A sentencing date has not yet been scheduled. Memphis Man Sentenced to Life for Racially-Motivated Murder; Crime Went Unsolved for Years after Dale Mardis Dismembered and Burned his Victim’s Body Western District of Tennessee Dale Van Mardis was sentenced to life in prison on July 5, 2011, for the 2001 racially-motivated murder of Shelby County Code Enforcement Officer Mickey Wright. Mardis admitted that he executed a helpless Mickey Wright after first shooting and wounding him, then transported Wright’s body from Memphis to northern Mississippi, where he dismembered and burned it. Despite an intense investigation involving local, county, and federal law enforcement officials, the crime initially went unsolved. It was not until July 2004 when Mardis was ultimately identified as the killer. A protracted state prosecution followed and, due to a number of difficulties with witnesses and evidence, Mardis pled nolo contendere in state court and received a fifteen year sentence in April 2007. Wright’s family forcefully opposed the state deal and asked the federal government to review the case. Attorneys from the U.S. Attorney’s Office and the Civil Rights Division joined with FBI investigators and a liaison from the Shelby County Sheriff’s Office to determine if any federal charges were viable. They quickly determined that based on the available facts, the only possible federal charges hinged on a racial motive for the killing. From the outset, the case presented daunting challenges: there were no eyewitnesses to the killing; there was no direct physical or forensic evidence, not even a body; almost all of the potential government witnesses had perjured themselves during the initial investigation; and Dale Mardis had a close relationship with two young African-American men whom he had mentored since childhood. Investigators and prosecutors spent thousands of hours reinvestigating the case and interviewing Dale Mardis’s closest friends, whom Mardis had told about the murder. They also followed dozens of leads and identified a pattern of racial violence and angry confrontations with code enforcement officers in Mardis’s past. Intense grand jury sessions to secure the testimony of key witnesses followed. During the investigation, it was determined that Mardis had become enraged that an African-American code enforcement officer, Mickey Wright, had written him a courtesy citation and ordered him to clean up his car lot. Mardis then shot and wounded Wright while he was sitting in his county-issued vehicle. Wright begged for his life, but Mardis placed the gun to Wright’s head and executed him. Mardis then transported Wright’s body from Tennessee to rural Mississippi. He dismembered and cremated Wright’s remains to conceal his crime. Based on the facts developed and the longstanding federal interest in aggressively prosecuting racially-motivated murders, prosecutors received permission to proceed with a federal prosecution even though there had already been a state prosecution. On January 30, 2008, Mardis was charged in a two-count federal indictment for the racially-motivated killing of Mickey Wright, in violation of 18 U.S.C. § 245, and the use of a firearm to kill Mickey Wright during the commission of that federal crime, in violation of 18 U.S.C. § 924(j). Following the indictment, numerous legal challenges loomed. The defendant vigorously challenged the indictment on double jeopardy grounds because of federal involvement in the initial investigation, but the government prevailed both in the district court and the Sixth Circuit Court of Appeals. The defendant attempted to launch numerous fishing expeditions into the internal decision making process of the Department of Justice but was fended off at every turn. The defendant also filed multiple motions to suppress; he succeeded in convincing the magistrate judge to suppress his post-arrest statement, but the prosecutors convinced the district court judge to reverse and allow the evidence. Over several years, the defendant filed dozens of motions attacking the indictment and the government’s evidence on every possible ground, from asserting that the indictment violated the doctrineof separation of powers due to a congressman’s involvement to attempting to suppress evidence that the defendant tried to hire another inmate to murder witnesses against him. In the face of significant circumstantial evidence arising from a comprehensive investigation, and unable to gain any traction with his legal arguments, the defendant opted to enter a plea of guilty to the civil rights count on the morning of trial, March 21, 2011. The focus of litigation immediately shifted to sentencing, as the plea agreement did not resolve the key issue of whether the killing was first degree murder, second degree murder, or voluntary manslaughter. On the eve of sentencing, prosecutors and investigators made a shocking discovery while meeting with witnesses: in 1998, Dale Mardis had committed another murder. One of the witnesses advised prosecutors that Mardis had murdered an acquaintance, Henry Ackerman, during an argument. The investigators then began searching for any report of the unsolved murder. The Memphis Police Department was not aware of any unsolved murders that fit the description. The agents and prosecutors worked into the night and discovered that Dr. Henry Ackerman, a child psychologist, had lived in Memphis, but had moved out of the area in 1996. After that, Ackerman seemed to have disappeared, never renewing his professional or driver’s licenses and never purchasing property elsewhere in the United States. Later that evening, after tracing various pieces of property, the prosecution team located Ackerman’s sister in New Jersey. She advised that Ackerman had disappeared in 1998 and nobody knew his whereabouts. She said that Ackerman had been renting an apartment in Baltimore, Maryland, but in June 1998 he traveled to Memphis to purchase a vehicle and was never heard from again. The Baltimore Police Department had an open Missing Persons case on Ackerman and traced his path to Memphis, but could not determine what happened to him. Armed with this corroboration for their witnesses, the prosecution team confronted Mardis in prison and secured a confession that he had beaten Henry Ackerman to death with a hammer in a dispute over money. Mardis further confessed that he had taken Ackerman’s body to a rural area in Mississippi and cremated his remains. Ackerman’s fate had been unknown for thirteen years. The prosecutors quickly worked out a new deal in which Mardis would drop his opposition to a federal life sentence and plead guilty to Ackerman’s murder in state court, where he would receive a concurrent life sentence. Throughout the process, the prosecutors and investigators stayed in close contact with Mickey Wright’s family and made a priority of keeping them informed and seeking their input. The Wright family stood beside U.S. Attorney Ed Stanton at a post-sentencing press conference, where Stanton declared that “Justice delayed is not justice denied.” “As the result of a lengthy and aggressive investigation and prosecution by an outstanding team of federal prosecutors and FBI agents, we were able to secure a guilty plea from Dale Mardis on the morning of trial. Today’s plea is the first time Dale Mardis has admitted his responsibility for the senseless murder of Mickey Wright. I am hopeful his admission of guilt today brings some sense of closure to the Wright family and to our community,” said Stanton. “This office will continue to work vigorously to ensure that justice is served by arguing for a life sentence without parole at the sentencing hearing.” Solving these crimes gave not only the victims’ families closure, but brought closure to a community that had been enraged that a racially-charged murder would only result in approximately 10 years of real prison time after Mardis’s guilty plea in state court. The federal prosecution also protected future generations by ensuring that a serial killer would no longer walk the streets.