Nov 13, 2009  |  By: Lou Chibbaro Jr.  | COMMENTS     

A prosecutor with the U.S. Attorney’s office defended last week his handling of a gay-related murder case before an audience of LGBT activists who questioned the government’s decision to charge the defendant with a misdemeanor assault rather than murder.

Assistant U.S. Attorney Kevin Flynn, a 20-year veteran prosecutor specializing in homicide cases, startled some of the activists at the Nov. 5 forum organized by Gays & Lesbians Opposing Violence when he said the “system worked” in the case of gay beating death victim Tony Randolph Hunter.

Flynn also elicited anger and disbelief from the forum’s participants when he acknowledged that he had never heard of the “gay panic” defense.

Gay rights attorneys say defendants accused of murdering or assaulting gay men have used the panic defense for years. The defense entails defendants saying they acted in self-defense in response to an alleged unwanted sexual proposition from the victim.

Police said Hunter died in September 2008 from a brain injury he received after defendant Robert Hannah punched him during what police called an “altercation” that took place in D.C. at Eighth and N streets, N.W. Hunter and a friend were walking to a nearby gay bar at the time. Police said the punch knocked Hunter against a fence, causing him to fall backwards and hit his head on the pavement, inflicting a fatal head injury.

Hannah told police he hit Hunter after Hunter grabbed his crotch and butt. Hunter’s friend, who was with him during the incident, told gay activists and the Blade that Hunter never touched Hannah and that the attack was unprovoked.

Activists complained that police and prosecutors appear to have accepted Hannah’s claim about the alleged touching, which activists called a brazen use of the gay panic defense to get away with murdering a gay person.

GLOV co-chair Chris Farris told the forum that he believes the Hunter incident was an anti-gay hate crime that police and prosecutors failed to recognize.

Flynn said a second witness that prosecutors deemed credible substantiated Hannah’s claim that Hunter touched Hannah as the two men crossed paths on the street. Flynn reiterated the government’s assertion in a sentencing memorandum released in October that Tony Hunter’s friend was an unreliable witness who repeatedly contradicted himself.

“At the end of the day, he was unable to provide reliable information about anything,” Flynn said of Hunter’s friend, who prosecutors described in court papers as Witness 1.

Flynn noted that the sentencing memorandum called for the maximum penalty of six months in prison for Hannah, who pleaded guilty to misdemeanor assault. Based on evidence presented by prosecutors, a Superior Court grand jury reduced the charge from involuntary manslaughter, which carries a maximum sentence of 30 years in prison.

Flynn said prosecutors faced insurmountable hurtles in the case even though police and prosecutors worked diligently for more than a year to find witnesses and obtain as much credible evidence as they could to build a possible murder or manslaughter case against Hannah.

“It was a painstaking decision,” he said, noting that misdemeanor assault was the only option available to prosecutors.

“The system worked in this case,” he said. “It did not fail.”

Four other assistant U.S. Attorneys and two D.C. police officials, including Sgt. Carlos Mejia, commander of the police Gay & Lesbian Liaison Unit, accompanied Flynn at the GLOV forum.

One of the assistant U.S. Attorneys, Albert Herring, said his office is sensitive to the concerns of local LGBT residents and that his staff includes gay prosecutors, although he did not know if they are out as gay in the office.

‘You believe that lie’

Flynn’s comments that he had not heard of the gay panic defense and that Tony Hunter’s friend was an unreliable witness prompted criticisms and questions from members of the audience.

“I don’t buy it,” said David Mariner, executive director of the D.C. Center, referring to the claim that Hunter’s friend was an unreliable witness.

Mariner and others attending the forum recounted how they watched and listened to testimony before a D.C. City Council hearing last December as the friend described what happened the night Hunter was assaulted. The friend has requested that his name be withheld out of concern for possible retaliation.

“Many of us heard [the friend] say the groping did not happen,” Mariner said. “I believe what he said. I heard him say it from his own mouth.”

Another, unidentified man in the audience said he found it “a little shocking” that Flynn did not know of the gay panic defense.

“We have heard about it for years,” said the man. “This is what brings out the deep seated distrust we ...