By LOU CHIBBARO JR, Washington Blade
Nov 9 2009, 11:02 AM |
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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 so-called 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 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 is 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 one 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. LGBT Community Center, referring to the claim that Hunter’s friend was an unreliable witness.
Mariner and other people 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 have.”
Transgender activist Jeri Hughes told Flynn that his stated unfamiliarity with the gay panic defense appeared to have played a part in his acceptance of Hannah’s claim that he punched Hunter in self-defense after Hunter touched his genitals.
“It seems like you believe that lie, that Tony Hunter fondled that guy,” Hughes said.
But Flynn noted that in addition to the unreliability of Hunter’s friend as a witness, the D.C. medical examiner’s autopsy showed that Hunter was intoxicated. Flynn pointed to the medical examiner’s assessment that the fatal blow to Hunter’s head came from his fall backwards, not from the two or three punches he received from Hannah.
Flynn said the medical examiner concluded that Hunter’s state of intoxication most likely prevented him from catching his balance and preventing the backward fall, noting that the medical examiner described such a fall as typical of “bar stool” falls in saloons.
Flynn said the report of intoxication would have made it highly unlikely that a manslaughter charge would have resulted in Hannah’s conviction if the case went to trial, even if the “touching” allegation had not surfaced.
While noting he had not heard of the gay panic defense as a legal concept, Flynn said he would never give credence to such a defense and would take steps to rebut it at a trial.
Farris said the government’s biggest shortcoming in the Hunter case was to have rejected from the beginning GLOV’s theory that Hannah and the three or four young men with him on the night of the assault targeted Hunter and his friend for an anti-gay assault.
Farris and other local activists have said the nearby gay bar, then called BeBar, was well known by residents in the neighborhood, with whom Hannah hung out.
“The touching claim has no credibility,” Farris said. “So if you take away the touching, the only thing you have left is a hate crime, pure and simple.”
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