Disorder in the Courts

Last April, the Supreme Court decided a question that had ignited legal debate for decades: Can cross-burners be punished without violating their rights to free expression? In Virginia v. Black, the Court said yes.

But it didn't take long for lower courts to move on to another quandary: How much time should a cross-burner serve?

In December, a panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago upheld — just barely — a stiff 22-year sentence given to first-time offender James Colvin, who burned a cross at the home of a Puerto Rican man in Indiana. Colvin had been charged under a federal statute, 42 USC 3631, that punishes anyone who interferes with housing rights on the basis of race.

The statute includes an enhancement that makes it a felony, punishable up to 10 years in prison, to use fire to commit such a housing violation. On top of that 10-year enhancement, Colvin was convicted under a separate statute that adds another 10 years for using fire in a federal felony.

The appeals court upheld Colvin's sentence by the narrowest of margins, 6-5, after debating whether it violated the Constitution's protection against double jeopardy. United States v. Colvin,, 353f.3d569 (7thcir. 2003).

Meanwhile, the U.S. Justice Department was appealing a starkly different sentence given to a cross-burner in Gastonia, N.C. Convicted in 1999 of a cross-burning near the house of an interracial couple, Robert Nelson May was sentenced to just one month in jail, with probation and house arrest, rather than the expected 12 to 18 months. Because he'd already served his month in jail while awaiting trial, May was set free after sentencing.

Among the reasons for his unusual lenience, the judge cited provocation by a victim. The government appears to be especially concerned with the idea that a hate-crime victim's provocation can be the basis for such leniency, and it appealed May's sentence in January to the U.S. Court of Appeals for the Fourth Circuit. United States v. May, No. 03-4589 (4th Cir. 2004).

This March, the appeals court rejected the district court's sentence and the notion that a victim could provoke a cross-burning. May is awaiting resentencing.

The disagreements over how to punish cross-burning were typical of a year in which a number of significant cases involving hate crimes and extremist activity bounced around the courts — often with murky results.

Tattoos In, Hoods Out
In February, New York state's highest court ruled that tattoos are admissible evidence in a hate-crime trial. The inked body in question was that of Long Island resident Christopher Slavin, who teamed with a buddy in September 2000 to lure two Mexican day-laborers to an abandoned warehouse. Slavin and his friend had promised the immigrants work; instead, they beat them nearly to death.

Over Slavin's objections, photographs of his tattoos were admitted into evidence at trial, along with an expert's analysis of their meaning. The tattoos bore an array of damning images: swastikas, Celtic crosses, lightning bolts, skulls, the motto "ACAB" (All Cops Are Bastards), and a skinhead kicking a kneeling man wearing a Jewish skullcap, among others. Slavin was sentenced to 25 years to life for attempted murder, assault and a hate crime.

The state's highest court, the Appellate Division of the Court of Appeals, upheld the sentence, rejecting arguments that the tattoo evidence violated Slavin's Fourth Amendment privacy rights and his Fifth Amendment privilege against compelled self-incrimination. People v. Slavin, NY Ct. of Appeals (2004 N.Y. LEXIS 180)

A month before the tattoo ruling, the U.S. Court of Appeals for the Second Circuit reversed a lower court and upheld New York's anti-masking law. The statute, which dates back to 1845, outlaws non-theatrical uses of masks to disguise a person's identity in public, with only limited exceptions.

In 1999, the American Knights of the Ku Klux Klan discovered that a rally they were planning in New York City would not be considered one of those "limited exceptions." Though the Knights won a preliminary injunction allowing them to wear their hoods, they ended up demonstrating without them after authorities appealed.

After the rally, the Knights prevailed in federal district court, which ruled that the law impermissably punished viewpoint and anonymous expression in violation of the First Amendment. The Court of Appeals reversed that decision in January, finding there was no viewpoint discrimination because the restrictions covered all kinds of protesters. American Knights of the Ku Klux Klan v. Kerick (2004 U.S. APP. LEXIS 769)

The Twisted Case of Lemrick Nelson
After more than a decade of legal wrangling, one of New York City's most controversial hate-crime cases sputtered to a confusing end in 2003. It all began with a riot that erupted on Aug. 19, 1991, after a black child was killed by a rabbi's motorcade.

Sixteen-year-old Lemrick Nelson, who is black, joined a Crown Heights mob that fell on Yankel Rosenbaum, an innocent 29-year-old Jewish scholar, shouting, "There's a Jew, get the Jew." Nelson was arrested for stabbing Rosenbaum, who died hours later after a misdiagnosis.

The evidence seemed solid: Nelson was caught fleeing the scene and was identified by the victim, and police found a bloody knife in his pocket that had DNA consistent with Rosenbaum's. He also confessed twice to police. But a state court jury acquitted him of murder.

Some observers speculated that the racial composition of the jury — six blacks, four Hispanics and two whites — may have played a role in the outcome. Fueling that speculation, 11 of the jurors went to dinner with the defendant and his lawyers after the verdict.

The outcome was different when Nelson was retried in federal court in 1997 on a criminal civil rights charge. New evidence was introduced, including photographs and a post-acquittal confession Nelson made to a girlfriend, and a jury consisting of three blacks, four Hispanics and five whites (including two Jews) sentenced him to almost 20 years in prison.

That wasn't the end of it. In 2002, Nelson's conviction was overturned by a federal appeals court because two jurors had been selected out of order — in a mutually agreed-upon effort to diversify the jury.

Finally, in a retrial last year, Nelson admitted to the attack in court, but denied other elements necessary to sustain the civil-rights charge. The jury apparently deadlocked over whether the stabbing caused Rosenbaum's death, even though the judge had blocked any evidence of intervening medical malpractice.

Because of the deadlock, Nelson was sentenced to the maximum of 10 years — most of which he had already served. He could be released from prison later this year.

In one final twist, the jury forewoman admitted in a post-trial newspaper interview that she had improperly considered out-of-court evidence relating to Rosenbaum's medical treatment.

Brian Levin is an associate professor of criminal justice at California State University San Bernardino, where he serves as director of the Center for the Study of Hate & Extremism.