O.C. Conviction of Cross Burner Survives Appeal

A federal appeals court on Friday upheld the conviction and authorized a longer prison term for an Orange County man in the burning of a wooden cross in the yard of a neighboring black family.

The U.S. 9th Circuit Court of Appeals held that the 37-month term imposed on Gary A. Skillman of Westminster--the harshest the trial judge thought he could impose--could be expanded to 46 months under federal sentencing guidelines.

The ruling came in a case that caused widespread concern over community racial tensions and sparked new efforts to improve race relations. In the wake of the incident, county officials sponsored Harmony Festival, an event that drew 2,000 ethnically diverse participants, and organized neighborhood support groups to respond to racial or religiously motivated violence.

In the decision, the appeals panel rejected a series of legal claims by Skillman--among others, the contention that evidence of his association with local “skinheads,” young, self-described racists with shaved heads, was unfairly prejudicial and should not have been used against him.

While there was no proof Skillman was a member of such a group, the court said, testimony of his interest in their activities was properly admitted. “The skinhead evidence tended to establish Skillman’s racial animus and that he might act on his beliefs,” Judge Procter Hug Jr. wrote in an opinion joined by Judges Mary M. Schroeder and Cynthia Holcomb Hall.

The panel also upheld the use as evidence of a punctured paper target of a running black male and a brown paper bag inscribed with a swastika--both of which were found by police in Skillman’s garage the morning of the incident.

Skillman, 24, was charged by federal authorities with conspiracy and violating civil rights for his role in the July, 1988, cross burning at the home of Alvin Heisser, former president of the Orange County chapter of the National Assn. for the Advancement of Colored People. Government prosecutors said Skillman plotted with other youths to erect and ignite the 4-foot cross in the predawn hours.

A federal court jury in Santa Ana returned a guilty verdict after deliberating less than 15 minutes. U.S. District Judge J. Spencer Letts, denouncing the crime as a blatant example of racial bigotry, sentenced Skillman to 37 months in prison--what the judge believed was the maximum under the complex revised federal standards adopted in 1984.

But in Friday’s ruling, the appellate panel upheld government contentions that the sentence incorrectly gave Skillman credit for accepting “personal responsibility” in the crime. In fact, Skillman invoked his right not to testify and, even after his conviction, gave “no indication of contrition,” the court said.

While those who remain silent and are convicted may obtain such credit, they are not automatically entitled to a sentence reduction, the panel said. “It would be a strange result if the mere assertion of the Fifth Amendment right to remain silent would be a guarantee . . . of a more lenient sentence,” Hug wrote.

The court, upholding Skillman’s conviction, remanded the case to Judge Letts to reconsider the sentence.

In Santa Ana, H. Dean Steward, directing attorney for federal public defenders in Orange County, expressed disappointment with the ruling and pointed out that Skillman’s punishment was already about three times the average for such offenses.

“The sentence is in fact very harsh compared with most given,” Steward said. “ . . . Another nine months borders on the outrageous. You’ve got to bear in mind that there was no one injured here, no property damage. I don’t make light of the effect on the family, but fair is fair.”

Federal prosecutors were not available for comment. A spokeswoman for the Justice Department in Washington noted that Atty. Gen. Dick Thornburgh supported stiffer penalties for such crimes as cross burning. “The psychological trauma and distress caused by this kind of conduct is a disgrace to our society, and the Department of Justice is committed to the enforcement of civil rights laws,” the spokeswoman said.

Times staff writer Sonni Efron in Orange County contributed to this report.