Retrial Denied for Marine Convicted of Hate Crime

A 20-year-old black Marine who was convicted in November of committing a racial hate crime--and then asked for a new trial because the jury foreman said race wasn’t a factor in the jury’s deliberations--was denied his request Thursday.

The conviction was the first of its type in North County, the San Diego County district attorney’s office said, invoking a section of the criminal code that specifically calls for the prosecution of assault motivated by racial bigotry.

The defendant, Derick Branch, was found guilty by a Vista Municipal Court jury of misdemeanor assault on a white Marine who wanted to buy cigarettes at an Oceanside liquor store.

Witnesses said someone in the store’s parking lot remarked, “This is a black store, a blood store, and white boys aren’t allowed here.” Branch then punched the victim in the face, according to testimony at his trial.

The request for a retrial was prompted by remarks by jury foreman Nick Stanger after the trial that were published in The Times.

He said, “We never brought up that phrase, ‘racial hate crime’ (during the deliberations). We didn’t think of race or hate as an element. It was that one individual’s stated purpose to buy a pack of cigarettes, and he was not allowed to do that.

“Part of that (violation of civil rights) has to be for a reason--by race--and we felt that those elements were there,” Stanger said.

Defense attorney Robert James argued Thursday in court that Stanger’s remarks that “we didn’t think of race or hate as an element” suggested the jury didn’t properly follow its instructions to identify racial bigotry.

But Superior Court Judge Harley Earwicker, who presided over the first trial, said Stanger’s comments--even assuming he was quoted accurately--were ambiguous.

The comments, the judge said, “can be interpreted two different ways. . . . There are two possible ways of interpreting the use of the word ‘race.’ ”

One interpretation, Earwicker said, was that the jury itself wasn’t racist in reaching its verdict.

“We assume the jury follows the law as given to them” in finding that the requisite components of a crime are present before reaching a guilty verdict, Earwicker said.

“When a jury makes a decision, it’s rare a court should interfere with that process unless there was a miscarriage of justice, and there wasn’t in this case,” Earwicker said.