NEWS ANALYSIS : O.C. Prosecutors Find Law Vague on Hate Crime

A San Clemente teen-ager accused of brutally beating a man on a Laguna Beach strip frequented by gays was charged with a hate crime after police learned he allegedly boasted of his eagerness to attack a homosexual.

But in a fatal attack five months earlier, Orange County prosecutors never considered filing a hate-crime charge against a Cypress man accused in the murder and robbery of a Santa Ana attorney--despite a witness’ claim that the defendant had planned to target a gay man.

Such differing judgments highlight the national debate over the definition of a hate crime, whether the charge is legally valid and criticism that police and prosecutors are not vigilant enough in applying the laws, or documenting such crimes.

“This is a relatively new area of the law, both in the state and in the nation,” said constitutional law professor Ron Talmo of Western State University College of Law in Irvine. “This really won’t be resolved until the U.S. Supreme Court takes a look at it.”

The Supreme Court is expected to rule by June on a Wisconsin law that is similar to state hate crime laws in California--including a new law that went into effect Jan. 1, 1992--which allow for stiffer penalties in hate-motivated crimes. Hate crime laws have been passed in recent years in 46 states nationwide, officials said.

The Supreme Court ruling is expected to clarify the high court’s stand on the issue, in the wake of its controversial June, 1992, decision that struck down a St. Paul, Minn., law aimed at curbing cross burnings and hateful speech.

In that decision, one of the court’s most conservative justices, Antonin Scalia, wrote that the First Amendment of the U.S. Constitution forbids punishing those who “communicate messages of racial, gender or religious intolerance.”

The court opinion pointed out that several other laws on the books in St. Paul--such as trespass or arson--could have been used to effectively prosecute the teen-ager accused of burning a cross on a black family’s lawn.

“Let there be no mistake about our belief that burning a cross in someone’s yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire,” Scalia wrote.

Recent statistics show that the number of reported hate crimes has increased in Orange County, but authorities say that such crimes are still under-reported because of victims’ embarrassment or fear of retaliation. Compiling such crime statistics is also difficult, due to a lack of law enforcement resources.

The Orange County Human Relations Commission received 156 reports of hate crimes in 1992, up from 125 reports in 1991, according to director Rusty Kennedy. The reports include allegations ranging from the yelling of racial slurs to vandalism or violent assaults.

During 1992, the Orange County Sheriff’s Department documented 29 reports of suspected hate crimes, said Lt. Dick Olson.

During the same year, the Orange County district attorney’s office filed hate-crime charges in just seven cases, including three misdemeanor charges against three teen-agers accused of assaulting a Vietnamese youth in Fountain Valley last Oct. 4.

The FBI’s hate-crime report, released this month, found that 4,558 people were victims of hate crimes nationwide in 1991. However, the federal agency also conceded that the report was highly incomplete because just 2,771 out of 16,000 law enforcement agencies nationwide participated in the report.

The Orange County Sheriff’s Department has not turned its statistics over to the FBI, Olson said, because it is too costly to complete the bureaucratic procedures involved.

Many of the cases filed by county prosecutors are still pending, but some of the defendants have already been sentenced to prison or jail terms made tougher by the additional hate-crime allegations, said Deputy Dist. Atty. Craig M. McKinnon, who oversees many of the hate-crime cases for the prosecuting agency.

But not every case involving a racial slur is a hate crime, McKinnon said.

“If a fight is taking place, and a slur is made, that’s not necessarily a hate crime,” McKinnon said. “Before we can file a charge like that, we have to look carefully at the evidence and decide whether we can prove it in court. It’s not easy.”

“When the evidence is there, we do not hesitate,” he said.

In sharp contrast to the now infamous Laguna Beach gay-bashing case, Deputy Dist. Atty. Richard King did not file hate crime charges against Karl Karcher, 24, of Cypress, who is accused of killing attorney Seymour S. Pizer, 61. Pizer’s body was found in a Dana Point dumpster in August, 1992.

Instead, King lodged the harshest charges available--robbery during the course of a murder-- against Karcher.

King said a witness told authorities that Karcher planned to “roll a fag” shortly before Pizer’s death. But King said he never considered filing a hate crime charge because Karcher’s real motive was robbery.

Karcher “did go after this person because he believed he was a homosexual, no doubt about it, but the real motive was greed. He wanted money,” said King, who noted that a hate crime charge would not add additional time to the sentence Karcher faces if convicted: life in prison without possibility of parole.

“I would not classify this as a gay-bashing case,” King said.

Karcher’s attorney did not return a phone call seeking comment, but Karcher has denied the charges against him and is awaiting trial in Superior Court in Santa Ana.

Activists, however, contend that every hate crime should be fully documented to show the extent of such activity. The separate charge also serves as a deterrent, they claim.

“Whenever there is any evidence that a crime was committed because someone is black, Jewish, lesbian or gay, a hate crime charge should be filed,” said Laguna Beach Councilman Robert F. Gentry, who is openly gay. “We need to send a message that society cannot and will not accept this behavior.”

But some say such hate crime laws violate free speech and effectively diminish the wounds suffered by victims who do not fall into the protected categories.

“I detest hate crimes immensely, but I don’t see why the characteristics of the victim should make any difference when it comes to charging a crime,” said Gilbert Geis, professor emeritus of criminology, law and society at UC Irvine. “It seems like it is more of a symbolic gesture that seems to say it’s worse when you beat up a gay person than when you brutalize someone who isn’t gay.”

Victims of racism and those who have witnessed such crimes strongly disagree.

“As an African-American man who has suffered discrimination, I can tell you that crimes motivated by hate are different than other crimes,” said Santa Ana Heights attorney Milton C. Grimes, who is representing Rodney G. King in his federal lawsuit against the city of Los Angeles for the videotaped beating King received at the hands of Los Angeles police officers.

“It’s like saying there is no difference between spray-painting a swastika on a synagogue instead of some old wall in an alleyway,” said Assemblyman Tom Umberg (D-Garden Grove), who helped spearhead efforts to stiffen criminal penalties for hate crimes.

“There’s a terroristic aspect to these crimes that make them unlike any other crimes,” Umberg said.

Frequently, a hate crime charge is filed with several other charges relating to the criminal activity, as in the case of Jeff Michael Raines, 18, who is accused of attempted murder and assault in the Jan. 8 beating of Loc Minh Truong, 55, of Costa Mesa in Laguna Beach. The attack outraged the community.

State law allows misdemeanor or felony hate crime charges to be filed against those who direct violence against victims because of race, religion, sexual preference, sex or disability. Since Jan. 1, 1992, prosecutors can also charge a hate crime “enhancement” that tacks on additional time at sentencing.

Many experts believe that California’s laws regarding hate crimes are better crafted than the Minnesota law struck down by the U.S. Supreme Court and will withstand legal challenges, but law professors and attorneys say such cases are still difficult to prosecute.

“First you have to prove intent to commit the crime, then you have to prove the motive was because the defendant hates gays or blacks,” said Geis, the UCI law professor.

Los Angeles attorney Brian Levin, who is helping write a legal brief on behalf of 11 California civil rights and government agencies who support the Wisconsin law, said prosecutors also face the burden of getting the incriminating evidence before a jury.

“Just because a witness says it doesn’t mean the jury gets to hear it,” said Levin. Even with incriminating statements, he said, defendants have been known to escape convictions in hate-crime cases that had seemed solid.

The defendant can argue “ ‘My best friends are gay or black, I was just joking when I said it,’ ” he said.