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Confusion over Jury Charge Causes Reversal in New York Hate Crime Conviction

Posted on: July 22nd, 2013 by Art Leonard No Comments
Jury confusion about how to deal with a defendant charged under New York’s hate crime statute has resulted in an appellate ruling setting aside the guilty verdict in hate crime homicide as “inconsistent” in People of New York v. Delee, 2013 WL 3766913 (Appellate Division, 4th Dep’t., July 19, 2013). 

Dwight R. Delee shot and killed a victim identified by the court as “a young man who dressed as a woman and was known to be homosexual” in Onondaga County while uttering anti-gay statements.  The indictment charged him with murder in the second degree as a hate crime, murder in the second degree, and criminal possession of a weapon.  Prosecutors in hate crime cases customarily charge in the alternative so that a jury can convict on the underlying murder charge even if they find that the prosecutor has failed to sustain the burden to prove beyond reasonable doubt that the victim was killed because of his sexual orientation. 

After trial, and without objection from the parties, the court decided to add to the charge to the jury some lesser-included manslaughter charges, with and without hate crime specifications, resulting in a rather cumbersome charge and verdict sheet that caused the jury to ask several questions, provoking “clarifications” from the trial judge (Onondaga County Court Judge William D. Walsh) that were not models of clarity.  Evidently, the jury concluded that the prosecutor had met the burden of proof on manslaughter in the first degree as a hate crime, but in filling out the verdict form, the jury, thinking that it was following the judge’s instructions, indicated “guilty” for manslaughter in the first degree as a hate crime but “not guilty” for manslaughter in the first degree. 

Defense counsel moved to vacate the verdict as inconsistent, arguing that a “not guilty” verdict on manslaughter meant that the jury believed the prosecutor had failed to sustain its burden of proof on at least one element of manslaughter, and thus the verdict of “guilty” of manslaughter as a hate crime could not stand.  The trial judge rejected the motion, but the point had been preserved for appeal, and the Appellate Division panel voted 4-1 to reverse the verdict, accepting the defendant’s argument. 

“To find defendant guilty of manslaughter in the first degree as a hate crime, however, the jury must have found that the People proved beyond a reasonable doubt all of the elements of manslaughter in the first degree, plus the added element that defendant selected the victim due to his sexual orientation.  It therefore follows that the verdict is inconsistent,”  wrote the court.

Dissenting, Justice Erin Peradotto argued that the non-hate-crime manslaughter charge should be seen as a lesser-included charge of the hate-crime manslaughter charge, so that the “not guilty” verdict would not be seen as inconsistent, but the majority was not buying this.  Peradotto went through the various charges and clarifications in detail, showing how the jury could have been misled into thinking that it could pick as between the two charges and find guilty as to one of them and not the other.  “In my view,” wrote Peradotto, “the jury’s verdict is reasonable and logical based upon the elements of the crimes as charged to the jury and, therefore, should not be disturbed.” 

After describing the notes that the jury sent to the judge seeking clarification of the charge, the judge wrote, “The above notes indicate that the jury was convinced, as amply supported by the record, that the fatal shooting of the victim constituted a hate crime, but that the jury was grappling with whether to convict defendant of the hate crime of murder in the second degree, manslaughter in the first degree, or manslaughter in the second degree.  After the jury determined that the defendant was guilty of manslaughter in the first degree as a hate crime, it proceeded to the second count of the indictment, as the court instructed it to do, and found defendant not guilty of ordinary murder in the second degree and the lesser included offenses thereof.”  In other words, the jury thought of the non-hate crime manslaughter charge as a lesser-included offense, and dealt with it accordingly. 

An affidavit from the foreperson, sworn a week after the verdict, confirms this interpretation, wrote the dissenter, who quoted from it: “We determined that [defendant]’s motive and actions did meet the criteria as defined by the judge for a hate crime.  We came to that decision relatively quickly.”  According to the foreperson, the jury then “discussed the other charges … that were not hate crimes, but did not find him guilty of those charges once we had determined that this was a hate crime.”  “In my view,” wrote Justice Peradotto, “that analysis makes perfect sense in light of the court’s instructions and the distinct, ‘particularly heinous nature of criminal acts that are committed against individuals because of prejudict’ (N.Y. Bill Jacket, 2000 AB 30002, ch 107, Mem of Atty Gen).”

“The jury determined that defendant shot the victim because of his sexual orientation and thus that defendant was guilty of manslaughter in the first degree as a hate crime.  Defendant did not simply shoot the victim for some other ‘non-hate’ reason or no reason at all, and thus the jury determined that defendant was not guilty of ‘ordinary’ manslaughter in the first degree.  In my view, this is in accord with ‘the fundamental principle that the jury should be permitted to render a verdict that fully reflects defendant’s culpability.’ Jurors are not legal experts and, given the instructions that were provided in this case, I cannot conclude that the jury’s verdict was inconsistent, illogical, or contradictory.”

This decision suggests that prosecutors and judges need to focus on figuring out how to articulate a comprehensible jury charge for hate crime cases where the prosecutor is also charging in the alternative, to avoid confusing jurors and allowing a hate-crime murdered to get off based on jury confusion about the court’s instructions.

Another peculiarity of the court’s decision is the imprecision with which the victim, who was not named in the decision, was described.  According to media reports, the victim was Lateisha Green, a transsexual woman, but the court (and dissent) characterize Lateisha as a homosexual man who dressed as a woman but was known in the community as a homosexual.  One wonders why the court is skirting the distinctions between sexual orientation and gender identity?  Is it lack of judicial understanding, or a concern to be able to frame this case consistently with New York’s hate crime statute?