Brain Storm (55 page)

“And
only
bigoted conduct?” asked Judge Willard. “It’s not overbroad?”

“I don’t believe so, Judge.”

“Have you seen this program—What’s it called?” asked the judge. “ ‘The Fugitive’? And they made it into a movie, didn’t they? This Fugitive fellow is constantly looking for a one-armed man who supposedly killed his wife. Do I have it right, Mr. Donahue?”

“I think so, Judge, but I fail to see—”

“I’m wondering what would happen if our Fugitive caught a one-armed man—the
wrong
one-armed man, as it turns out—and assaulted him. His victim has only one arm, so he’s disabled under the terms of this statute, is he not?”

“Yes,” said Donahue, “but—”

“And, of course, our Fugitive—what’s the wording of the statute?” Judge Willard picked up a piece of paper and read from it. “Our Fugitive ‘intentionally selected his victim
because of
the victim’s disability,’ isn’t that right? But this
selection
has nothing to do with discriminatory conduct, does it? The Fugitive is simply trying to find the man who
killed his wife, right? Yet under this statute he would receive extra penalties because of this intentional selection.”

“In the confines of your hypothetical,” said Donahue, “he would.”

Judge Mallory interrupted and tried to ride to Donahue’s rescue. “Well, it’s not just a hypothetical, is it, Mr. Donahue? The case cited by the defense, Aishman versus California, in which the defendant and his friends went looking for Mexicans, because his wife told him a group of Mexicans had raped her? Were these men looking for rapists or Mexicans?”

“In that particular case,” said Donahue, “I’m not … I believe they were …”

He hasn’t read Aishman
, Watson marveled. Incredible! Judge Mallory was pitching him one underhanded across the plate. The answer would be “both.” He was looking for Mexican rapists. He can hate rapists all he wants, but if at least part of the reason he selected his victims was
because of
their nationality, he runs afoul of the statute. When the husband in Aishman came home from beating Mexicans with a baseball bat, he told his friends he had been “hitting home runs with Mexicans.” Donahue wasn’t going to make any hay with that line, because he hadn’t read the case. Myrna was right!

“I concede that in some very narrow circumstances,” said Donahue, “the statute may reach conduct not motivated by discrimination, but I would weigh those unusual circumstances against the grave problems the federal government faces in trying to stem the rising tide of bias-motivated violence and property destruction. These arguments were heard by the United States Supreme Court in Wisconsin versus Mitchell and the Court ruled that the Wisconsin statute was constitutional. Wisconsin was entitled to administer greater penalties for an assault in which the attacker intentionally selected a white victim.”

“That seems to be the case in so many of these high-profile cases,” inserted Judge Mallory. “Is there a danger these statutes will be used disproportionately against minorities who are accused of attacking what they perceive to be their social oppressors? Seems to me it’s the prosecutors who decide what is and isn’t a hate crime. In the Wisconsin case, which came up so often in the briefs, it’s a black teenager who intentionally selected a white person.”

“Proof positive that the statute is content neutral,” said Donahue. “Every argument set forth in the defendant’s brief was made in the
Mitchell case, and the United States Supreme Court rejected every one of them. This court is obliged to do the same under the doctrine of stare decisis.”

“Don’t overstate your case, Counselor,” said Judge Willard. “That is not quite true.
Some
of the defendant’s arguments were made in Mitchell, and
some
of the defendant’s arguments are new arguments, because we have a new and different statute, isn’t that right?”

“Not in any material respect, Judge,” said Donahue quickly. “The sentencing commission looked at the Wisconsin statute and the Supreme Court’s opinion in Mitchell very closely before drafting this statute, and this court—”

“And because we have a
different
statute,” interrupted Willard acidly, “then we have a
different
case, and this bloviating reference of yours to stare decisis belongs in a theater, not in this courtroom. The Wisconsin statute was constitutional because it was discretionary, Mr. Donahue.”

“I’m sorry, Your Honor? I’ve lost the court’s train of …”

“The Wisconsin judge could administer the penalty enhancement or not, depending on the circumstances. Right? The statute simply expanded the range of available penalties from a four-year maximum sentence to seven, eight, or nine years, right? But here, this statute
requires
an enhancement of six levels under the sentencing guidelines if the perpetrator intentionally selected his or her victim because of a protected characteristic.”

“Yes, but …”

“And our Fugitive is going to get a second, separate penalty for intentionally selecting a disabled person, even though he had no intention to discriminate against a disabled person per se—he simply wants to kill the man who murdered his wife, conduct which is already punishable under the homicide statutes. Nobody wants to set him free. But we don’t want to give him extra punishments for something he didn’t do. A federal sentencing judge bound by this statute is powerless to withhold the enhancement, even if it is clear that no discriminatory conduct has occurred.”

“That’s true, Your Honor,” said Donahue, “but again …”

“And we have exceeded the bounds of the Mitchell case in other respects as well, have we not? You’ll recall that in Mitchell, the defense made the same argument that’s being made here, namely, that there is a very real possibility that a defendant will be punished for his beliefs or for expressive conduct which may have occurred years before the crime.
And the Supreme Court said”—the judge rustled papers and retrieved a document—“ ‘We are left then with the prospect of a citizen suppressing his bigoted beliefs for fear that evidence of such beliefs will be introduced against him at trial if he commits a more serious offense against person or property. This is too speculative a hypothesis to support Mitchell’s overbreadth claim.’ ”

Judge Willard looked up over his reading glasses at Donahue. “But it’s no longer speculative, is it, Mr. Donahue?” asked the judge. “Because in this case the government wants to introduce evidence that Mr. Whitlow displayed a Confederate flag once upon a time, or that he told racist jokes, or worried about his property values, or painted a swastika once as a college prank. Has the government attempted to tie any of these events to the crime being charged here?”

“We were prepared to do just that at trial,” said Donahue.

“But you didn’t get to trial, did you?” said Judge Willard, “because you couldn’t satisfy Judge Stang’s concerns about how you were going to tie all of this character evidence to the charged crime. It’s a question of proximity, isn’t it? How proximate is the conduct to the thought?”

“We had evidence that this defendant was spewing racial invective in a crowded bar just days before the crime was committed,” said Donahue.

“Did this evidence contain any indication that the defendant was going to attack any member of a protected group? Did he threaten to go out and kill a black person, or did he tell somebody he would really like to shoot a deaf person?”

“Not in so many words, Your Honor, but when taken as a whole, his speech on any number of occasions is rife with violent antipathies against groups protected by this statute. All of this evidence taken together is probative and admissible on the question of his real motive in committing this heinous crime. And I would add, Your Honor, that under the terms of the statute as it has been interpreted by the courts, it is not necessary for the government to prove that the defendant, James Whitlow, selected his victim
solely
, or
exclusively
, or even
predominately
because of the victim’s race or disability, only that his prohibited animus played
some part
in his motivation for the crime.”

“Now I feel better,” snapped Judge Willard. “If one percent of our defendant’s motive for intentionally selecting his victim was
because of
the victim’s race and disability and ninety-nine percent of his motive was
because of
his wife’s infidelity, then we’ll double or triple his sentence to
make sure that no stone goes unturned in obliterating even minuscule amounts of bigotry, is that it?”

“With all due respect,” said Donahue, “the court’s hypotheticals are both erudite and creative, but my office is charged with applying statutes to real-world crimes.”

Watson held his breath and watched Donahue taking on more water. Judge Willard was an archangel come down from heaven. Watson’s ally. Stang’s alter ego. He was waiting for Judge Willard to wink at him, or give him a nod. What a pal! The good judge was arguing Watson’s brief for him. How was it these old men seemed so effortlessly insightful?

“Mr. Donahue,” said Judge Mallory, obviously trying to give Donahue some relief from the onslaught of Judge Willard, “are there any limits to the government’s powers under these statutes? I mean, we have extra penalties for intentional selection of victims based upon their perceived race, color, religion, national origin, ethnicity, gender, disability, sexual orientation, and views on the issue of reproductive rights. Suppose we add views on the issue of hazards presented by the ozone layer, or views on the draft in times of heightened national security, or views on whether the earth is flat? Would adding those categories render the statute constitutionally infirm?”

“The categories currently contained in the federal hate crimes statute all further legitimate state interests,” said Donahue. “I think the Supreme Court’s opinion in Dawson would prohibit extra punishment being given for abstract beliefs that are not related causally to the charged crime. For instance, if we tried to make a statute providing that all drunk drivers will have their sentences doubled if it can be shown that they are also racists, that would present constitutional problems, but that is not the case here.”

“OK,” said Judge Mallory, and went on to make his point for him, lest he drift back into the line of Willard’s fire, “so it isn’t the goodness or badness of the idea that we are talking about, it’s whether attacks on the basis of that idea are a particular problem? As in the case of the views on reproductive rights, a category Congress added to the statute in 1999? We don’t care if criminals are for or against abortion, but we do care and we give them extra penalties if they attack someone or destroy someone’s property because of their views on this politically volatile subject, is that right?”

She was feeding him baby food with a rubber spoon.

“Absolutely correct, Judge Mallory,” said Donahue. “The question is whether violence motivated by hatred of the particular categories presents a significant law enforcement problem in the traditional criminal context.”

“Your time is almost up, Mr. Donahue,” said Judge Willard. “One more time: How do you answer the arguments in the defendant’s brief that this statute is not governed by the Supreme Court’s analysis in Wisconsin versus Mitchell because it is not a discretionary sentencing statute but a call for separate, required, extra penalties, no matter what the circumstances of the case? The defendant’s brief laid it out for you very well. But the government’s reply brief reads like a law review article on the sentencing guidelines without ever engaging the ultimate issue. Is this statute discretionary? And if not, does that present us with a problem of overbreadth for our Fugitive and his quest for the one-armed man?”

“Judge Willard,” said Donahue, “our brief dealt at length with the sentencing guidelines because they inherently tie the hands of judges and diminish their discretion in sentencing matters. That does not render them unconstitutional.”

“But that’s because they are simply assigning penalties for stated crimes. Give me an example of another crime for which the law provides a separate, required, nondiscretionary enhancement solely because of the defendant’s motive?”

Murder for hire, treason, murder of a police officer, voyeurism.
Watson clicked them off mentally, along with his memorized rebuttals for each one. Most of them were circumstances, not motives, easily proved with objective evidence, unlike the prohibited motive called hate. If the defendant was paid for the murder, it’s murder for hire, but there is no such simple litmus test for the psychic state called hatred.

Donahue’s mouth opened but nothing came out. “I seem to recall some examples set forth in our brief,” said Donahue, “and we can make a separate submission calling the court’s attention to those passages if …”

The red light on Donahue’s lectern came on.

“I see my time is up already,” said Donahue. “May I briefly conclude?”

“No,” said Judge Willard. “The courtroom is full of lawyers waiting to argue their cases, Mr. Donahue. If we allow you to briefly conclude,
the lawyers in the next case will ask for extra time to briefly conclude, and the lawyers in the next case will ask for extra time to voluminously conclude … and so on until it’s dark outside. Please sit down.”

“Mr. Watson,” said Judge Horner.

Watson walked to the podium, trying to hide his deep breaths from the court. He placed his folder with his notes in front of him and saw print swim before his eyes.

“May it please … the court,” he said. “I represent the defendant James Whitlow. Clarence Darrow once said, ‘There is no such crime as a crime of thought; there are only crimes of action.’ ”

“Mr. Watson,” said Judge Horner, “we appreciate the Clarence Darrow quote but we don’t need to hear oral argument from the defendant in this case.”

Watson trembled and looked up at the judges. He must have misunderstood Judge Horner. Judge Horner couldn’t have said that the court was not going to hear his oral argument. That was not possible.

Judge Mallory wore a sour look on her face and wrote something on her legal pad, but Judge Willard and Judge Horner were smiling. Mocking him?