Today I got a letter from the AG's office reminding me that last Session the Legislature amended 12.47 of the Penal Code to provide that the AG may assist district attorneys in hate crime investigation and prosecution, and offering to help any time we need it.

A nice offer that probably won't be taken up very often, to be sure, but it did get me wondering if there has been any activity on the hate crimes front recently. Given that the statute was actually narrowed last Session, the number of possible hate crime enhancements has probably gone down, but anyone have any good cases to report?

So, why exactly would an elected prosecutor need the assistance of the Attorney General to prosecute a case that has the addition of a hate crime enhancement? What would make the case so complicated or unusual that a TDCAA trained prosecutor could not handle it?

Because our boss is not running for the Senate?

Good points. Nothing particularly tricky about the enhancement if the evidence is there. I'm just curious if there have been any enhanced cases this year...my guess is not many...

I just tried a case that theoretically could have been called a hate crime. The victim was half-Chinese and there was a little bit of evidence to suggest that defendant was prejudiced.

But the charge was already a first degree felony. Why should a prosecutor put in an additional special issue, that must be proven beyond a reasonable doubt, and risk creating error in a case? If the jury believes the bad motive, they will consider it in punishment and act accordingly.

Frankly, I haven't seen a case that couldn't be punished appropriately within the range set by the crime itself.

To answer John's first post, I guess the AG could help us exercise our prosecutorial discretion. He seems to have a penchant recently for trying to be involved in our decisions. (see Saldano and his confession of error in the Supreme Court and his most recent idea to introduce legislation getting rid of prosecutorial discretion in some capital cases)

Well, John, there was an agg. assault tried in Dallas under the hate crime statute back in 1995 or 96 -- highway shooting that left the victim in a wheelchair, with evidence that the defendant had white supremacist posters in his apartment and had just been in a racially motivated altercation at his apartment complex before the (unrelated) victim happened to cross his path on 635. He originally got life, I believe, and the case has now been reversed for new punishment under Apprendi principles. I don't see 20 years being good enough for this defendant.

Perhaps you are right, Sue, but I notice that the case was reversed for error related to the hate crime enhancement. While I believe the enhancement, as presently written, is probably constitutional, the various other conduct enhancements in the Penal Code need to be written in a constitutional manner, so that they avoid Apprendi problems.