I am in the process of indicting my first hate crime. How do I allege that in the indictment?

We did not allege it in the indictment, we just gave notice after indictment.

I'll give it a shot:

The Grand Jury further presents that the defendant intentionally selected (choose person or property using the language in CCP Art. 42.014 because of the defendant's bias or prejudice against a group identified by (choose one or more from the statute).

From the TDCAA Charging Manual (p. 8):

"And it is further presented in and to said court that the defendant intentionally selected the said [name of victim] as the victim primarily* because of the defendant's bias or prejudice against [victim or victim's qualifying group]."

(* - the statute does not include the word "primarily" so I'm not sure why it's in there, but if the bias/prejudice was not the primary motivating factor, then it probably shouldn't be a hate crime anyway. If you have questions, direct them to the author of the charging manual.)

Comments, anyone?

06/06/2008

Since Texas hate-crime legislation was enacted, 1,700 hate crimes have been reported, eight cases have been prosecuted as hate crimes

By: RYAN MYERS, The Beaumont Enterprise

Ten years after the killing of James Byrd Jr. in Jasper, prosecutors say the state hate-crime law that bears his name is unwieldy and rarely used.

The law, which allows some crimes motivated by prejudice to be punished more severely, was enacted in September 2001.

However, through July 2006, prosecutors in Texas used the law only eight times, according to the latest available data from the Texas Office of Court Administration. No prosecutions under the hate-crime law were reported from Southeast Texas.

In the same period, law enforcement agencies statewide reported more than 1,700 hate crimes to the Texas Department of Public Safety.

Not every incident reported as a hate crime can be prosecuted as one. But even in cases applicable under the law, the statute's limitations often make pursuing a hate crime enhancement impractical, prosecutors said.

For the rest of the story, click HERE.

Those numbers are not accurate. We have had one or two hate crimes that were prosecuted in my county, and they do not appear on the list. We add the allegation as an enhancement after law enforcement files the case. The case is not labeled as a "hate crime" and the clerk does not know to report it as such.

I can't recall ever having a hate crime cross my desk.

Maybe that means that my criminals are morally superior to some others' criminals.

But I doubt if that is true. I think my crooks are about the same as everyone else's. The hate crimes statute is another example of feel good legislation that has little practical use. There are lots of changes to the Penal Code and Code of Criminal Procedure that would truly help protect society from the criminal element, which never get the time of day in the legislature.

Here are some examples:

1) Make refusing a DWI breath test a crime that parallels the DWI statute, and can be used interchangeably with DWI convictions to enhance. This would save many lives over the long haul.

2) Repeal CCP, Art. 38.22 (the confession statute); Art. 38.23 (excludes evidence illegally seized, even if it was seized by a private person); Art. 38.141 (requires corroboration of CI testimony), Art. 38.14 (requires corroboration of accomplice).

3) Make contributing to the delinquency of minor a crime, like it once was in Texas, and still is in probably every other state in the union.

Some might think: repeal the confession statute? That would allow confessions to be beaten out of suspects. Wrong. New Mexico doesn't have a confession statute, and I believe a number of states likewise have no confession statue, and involuntary confessions are still barred by the Constitution. Miranda would still apply.

The accomplice witness rule would be better described as the Criminal Kingpins Protection Statute, since the testimony of subordinates isn't enough to make a case on Mr. Big. Those cases have to be prosecuted by the Feds, who are not burdened by such a rule.

There are good quotes in that article from Shannon and from Ed Shettle.

I would not charge anything as a hate crime for one of a few reasons.

1) As Shannon pointed out it adds an element to the crime that is difficult to prove abesnt a confession or some out of court statement that would otherwise be admissable. I am still able to prove the facts of my case and can argue the motive during the punishment phase without having an additional proof issue.

2) As Ed Shettle pointed out, it's a political issue. Why add an opportunity for the jury to be polarized? For that matter, why have such an inflammatory issue before the venire and risk losing a panel?

3) There are equal protection issues rampant in the statute as victims are given more protections based on race, gender, religion, and moral choices.

The problems inherent in the statute outweigh the utility of the statute.

Bob, I recently indicted a hate crime, which led to the start of this thread. I never thought about the voir dire problems. That does cause me some concern.

Mark, I'm not critical of those that do use the statute as their case dictates. I just haven't been able to get my own mind around those areas I mentioned. I suspect that different jurisdictions would have greater or different issues with various provisions of that particular law. If I worked in a different part of the state, I'm sure my own opinion would differ (except for the equal protection issue).

Good luck with your case. Is it set soon?

Mark,

What is the issue? Race or gender? Since you added the language to your indictment you can spend more time in Voir Dire to see if you can get someone to discuss it. Will they?

I really hate crime.