ABOVE: The D.C. Council on Oct. 23 held a hearing on the U.S. Attorney’s Office’s failure to prosecute hate crimes in D.C. and banning so-called LGBT panic defense in the city. (Washington Blade photo by Philip Van Slooten)
Lambda Legal and the National Association of Criminal Defense Lawyers were among the groups Oct. 23 that weighed in at a hearing on hate crimes prosecution and two related panic defense bills currently before the D.C. Council.
Though their representatives sat at the same witness table, each expert differed sharply on the issues of an LGBT victim’s right to respect and the defendant’s right to due process.
Council member Charles Allen (D-Ward 6), chair of the Committee on the Judiciary and Public Safety, convened the public hearing to discuss the U.S. Attorney’s Office’s widely reported failure to prosecute significant numbers of hate crimes reported in D.C., as well as the Sexual Orientation and Gender Identity Panic Defense Prohibition Act of 2019 introduced by Council Chair Phil Mendelson (D-At-Large) and the Tony Hunter and Bella Evangelista Panic Defense Prohibition Act introduced by Council member David Grosso (I-At-Large).
“The idea you can use this as a defense is reprehensible and must be stopped,” Allen said. “I fully support these bills and advocate their passage as soon as possible to ensure justice is applied in a fair and responsible way.”
Both bills seek to limit the use of defenses that seek to partially or completely excuse violent crimes on the grounds of a victim’s sexual orientation or gender identity.
The panic defense was used in the Hunter and Evangelista cases, but those who were charged in their murders were still convicted. However, the bill named for them goes further to include other identifications such as race, ethnicity and disability.
Casa Ruby CEO Ruby Corado gave testimony in support of both bills, but grew emotional when remembering Evangelista, who was also trans, and how her case was handled.
“16-years-ago, I heard Evangelista had been killed in our community,” Corado said. “I heard a lie that blamed the victim for their own death. The person who killed her knew all of us. I encountered him and he knew I was trans.”
Sasha Buchert, a senior attorney at Lambda Legal, also gave a statement in support of both bills along with Mike Silverstein of the ANC Rainbow Caucus, SMYAL Youth Programs Fellow Q Garcia-Geary, Gay and Lesbian Activists Alliance President Bobbi Strang, LGBT hate crime victim Mark Rodeffer and others.
“There’s a long history of defendants seeking to justify such violence by asserting that it was motivated by the defendant’s transphobia, homophobia or other biases,” Buchert said. “In Bella’s case the defendant argued that he became enraged when he discovered her gender identity, and in Mr. Hunter’s case the defendant told police that he fatally punched Tony in self-defense after Mr. Hunter supposedly made a sexual overture.”
The panic defense was used successfully in each case which Buchert said is reflective of and perpetuates juror bias.
However, Nina J. Ginsberg, president of the National Association of Criminal Defense Lawyers argued that while she and her organization have a long history of supporting and working with the LGBT community, their organization cannot support any limitation of “the right to present a defense” and of the right to due process.
“Categorically prohibiting defenses through legislation may feel like a meaningful solution in the aftermath of a high-profile crime,” Ginsberg said. “But it is a misguided impulse.”
“To convict someone of first degree murder when there was no premeditation is not justice,” her colleague added. “Mitigation is there is something about the events that had caused the defendant to lose self control and act by impulse, and the defendant has the right to argue that. To say the defendant can’t in this case is not right.”
Both Grosso and Buchert noted other states have passed panic defense legislation that has currently gone unchallenged in the courts. They have also been reviewed and approved by the American Bar Association.
“The ABA would not promote legislation that is unconstitutional,” Buchert said. “And other state statutes, such as those dealing with ‘insanity’, have limited defenses without limiting a defendant’s right to due process.”
Rodeffer testified that while he supported the bills, respecting LGBT victims went beyond this one defense.
“I applaud the D.C. Council for considering legislation to outlaw the ‘gay panic’ defense, but it is not enough,” he said. “Unethical lawyers should not be allowed to make arguments that people in minority groups are somehow different, weird or perverted. We should celebrate our diversity, not use it to pit people against one another.”
