Cover designed by Andrew J. Nilsen.
The case looked like it was made. Two Mexican nationals, viciously beaten by three white men outside the Nite Cap, a dim Tenderloin bar at the corner of Hyde and O'Farrell streets. The accused were convicted felons. At least one admitted ties to white supremacists.
According to prosecutors, witnesses heard somebody scream "white power" and "run like you run across the border" as the men attacked Jose Omar Cauich and his cousin, Alex Cauich, who was kicked and punched into unconsciousness as he lay on the ground. Police found photos of swastikas in one suspect's home.
The San Francisco Police Department's special investigations unit, in conjunction with Assistant District Attorney Victor Hwang, decided to tack hate-crime allegations on to felony battery and assault charges. A conviction on such allegations, intended to punish crimes committed because of discriminatory bias against the victims, can bring an additional one to four years in state prison.
Anthony Weston, one of the three defendants, struck a deal with prosecutors, agreeing to plead guilty to a hate crime, testify against his friends, and furnish a list of local skinheads. Based on this information, the office of District Attorney George Gascón announced it had uncovered an underground ring of white supremacists based in the Tenderloin. As the case went to trial this fall, public television station KQED received special permission to film the proceedings for a documentary series on policing hate crimes called "Not in Our Town."
But in October, less than a year after the incident took place, Gascón called a press conference to deliver unexpected news: A jury had decided that a hate crime had not, in fact, been committed in our town.
Defendants Robert Allen and Justin Meskan were convicted of assault and battery. But the jury acquitted them of the hate-crime allegations that stoked widespread media attention. Gascón's claims about a shadowy network of white skinheads based in San Francisco suddenly seemed tough to swallow.
Jose Omar Cauich returned to Mexico, while Alex stayed in the U.S. (Alex had been treated at San Francisco General Hospital and released with multiple stitches to wounds on his face.) After headlines fueling fears of a skinhead invasion, the trial amounted to this: The DA's office had obtained two convictions for bar brawling.
Hate-crime statutes exist in almost all American states. California was a pioneer in this regard, adopting a statute in 1984 adding further criminal penalties to acts committed because of a victim's race, religion, or national origin. Like some other criminal statutes — such as that which distinguishes among various types of homicide based on level of premeditation — a hate-crime charge reserves special penalties for offenses committed with a particular motive or state of mind.
San Francisco is a culturally and ethnically diverse city with a reputation for meticulous political correctness. It looks like the dream jurisdiction in which to bring a hate-crime case, with a jury pool consisting of large blocs of Latinos, Asians, blacks, gays, lesbians, and transgender people.
The reality is different. Hwang says that since he was hired in 2009 to handle hate-crimes prosecutions for a special human-rights unit formed by former DA Kamala Harris, not one of the four felony hate-crime cases that proceeded to trial has resulted in a conviction on the bias charges. In some cases, as in that of Meskan and Allen, a jury delivered convictions on the underlying offenses but not hate-crime enhancements. Hwang says he can also recall two more minor cases that resulted in misdemeanor guilty verdicts at trial. Otherwise, the handful of felony hate-crime convictions obtained each year have come through plea bargains.
Hwang and other legal experts have at least one persuasive explanation for this: Hate crimes are not easy cases for prosecutors to win. In addition to the burden of proving a defendant's belief system, cases are often undermined by the overly simplistic popular notion of what a hate crime is, Hwang says.
"Motive is tough to prove. It's not something that's well understood by the criminal-justice system," Hwang says. "People will think of hate crimes as your standard 'KKK, let's go out and lynch an African-American.' That's the standard we have to face." Most hate crimes, he says, have more nuanced fact patterns: What looks at first like an ordinary crime is revealed as a hate crime once a defendant's underlying motivations are unearthed.
Jeannine Bell, an expert on hate crimes who teaches at the Maurer School of Law at the University of Indiana, agrees. She says that the high hurdles involved in winning a hate-crime case lead prosecutors in many jurisdictions to avoid bringing them in the first place. "The key is motivation, and this is hard to prove with juries," Bell says. "That is why prosecutors are so reluctant."
Others see more troubling explanations for the unsuccessful hate-crime trials in San Francisco: political ambition, bureaucratic expediency, or cops' and prosecutors' lust for publicity.
High-profile hate crime prosecutions have undeniable political undertones. These are crimes, after all, that are singled out for special punishment because of their unusual social consequences. Such cases' publicity is amplified by press conferences, which frequently attend hate-crime charges. Hwang calls such media events an effective tool for deterrence and community outreach. San Francisco's minority groups carry considerable political heft, particularly LGBT and Asian factions. In its endorsement of Gascón for DA, the Bay Area Reporter, the paper of record for the LGBT community, noted his aggressive tack on hate crimes.
"Hate crimes seem like the flavor of the month," says defense lawyer and former San Francisco prosecutor Floyd Andrews, who represented Allen in the skinhead case.
Data tracked by the state Department of Justice supports the contention that San Francisco takes a more aggressive approach to charging hate crimes. In 2010, the DA's office here filed 24 such cases, more than any other jurisdiction in the state except Los Angeles, which filed 69. Prosecutors in the larger city of San Diego charged 17 hate-crime cases, while those in San Jose, also larger than San Francisco, filed only 12.