Is This Really a Hate Crime?
If Edgar Mora had any intents and purposes on March 12 of last year as he went on his violent odyssey through San Francisco, they were rudimentary in the extreme: He was out-of-his-tree drunk, angrier than most people have a right to be, and he wanted to fight. His was not a particularly sophisticated intent, and surely not a very unusual one. The world is full of angry drunks.
Mora's rage was not applied with much specificity. He smashed bus shelter panes. He hit passing cars. He hit a homeless man. He hit a cyclist. He kept telling his girlfriend, who was accompanying him, that he wanted to go to bad parts of town so he could get out of the car and fight; he said he wanted to die several times. He fought with his parents. He smashed things around their house. He was at war with the world.
Mora's life was in the shitter, and he wanted to fight back with the only arsenal at his disposal: his fists. He hated himself. He hated everything and everyone. He wanted to be hurt himself.
Instead, Edgar Mora killed a man. He exchanged fighting words with Brian Wilmes, punched him in the jaw, and as it happened, Wilmes' head hit the ground in such a way that two days later he died of his injuries.
Mora hit Wilmes because, like the cars, the homeless man, the bus shelter, the cyclist, and the walls at his parents' house, Wilmes was in Mora's unspecified path of destruction.
Because Wilmes was wearing gay leather gear, Mora assumed, correctly, that Wilmes was a gay man, and uttered a fateful word before he punched Wilmes out. He said "faggot." How many times -- once, twice, or three times -- is a matter of dispute.
That one word, loaded as it is with differing meaning, depending on who is uttering it and for what reasons, may seal Mora's fate for the next several decades, or, perhaps, his entire life.
Instead of charging Mora with involuntary manslaughter -- the crime of unintentionally killing someone, which carries a sentence of between two and five years, and which Mora seems most deserving of -- Mora is charged with committing murder as a hate crime and now faces a potential sentence of life in prison.
District Attorney Terence Hallinan wanted to charge Mora with first-degree murder with a "special circumstance," so the DA's Office could ask for the death penalty if Mora were convicted. But the law hasn't caught up with Hallinan's blood lust just yet; the intentional murder of a member of specific classes of people -- notably, police officers -- can result in a death penalty. But gay people are not one of those specific classes.
Simply put, the DA wanted Mora to be executed simply because he said "faggot" when he killed a man.
Mora used other words that night. He called Wilmes and Carroll "bitches." He was evidently delusional from depression and far too much alcohol. If he said "faggot," his attorney will argue in court, it may have been that he was simply grasping in his sodden brain for yet one more thing with which to hurt Wilmes, a word, an invective, an insult, something to give his fist some extra punch. After a review of the court record, I agree; it's a real stretch to view that utterance as an announcement of a rationale for a conscious attempt to murder. In fact, I doubt if Mora was capable of forming a discrete and identifiable rationale for anything that night.
So that's all the DA has got: one word. One word could spell the difference between a young man paying for the crime he committed with a hefty prison term and then getting on with his life, or that same man spending the rest of a ruined life in jail.
How and why one word can make such a difference is an interesting story. There are no heroes and villains in this tale. Just otherwise normal human beings exercising shallow judgment.
District Attorney Terence Hallinan is overcharging the hell out of this case, apparently for the same reasons the media has never once questioned the police contention that it was a "classic" hate crime, and for the same ludicrous reasons Edgar Mora has been made co-equal to those vile slugs Aaron McKinney and Russell Henderson (Matthew Shepard's killers) by local and national gay rights groups.
A gay man has been killed, and when that happens, we have very little choice here in San Francisco. We all have very specific, prescribed ways in which we are expected to act.
Forgive me if I don't go along for the ride.
I'd rather not see the moral concept and the legal framework for hate crimes devalued into dust, the way the word "racism" has been overused into impotence in this country.
Most important, I'd like to see Edgar Mora get the punishment he deserves, rather than the punishment that politics clamors for.
Let's be clear: Edgar Mora's attack on Brian Wilmes was despicable, and he deserves to be punished severely for it. But it was not a hate crime. It only passingly resembles a hate crime.
Let me spell out the entire circumstances of the crime, according to court records and sworn testimony, and I'm confident you'll see what I mean.
Edgar Mora was an angry and depressed man when March 12, 1998, rolled around. It was the first anniversary of his sister's death from cancer. The mother of his two children had recently moved to Sacramento, and he could no longer see the kids on a regular basis. He had been denied Job Corps training; he had applied to the program so he could better his employment opportunities. At the time, he was working as a warehouseman. He was 25 years old and living with his parents.
The night of the attack on Wilmes, Mora and his girlfriend, Silvia Vanegas, went to a movie in San Bruno. On the way Mora began drinking a bottle of schnapps accompanied by warm grape juice. By the time the two reached the theater, Mora was already extremely drunk. He was loud and increasingly angry. Vanegas hoped to get him home after the movie, but Mora wanted to go dancing at Harry Denton's in San Francisco. He ripped his shirt off in the car on the way.
Mora jumped out of the moving car four times that night, the first time at Fourth and Mission streets, where he wanted to enter a liquor store and buy beer. Vanegas talked him out of this, and they proceeded on.
All that night, Mora ranted about what a loser he was. How he was nothing, how he had nothing, according to Vanegas' testimony at her boyfriend's preliminary hearing.
At 11th and Mission, Mora again jumped out of the moving car because he saw people dancing upstairs at a dance studio. Mora began attacking a bus shelter on the corner. He punched a homeless man in the head. He hit Vanegas in the head. He was screaming at her, "Do you love me? Do you love me?" He hit a car driving by as he walked across the street toward the dance studio.
In his stupor, he wanted to join the dancers upstairs. He banged loudly on the door. He banged his head on the door.
Just then, Wilmes, who was high on methamphetamine, walked across the street with Carroll toward the Loading Dock bar, a gay leather bar next to the dance studio. They encountered Mora. According to Carroll and the homeless man whom Mora had struck earlier, Mora asked Carroll, "Do you want a piece of me, faggot?"
Wilmes said something to Mora, and Mora punched him in the mouth. According to the testimony of the city's coroner, the punch was not particularly powerful. Wilmes sustained a fat lip; that was it. But when Wilmes fell, his head hit the pavement hard, the coroner said, and his brain began to bleed and swell. Two days later, he died of brain damage.
Everyone agrees the attack on Wilmes took a matter of seconds.
But eyewitnesses differ on one critical point. Tim Carroll, the key prosecution witness and Wilmes' companion the night of the attack, testified at Mora's preliminary hearing that the defendant got on top of Wilmes' body after he had fallen to the ground and shook his body, striking his head on the pavement several times.
But neither of the other two eyewitnesses to the assault saw the shaking of the body or the head striking the pavement. And the medical examiner testified that the back of Wilmes' head was not bruised or cut in any way. He said it was impossible to discern a wound on the back of the head at all. Carroll, in his initial interviews with police, either did not mention that Mora shook the body or struck the head on the pavement, or he seemed vague and confused on the matter, a circumstance that Carroll attributed to fatigue and emotional distress. "If I was a robot and wasn't upset, I would have been able to provide a videotape-quality account of what happened, but I am human, not a robot," Carroll said in an interview from his home in Sacramento. Carroll went on to say he stood by his latest testimony, at the Nov. 16 preliminary hearing, that Mora shook Wilmes' body and struck his head on the pavement several times.
Carroll's testimony about the shaking of the body and the head striking the pavement was singularly important in convincing the judge at the preliminary hearing that Mora may have actually meant to kill Wilmes, or that he had formed an "implied motive" to kill, and that he should be held over for trial on murder, rather than involuntary manslaughter. But even Carroll suggested in initial police interviews that Mora might have been too intoxicated to form any intent at all. When a police officer brought up the possibility that the attack might be considered a hate crime, Carroll told the officer, "I think the guy was too messed up to know what he was doing."
Carroll's account has changed over time on other fronts. Throughout three police interviews and ending with his Nov. 16 testimony at Mora's preliminary hearing, he gave differing accounts of how many times and with what kind of force Mora used the word "faggot." At the preliminary hearing two new aspects of his testimony emerged, which he had not mentioned in any of his three prior interviews with police. He testified that Mora had slapped him on the buttocks, and that Mora had tried to punch him, too. Mora's defense attorney, Robert Dunlap, questioned Carroll about the inconsistencies in his testimony at the preliminary hearing, and last week Dunlap told me he believed Carroll was "embellishing."
But Carroll vigorously denied that he was giving anything but a full and accurate account of the night his friend was fatally injured.
"After the fact, and after you have had enough time to calm down and reflect, you are more able to give the most accurate account," Carroll said.
After the attack, Mora fled into the car Vanegas was driving. He was quiet and confused. Later, as Vanegas desperately tried to drive him back to his mother's house, Mora kept attempting to get out of the car while it was moving through bad parts of town, announcing that he "wanted to die." He made Vanegas stop at a liquor store so he could get some beer. He dropped the bottle in the parking lot and, when people made fun of him, he walked over to a fire station and banged his head violently on the door, according to Vanegas' testimony.
Vanegas finally got Mora home, where he proceeded to argue with his parents after waking them up. Again it was a diatribe of self-hatred, according to Vanegas. He then went on a rampage in the house, breaking things and punching out walls.
The next day, Mora could not remember a thing. Neither he nor Vanegas was aware that the attack the previous night happened in front of a gay leather bar. Indeed, the Loading Dock is not in a traditionally gay neighborhood, or an area known for gay men to cruise. The Loading Dock doesn't even look like a bar from the outside.
If a reasonable jury hears the case, they will see it for what it is: a general, unspecified rampage by a disturbed, drunken man who uttered an anti-gay epithet because it was part and parcel of the vernacular of the angry and the drunk.
To prove a hate crime, the DA's Office will have to establish that the primary motive for the attack involved anti-gay prejudice. Defense attorney Dunlap says there is no evidence of anti-gay bias other than the epithet. The court record seems to bear out his contention. I called the prosecutor handling the case, and she would not talk. DA spokesman Clarence Johnson said the prosecutors might have evidence of anti-gay bias not presented at the preliminary hearing, but when I pressed him on this point, he admitted that he really didn't know if they did or not.
Mora's previous two convictions are for drunk driving. He has no track record that I could find, official or otherwise, of insulting, hurting, or disdaining gay people.
The testimony does not show any particular anti-gay intent on Mora's part that evening. He did not go looking for gay men to beat up. When he did run into one, the meeting appears to have been happenstance. He did not cruise the Castro with a baseball bat. Hell, he wasn't even driving the car. Nor was he choosing a gay destination. He wanted to go to Harry Denton's.
The attack itself was not repetitively brutal. Most hate crimes are attended by savagery, by overkill.
Ultimately, all the DA has to go on is the utterance of one word.
Peter Keane, dean of the law school at Golden Gate University, says that one epithet is generally not enough for a reasonable jury to infer hate as a motive beyond a reasonable doubt.
So why is Hallinan bringing a second-degree murder case, which requires a wanton disregard for human life, and adding a hate crime enhancement, which adds up to three years to the potential sentence, in a situation where a guilty plea for the appropriate charge of involuntary manslaughter and up to five years in prison has been offered by the defense?
I believe he is playing it this way because he needs to play it in this fashion, given who he is and what he has to accomplish in the next five months.
He's running for re-election. He's always been more of a politician than a lawyer. Gay power being what it is in San Francisco, existentially speaking, Terence Hallinan has little choice but to ignore the law, ignore the facts of the case, and play to a righteously angry constituency.
I asked Jennifer Rawkoski, of Community United Against Violence, the gay rights group most responsible for a spate of publicity that has all but turned Mora into the moral equivalent of Matthew Shepard's murderer, what evidence there is, other than the utterance of the epithet, that made this a hate crime for her and her group. After all, the state must prove that the primary motive for a crime involves hatred of members of certain protected classes of people.
I was asking about raw evidence. Not conjecture. Not feelings.
This is what she said:
"There was just a wide universal understanding that this case had an impact beyond the individual, that hearing of this attack in San Francisco [her emphasis] created a sense of alarm and fear that rippled through the community and is not something that in San Francisco we tolerate and is appropriate behavior."
In other words, the gay community was pissed off, and, therefore, evidence didn't matter, and the integrity of a law meant to stop hate crimes didn't matter. All that mattered was mass opinion. All that mattered was politics.
In some places they call that mob rule.
In San Francisco it's called criminal justice.
I have no issue with those in the gay community who view this as a hate crime. I don't begrudge them their opinion in the slightest.
If I were gay, and I had grown up the object of the hate, disdain, physical intimidation, and abuse that so many gays and lesbians have experienced, I would look at a situation where a gay man was punched and died, accompanied by the word "faggot," and want the same thing: for the assailant to die, or go to prison for life. Hell, I would want to slowly roast him over hot coals myself.
When I hear of particularly ugly crimes, or crimes that push an emotional button for me (among other things, child abuse and animal abuse do it for me), my first reaction is something akin to "Hang the bastard." (And no, I don't have an animus against illegitimate children.)
But when I can, I vote for politicians who oppose the death penalty. More than anything else, I want people in public office who act as filters, who moderate public rage, even my rage, when it does not logically fit a situation.
I want a jailer who can stop the mob from dragging a man out of the jailhouse and lynching him in the town square -- even and especially when I am a member of that mob.
Unfortunately, Terence Hallinan is not that kind of public official. He is a conduit of sentiments, a messenger of the rage of political constituencies.
He has not attained the level of leadership where he could walk into rooms with leaders and members of the gay community and explain that Mora is not Aaron McKinney, and Wilmes is not Matthew Shepard, and that if we adhere to this kind of simple-minded moral arithmetic, we devalue what took place in Wyoming, what happened to that poor, sweet young man. We devalue the evil that lurks in our world, and we confuse the evil that is McKinney and Henderson with the confused anger of an Edgar Mora. And if we do that, we will in a short period of time fail to recognize evil altogether.
But making that argument would be the hard thing to do. It would take courage and moral clarity and intelligence. And in San Francisco, I guess, we don't have enough of those qualities in the District Attorney's Office, or, maybe, in ourselves.
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