Over the weekend there were two interesting articles in the Charleston Gazette regarding the Megan Williams rape/torture/kidnapping case. (For background, here are all of my posts on the case.) Logan County prosecutor Brian Abraham has still not decided whether or not he will file bias crime* charges against the so-called Logan Six. There’s been a bit of wrangling between the county prosecutor and the Attorney General’s office, which took an interesting turn yesterday — Attorney General Darrell McGraw now wants to take over the case.
On Saturday, the Gazette reported that the Attorney General’s office had refused to issue a legal opinion to the prosecutor regarding whether or not West Virginia’s bias crime statute could apply to the Megan Williams case. Abraham requested the legal opinion in a letter dated September 20th, though this hadn’t been reported until now (at least, not to my knowledge). According to the prosecutor, the AG’s office initially claimed that state law authorizes the AG to issue legal opinions only to a certain list of state officials, not including county prosecutors. Abraham objected, pointing out (correctly) that state law requires the AG to issue opinions to those listed state officials but does not prohibit the AG from issuing opinions to others.
The prosecutor claims that in a phone call with Fran Hughes, Chief Deputy AG, she told him that the AG couldn’t issue the legal opinion because the office lacked the resources to do so and because they didn’t want to get involved in this controversial case. Hughes denies saying the latter and claims that it’s the prosecutor who doesn’t want to make the difficult decision. She stated that the prosecutor is perfectly capable of making that legal determination on his own and shouldn’t be passing it off on the AG’s office. The prosecutor objected to this, stating that he was still going to make the decision on his own, but he wanted the AG’s legal opinion because the court would be required to give it great weight.
After reading the “he said, she said” in Saturday’s article, it sounded to me that it was the prosecutor, not the AG, who was trying to avoid potential political fallout in this highly publicized case. It seemed odd to me that the prosecutor would ask the AG’s office to interpret the bias crime law and then state that he’s still planning to make the decision on his own. I can’t believe that the prosecutor would file bias crime charges after receiving a legal opinion from the AG that they aren’t applicable in this case, if the AG were to come to such a conclusion. Plus, it seems premature for the prosecutor to seek a legal opinion at this stage. I would think this might be something the prosecutor would do down the road in the event of an appeal. So it did kind of look like the prosecutor was asking the AG to do his job.
The second Gazette article confirmed this perception.
In Sunday’s article, the prosecutor clarified that he wanted the AG’s legal opinion on whether West Virginia’s bias crime statute could be interpreted more broadly than the federal statute. He wasn’t seeking a fact-specific application of state law, he wanted a more general interpretation of the scope of the state statute. That makes more sense. The reason stated by federal authorities for not pursuing charges in this case was that the federal bias crime law only applies when the victim was engaging in or attempting to engage in one of the federally protected activities enumerated in the statute. The Logan County prosecutor wanted the AG’s opinion on whether or not West Virginia’s bias crime statute is similarly restricted, or whether it’s broader than the federal statute.
Not to insult the prosecutor’s intelligence, but to answer that question all you need to do is read the statute. I’ve written a detailed explanation of West Virginia’s bias crime statute, so I won’t rehash the entire thing here, but the argument goes like this:
- The bias crime statute defines the victim’s activity as “the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the state of West Virginia or by the Constitution or laws of the United States.” (W.Va. Code 61-6-21(b))
- To edit that for clarity & simplicity, activities that are protected by the bias crime statute include “the free exercise or enjoyment of any right secured by the laws of the state of West Virginia.”
- One right that is secured to people by West Virginia law is “the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.” (W.Va. Code 61-6-21(a))
True, this interpretation hasn’t actually been tested. There’s no precedent for it in West Virginia. However, it seems solid enough to me that the prosecutor should feel entirely comfortable bringing the charge. I know there are many states that have similar statutes, so there must be some case law out there on this.
I recently came across a law review article written by someone with much more experience than I have in this area (which is none), who lays out the same interpretation of the state bias crime law. The article is based on a speech given by Paul Sheridan, Director of the Civil Rights Division at the AG’s office, as part of a symposium at WVU College of Law entitled “A Look at Brown v. Board of Education in West Virginia: Remembering the Past, Examining the Present, and Preparing for the Future.” Not incidentally, it was apparently a conversation with Paul Sheridan that prompted prosecutor Brian Abraham to seek a legal opinion from the Attorney General. (Click here for the full text of Sheridan’s article in pdf form.)
But now the AG has gone from not wanting to issue a legal opinion to wanting to take over the entire case. The prosecutor opposes this and doubts that the Attorney General would even have the legal authority to do so. The AG says that the reason he wants to take over the case isn’t because he doubts the prosecutor’s abilities. It’s because, he says, he wants to “help insulate lawyers from the controversy it has kicked up in Logan County.” The AG said:
If this case is problematic, even inflammatory, particularly at the local level, we would be willing [to take over] if it would remove the case from the local concern. … It’s not good for people to operate under the pressure of being put in a corner.
Given the fact that the interpretation of West Virginia’s bias crime statute doesn’t seem like such a close call, I suspect that Fran Hughes is correct — the prosecutor is feeling political pressure and doesn’t want the decision of whether to file the charges to rest entirely on his shoulders. It’s not that he can’t interpret the statute himself, he’d just prefer it if the AG’s office had his back on this one. The AG is offering to take over the case in order to alleviate that political pressure, and I think perhaps justice for Megan Williams and the people of West Virginia would be better served if that happened. Either that, or the prosecutor could just grow a pair (to be blunt about it).
* I’m no longer using the term “hate crime,” which I used in prior posts. “Bias crime” more accurately describes the statutory definition of the crime and it heads off the facile argument made by the intellectually incurious that “all crimes are hate crimes” (not that they’ll stop making it).
Very good analysis Red. I agree and think you have a good feel for the issues as they are coming down.
I agree – well thought out and informative. But I disagree on several points.
First, Megan became a target because she filed charges on one of these dirtbags, with whom she had some sort of relationship, and because of her diminished mental capacity. Sadly, the same crimes would have taken place if she were white – there just would have been different epithets. There will be at least two life with no mercy sentences (mother and son) and probably life with mercy for the rest and various consecutive additional sentences for all so it’s not as if anything will be lost. The issue of Bias Crimes is just too cloudy here and therefore unnecessarily distracting.
Second, if the filing of Bias Crime charges is the only sticking point then I say McGraw should back off. There is not one indication that either the prosecuting attorney or the citizens of Logan County want anything other than to see these psychopaths locked up for good and there isn’t any indication that they aren’t able to accomplish that. If it was looking like they might get off easy due to some sort of sick race loyalty in the community then I would see it differently. Let the man do his job.
Thanx for keeping us informed on the status of this case…
peace, Villager
Jay, you’re arguing facts, I’m arguing law. As a matter of law, the prosecutor could bring the charges. As a matter of law, it doesn’t matter whether or not she knew them. Also, it’s nice that you think you’re a mindreader, but you have no idea whether these people would have done this had she been white. Yes, they apparently had reasons other than her race for doing this, but again, as a matter of law that doesn’t matter. Race has to be a motivating factor, not the motivating factor. Had she been white and reported what’s-his-name for domestic violence, maybe they would have just slashed her car tires or just beat her up or “just” raped her one time or who knows what, but maybe the extreme severity of the crimes committed against her — the kidnapping, the humiliation, the torture, the repeated rapes — was because of her race. You simply don’t know that, and neither do I. But as I’ve said before, I think the question deserves to be put to a jury who will hear ALL of the evidence and then rule on the facts.
And I’ll ask it again, why the hell do we have the damn law if we’re not going to use it? Yeah, it’s cloudy — welcome to the world of law. That’s what trials are for. The fact that you or I can’t say with 100% or 90% or 75% certainty that this was a bias crime is not a reason not to bring the charges. That is the whole point of the legal process — the prosecutor has to prove it beyond a reasonable doubt. Can he do that? I don’t know, but as a matter of law, he could try.
As far as the sentences that the defendants are already facing — I’ve addressed that. If a guy rapes and murders a woman and is facing a life sentence for the murder, should the prosecutor not bring the rape charge? If a guy kidnaps and sexually assaults a child and is facing a life sentence for the kidnapping, should the prosecutor not bring the sexual assault charge? One of them is facing a charge of lying to the police (Frankie Brewster, I think) — that’s a minor charge compared to the rest. Why should the prosecutor bother bringing that charge? Because you bring every charge you can against these sick bastards. You investigate, you determine what crimes were committed, and you charge accordingly.
I’ll spell it out clearly one more time — if the prosecutor would decide not to bring the charges because he just doesn’t think the evidence is there, I would have no problem with that. But as a matter of law, he can bring the charges, and these arguments about whether she knew them, whether there were other motivating factors, whether the penalties they’re already facing are enough, are just not relevant.
As far as McGraw taking over the case, if you actually read the articles that I linked to, you’ll see that the bias crime charges are not the sticking point. He said he has no idea whether he would file bias crime charges — he’d need the benefit of a full investigation, which he hasn’t done. It appears that his concern is that local public pressure is affecting the prosecutor’s ability to do his job. And the fact that the prosecutor sought a legal opinion at this stage on a matter that isn’t that difficult for a lawyer to figure out on his own might indicate that he’s afraid to act without some other authority’s approval because of the political pressure.
Political pressure to file bias crime charges when the prosecutor doesn’t think it is warranted or winnable is just as bad as political pressure to not file those charges and I think the facts, the emotions, and the overwhelming disgust with the perps makes bias crime charges a hindrance in this case. The prosecutor’s first decision, based on far more information than you, I, or McGraw have, was to not file bias crime charges and he wavered under national attention. It would have been better had he not, but I’m not going to second guess someone under that kind of scrutiny.
Maybe the “mind reader” thing is justified, but I’m going to stick by my impression that these were more crimes of retribution against a weaker member of a very disturbed clan. A weaker member who they knew had no one looking for her. And that is arguing law and the prosecutor’s perception of winning guilty counts on said charges.
I have voted for McGraw in the past and would vote for him in the future, but like all politicians, he is full of shit and I’m not going to play 2 West Virginians, 1 Cup with his rhetoric on this. It’s just too important to have refrigerator magnets with “Vote For The Prosecutor Of The Logan Six” as yet another distraction.
Again, I appreciate your arguments and research, but I think this case and justice will be better served without bias crime charges.
The 2 West Virginians, 1 Cup remark was kind of insensitive under the circumstances. Sorry.
Interesting stuff… For what they’re worth, here are a couple of thoughts.
(1) Though I may be one of the know-nothings who question the utility of bias crime laws{1} (at least as they’ve been applied across the country), I agree with Red that should the prosecutor determine that evidence warrants a bias-crime charge, then the charge should be leveled and let the jury decide.
(2) While Jay is arguing facts, they’re speculative. At this stage of the game, we (i.e., the public lacking access to investigatory documents) do not know exactly why Megan Williams was treated as she was. There are several hypotheses, each with some supporting evidence (though not with sufficient evidence to garner proof). What we know for sure is:
(a) Ms. Williams went to the crime scene voluntarily,
(b) Ms. Williams was savagely beaten and mistreated,
(c) At least 6 people were aware of the mistreatment and did nothing to stop it. Among the six, at least one and probably all six, contributed to the mistreatment.
Beyond these knowns, there are allegations that
(a) racial slurs were used (the liklihood factor here is closed to 1.0; but I’m not aware of any of the accused admitting to this);
(b) Ms. Williams and Mr. Brewster had a prior romantic relationship (also highly likely),
(c) That Ms. Williams was “about to put the law” on Mr. Brewster for a domestic incident.
The ultimate motivation for this crime is impossible to infer given the public information. It seems to me (I’m an academic criminologist, not a lawyer) that a reasonably good prosecutor would be a able to run a bias crime charge based on the transcript of Ms. Williams initial interview (released by the Logan Banner). The risk here is that she is by no means a strong witness (there are several inconsistencies in the statement and my guess is that a motivated lawyer would tear her apart in a deposition or during testimony).
The political dimensions of this case certainly complicate matters. Though, I don’t understand the legal rationale that lets McGraw take jurisdiction of the case. Red, can you, or one of the other lawyers explain that to me?
Footnote:
1. Just to be clear, bias crime laws were created to respond to acts that target entire groups. A lynching, cross-burning, or Mathew Shepherd style execution is directed at entire groups of people. I am in favor of such laws that bring penalty enhancements for such conduct as the harm created goes far beyond the individual victim(s).
These laws were not created to deal with “routine” acts of violence… that is, those acts that are not communicative in nature. It’s possible for people of different classifications (e.g., white and black) to have a violent confrontation and it not be a bias crime. If we can demonstrate that the violence was communicative (a target that represents a population, “this is what we do to your kind here…”) then it’s a bias crime.
In this case, Ms. Williams told the police that her assailants did exactly that… “this is what we do to N***** here). That to me is grounds to investigate this matter as a bias crime.
I think that another reason for these types of “bias crime” statutes is so that you have something to hit someone with when the underlying charge is small potatoes. I mean, adding on x number of years doesn’t mean much when the underlying charge is something that can get you a life sentence … other than affecting parole rights. However, if the underlying charge is vandalism then you’re not looking at much punishment at all until you get the “motivated by …” language of the “bias crime” law that ropes in some harsher punishment.
To me, that is an issue in this case. Maybe I’m reading it into the case and maybe it isn’t there. I don’t know.
BTW, we’ve been having some pretty good discussion on these developments over at the WV Blogger Forum for anyone who wants to come over and join the discussion or see some other perspectives. We have also discussed it here as well in terms of the recent rally that was held on these issues.
Thanks for this analysis of the recent developments in the Megan Williams case. I’d seen the stories about about Abraham and McGraw but did not know quite what to make of them.
I want to take issue with Corey’s distinction between “routine” and “communicative” acts of violence (are these legal distinctions?).
First of all, there is nothing routine about the crimes against Megan Williams.
But taking some other term to convey that the acts of violence occurred in private and were not staged with an an audience in mind, like some lynchings and some cross burnings, I still think Corey is taking a limited view of racial violence.
When whites perpetrate racially motivated violence against Blacks and get away with it or are charged with crimes but not held accountable for the racial dimensions of the crimes, it is deeply communicative. It communicates back to the Black community that its members still live in a society that affords them fewer civil and human rights than people with white skin.
Individual, private acts of violence against Blacks have long been used to terrorize and suppress Black communities. Klansmen abducted and tortured Blacks in remote locations, outside of public view, knowing full well that this private act would send a message back to the Black community. The message was that anyone else could be next if they, too, were perceived as being disrespectful to whites, suspected of having inter-racial relationships or of participating in civil rights activity, among other things.
But whites don’t have to be ideologically motivated Klansmen to be guilty of racially motivated crimes that have racist effects. The tacit assumption that one can abuse a Black person with impunity is racist and has meaning and social implications beyond the location of the violence.
get back please