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When Is a Hate Crime Not a Hate Crime?

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The D.A. indicted Anthony and his friends on a variety of counts, from felony murder down to assault, and tacked on hate-crime charges that could add years of jail time to their sentences. The harshest count, felony murder, brings a minimum of 15 years, but with hate-crime charges, that number goes up to 20. The judge decided that Anthony and John Fox would be tried together, but with separate juries. Ilya “Kaze” Shurov would have his own trial. Gary Timmins had copped a plea, agreeing to four years in exchange for his testimony against the others.

When Anthony and Fox appeared in State Supreme Court in Brooklyn in September, Assistant District Attorney Anna-Sigga Nicolazzi set out to prove both the felony murder case—that they tried to rob Michael Sandy, setting into motion a chain of events that led to his death—and the hate-crime case: that they selected Sandy as their victim because he was gay. Though not yet 40, Nicolazzi is intense and focused, with an expertise in complex cases with multiple defendants. To her, she said in her opening statement, this was a standard-issue hate crime: The defendants were small-time thugs who figured a gay guy for an easy mark, and Michael Sandy was the tragic casualty. “He was preyed upon,” she said, explaining how she would prove that Ilya Shurov punched Sandy in the face, then chased him until he broke free, and how Shurov and John Fox then chased him onto the Belt Parkway. Anthony, she said, was the man with the plan, the one who made this a hate crime: “In his words,” she said, “ ‘The gay guys would always come, and it would be easy.’ ”

Anthony’s lawyer, Gerald Di Chiara, is a veteran criminal attorney best known for winning an acquittal for one of the white defendants who attacked 16-year-old Yusuf Hawkins in the notorious 1989 bias incident in Bensonhurst. In debriefing the Fortunato family, Di Chiara had recognized right away that what Anthony’s mother had discovered on Anthony’s computer could be Anthony’s best defense. Until now, Di Chiara had kept silent about the fact that Anthony was gay (although during jury selection, he says, he’d tried to pick jurors he thought might be gay). He began his opening statement by saying that his client never meant to hurt anyone, and that what was planned that night wasn’t even a robbery but a prank that went out of control when Shurov went wild and attacked Michael Sandy. Then he played the gay card.

Why does it matter if a murderer kills for reasons of bias? Isn’t a murder a murder?

“This man has been tortured by a secret that he has carried for a long time,” he said in his low, approachable Brooklyn accent. “His secret is coming out in this courtroom, and his family”—gesturing now to the gallery, where a handful of Anthony’s relatives sat—“is listening.”

Anthony, Di Chiara announced, was gay. “He’d been leading a secret life through the Internet, meeting men and having sex with them.” Not only was Anthony not culpable in Michael Sandy’s death, Di Chiara argued. He certainly wasn’t involved in a hate crime. How could this have been a gay-bashing, Di Chiara said, if Anthony himself was gay? What Anthony had wanted as much as anything that night, Di Chiara said, was an opportunity to tell his friends he was gay—to come out. Anything else that happened that night, he argued, simply wasn’t Anthony’s fault.

With one speech, the case had a whole new focus. Was Anthony Fortunato a manipulative teenage predator who was playing the gay card in a desperate move to win his freedom? Or was he a sad, mixed-up closet case who never hated anyone, except maybe himself?

If the prosecutor was thrown by the revelation, she recovered and quickly went back to the business of building her murder case. Nicolazzi showed the jury transcripts of the AOL chat that showed how Anthony and the others had enticed Sandy to meet them (got a blanket.. lol). She brought out one of the 911 callers who identified Fox and Shurov on the highway, and then the medical examiner who detailed the gruesome trauma Sandy sustained to his head and body. Sandy’s mother shed a tear on the stand when she remembered how her son “was hooked up to all kinds of machines.”

Nicolazzi’s star witness, such as he was, was Gary Timmins. Hostile and inarticulate, Anthony’s onetime fishing buddy mumbled about how, watching from the dunes as Fox and Shurov were running after Sandy, Anthony put his hand on Timmins’s shoulder and told him to search Sandy’s car for the pot. The next day, Timmins said, Anthony said he’d searched through Sandy’s knapsack—and laughed about how John used a lisp around Sandy to act like “a faggot.” Throughout the trial, Nicolazzi made a practice of never disputing Anthony’s gay claim; instead, she just argued it didn’t matter if he was or wasn’t. The hate-crime law, she said, only required that Anthony singled out Sandy because Sandy was gay. Anthony’s sexuality was irrelevant.


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