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When Is a Hate Crime Not a Hate Crime?

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Di Chiara, meanwhile, pushed forward with his gay defense. He called three different witnesses, forcing them under subpoena to testify to having had sex with Anthony Fortunato. Each man appeared at least ten years older than Anthony. Two of them said Anthony had been wearing women’s underwear during their encounters—a bra and a G-string. “He told me he had a girlfriend,” one said. “But he believed that he was gay.” All that was left was for the defendant himself to confirm it.

Two weeks after Di Chiara’s revelation, on the afternoon of October 1, Anthony Fortunato finally took the stand. Di Chiara walked him through what was obviously a well-rehearsed recitation of the gay defense: how closeted he was, how he’d hoped to possibly come out that night, how as soon as Kaze got violent, he left Plum Beach and walked home. The one glitch came when Di Chiara asked outright if he was gay. “I could be homosexual,” Anthony said—his mother sitting a few yards away. “Or bisexual. But I really don’t know.”

Anthony continued hedging well into Nicolazzi’s cross-examination. As she sought to destroy his credibility, Anthony strained to defend it, and the result was a series of semantic clashes that didn’t especially help his case. She said he lured Sandy to Plum Beach; he said no, it was a meeting. She said he’d been hiding in the dunes. He said he was sitting. Then she started listing all the lies he’d told that night: He led Michael Sandy to believe Fisheyefox was just one guy; he allowed Sandy to assume that John Fox was gay; he assured him that he would be alone with John that night. “It’s fair to say you lied to get what you wanted?” she asked.

Anthony thought for a moment before answering.

“It’s fair to say that,” he said.

Di Chiara used his closing statement to drive home the hate-crime argument one last time. “If Anthony’s gay, it makes it less likely that he’s involved in a hate crime,” he said. “He did a stupid, bad thing. But he is not guilty of the charges in this indictment.” Nicolazzi, for her part, reminded the jury of why Sandy was selected that night, and suggested that the idea of Anthony’s wanting to come out to his friends was bogus. “These were the guys the defendant wants you to believe he was testing the waters with, ready to come out to?” she said. “That’s ridiculous.”

Four days into deliberations, the foreman sent a worried note to the judge: “A number of jurors are having serious personality conflicts with juror No. 1, making it difficult to continue our deliberation.” The judge gave them a word of encouragement and sent them back. More notes followed, suggesting they’d reached a partial verdict but were still hung up on the hate-crime question. Finally, on day five, at 3 p.m., the jurors reached a verdict. In front of a packed courtroom, the foreman, looking ashen, said in a weak voice that Anthony was guilty—not of felony murder, but of the lesser charge of manslaughter. In one sense, the jury was cutting Anthony a break—manslaughter carries far less jail time than felony murder. But there was one major caveat. The jury also unanimously agreed that Anthony’s manslaughter was a hate crime.

Within minutes of the verdict, the foreman, a 46-year-old playwright named Eric Zaccar, told reporters what had gone on behind closed doors. He declared that no juror seriously thought Anthony was a bigot, or had set out to brutalize a homosexual that October night—and they certainly didn’t believe that he ever laid a hand on Michael Sandy. What the jury did, Zaccar said, was what they were instructed to do: Follow the letter of the law. In order to convict, the judge told them, they needed only to be convinced that Anthony intentionally selected Sandy “in whole or in substantial part because of a belief or perception on his part” of Sandy’s sexual orientation. “I’m never going to feel good about this,” Zaccar said. “Not one person on that jury believed that it was a hate crime.”


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