Published October 25, 2012
LOUISVILLE, Ky. – The federal hate crimes trial of two men in Kentucky accused of beating another man because he was gay quickly grew murky, with tales of substance abuse, drug deals gone bad and homosexual trysts.
The result was an acquittal — an embarrassing blow for prosecutors trying their first case under a hate crimes law expanded in 2009 to apply to crimes motivated by, among other things, a victim's actual or perceived sexual orientation. The two men, 20-year-old Anthony Ray Jenkins and his cousin, 37-year-old David Jason Jenkins, were convicted in federal court in London, Ky., of conspiracy and kidnapping, however.
Prosecutors pledged to continue to investigate future hate crimes allegations. However, attorneys for the two men said the case was fundamentally about drugs, not hate. And one defense attorney not involved with the case said prosecutors will want to more closely examine the facts the next time the hate crimes provision is applied.
"They chose a poor set of facts. That happens sometimes," Stetson Law School Professor Charles Rose told The Associated Press. "It's not misconduct. It's just not smart lawyering."
Testimony in the case portrayed the Jenkins cousins as hostile to gays, with the victim, 29-year-old Kevin Pennington, and two others describing how the men shouted obscenities and anti-gay slurs during the attack on a mountain road in Kingdom Come State Park in the Appalachian region of Kentucky.
But witnesses also testified about Pennington having a sexual relationship with another member of the Jenkins family and David Jason Jenkins expressing sexual interest in Pennington. And two women who pleaded guilty to lesser charges in the case acknowledged having sexual relationships with other women.
Defense attorneys admitted their clients took part in a brawl on the side of the mountain, but they said it resulted from a drug deal gone sour between the two men and Pennington, an admitted part-time drug dealer and user.
Jurors were told to consider whether anti-gay bias was the substantial factor in the attack — not the sole factor and not just one of many.
Kentucky is one of 45 states, along with the District of Columbia, that have laws criminalizing bias-motivated violence or intimidation. Arkansas, Georgia, Indiana, South Carolina, and Wyoming, do not have such laws. Georgia's was struck down by the state's supreme court in 2004.
U.S. Attorney Kerry Harvey, whose office handled the case, declined to speculate on whether the testimony about drug use and allegations of homosexual interests and relationships swayed the jury. Instead, Harvey said he was pleased the case ended in a conviction. The acquittals on the hate crimes charges won't deter the office from pursuing such cases in the future, Harvey said.
"When we find evidence that warrants bringing any particular charge ... we will follow that evidence," Harvey said.
Willis Coffey, who represented Anthony Jenkins, said the evidence led investigators to the wrong conclusion.
"I think this was clear," Coffey said after the trial. "I think the jury's pretty clear about this not it — it was not a hate crime."
Rose said that defense attorneys acknowledging the fight and drug use gave them credibility with the jury, but also forced them to essentially admit some kind of crime took place, even if it wasn't a hate crime.
"In that regard, the hate crime law functioned properly" in that it still helped attorneys win a conviction, Rose said. "This is a classic example of the system working the right way to bring justice in line with reality."
Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP