Tuesday, April 1, 2014

Will the definition of “Graffiti” derail a Nebraska hate crime case?

An ugly little purported case of racial bigotry started small. It’s become a big deal at the Scotts Bluff County courthouse in Nebraska’s panhandle.
This week a judge is reviewing a county court’s decision to toss out a hate crime case involving local high school students. At issue is the legal definition of graffiti.
Seeing the case in limbo for what one newspaper writer called “a technicality” angered people in Gering and Scottsbluff. Many were already hurt and embarrassed by the incident. Some are trying to make things better outside the courtroom.
Isaiah Wilson (Courtesy Photo)
It started last October, in the Scottsbluff High School parking lot during a volleyball game, with crosstown rival Gering High. The car of a biracial student from Gering was vandalized. The racially charged “N-word” had been written with “window chalk” seven different times on a car belonging to student Isaiah Wilson. Big-hearted and popular, he is a fixture on the basketball team and in school plays. The principal at Gering High School told the Scottsbluff Star-Herald “this went beyond a school prank. This was a hate crime.” The county attorney agreed.
Police arrested 18-year-old Alysha Schwartzkopf. She was charged with violating the state’s graffiti laws, but with an enhancement because the choice of word took it to the level of a hate crime.
If you did an online search for Schwartzkopf prior to her arrest the only articles you found were about her accomplishments as an honors student and soccer player at Gering High. Her ‘selfie’ photos are all smiles and teenaged goofy.
The trial took place in February, with County Court Judge James Worden presiding. Schwartzkopf’s attorney, Todd Morten, claimed the graffiti didn’t rise to the level of a hate crime, since it grew from a $5 bet between friends resulting in a bad choice. “Maybe (using the N-word) is mean, careless, reckless and hurtful, but that doesn’t make it a crime,” Morten told the judge during opening statements.
The court heard about three hours of testimony that day. On the witness stand for the prosecution, students testified Schwartzkopf vandalized the car to retaliate against Wilson. His offense? A couple of weeks earlier the girl’s cousin also used the N-word, but to Wilson’s face. The school suspended her cousin and the pair wanted revenge.
Isaiah Wilson also took the stand. He claimed no one had ever used that racial insult to him prior to hearing it from the cousin. Faced with it again, written on his car just a few days later, it made him mad.
That’s pretty much all the court heard. All of a sudden defense attorney Morten asked the judge to throw out the case. He claimed the vandalism law at the heart of the case did not apply. The legal definition for graffiti, he pointed out, specifies its appearances on buildings, or walls, or fences. It doesn’t mention cars. Judge Worden agreed. The charges against Schwartzkopf were dismissed.
Judge Worden's ruling from the court record.

That day the Scottsbluff Star-Herald ran an editorial entitled “We’re Sorry.”

“Isaiah, we’re sorry.
It’s important for you to know that many people who learned about this dispiriting incident are deeply ashamed and dismayed about what happened to you. From what we’ve read, you don’t harbor a lot of hatred in your heart. You still deserve better than this. We wish that more people could purge the ugliness from their own hearts, or at least keep it to themselves.”

Kay Grote wrote a column in the Gering Citizen a few days later:

“A technicality of state statute dashed the hopes of justice and closure for Isaiah Wilson, his family, many friends and supporters. A failed verdict and a flawed statute in the case left the community wondering what to do. But I’m moved to caution in this column, don’t let the anger at the outcome lead to more hate. The real challenge now becomes loving our enemies.”

From the IsiahWINS Facebook page.
If the act was intended to diminish the victim in the eyes of the community, it seems to have backfired. Individual residents came forward, moved by the quiet character shown by Isaiah Wilson during his unwelcome time in the spotlight. 
Phil Kelly, a panhandle lawyer (and no relation to this writer), set up a scholarship fund for the young man. He told Steve Frederick, editor at the Star-Herald, “as a community, we should send a message that we’re better than that.” More donations from the community started arriving. An “Isaiah Wilson WINS” Facebook page attracted hundreds of supporters.
Case closed? Not quite. The Scotts Bluff County attorney has appealed to the District Court. The prosecutor argues graffiti that ended up defacing Isaiah Wilson’s car is included in Nebraska state law. This is from the statute titled 28-524. Graffiti; penalty.

 (6) For purposes of this section, graffiti means any letter, word, name, number, symbol, slogan, message, drawing, picture, writing, or other mark of any kind visible to the public that is drawn, painted, chiseled, scratched, or etched on a rock, tree, wall, bridge, fence, gate, building, or other structure.

But earlier in the statute the law refers to “graffiti of any type on any building, public or private, or any other tangible property.” The appeal hinges on whether Wilson’s car is “tangible property” or, as one county judge and one defense attorney believe, the state’s definition remains vague enough to provide Schwartzkopf a way out.
Both sides have filed arguments and the judge in the higher court is reviewing the case. A ruling should be issued in a couple of weeks.