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.

The Death of Amanda Baker and the Risky Business of Jail Guards.

The murder of a jail guard in Nebraska is rare. It’s been difficult to track down how many corrections officers and guards have been killed while on duty. We do know one more was added to the list last Friday.

Amanda Baker

For Scottsbluff, Neb., the murder of Amanda Beth Baker hit just as hard as the death of any law enforcement officer killed on the job. (There had not been an officer murdered in Scotts Bluff County since 1923.) The fact that Baker was only 24 and the inmate accused of killing her is only 15 might make it even more poignant and unnerving.

Funeral services for Baker will be held Saturday.  She was a single mother of a 6-year-old son who had returned to school hoping to stay in corrections, but as a nurse.   A statement issued by her family through the sheriff's department said: "Amanda Baker was a light in our world that was blown out much too early. With a great sense of humor and a smile that took over her whole face, any room would brighten when she entered."

Dylan Cardeilhac was in court today answering a charge of first-degree murder. He had already been busted on armed robbery. That’s where the details of the attack were made public, in paperwork filed in County Court. 

Here’s how Kevin Mooney of KNEB radio summarized the police report:

The arrest affidavit filed in Scotts Bluff County Court by sheriff's investigator Matt Holcomb says video from a camera in the cell shows Cardeilhac had talked Baker into coming into the cell to look at something on the floor. The documents say the video shows (that) as Baker's back was turned to Cardeilhac, he jumped on her back and wrapped both arms around her back and neck, the attack lasting just over two and a half minutes. 

The documents say after the attack Cardeilhac got the facility keys off Baker's belt, left the room, and opened and entered a number of cells that housed other juvenile offenders in the facility. A short time after the attack he was located in another cell and relocated to a secure cell by corrections officer Mark Botzki, who noticed a number of open doors and saw things were not as usual.

Dylan Cardeilhac is lead into court (Courtesy KOTA)

The attack only lasted a couple of minutes. About 12 hours later doctors declared Baker dead.

It was the middle of the night when Baker was called over by Cardeilhac to his cell. Throughout the state there are jail guards and sheriff deputies who work that shift every night. It takes an event like this reminds everyone it is an incredibly boring job that can become, in seconds, horribly risky.

Last fall, after two Douglas County corrections officers were injured on the job within days of each other, more rigid safety procedures were put in place. Douglas County Corrections Director Mark Foxall told the Omaha World-Herald at the time that a felony assault “on a guard typically occurs once or twice a month, a number that rises with the inmate population.”

It’s been 50 years since a guard has been killed at the Nebraska State Penitentiary. That was correctional officer John Claussen, stabbed to death in the prison’s print shop. Claussen was 70 years old. The inmate convicted of killing him died in prison in 2002, but not before he’d murdered another inmate.

Norfolk News-Journal, March 15, 1912

The penitentiary marked its deadliest day on March 14, 1912, when the warden, a deputy warden and a guard were gunned down during a dramatic prison escape in the midst of a blizzard. Three inmates escaped and later killed a farmer near Gretna. Eventually two were killed by police and the third returned to prison.

Only two months later Deputy Warden Robert Taylor was stabbed to death by convict James B. King following a church service. King was the last man in Nebraska to die by hanging.

In all, six employees of the Nebraska Department of Correctional Services have died while on duty.

Meanwhile, Scottsbluff grieves Amanda Baker. The tributes from other corrections officers and those in law enforcement have filled a tribute page set up online. 

Typical was a note from a writer identified as working for corrections in Saunders County, Neb.

Know that the thoughts and prayers of all CO's here in the great state of Nebraska are with your son, your family and co-workers. Your time on this earth was short, but you served our citizens and your son well. Protecting them from the worst of the worst. Lay your shield at the doors of heaven and know we have your watch. Thank you for your service and ultimate sacrifice!