Police are key to successful hate crimes convictions

How hate crime laws are enforced largely depends on the law enforcement officer who responds to the call.

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Antonio and Biafra Baker built a fence to divide their property in Bethlehem Township, Pennsylvania, (left) from Robert Kujawa's home. Kujawa's continued harassment led the Bakers to eventually install cameras around the property and even wear body cameras.

Connor Murphy/News21

This report is part of the “Hate in America" project produced by the Carnegie-Knight News21 initiative, a national investigative reporting project by top college journalism students and recent graduates from across the country and headquartered at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University.

BETHLEHEM TOWNSHIP, Penn. — It started in 2010, when a black family found shards of glass in their yard, holes cut in the lining of their inflatable pool and a bag of sex toys on their children's trampoline.

Robert T. Kujawa, 45, had moved in next door earlier that summer. He hung Confederate flags from his windows, but only those facing the home of his black neighbors, Antonio and Biafra Baker. Kujawa called them the N-word.

“The one thing that really broke my heart was the first time my boys asked, ‘Is he going to kill us?’” Biafra Baker recalled.

After seven years and at least two-dozen interactions with local law enforcement, Kujawa was arrested, tried and convicted of two counts of committing ethnic intimidation, Pennsylvania’s equivalent of a hate crime charge.

The federal government and 45 states, including Pennsylvania, and the District of Columbia, have laws criminalizing bias-motivated crimes, or hate crimes. Arkansas, Indiana, Wyoming, Georgia and South Carolina do not.

But how those laws are enforced largely depends on the law enforcement officer who responds to the call.

“The patrol officer is the most important official with regard to assessing hate crime because if done incorrectly at the entry level, it almost always doesn't get responded to in the appropriate manner,” said Brian Levin, a former New York Police Department officer who directs the Center for the Study of Hate and Extremism at California State University, San Bernardino.

The Bakers said local law enforcement told the couple to call them any time Kujawa harrassed the family.

“I can't speak highly enough of the Bethlehem Township Police Department,” Biafra Baker said. “They worked for us. They really did.”

Officer Jarod Knouss said he responded to at least nine calls from the Bakers from 2010 to 2014. A responding officer usually can tell right away whether a crime was motivated by bias, he said.

“You’re going to know at some point what the reason is behind, ‘This person doesn't like this person,’ pretty quickly, be it they're racist or bigoted,” Knouss said. “You know it fairly quickly depending on what they're doing, so we form our own opinions and conclusions.”

But not all officers are trained specifically to identify a bias crime.

“Police officers, for most crimes, are not rigorously trained to look at motive,” Levin said. “They apprehend; they take reports; they do some investigation, but not like a detective, for instance. And they don't specialize in these things.”

Sgt. Allen Smith, who oversees the bias-crime unit of the Tucson Police Department, said his officers follow federal guidelines when responding to incidents they suspect are bias-motivated. Officer can check a box on their report to indicate bias was involved.

“Once I get that information, then I send it to my detective that works for me,” Smith said. “He then does the second tier of the federal guideline, investigating, and then does what we call a verification process. He will, if necessary, go out and talk to the folks that are involved.”

In 2016, in Bakersfield, California, Balmeet Singh was standing outside a restaurant when a man approached him, alleging Singh “was going to blow up this country.” The man threatened to kill him, Singh said, before throwing a drink in his face. The man, identified as David Hook, believed that Singh, who is Sikh, was Muslim.  

“A complete stranger, someone I've never met before in my life, is accusing me of threatening my own home,” Singh said. “I grew up here. I live here. I was born in America, and to hear that really hurt.”

Singh said he called Bakersfield Police immediately after the attack but had to call multiple times before an officer would take a statement.

“The message that I heard was, essentially, ‘If you're not physically injured, go home.’” Singh said.

Bernard Melekian, former director of the U.S. Department of Justice’s Office of Community Oriented Policing Services, said law enforcement agencies should investigate bias crimes thoroughly regardless of whether they have a bias-crime unit or liaison.

“I don't know that they’re are necessary,” Melekian said. “I think as a matter of routine operation, it's the responsibility of law enforcement to conduct those investigations appropriately and thoroughly.”

Melekian is chairman of the board of the Police Foundation, a Washington, D.C., organization that works to improve policing practices nationwide.

“At some point, we finally as a profession came to realize that community policing wasn't just having a program, it wasn't just having a bike patrol or a storefront operation. It had to be an operating philosophy,” Melekian said. “And I think in some ways the same thing is true for hate crime investigation. It needs to become an operating philosophy for the entire department rather than the responsibility of a handful of specially trained investigators.”

In Sacramento, the police department has specific orders addressing hate and bias crimes, spokesman Eddie Macaulay said.

“It specifically states if the perception of either of the witnesses or the victims in any particular case feel that it's bias-related, the officer shall report it and document it as a bias-related incident,” McCauley said. “If someone feels that they were targeted because of any of the hate related statutes, that's recorded and documented to make sure that it's investigated properly.”

According to a News 21 analysis of federal survey data, fewer than half of the crimes that victims suspected were motivated by hate were reported to the police. Of those, victims said only 4 percent were verified as hate crimes by law enforcement.

When a bias crime is prosecuted, some cases are filed in state courts while others are handled by the FBI and federal prosecutors.

For the Bakers of Bethlehem Township, their case against Kujawa was prosecuted in state court. Under Pennsylvania law, evidence of “malicious intention” against a victim is needed to prove ethnic intimidation.   “Malicious intention” is defined as the intention to commit a crime based on hatred of an individual or group’s race, color, religion or national origin.

“Our opinions don't mean much unless that info is there to back it up,” Knouss said.

At first, officers didn’t have enough evidence to conclude that Kujawa was committing a hate crime, he said. That changed when Biafra and Antonio Baker started wearing body cameras.

One video they took shows Kujawa exposing himself while accusing Biafra Baker of harassment. In another video, Kujawa can be heard yelling, “(Expletive) you and your wife!”

The videos were part of the evidence used in court to convict Kujawa of two counts of ethnic intimidation. In May, he was sentenced to two to four years in state prison.

In Singh’s case in Bakersfield, Kern County Assistant District Attorney Scott Spielman supervised prosecutors.

“We saw that the elements were met for a hate crime, and we filed it as a misdemeanor because there wasn't any type of injury involved,” Spielman said. “There was an actual battery because there was contact made, so it wasn't just an assault.”

Spielman’s office filed misdemeanor charges against Hook, the man who threatened Singh, under California’s hate crime statute.

“It's like any other crime,” the prosecutor said. “When it comes in, you take a look first and try to determine what happened. If you need further investigation, you ask for that to be done. Once you determine what happened, then you take a look at the law and figure out what crimes have been committed.”

Hook pleaded no contest and was given three years of probation.

Hate cases also can be investigated and prosecuted at the federal level, although that’s uncommon. Only 100 hate crimes were pursued by federal prosecutors from 47 federal-court districts from January 2010 to July 2018, according to a News21 analysis.

Cynthia Deitle, a former FBI agent who now works for the Matthew Shepard Foundation, said there is no single standard for how the FBI decides which cases to investigate.

“There is no uniform process, so every case in every city and every state is going to be different,” Deitle said.

The FBI might intervene if federal authorities believe justice was not served at the state level, if the crime has national implications or occurs in a state without hate crime laws.

“There are many cases where a hate crime occurred, a state or local police department and the ADA (assistant district attorney) get involved, and they (defendants) plead out to a misdemeanor, and the crime that occurred would have been considered a federal felony punishable by 15 years in federal prison,” Deitle said.

Dietle said every FBI investigation is reviewed and approved by top officials with the Department of Justice.

“It has to go all the way to the attorney general or his designee to approve that charge for that case,” Deitle said. “It can’t just be a local United States attorney or the FBI. They don't have the authority to do that.”

In January 2011, the FBI investigated a case in Spokane, Washington, in which an explosive device was found at a Martin Luther King Jr. Unity March. Almost 2,000 people, including racial minorities, attended the march, according to reports from the Justice Department.

According to an affidavit from FBI Special Agent John T. Slack, the Spokane County Sheriff's Office explosive-disposal unit responded to a report of a backpack containing “suspicious wires” that had been left along the route of the march. In the bag, officers found a functional improvised explosive device, which they disabled before turning it over to a FBI bomb technician for further investigation

An FBI laboratory found DNA belonging to Kevin William Harpham of Colville, Washington, on the backpack, Slack’s affidavit said. Federal investigators also traced parts of the bomb to purchases made by Harpham. A sentencing memorandum from federal prosecutors said Harpham admitted to being a white supremacist and member of the white supremacy organization National Alliance.

In December 2011, a federal judge sentenced Harpham to 32 years in prison after he pleaded guilty to attempting to use a weapon of mass destruction and attempting to use an explosive device to cause bodily injury based on actual or perceived race, color and national origins of his potential victims.

While the Spokane Police Department works with the FBI to investigate explosive devices, O’Brien said it was the FBI’s decision to investigate the case as a hate crime.

Knouss, the Bethlehem Township officer who worked with the Bakers, said the process for proving ethnic intimidation took time.

“Ethnic intimidation is a big charge and a little bit more involved to prove,” Knouss said. “But give someone time and their true colors come out.”

News21 reporters Jimmie Jackson and Lenny Martinez Dominguez contributed to this article.

Connor Murphy is a Donald W. Reynolds Fellow, and Jimmie Jackson is a Hearst Foundation Fellow.

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