Daily Independent (Ashland, KY)

October 28, 2012

Not a hate crime

First prosecution under new law ends with an acquittal

The Independent

ASHLAND — The first U.S. prosecution under a new federal law against anti-gay violence ended with a Kentucky jury acquitting two cousins of hate-crime charges. So does that mean justice was not served in this case? Not at all.

Jurors at the federal courthouse in London did find Anthony Ray Jenkins and his cousin David Jason Jenkins guilty of attacking and kidnapping  29-year-old Kevin Pennington at a rural state park in 2011. They just were not convinced that Pennington’s homosexuality was an overriding factor in the crime.

Government attorneys said the trial is the first U.S. prosecution charging a violation of the sexual orientation section of the Matthew Shepard-James Byrd Jr. Hate Crimes Prevention Act passed in 2009. The message the jury’s verdict sends is that convicting someone of violating the law demands more convincing evidence than presented at the trial.

Anthony Jenkins’ attorney, Willis Coffey, said after the trial that jurors didn’t find Pennington’s account of the events credible.

“You’d like to have an acquittal on all counts, but he’s happy he was found not guilty of a hate crime,” Coffey said of his client. “So am I.”

Pennington, who pushed or prosecution under the hate crime law, held hands with family members and let out an audible sigh when the not-guilty verdicts on the hate-crimes charges were announced. He left the courtroom without talking to news reporters.

Throughout the trial, the defense argued that any dispute between the Jenkinses and Pennington was over a drug deal gone sour and not Pennington’s sexual orientation.

Andrew Stephens, the attorney for David Jason Jenkins, argued that his client had at least 21 beers on the day of the assault and was too drunk to have formulated a plan for such an attack.

“These people who were stoned and drunk were going to form a plan? When this event took place, they were all about drugs,” Stephens said.

Coffey argued that Anthony Jenkins has an IQ of roughly 75 and was merely a follower who does not hate gay people. He called the allegations “the nearest thing to nothing I have ever seen.”

Coffey said Pennington pushed the idea that he was attacked for being gay to serve his own political agenda. “If the government and President Obama want to bow to the special-interest groups, that’s their business, but they picked the wrong case,” Coffey said.

U.S. Justice Department civil rights attorney AeJean Cha told jurors that the Jenkins cousins and two women planned to kidnap, beat and kill Pennington because of his sexual orientation. “This is not about drugs, this is about the fact that Kevin is gay,” Cha said.

Hawkins also played a tape of Pennington’s 911 call after the attack. On the tape, Pennington’s voice can be heard cracking as he tries to describe the attack and relay information about the Jenkinses.

“They’re trying to kill me,” Pennington told the 911 operator on April 4, 2011. “I didn’t know what they were going to do. I think it’s because I’m gay.”

No one should forget that the jurors did convict the Jenkinses of kidnapping sand assault, and both face the possibility of being sentenced to long prison terms when they return to court on Feb. 21. It’s just that the same jurors were not convinced that Pennington’s homosexuality was a major factor in the crime. So be it.

Because they involve what is going on inside a criminal’s mind while a crime is being committed, hate crimes should be among the most difficult to prove.