by Mirta Ojito
The issue then was intent. If Jeff intended to cause Lucero’s death that meant he should be charged with murder, but if his intent was to harm him, albeit seriously, that would result in a charge of manslaughter. But O’Donnell and her colleagues did not have to decide. They took their case to a grand jury.5 Ultimately, the grand jury charged Jeff with seven crimes. The most serious charges, the ones that could send him to prison for life, were murder in the second degree as a hate crime (meaning he intentionally caused Lucero’s death by stabbing him), and manslaughter in the first degree as a hate crime (meaning that while the intention may have been to cause serious injury to Lucero, Jeff caused his death by stabbing him). The other charges were gang assault in the first degree, conspiracy in the fourth degree, and attempted assault in the second degree as a hate crime for the attacks on Héctor Sierra, Angel Loja, and Octavio Cordovo.6
It was, up to that point, the biggest case of O’Donnell’s career. She was thirty-seven when she got the case and thirty-nine when it finally made its way to the court on March 18, 2010, a Thursday. On that first day of People of the State of New York v. Jeffrey Conroy, O’Donnell put everything aside—politics, media, pressure from advocacy groups—and applied all her focus and considerable energy to the one thing that really mattered to her: winning.
The courtroom of Judge Doyle was silent and expectant when O’Donnell rose from her chair behind a polished wooden table in front of the judge and addressed the court and the members of the jury—seven men, five women, and four alternates.
“Your Honor,” she began, “madam foreperson, counsel, on November 8, 2008, the hunt was on.” And then O’Donnell was off, describing in great detail how two separate groups of friends with different lives and separate plans collided at Funaro Court near midnight on that date with disastrous and life-altering results.
“Seven teenagers, one of which was the defendant, Jeffrey Conroy, wilding, roaming the streets of Patchogue for one purpose and one purpose only, to find a Hispanic person to randomly and physically attack,” she said.
The jurors were riveted. Their facial expressions—horror at the description of the murder, or concern for the family of Marcelo Lucero—did not escape the hawk-like attention of Jeff’s experienced attorney.
William Keahon, a former prosecutor who was sixty-five at the time, always came to court impeccably dressed in neutral-colored or black suits and neatly coiffed, with his thinning silver hair combed back and his face scrubbed red and completely devoid of facial hair. The New York Times described him as a “forceful, unpredictable litigator” who twice asked Judge Doyle to declare a mistrial on technicalities and who, during jury selection, argued successfully that a dark cloth that covered part of the defense table cast his client in an ominous light. He offered to bring in his own tools to remove the cloth if it was screwed in. But he didn’t have to—the cloth was gone the next day.7
Keahon was famous for taking on tough cases and often winning acquittal for clients charged with horrific crimes. This is how a 2007 profile published in Newsday described him: “Keahon, after all, is the same guy who won Suffolk’s first acquittal for first-degree murder in 1997, even after defendant Gairy Chang made a full confession to the crime. He is the guy who last year kept a jury out seven days in the Zachary Gibian case after presenting the seemingly far-fetched theory that Gibian’s disabled mother—not Gibian, who eventually was convicted—was the one who killed Gibian’s sleeping stepfather with a samurai sword.” He was also the lawyer for Evan Marshall, who in 2007 pleaded guilty to dismembering a retired schoolteacher and keeping her head in the trunk of his car.8 Yet in his opening statements on Jeff’s case, Keahon didn’t say much about his client or about the case. With the exception of a few pertinent names, his intervention could have been the same for any other trial. Later it became obvious that he had been saving his wild-card strategy for the end of the trial.
“Now, you’ve had an opportunity to listen and hear a very persuasive opening statement by the Assistant District Attorney,” he told the jurors. “And, as Miss O’Donnell was speaking to you, I was listening to her, I was watching each of you, how you were reacting, and I saw on some of your faces almost an acceptance of what she was telling you about, almost an acceptance of the facts that she told you she would prove, almost as if you had accepted that it had been proven.”
Jeffrey Conroy had been in jail for sixteen months. He was now nineteen, but despite the black suit he wore to court most days and the fact that his hands were cuffed as he entered and left the court, Jeff still looked like a sullen but scared teenager who appeared to not fully understand the gravity of his situation.
Nothing had been proven yet, but Keahon knew that in the press his client had already been tried. By the time the trial started, four of the teenagers had pleaded guilty to first-degree gang assault and conspiracy as hate crimes; two more would do the same before the year was over.9 Many on Long Island and beyond, including several prospective jurors, knew the sordid details of the crime and of the restless evening that led to it.
Prosecuting crimes as hate crimes became possible in the state of New York after the Hate Crimes Act of 2000 was approved by a majority in the legislature, becoming law on July 10, 2000. Here’s how the act reads in part:
The legislature finds and determines as follows: criminal acts involving violence, intimidation and destruction of property based upon bias and prejudice have become more prevalent in New York State in recent years. The intolerable truth is that in these crimes, commonly and justly referred to as “hate crimes,” victims are intentionally selected, in whole or in part, because of their race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation. Hate crimes do more than threaten the safety and welfare of all citizens. They inflict on victims incalculable physical and emotional damage and tear at the very fabric of free society.
Crimes motivated by invidious hatred toward particular groups not only harm individual victims but send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs. Hate crimes can and do intimidate and disrupt entire communities and vitiate the civility that is essential to healthy democratic processes. In a democratic society, citizens cannot be required to approve of the beliefs and practices of others, but must never commit criminal acts on account of them. Current law does not adequately recognize the harm to public order and individual safety that hate crimes cause. Therefore, our laws must be strengthened to provide clear recognition of the gravity of hate crimes and the compelling importance of preventing their recurrence. Accordingly, the legislature finds and declares that hate crimes should be prosecuted and punished with appropriate severity.10
Washington and Oregon were the first states to enact hate crime legislation, in 1981. Today forty-five states and the District of Columbia have penalty-enhancing hate crime laws, though the laws vary with regard to the groups protected, the type of crime covered, and the penalty for those who commit hate crimes. The exceptions are Arkansas, Georgia, Indiana, South Carolina, and Wyoming.11
According to a report by the National Institute of Justice—the research, development, and evaluation agency of the Department of Justice—the most common motivating factor in hate crimes reported to the police is race, followed by religion, sexual orientation, ethnicity, and victim disability. Only 11 percent of the hate crimes reported are motivated by ethnicity, while 61 percent are motivated by race.
It is safe to assume that most offenders probably don’t know the difference between race and ethnicity. Part of the problem in defining a hate crime against a Hispanic is that, in the United States, the terms “Hispanic” and “Latino”—which for the most part are used interchangeably—have become racialized. In assigning the color “brown” to what is, in fact, a multihued ethnicity, it has become increasingly difficult to distinguish between ethnicity and race when discussing Hispanics—a US census category that defines a great number of pe
ople who can be of any race and were born in Latin America or trace their ancestry to that region. The category is self-assigned. In other words, anyone can claim to be Hispanic. There are fifty-two million Hispanics in the United States, not all of them immigrants, of course, and the numbers swell to almost fifty-six million if one counts Puerto Ricans, who are born US citizens, making Hispanics the largest minority group in the country.12
Among them, there are black Cubans and white Dominicans, Argentine Jews and Indigenous, born-again Christians from El Salvador. There are Mexican Americans who have lived in Texas for generations and consider themselves Hispanics yet don’t speak Spanish, and there are newly arrived black Costa Ricans, descendants of Jamaicans, whose first language was English. Adding to this true melting pot are those who speak not Spanish but indigenous languages such as Mixteco, Nahuatl, and Chinanteco. And then there are Garifuna people from Honduras, Guatemala, and Nicaragua, who descend from West African, Carib, and Arawak people. They speak their own language in addition to Spanish and may or may not claim to be Hispanics in the US census. If one of them was attacked by hatemongers, would that action fall under the category of race or ethnicity? It would probably depend on the epithets the attackers called the victim during the attack. In the Lucero case ethnicity was the issue, but his attackers may have thought “Hispanic” labeled a race.
Where hate crime statistics draw even closer to the Lucero case is in what motivates hate crime offenders. According to the Bureau of Justice Statistics, part of the Department of Justice, 66 percent are “motivated by the desire for excitement.” Those are called “thrill-seekers.” Only 1 percent feel they are on a “mission”—that is, “so strongly committed to bigotry that they make hate a career.”13
For years, the FBI has kept an exhaustive record of hate crimes reported by police officers. The year Lucero was killed, 7,783 hate crime incidents were reported. Of those, 51.3 percent were racially motivated and 11.5 were motivated by ethnicity or national origin; 64 percent of the crimes motivated by ethnicity or nationality targeted Hispanics. The offenders were overwhelmingly white (61.1 percent). Most of the crimes against persons involved intimidation (48.8 percent) or simple assault (32.1), but 18.5 percent were aggravated assaults, seven persons were killed, and eleven were raped.
One of the murdered victims in 2008, of course, was Lucero, but he wasn’t the only one that year in New York. José Sucuzhañay, also of Ecuador, was beaten with a beer bottle and an aluminum bat a month after Lucero was killed. On December 7, 2008, Sucuzhañay, who had had too much to drink, was walking home with his brother, Romel, arms linked, in Bushwick, Brooklyn. Keith Phoenix, thirty, and Hakim Scott, twenty-six, mistook them for a gay couple and began yelling antigay and anti-Hispanic slurs. Scott smashed a beer bottle on José’s head and chased Romel down the block, armed with the broken beer bottle, while Phoenix grabbed a bat from the back of his SUV and attacked José, cracking his skull. Scott was convicted of manslaughter and assault and was sentenced to thirty-seven years. Phoenix was convicted of second-degree murder and sentenced to twenty-five years to life and an additional twelve years for attempted assault, both as hate crimes.14 A few months before their case was tried in Brooklyn, Jeffrey Conroy became the first person to be prosecuted for homicide as a hate crime in Suffolk County under the state’s hate crime law.
Jury selection in the trial of Jeffrey Conroy was a tedious but fascinating exercise for anyone interested in the mood of Suffolk County regarding issues of immigration. The judge revealed his own ignorance by repeatedly referring to Hispanics as “Spanish,” as if the fifty-six million who self-identify as Hispanics could be reduced to a language many of them no longer speak or never did.
Perhaps because he used the term, or perhaps because they also didn’t know any better, potential jurors kept using the same word when the judge, attempting to figure out their biases, asked questions such as “Do you know any Spanish people?” or “Do you have any Spanish friends or are they members of your family?” Some did know Hispanics, and their biases for or against Hispanics—mostly against—was enough to get them eliminated from the jury pool. More important, though, their comments in court were like an X-ray of the country, exposing some of the deepest fears of suburban America.
“Why are illegal aliens allowed to testify?” one prospective juror asked Judge Doyle. “That’s okay in the eyes of the government?” When the judge prodded him further, he said he would question the credibility of a witness who was an undocumented immigrant, “considering he’s not an American.”15
Another prospective juror asked, “If these people are going to testify, are they going to be arrested after they testify, being that they are illegal?”16
Those two were quickly asked to leave the jury pool, as well as a young woman who said that her father “has a huge opinion about illegal immigration.” Asked if that would interfere with her ability to be fair, she said her father’s opinion had become hers.17
A man told the judge that his house had been broken into by illegal immigrants while he slept, which rendered him unable to remain impartial in the trial of a man accused of killing an undocumented immigrant. A young man from Riverhead revealed that, because he grew up in a racist environment in Pennsylvania, he could not be fair. Another man, a school bus driver, said he couldn’t be fair either because he was a member of a union that had taken a position on the lack of federal immigration policy, adding that he had earned his job and salary the “old-fashioned way,” legally.18 Yet another man said he had had a number of bad experiences working with immigrants on landscaping jobs. “They weren’t very truthful,” he told the judge. A union electrician said he had an objection to people who are working without documents and without paying taxes.19
Reporter Manny Fernandez of the New York Times wrote at one point that the jury selection had the “feel of a call-in show on talk radio, as men and women sounded off on illegal immigration, hate crimes, their ethnic background and the American dream.”20
In the end it took eight days to select the jurors, after four hundred prospective jurors were excused one after another. On March 18, the prosecution called its first witness.21
At first, Jeff’s lawyer tried to blame Lucero’s death on the delay in getting him to a hospital that was a mere three miles away. The New York Times asked a forensic pathologist not involved in the case to examine Lucero’s autopsy report. The pathologist described Lucero’s wound as a “survivable injury if promptly treated.”22 When the Times told Joselo what the pathologist had said, the information took his breath away. “We’re not talking about 10 minutes,” he said. “We’re talking about 39 minutes. I don’t even know how to describe it, this incompetence. We’re talking about somebody’s life.”23
The folding knife used in the killing was displayed for the first time during the testimony of Officer Michael Richardsen, the one who had patted down Jeff and at first missed the knife. A large photo of the knife, blood still staining the blade, was shown to the jurors. The black handle was curved, and the blade had a thick, serrated edge.24
Although the defense tried to show that Jeff had a diverse and loyal group of friends, and therefore could not have harbored ill feelings toward any group of people, some of the most damning testimonies against him came from his oldest and best friends. First, Keith Brunjes, who had known him since the two were about eight years old, testified how one day in May 2008, when the two were watching the HBO prison series Oz, they decided to imitate the prisoners in the show and make homemade tattoos. Using ink purchased at an arts-and-crafts store, a needle, and thread, Brunjes said, he first tattooed Jeff with a lightning bolt and a star, and about six weeks later gave him another tattoo: an inch-square swastika on Jeff’s right upper thigh.
Brunjes said he didn’t know why his friend wanted to be so marked, but he also testified that it appeared as if Jeff understood the implications. “If I ever go to jail, I’m screwed,” Brunjes said Jeff told him after he had finished the tattoo. Another
friend, Alyssa Sprague, told jurors that when Jeff showed her his lightning bolt tattoo, she thought it was the Gatorade logo, but he corrected her. No, she said he told her, it was white power.25
The testimony of Angel Loja too was damaging for Jeff and difficult to listen to. His words brought the court to an even deeper than usual silence.
“I heard the blood rushing from my friend. It sounded like water from a faucet,” he said, but Keahon focused on the fact that Loja hadn’t seen the knife or his friend getting stabbed.26
Retired deputy chief medical examiner Stuart Dawson told the jury that when the knife had penetrated Lucero—“inserted all the way” to the hilt—there had been “some kind of twisting and turning.” The stab wound was just below the right collarbone, not usually a terribly dangerous place for a wound, but the knife had nicked an artery and a vein. He repeated what others had said: Quick action might have saved Marcelo’s life.27