Politicized ‘Hate Crimes’, the OPD and District Attorney O’Malley: Update

Posted on March 15, 2012

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As I’m doing the sound check for our interview, I ask Adalberto Castellon the perfunctory question designed to elicit a few seconds of continuous speech—it’s the usual, “what did you have for lunch” question. Adalberto, who goes by Adal, tells me that he had a protein shake, and then explains that it’s all he can eat right now while he recovers from jaw surgery. Six months after a brutal attack in front of downtown Oakland’s Paradiso Club, Adal continues to need facial reconstructive surgery for his jaw, even after 15 titanium plates were placed to reconstruct the right side of his face.

The attack is a clear case of gay bashing as Adal tells it, though Adal himself is not gay. He and his band-mate, Brontez—a queer punk-music bay area icon—were at the bar to discuss an upcoming show. Brontez had chosen the bar, not only because of its convenience to their neighborhood, but because long before its current incarnation, it was the only gay bar for men of color in Oakland. After spending an hour or two in the bar [Adal was training for the NYC Marathon, and did not drink], discussing plans, dancing and talking a bit, Brontez and Adal left the club to bike home, but as they unlocked their bikes in front of the bar, they were confronted with gay slurs by two men who’d also been in the bar.

Adal and Brontez responded, but the slurs only escalated from “batty-boy”, a common Jamaican epitithet for gay, according to Adal. The men harassed them relentlessly; they were in the “wrong bar”, they said; if the encounter had happened in Jamaica, they claimed, both he and Brontez would now be dead.

Finally, angered by the relentless verbal abuse, Brontez spat on the car the two men were driving. One of the attackers then rushed over and punched Brontez, and began to return to his car. Brontez then struck the car with his bike lock; the attacker returned and attacked Brontez. As the attacker set upon his friend, Adal rode back on his bike to help, but was attacked by the other man and knocked off his bike. He blacked out and awoke covered in blood as Brontez was calling the police.

What would seem like an easy investigation, with a clear mandate for a hate crime charge, however, has astonishingly, from Adal’s perspective, become a nightmare of justice denied. Despite the fact that Brontez had made it clear that the attack had been motivated by their perceived sexual orientation—the department’s clear predicate to launch a hate crimes investigation according to its own rules—Oakland police were uninterested in even a simple assault charge. No supervisor was called, as departmental rules require in the case of a possible hate crime.

“The cop didn’t even want to talk to me” Adal says, “Brontez was like, don’t you want to talk to him? And the cop was like, no, it doesn’t matter.”

Despite having obviously severe facial injuries, and being covered with blood, the police

Xrays show the extensive damage to Adal's skull, where plates were used to reconstruct his face.

officer’s report said only that Adal had received a “chipped tooth”. None of his teeth were damaged, though his jaw, cheek and eye socket were shattered—another example of the shocking indifference that OPD showed toward the case.

Brontez and Adal were determined, however, to have the case investigated. Indeed, Adal argues that Brontez’s throwing the bike lock was a tactic to slow down the assailant’s escape long enough to get the car’s license number so that they could report their attackers to the police and prevent other attacks on their community.

“Everyone should stand up for social justice.” argues Adal, ”These people attacked us in our own neighborhood, I get upset when I think about it. What kind of society would we be living in if you were just walking around your neighborhood and somebody called you faggot or other bigoted slurs, and you didn’t do anything?”

Adel and Brontez continued to investigate the case on their own, calling the OPD investigator with leads and more information on the men. Finally, when they were brought in for a line up, both Adal and Brontez positively identified one of their attackers. But just when the case should have accelerated, the investigator faltered. According to Adal, the investigator declined even to give the name of the assailant for a civil suit, saying, in an odd twist to the case, that there was already an open case on the suspect and that they therefore couldn’t release any information.

Despite recounting the details of the story with crystal clarity and even helping to find the perpetrators, Adal was shocked when he received a call from the investigator a few weeks later telling him that District Attorney Nancy O’Malley’s office would not pursue the case. The act of spitting on the car, and the confused online commentary of one of the witnesses in the case, the investigator argued, muddied the attack and would make it an unsuitable hate crime for O’Malley’s office.

Adal has a simpler explanation for the DA and OPD’s disinterest, however. “There wasn’t a single white person involved in this case,” he recounts with a sober air of resignation. “I’ve looked at our attackers, I’ve looked at the witnesses. The witness is black, our attackers are black, the two girls that they were with were black, my friend that got beat up is black and I’m Mexican.”

Adal has done his best to put the incident behind him. He went on to compete in the New York City Marathon even with a still badly misaligned jaw and he’ll also be running the upcoming Oakland Marathon, despite his recent surgery. But the damage has been extensive, and it’s gone deeper than simple physical injuries. The OPD’s disinterest in the hate crimes case and the inordinate focus on the actions of Adal and Brontez, helped fuel a “victim’s syndrome” for Adal, causing him to question his own actions in the attack.

The actions of Adal and Brontez, however, should have been completely removed from the decision to pursue the investigation, according to Michael Siegel, who is now the pair’s attorney.

“By the department’s own policies the case should have been forwarded to a supervisor as a likely hate crime immediately. The issue that they might have argued back or defended themselves doesn’t diminish this fact.” argues Siegel, “You shouldn’t be attacked because of your sexual orientation, period. There’s no excuse.”

Siegel sees some ironic comparisons with the case of the so-called “Ice Cream 3”—three Occupy Oakland activists recently arrested and charged for hate crimes after a non-violent argument with a Piedmont Oakland resident. In the latter case, according to the police report, the alleged victim initiated the exchange by insulting the activists; she alleges she was robbed, but neither her, nor police nor DA allege physical harm of any kind.

The issue, of course, is not that there shouldn’t be an investigation into the “Ice Cream 3”case if it was indeed motivated by anti-gay sentiment. The OPD’s comforting website rhetoric aside, bay area police are notoriously indifferent to hate crimes—especially those of gender and sexual orientation, according to Siegel. Given that situation, one that O’Malley’s office has contributed to over the years,  it’s dishearening to now find “hate crimes’ being used as a weapon in O’Malley’s self-publicized partisan war against Occupy Oakland.

“Its often unsafe to be gay in the bay. And it’s the responsibility of the police department to protect gay residents,” says Siegel of hate crimes investigations, “The fact that these prosecutions are subject then to political considerations is very disturbing. There’s a real risk of discriminatory law enforcement here and malicious prosecution here, while hate crimes continue to go uninvestigated.”

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I’ve written more about the DA’s  odd relationship to the law, here and here

Update:

I spoke to a couple of people that were at the pre-trial for the “ice cream 3″. Amongst other things, they told me that the judge voiced skepticism and annoyance about the grossly inflated charges, and that the main witness’s story fell apart repeatedly under cross-examination.

Jesse reports back on the ludicrous story from the “victim” in the “ice cream 3″ case, that reveals that the case is almost certainly not substantive.