Bloomberg Backs Down on HASA Cuts

Threatened with a court battle by Housing Works, a leading AIDS service organization, the Bloomberg administration abandoned plans to cut 248 of the current 850 case manager positions at New York City’s HIV/AIDS Services Administration.

“We will not be attritting out or redeploying any of the HASA case managers,” said Roy A. Esnard, the general counsel at the city’s Human Resources Administration, at a June 24 hearing in federal court before Magistrate Judge Cheryl Pollak. “That leaves in place the 248 case managers.”

Facing a shortfall of $4.9 billion in the city’s $63 billion budget for the 2011 fiscal year, which begins on July 1, Mayor Michael R. Bloomberg proposed eliminating the case managers to save $4.2 million in the $8.8 billion HRA budget. The AIDS agency is part of HRA. On June 22, Housing Works went into federal court seeking a restraining order to bar the city from making the cut.

On behalf of several HASA clients, Housing Works sued the city in 1995 over a number of issues related to the agency’s operations including the ratio of case managers to clients. In 1997, the City Council enacted a law requiring the AIDS agency to maintain a ratio of one case manager for 34 clients. That ratio was litigated in the lawsuit and Housing Works won a 2001 ruling requiring the city to follow the 1997 law. The latest motion asked the court to enforce the earlier ruling.

“I think that the order in this case couldn’t be clearer,” said Armen Merjian, a senior staff attorney at Housing Works, following the June 24 hearing. “The proposed cuts are clearly illegal.”

Settling the issue is complicated because the Bloomberg administration has already submitted the 2011 budget to the City Council which is expected to vote on it within days. The city and Housing Works agreed that they would sign a stipulation by the end of the day on June 25 to memorialize the deal.

Pollak also made clear that she was ready to rule, at least temporarily, for Housing Works.

“Frankly, the temporary restraining order is ready to go,” she said though she added that her preferred solution was a stipulation.

The case managers enroll people with AIDS in food stamp, Medicaid, housing, and other programs. While private AIDS groups offer many services to their clients, only the city case managers can link people with AIDS to government benefits. Currently, HASA serves roughly 45,000 people with AIDS and their dependents.

“We are delighted that the city has decided to withdraw a series of cuts...cuts that would have destroyed HASA,” Merjian said. “Forty-five thousand people with AIDS will breath a sigh of relief today.”

During his eight years in office, Mayor Rudolph Giuliani repeatedly tried to gut or close the AIDS agency. Until this year, Bloomberg has not attempted that. In prior years, the City Council has usually restored such cuts. This year some members objected to the cuts, but it was not clear that they would vote against the budget if it contained the proposed cuts, in part, because they knew Housing Works was likely to sue Bloomberg.

Joining Housing Works in seeking the federal court ruling were the law firm Emery, Celli, Brinckerhoff & Abady, the HIV Law Project, and attorney Virginia Shubert.

The city’s Law Department and an attorney representing state Attorney General Andrew Cuomo joined HRA in first opposing then acceding to Housing Works.

Testimony Ends in Sucuzhanay Trial

Ending testimony in the second trial of Keith Phoenix, the accused killer of Jose Sucuzhanay, the defense sought to dampen the impact of the hate crime charges in the case by calling Phoenix’s mother to the stand and eliciting testimony from her that the defendant’s father was Latino.

“Dominican and Puerto Rican,” said Marietta Phoenix on June 24 when Philip J. Smallman, Keith’s attorney, asked about the ethnic heritage of Rollin Grant, Keith’s father.

The Brooklyn district attorney said that Phoenix, 30, and Hakim Scott, 27, assaulted Jose and his brother Romel after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Romel said an anti-Latino slur was used. Two witnesses heard an anti-gay slur.

Smallman wanted to ask Marietta about Keith’s gay relatives and how he conducted himself in their company, but Patricia M. Di Mango, the judge in the case, barred that. The theory behind the questioning is that if Keith is shown to be related to or have friends who are gay or Latino he is less likely to have been motivated by bias.

Phoenix faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

The defense argued that this was an alcohol-fueled dispute that turned vicious and that Phoenix, believing Jose was armed, was defending himself when he beat Jose with a bat.

Scott was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries. The jury’s rejection of the hate crime element was condemned by gay and Latino community leaders.

During voir dire, Josh Hanshaft and Patricia M. McNeill, the assistant district attorneys who are trying the case, placed a greater emphasis on the hate crime aspect of the case and they have done that during the trial as well.

Defense attorneys see the hate crime label as tending to inflame juries though that did not happen with the Scott jury or Phoenix’s first jury. The label clearly does have political and symbolic meaning for some activists and community leaders.

Before Marietta took the stand, the prosecution ended its case with grim testimony from the city’s medical examiner. Dr. Michael Greenberg, the pathologist who oversaw Jose’s 2008 autopsy, said there were four fractures to Jose’s skull that were spread across a six-by-three inch area.

“I would have to say that a significant amount of force would be required to cause these injuries,” Greenberg said. Jose was admitted to a Queens hospital early in the morning on December 7 and declared “dead by neurological criteria,” or brain dead in the common parlance, on December 8, Greenberg said.

Following Greenberg’s testimony the prosecution played a videotape that showed Phoenix laughing and smiling as he drove his car through a toll plaza on the Triborough Bridge roughly 20 minutes after the attack.

Closing arguments in the case are expected on June 28. Di Mango will then charge the jury and their deliberations could begin late in the day on June 28.

Testimony Nears An End in Sucuzhanay Trial

The fifth and final eyewitness to the attack that left Jose Sucuzhanay dead told a Brooklyn jury that he heard the driver of a red SUV direct an anti-gay slur at Jose and his brother Romel then watched as that driver and another man attacked the brothers.

“The driver in the front was talking to the two Hispanic males,” said Kuson Nelson on June 23 then he quoted the driver saying “Look at those two little faggot motherfuckers right there.”

Nelson was testifying in the second trial of Keith Phoenix, 30, who faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

The Brooklyn district attorney said that Phoenix and Hakim Scott, 27, assaulted the brothers after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Romel said an anti-Latino slur was also used.

The defense argued that this was an alcohol-fueled dispute that turned vicious and that Phoenix, believing Jose was armed, was defending himself.

Scott was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

Nelson was returning to his home on Bushwick Avenue the night of the incident and saw “two Hispanic males” walking on the sidewalk headed towards Kossuth Place.

“One had his arm around each other, joking, playing around,” Nelson said. After hearing the slur, Nelson saw one man, not the driver, exit the vehicle holding a beer bottle.

“He had a beer bottle, he raised his hand,” Nelson said. “I heard a crash.”

The allegation is that Scott first struck Jose on the head with the beer bottle then Phoenix beat him with a bat. Nelson saw the driver wielding a bat, but he could not see what he was hitting.

“I heard metal hitting concrete,” he said. “I seen the bat in motion, but I couldn’t tell who was being hit or what.”

On cross examination, Philip J. Smallman, Phoenix’s attorney, emphasized where Nelson’s testimony was inconsistent with testimony from other witnesses. Nelson said the first man out of the SUV was in the front passenger seat while other evidence, including Phoenix’s statements and testimony from the third man in the car, have him sitting in the rear. Despite saying he lived on Bushwick for 10 years, Nelson kept referring to Stanhope Street, which is directly across from his apartment building, as Stockholm Street.

The five eyewitnesses generally agreed with each other though there were some differences in their testimony. The bigger problem for the defense is that Phoenix admitted to beating Jose in his oral, written and videotaped statements. By June 23, the jury had heard all of those statements.

No witness has supported Phoenix’s assertion that Jose was armed nor were any weapons found on or near Jose. Most of the witnesses say the brothers were not fighting.

Testimony in the case is expected to end on June 24 and closing arguments will likely be made on June 28.

In Statement, Phoenix Claims Self Defense in Sucuzhanay Killing

In a videotaped statement that was played for the jury at the second trial of Keith Phoenix, the accused killer of Jose Sucuzhanay, Phoenix said he thought Sucuzhanay had a gun and so he beat him twice with a bat.

“I see him going like this reaching for a gun,” Phoenix said as he moved his hand towards the waistband of his pants in a 19-minute statement that was shown to the jury on June 22. “I hit him four times with the bat. I hit him like in the midsection and then the face.”

The Brooklyn district attorney said that Phoenix, 30, and Hakim Scott, 27, attacked Jose and his brother, Romel, after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

Phoenix faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

Scott was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

In his statement, Phoenix said that he, Scott, and Demetrius Nathaniel, Phoenix’s cousin, were returning to the Bronx in Phoenix’s car after attending a party in Brooklyn. As they came to the intersection of Kossuth Place and Bushwick Avenue, Phoenix said he saw two people in the path of his car.

“I seen two people in the street so I blew the horn twice,” he said. One of the two men kicked his car and he stopped to look for damage. As he stepped out of the car, Scott had already exited and was battling with the brothers, Phoenix said.

“By the time I hopped out they was already fighting,” he said. Phoenix said he delivered two sets of blows to Jose, four strikes to his body and two to his head. That is generally consistent with statements from the five eyewitnesses to the attack. The jury in Phoenix’s first trial clearly did not believe that he was acting in self-defense when he beat Jose.

When questioning Romel on June 21, the prosecution elicited testimony that he and Jose had been at a club for a drink moments before the attack and that they were searched before entering the club. No weapons were recovered.

Daniel Ludemann, the first police officer on the scene, testified on June 15 that no weapons were found on or near Jose. In his statement, Phoenix said he put the bat back in his car after the attack and discarded it the next day at a Bronx park. The bat was never found.

Also on June 22, William Gonzalez, a detective with a New York City police department warrant squad, testified that when Phoenix was arrested in a Yonkers apartment on February 27, 2009 he said “I killed someone. Does that make me a bad person?”

The trial will continue on June 23.

Romel Sucuzhanay Testifies at Trial of His Brother's Accused Killer

Testifying in the trial of Keith Phoenix, the man who is accused of killing Jose Sucuzhanay, Jose’s brother largely maintained a stoic demeanor, but was overcome with emotion at one point.

“I came to look at my brother and my brother was on the ground and his tongue was out,” said Romel Sucuzhanay through an interpreter on June 21 in Brooklyn Supreme Court.

Romel next saw Jose when he was on life support in a Queens hospital. As he described seeing him then having to sign for his brother’s body at the city morgue, Romel gripped his forehead and hung his head. At other moments, his anger at Phoenix was apparent when he fixed a withering glare on the defendant.

The Brooklyn district attorney said that Phoenix, 30, and Hakim Scott, 27, attacked the brothers after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

Phoenix faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

Scott was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

As he did during the first trial, Romel described how he and Jose were out for a night of dancing and drinking after a day of work. At a church dance, Romel said he had three beers and Jose drank 11 or 12. They stopped at a bar where each man had part of a Long Island Iced Tea and then headed to Jose’s home on Kossuth Place.

“We were walking and that night it was very cold and my brother was shivering,” Romel said adding that he took off his jacket and put it over his brother. As they approached the intersection of Kossuth Place and Bushwick Avenue, Romel noticed a red car stopped at the light.

“The driver looked at us with an angry face as if he was upset,” Romel said. “When we were walking towards the house they came out screaming ‘Fucking Spanish’...It was very fast. They jumped out and they hit my brother in the head with a bottle.”

The bottle shattered and Romel said the shards cut his hands, arm and chest. He saw a second man “hitting my brother with a bat.”

The prosecution’s case consists almost entirely of Phoenix’s written, oral, and videotaped statements, in which he admits to beating Jose with a bat, and five eyewitnesses including Romel. The witnesses generally agree though they do diverge in places. Only Romel heard the anti-Latino slur while two other witnesses heard an anti-gay slur.

On cross examination, Philip J. Smallman, Phoenix’s attorney, elicited some testimony that may aid his client in avoiding a conviction on the assault and attempted assault charges. Romel conceded that he was never cut by the broken bottle which was wielded by Scott and that the wounds did not require medical attention.

“And again, you were never treated?” Smallman asked. “No, never,” Romel said.

The trial will continue on June 22.

Kagan Pushed Religious Liberty Despite Threat to Discrimination Laws

Despite knowing that religious freedom laws could invalidate state and local anti-discrimination statutes that protect bisexual, lesbian, transgender, and gay taxpayers, Elena Kagan, a nominee to the US Supreme Court, championed such laws in her later years in the Clinton administration.

“I’m the biggest fan of [the Religious Freedom Restoration Act] (now [the Religious Liberty Protection Act]) in this building, but you should not take this advice right now,” Kagan wrote in a May 20, 1999 memo to Ron Klain, then the chief of staff to Al Gore, the vice president. “You’ll have a gay/lesbian firestorm on your hands. (Alternatively, if you come out for a version of RFRA that has a civil rights carve-out, you’ll have a religious groups firestorm on your hands.)”

Kagan’s advice came in response to a memo by Bill Galston, a Gore advisor, that circulated among Gore’s staff and suggested the position he should take on the law.

“There is a new wrinkle, however,” Galston wrote in the May 19, 1999 memo. “I am told that some groups -- mainly gay and lesbian rights organizations -- have raised objections to RLPA on the grounds that it could enhance the ability of individuals citing religious convictions to discriminate against them and other minorities. For this reason, the ACLU has broken ranks and is demanding language in the bill specifying that religious free exercise claims cannot be used to justify discrimination.”

The US Supreme Court ruled in 1997 that the 1993 restoration act, which was meant to strike “sensible balances between religious liberty and competing prior governmental interests,” could apply to federal law, but not to state and local laws. The 1999 protection act, which passed the House in July of that year, but never had a vote in the Senate, was supposed to overcome the court’s concerns.

Clearly aware of the objections by gay groups, but still trying to get the law enacted, Kagan, currently the solicitor general, was negotiating with both sides.

“We had a meeting with the religious groups yesterday and are having a meeting with the gay groups Monday to see whether we can work out some kind of rapprochment (sp?),” she wrote in the May 20 memo. “We’ll let you know as soon as it’s safe to go back in the water.”

Roughly three weeks earlier, Kagan received an email from Edward W. Correia, special counsel for civil rights to President Bill Clinton, inviting her to a meeting on the protection act. That law, Correia wrote, “would create a religious free exercise defense to many state laws that are inconsistent with the religious beliefs or practices of individuals.”

While Clinton “strongly supported” the restoration act “and it was widely supported in Congress...some of the potential implications of the bill are now better understood,” Correia wrote. Charles Canady, a conservative Republican from Florida and the protection act’s sponsor, wanted to move the bill to a vote.

Correia wrote that the act “could provide a religious liberties defense to many state laws, including some civil rights laws, such as fair housing laws that prevent discrimination against gays and lesbians and unmarried persons. This result is not certain, but it is certainly possible, at least in some states. As a result, the gay community, supported by many civil rights groups, oppose RLPA as currently drafted. Last year, no Democrats on the House Constitution Subcommittee supported the bill after they heard from this community. Canady wants to move this bill quickly, and the Administration is going to have to decide how to respond.”

Kagan sent an email to a staffer saying of Correia’s meeting “please put this on my schedule.” The day before the House vote on the protection act, the Clinton administration issued a statement saying it “strongly supports” the law.

Kagan, who worked in the Clinton White House from 1995 to 1999, urged the administration in a 1996 memo to join religious conservatives in asking the US Supreme Court to review and reverse a California Supreme Court ruling that found that a landlord’s religious objections to renting to an unmarried couple were trumped by that state’s anti-discrimination law noting “the danger this decision poses to RFRA’s guarantee of religious freedom in the State of California.”

When President Barack Obama nominated Kagan on May 10 to replace retiring Supreme Court Justice John Paul Stevens, gay groups, including the nation’s largest gay lobby, the Human Rights Campaign, Lambda Legal, the gay rights law firm, and the National Gay and Lesbian Task Force, generally welcomed her selection with HRC being particularly effusive in its praise of Kagan though the groups hedged their bets saying they looked forward to learning more about her during Senate hearings.

Testimony Continues in Sucuzhanay Trial

By linking their cell phones calls to cell phone antennas, a detective in the police department’s Intelligence Division was able to approximate the movements of three men, including two who attacked Jose Sucuzhanay and his brother, Romel, in the 2008 assault that led to Jose’s death.

The analysis of the cell phone records, which were obtained with a subpoena, shows “that three cell phones were in close proximity to one another and they traveled from the Bronx to Brooklyn and then from Brooklyn to the Bronx,” said Ronald Weeks, a division detective, during June 17 testimony at the second trial of Keith Phoenix, Jose’s accused killer.

Phoenix, 30, faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

His co-defendant in the first trial, Hakim Scott, 27, faced the same charges and was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

The Brooklyn district attorney said that the two attacked Jose and Romel after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

Late on December 6, Phoenix, Scott, and Demetrius Nathaniel, Phoenix’s cousin, traveled from their Bronx homes to a party in Brooklyn. They encountered Jose and Romel as they were driving home.

The analysis by Weeks used roughly a dozen calls connected to different antennas among the three to show them first calling each other in the Bronx then later calls as they headed towards Brooklyn then calls in Brooklyn just before the attack and calls in the Bronx following it. Weeks, who has been in the division for three years, works in the Analytical Programs Unit there.

“We maintain and process various forms of data including cell phone data,” he said. He has done a similar analysis in over 20 criminal cases.

While few would dispute that the use of such records in the Sucuzhanay case is a good thing the analysis also shows the increasing and disquieting ability of government to intrude into the lives of taxpayers. Ultimately, the analysis merely corroborates the more significant evidence -- the oral, written, and videotaped statements Phoenix gave to police, in which he admits to beating Jose with a bat, and the five eyewitnesses to the attack. Two of those witnesses took the stand on June 17.

Nathaniel was in Phoenix’s SUV when he saw Jose and Romel looking “like a married couple walking down the aisle.” Phoenix rolled down his car window and yelled “two faggot ass niggers,” Nathaniel said. He heard a loud bang, which may have been Jose kicking the car, and Scott exited to smash a beer bottle on Jose’s head. Phoenix retrieved a “bat, pole or stick” from his car and beat Jose who was lying on the street. Nathaniel saw Phoenix step away then return to deliver a second set of blows to Jose’s head.

“My cousin knocked him right back down with the bat,” Nathaniel said. He heard “bone breaking,” the 19-year-old said.

The second witness, Kimbale Taylor, said she was awakened by a “thumping noise” and looked out her bedroom window to see “a gentleman who was beating on another gentleman who was lying on the ground.”

Taylor, an emergency medical technician, said she saw two sets of blows made with an aluminum bat with the second set to the prone man’s head.

“He walked back to the SUV,” Taylor said of the assailant. “He walked over to him and started beating him again...He hit him very hard.”

Taylor later identified Phoenix as the man wielding the bat in a police line up and she pointed him out in court as well.

Philip J. Smallman, Phoenix's attorney, was unable to shake Nathaniel or Taylor on cross examination though he may have aided his client's case by eliciting testimony from Nathaniel that Jose and Romel were obviously intoxicated.

The trial will continue on June 21.

Sucuzhanay Testimony Begins in Brooklyn

City Councilman Daniel Dromm, Marcelo Sucuzhanay, Diego Sucuzhanay, Romel Sucuzhanay, Council Speaker Christine Quinn, Congresswoman Nydia Velazquez (obscured), and Ana María Archila, co-executive director of Make the Road New York, at a May 7 press conference criticizing the jury verdict in the case against Hakim Scott.

The second trial of Keith Phoenix, the accused killer of Jose Sucuzhanay, began on June 15 with prosecutors emphasizing what they said was the hate motivation for the 2008 attack on Sucuzhanay and his brother that led to Jose’s death.

“This was not an accident, this was not poor judgment, this was certainly not about drinking leading to a fight,” said Josh Hanshaft, an assistant district attorney who is prosecuting the case along with Patricia M. McNeill, also an assistant district attorney. “Ladies and gentlemen, you’ll learn that this occurred for one reason...He believed they were a gay couple.”

The Brooklyn district attorney said that Phoenix, 30, and Hakim Scott, 27, attacked Jose and his brother, Romel, after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

Phoenix faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

Scott faced the same charges and was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries. That Scott’s jury rejected the hate crime tag drew condemnation from community leaders.

As he did when questioning prospective jurors, Philip J. Smallman, Phoenix’s attorney, asked the jury to be patient and remember that his client was presumed innocent.

“Snap decisions seem to have become the norm,” Smallman said. “I’m asking you to avoid that.”

Alcohol was behind the incident, Smallman said, and politics was driving the hate crime label. He referred to statements on the attack made by the mayor and other political leaders which drew an objection from Hanshaft that was sustained by Patricia M. Di Mango, the trial judge.

“Alcohol was running through this like the Nile runs through Egypt,” he said and added later “You will decide, and only you, what constitutes hate.”

The case began with testimony from Daniel Ludemann, the first police officer to arrive on the scene, and Davi Almonte, a cab driver who saw the assault and wrote down the license plate number of Phoenix’s car. Their testimony matched that given at the first trial.

Kagan in 1996: Religion Trumps Discrimination Laws

When she worked in the White House in 1996, Elena Kagan argued that the Clinton administration should join religious conservatives in asking the US Supreme Court to review and reverse a California Supreme Court ruling that found that a landlord’s religious objections to renting to an unmarried couple were trumped by that state’s anti-discrimination law.

“The plurality’s reasoning seems to me quite outrageous almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,” wrote Kagan, who has been nominated to serve on the US Supreme Court by President Barack Obama, in an August 4, 1996 memo. “[G]iven the importance of this issue to the President and the danger this decision poses to [the Religious Freedom Restoration Act’s] guarantee of religious freedom in the State of California, I think there is an argument to be made for urging the Court to review and reverse the decision.”

The act was passed in 1993 in response to a 1990 US Supreme Court ruling that, the act claimed, “eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” The act was meant to strike “sensible balances between religious liberty and competing prior governmental interests.”

The memo, in which she is clearly expressing her own views, was sent to Jack Quinn, then the White House counsel, and Kathy Wallman, Quinn’s deputy counsel. Kagan, currently the solicitor general, authored it after Steve McFarland, then the legal director at the Christian Legal Society, called her to say that a group of religious organizations would ask the court to review and overturn the California decision. That application was denied in 1997.

Joining the society were the Church of Jesus Christ of Latter Day Saints, commonly known as the Mormon church, the National Association of Evangelicals, the Southern Baptist Convention as well as a coalition of Baptist organizations, the National Council of the Churches of Christ, and the American Jewish Congress.

The California case concerned a landlord, Evelyn Smith, who owned four rental units. Smith lived elsewhere. In 1987, she rented a unit to a heterosexual couple who told her they were married, but disclosed they were unmarried after the lease was signed. Citing her religious beliefs, Smith refused to let them move in and they sued claiming discrimination based on marital status under California’s Fair Employment and Housing Act. The case moved through the courts until the 1996 ruling from the state’s highest court. Lambda Legal, the gay rights law firm, filed a brief on behalf of the couple. Smith was represented, pro bono, by an attorney from Concerned Women For America, a rightwing group.

In her 1996 memo, Kagan said she was told that the Solicitor General, the office that handles government litigation before the US Supreme Court, was not joining the application.

“The deadline for filing is next week (though the SG's office can of course ask for an extension), so if we want the SG's office to reverse its decision, we will have to act very quickly,” Kagan wrote. Quinn’s handwritten response on the memo is indecipherable. It is not clear that the Clinton administration joined the petition.

For lesbian, transgender, bisexual and gay Americans, Kagan’s position is not academic. Religious conservatives have argued that their beliefs should allow them to ignore anti-discrimination laws protecting the queer community.

In 1999, Lambda Legal sued the North Coast Women's Care Medical Group on behalf of a lesbian who was denied services there by doctors who claimed their religious beliefs allowed that. The case was settled in 2009.

In 2008, the Bush administration issued a federal rule that could bar any healthcare facility that receives federal funds from firing or punishing an employee who cites “religious beliefs or moral convictions” and refuses to provide services to gay, lesbian, bisexual or transgendered patients or people with AIDS. That rule appears to have been reversed in 2009.

Gay groups praised Kagan’s nomination, but kept some of their powder dry saying they would review her record and looked forward to a thorough examination of it by the Senate.

UPDATE: In a 6-to-3 ruling, the US Supreme Court struck down the Religious Freedom Restoration Act in 1997.

The case concerned a suit brought against Boerne, Texas by the Roman Catholic Archbishop of San Antonio who applied for a permit to expand a church there. The permit was denied and the archbishoip sued citing the 1993 act. The Clinton administration and a broad coalition of civil and religious groups from the left and right supported the act.

The majority opinion illustrates the danger in Kagan’s position. First, the act solved a problem that did not exist.

“An instructive comparison may be drawn between RFRA and the Voting Rights Act of 1965,” the majority held. “In contrast to the record of widespread and persisting racial discrimination which confronted Congress and the Judiciary...RFRA's legislative record lacks examples of any instances of generally applicable laws passed because of religious bigotry in the past 40 years. Rather, the emphasis of the RFRA hearings was on laws like the one at issue that place incidental burdens on religion. It is difficult to maintain that such laws are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country.”

The law’s effect, potentially, was staggering.

“Its sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter,” the majority held. “Its restrictions apply to every government agency and official, and to all statutory or other law, whether adopted before or after its enactment. It has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who claims a substantial burden on his or her free exercise of religion. Such a claim will often be difficult to contest.”

Sucuzhanay Retrial to Start June 15; Lambda Legal Staffer Excluded From Jury

After jury selection was completed on June 11, opening arguments and testimony will start on June 15 in the retrial of Keith Phoenix, the accused killer of Jose Sucuzhanay.

Phoenix, 30, faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

His co-defendant in the first trial, Hakim Scott, 27, faced the same charges and was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries. That Scott’s jury rejected the hate crime tag drew condemnation from community leaders.

The Brooklyn district attorney said that the two men attacked Jose and his brother, Romel, after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

The jury of six men and six women with two male and two female alternates is a mix of ages, races and ethnicities. Attorneys closely questioned prospective jurors on their views on the gay community and hate crime laws. They got some blunt answers.

“In my opinion, I am a Christian and according to the Bible it’s not according to the word of God,” said one woman who was rejected on June 11. Some jurors said they had gay friends or family members while others expressed ambivalence.

“I have no opinion on it to tell you the truth,” said one man who was not selected. “If that’s their lifestyle, that’s their lifestyle.”

The defense used a peremptory challenge to exclude Leslie J. Gabel-Brett, director of education and public affairs at Lambda Legal, the gay rights law firm, who sat patiently through nearly two days of juror questioning despite the near certainty that she would be rejected.

Both sides had unlimited challenges for cause that allowed them to exclude someone as long as the judge, Patricia M. Di Mango, agreed and 20 peremptory challenges that did not require the judge’s agreement. At one point, the voir dire began to sound like a debate on hate crime laws.

A bank operations manager, who is white, said he did not support such laws, but would follow the law if he was selected to be a juror. “I’m not sure I agree with the hate crime designation,” he said. “A crime is a crime.”

A second man, an interior designer and African-American, recalled the “church bombings” and “lynchings of children” in the 60s before saying he supported those laws. “Yes, I totally agree with hate crime laws,” he said. Both men were rejected.

Patricia M. McNeill, an assistant district attorney who is prosecuting the case with Josh Hanshaft, also an assistant district attorney, prepared jurors to hear the evidence.

The case largely relies on Phoenix’s oral, written and videotaped statements, in which he admits to beating Jose, and five eyewitnesses to the crime. Those five generally agreed on what they saw, but there were inconsistencies among them. McNeill asked the prospective jurors to imagine they had witnessed an accident and were asked to recall it.

“Can everyone accept that we would say different things and still be telling the truth?” she said. McNeill also asked them to consider that a defendant’s statement could be a mix of truth and lies.

Philip J. Smallman, Phoenix’s attorney, asked jurors if they would consider the role alcohol and language problems might play in witness testimony.

“If the district attorney’s office asks you to put a great deal of faith in that type of witness will you consider that as a factor?” he said.

Romel, who is one of the five eyewitnesses, testified through a translator during the first trial. He said that he and Jose had been drinking heavily before they encountered Scott and Phoenix.

Two witnesses said Phoenix made an anti-gay comment before the attack and Romel said that someone yelled “Fucking Spanish” before the assault.

Smallman asked jurors if they could distinguish between something said in anger or as part of an “isolated incident” and a “pattern of behavior.”

Smallman said “Is there a distinction between what could be seen as anger and what could be seen as hate?”

Sucuzhanay Retrial Begins in Brooklyn

Jury selection began in the retrial of Keith Phoenix, the accused killer of Jose Sucuzhanay, and attorneys selected three jurors by the end of June 10, the trial’s first day.

Phoenix, 30, faces multiple second degree murder, manslaughter, assault, and attempted assault charges with some charged as hate crimes. His first trial ended in a mistrial on May 11 after 11 jurors wanted a murder conviction and one held out for a manslaughter conviction. The jury did not believe the attack was a hate crime.

His co-defendant in the first trial, Hakim Scott, 27, faced the same charges and was convicted on manslaughter and attempted assault charges on May 6 though not as hate crimes. The two men were tried together, but with separate juries.

The Brooklyn district attorney said that the two men attacked Jose and his brother, Romel, after mistaking them for a gay couple as they were walking home early in the morning on December 7, 2008 in Brooklyn’s Bushwick section. The two Ecuadorian immigrants were huddled close together to stay warm. Witnesses said anti-gay and anti-Latino slurs were used. The defense argued that this was an alcohol-fueled dispute that turned vicious.

In questioning prospective jurors on June 10, Josh Hanshaft, an assistant district attorney who is prosecuting the case with Patricia M. McNeill, also an assistant district attorney, pressed the panel on their views on the gay community and hate crime laws, an element of the case that they emphasized less during voir dire at the first trial.

“Have you also seen same sex couples out?” Hanshaft asked. He quizzed potential jurors as to whether or not they felt hate crime laws were correct.

“I think it’s appropriate to have a separate class for murder,” said one woman who was one of the three selected on June 10. A young man who was not selected seemed taken aback that the Sucuzhanay brothers had been mistaken for a couple.

“Me personally I wouldn’t hold my brother’s hand outside,” he said. “Holding my brother’s hand, like you said, people might judge.”

As he and McNeill did during the first trial, Hanshaft also prepared jurors for what they would not see during the case.

The prosecution relied on Phoenix’s statement, in which he admits to beating Jose, and five eyewitnesses to the brutal attack. That testimony was supported by other evidence, such as cell phone records placing the defendants at the crime scene. What the district attorney does not have is fingerprint, DNA or other physical evidence linking Phoenix to the crime. The bat Phoenix used to beat Jose’s body and head was never found.

“I’m telling you now there will be no DNA evidence from this defendant,” Hanshaft said. “I need to know if there is anybody here who requires DNA evidence.”

Philip J. Smallman, Phoenix’s attorney, asked jurors to be patient and to listen to all of the evidence before making up their minds about Phoenix’s guilt or innocence.

“Take a look at Mr. Phoenix and I’m going to ask you if any of you see anything except an innocent man sitting there,” he said. Smallman also asked that jurors not be swayed by the attention that politicians and the press had given the case.

Scott was scheduled to be sentenced on June 9, but that was postponed until July 14. Scott was not on the prosecution’s witness list that was presented to the Patricia M. Di Mango, the trial judge, on June 10. Craig L. Newman, Scott’s attorney, said the postponement was done so he could complete a pre-sentence report.

“I want to make sure the report is as good as possible,” he said on June 9.

Did Gym Owners Torpedo GENDA?

Following the failed effort to move the Gender Expression Non-Discrimination Act through the New York state Senate Judiciary Committee, state Senator Thomas Duane, who is openly gay and represents Chelsea, denounced the Senate as a “cesspool of homophobia and transphobia.”

Notwithstanding Duane’s thoughts on the June 8 12-to-11 vote, the more likely explanation is that until November 2008 Republicans were the majority party in the state Senate for more than 30 years. Democrats are barely clinging to their 32-to-30 majority and Republicans, with a chance to get back on top this coming November, see no reason to hand them a victory of any sort.

Republicans have shown that they can be very disciplined when it comes to hewing to the party line. Every single Republican and eight Democrats banded together to defeat a gay marriage bill last December in a 38-to-24 vote.

Speaking at a December 3 rally following the marriage vote, Deborah Glick, an Assemblymember and out lesbian who represents the West Village, said “Too many times for too many years we have seen that there is party discipline on the Republican side.”

The act, which has easily passed the Democrat-dominated state Assembly three times since 2008, bans discrimination based on gender identity and expression. It adds protections for transgender persons to the state human rights, education, and hate crimes laws. The gay and transgender communities have tried to pass the legislation since 2002. With the June 8 defeat, however, the recriminations began.

Posting on bilerico.com, some commenters blamed the Empire State Pride Agenda, the statewide gay lobbying group, saying it had not done sufficient lobbying work on the gender bill. The Pride Agenda, working with Housing Works and Queer Rising, held a webinar on the gender bill in April of this year then the groups had an Albany lobby day on the bill on May 11.

One commenter on towleroad.com, posting anonymously, blamed Duane for the vote. Many commenters in the gay blogosphere focussed their rage on Ruben Diaz, a Bronx senator and the only Democrat on the committee to vote against the gender bill. Diaz has been a consistent opponent of queer community causes.

Other usual suspects, the state Conservative Party, for instance, opposed the gender bill not that Republicans needed any prompting from their right wing friends. One opponent was unusual, the International Health, Racquet and Sportsclub Association.

The association represents over 9,000 health clubs and 650 suppliers nationally with 285 member clubs in New York. It submitted testimony saying “while IHRSA unquestionably supports any legislation that guarantees equal protection for all citizens...we cannot support this legislation in its present form. We request that any legislation intending to protect the liberties of individuals, regardless of their gender identity or expression, be constructed in such a way that it does not encroach on the privacy rights of other citizens.”

The issue? Bathrooms and locker rooms. The legislation would “prohibit a health club from preventing a health club user access to any locker room as long as their ‘expressed’ or ‘perceived’ gender identity is consistent with the sex to which the locker room is assigned,” the association asserted.

The association wanted “the bathrooms or locker rooms of a health club, or a place of exercise established for the exclusive use of individuals of the same sex” exempted from the bill’s provision. The problem with such an exemption is that it forever bans transgender people from these places which appears to violate the spirit if not the letter of non-discrimination laws.

At first blush, the association’s stance would seem to be irrelevant as Republicans were probably going to oppose this bill in any case. What the association’s testimony did do was give opponents cover at the June 8 committee meeting.

“One of the main arguments against this bill seems to be the issue of access, unfettered access to bathrooms, locker rooms,” said Senator George Winner, a Republican who represents four western New York counties, as he brandished the association’s testimony. “Is that a valid objection or valid point?”

Winner said later “Why don’t we amend the bill to put that objection in?...It seems it would be pretty easy to take this number one argument off the table...It must be pure obstinacy not to take that into consideration.”

Democrat Diane J. Savino, who represents parts of Brooklyn and Staten Island, asked that the committee not “trivialize this bill into a bathroom bill” and said later “With respect to the usage of bathrooms, transgender people use bathrooms now. They come into the ladies room all the time and I accept them as they appear.”

The association made the same argument in opposing a gender non-discrimination law in Massachusetts last year. That bill has not yet received a vote in that state’s legislature. It appears to have successfully made this argument elsewhere.

Testifying in Massachusetts last year, Jennifer Levi, director of the Transgender Rights Project at Boston’s Gay & Lesbian Advocates & Defenders, a gay rights law firm, said that such problems had not come up in the 13 states that currently bar discrimination based on gender identity.

“We should not allow safety concerns to become a proxy for prejudice against transgender people,” Levi was quoted saying on clubindustry.com. “A full 37 percent of the American population, in 13 states, live in an area covered by a transgender-inclusive anti-discrimination law, and there have been no reported incidents involving a transgender person threatening the safety of anyone else in a restroom facility.”

New York City AIDS Cut Protested

Roughly ten protesters briefly interrupted a City Council budget hearing to object to the elimination of nearly 250 positions in the city’s HIV/AIDS Services Administration.

“Have some guts, no housing cuts,” they yelled in unison at the June 7 hearing before a banner they displayed was snatched away by guards and they were quickly hustled out of City Hall.

All of the protesters were from Housing Works, the AIDS services agency that has aggressively battled the city over funding in the courts and on the streets.

Facing a shortfall of $4.9 billion in the city’s $63 billion budget for the 2011 fiscal year, which begins on July 1, Mayor Michael R. Bloomberg proposed eliminating 248 case managers from the current 850 in the AIDS unit to save $4.2 million in the $8.8 billion Human Resources Administration budget. The AIDS unit is part of the administration.

In prior years, the mayor and City Council have engaged in a ritual in which the mayor proposes cuts that are then restored, with much posturing, by the council. The surplus cash and one-time revenue saving measures that closed those earlier budget gaps are largely gone. The state budget, which supplies 18 percent of the city’s revenues, is two months late and lawmakers in Albany do not appear to be near closing the $7.4 billion gap in the state’s $139 billion budget. The city and state anticipate budget gaps for the next several years.

“Not only are we faced with putting together a reasonable budget for 2011, but we also need to have some awareness of our need to maintain an acceptable level of services going forward,” Mark Page, director of the city’s Office of Management and Budget, told the council’s Committee on Finance just before the protest began.

Complicating the proposed cut is a 1997 law enacted by the City Council that required the AIDS unit, among a number of mandates, to maintain a ratio of one case manager for 34 clients. That ratio was litigated in a 1995 lawsuit brought in federal court by Housing Works which won a ruling in 2001 requiring the city to follow the 1997 law.

The case managers enroll people with AIDS in food stamp, Medicaid, housing, and other programs at the AIDS unit. While private AIDS groups offer many services to their clients, only the city case managers can link people with AIDS to government benefits.

An additional complication this year is that Housing Works has already threatened to sue if the city eliminates the case manager positions and some council members may decide to not fight the cut thinking that Housing Works will prevail later in court.

“The thing is anything could happen in court,” said Kristin Goodwin, director of New York City Policy and Organizing at Housing Works, after being tossed out of City Hall. “If that’s the back up plan, it’s bad idea.”

While Housing Works believes that some council members will oppose the cut now, it is not clear that the council will refuse to approve the budget if it remains.

“We know that there are folks who are going to fight it hard in negotiations, but we don’t have commitments on the vote,” Goodwin said. “Our expectation is they will tell the mayor they’re not going to sign, it’s illegal.”

An Appeal in 2006 Michael Sandy Killing

Arguing an appeal for one of four men convicted in the 2006 killing of Michael Sandy, the attorney for Anthony Fortunato said the evidence at trial showed his client never formed the legally required state of mind to find him guilty of manslaughter as a hate crime and his 2007 conviction on that charge should be overturned.

“The key issue in this case is whether or not the evidence was legally and factually sufficient to prove manslaughter beyond a reasonable doubt,” said Richard E. Mischel, Fortunato’s attorney, at a June 3 hearing before four state appeals court judges.

In 2006, Fortunato, 24, and three other men lured Sandy, a 29-year-old gay man, to a secluded Brooklyn beach where they tried to rob him. Sandy fled on to a nearby highway where he was struck by a car and killed. Fortunato was sentenced to seven-to-21 years. His earliest possible release date is October 2013.

The testimony at trial was that Fortunato suggested the plan for the crime to his co-defendants, but that it was John Fox, 23, and Ilya Shurov, 24, who chased Sandy onto the highway. There was conflicting testimony about Fortunato’s involvement in the later robbery.

Fox was convicted on robbery and manslaughter as hate crimes charges. He was sentenced to 11-to-21 years with an earliest possible release date in 2017. Shurov pleaded guilty to manslaughter and robbery as hate crimes and was sentenced to 14-to-17 years. His earliest possible release date is 2021.

In a deal, Gary Timmins, 19, testified for the prosecution in exchange for a four-year sentence. He pleaded guilty to second degree attempted robbery as a hate crime and attempted first degree assault. Timmins was released from prison in March.

Mischel said the verdict by Fortunato’s jury showed that they did not believe he participated in the robbery, the act that drove Sandy to the highway and requires intent to forcibly steal. Manslaughter requires that a defendant act recklessly, but, in this case, that state of mind is predicated on first trying to rob Sandy, Mischel said.

“As a consequence of the intentional act, there was a reckless act,” he said. “My client had no violent intentions at all and so the jury found.”

Fortunato testified in his own defense and said that he left the scene when the robbery began. Another witness said Fortunato said the day after the crime that he had rifled through a bag in Sandy’s car though no physical evidence supported that. Fortunato also told his jury that he warned the others against using violence.

“Mr. Fortunato said there was to be no violence, there was to be no fooling around, we’re just looking to scam him,” Mischel told the judges.

Sandy was lured to the beach thinking he would have sex and smoke marijuana with just Fox. Seth M. Lieberman, the assistant district attorney who argued for the Brooklyn prosecutor’s office, said that Sandy was set upon by four men at the beach and panicked.

“This confirms the reasonable foreseeability, just the fact that it was four men,” Lieberman said. “There are four guys against one...He’s a gay man. The incidence of gay bashing is quite frequent.”

To be convicted of manslaughter, a defendant must create or contribute to “a substantial and unjustifiable risk” that another’s death will occur and ignore that risk. The conduct must also be “a gross deviation from the standard of conduct that a reasonable person” in the same situation would observe.

The judges, who gave each attorney 15 minutes to make their arguments, asked a few questions.

“Could he have foreseen that the fellow would have run from Plumb Beach?” Judge Ariel E. Belen asked Mischel who reiterated that the jury found that Fortunato did not aid in the robbery. “I respectfully submit that his action was not the cause of Mr. Sandy’s death,” Mischel said.

“Stating it another way, your client’s response to those actions by his confederates was to rummage through the victim’s car?” said William F. Mastro. Mischel said “The jury obviously did not credit that evidence.”

When Lieberman said that Sandy was attacked by four men, Belen asked “Do you know anything about any violent tendencies on the part of these people?” Lieberman said “This isn’t rocket science. Put yourself in Mr. Sandy’s position.”

The other judges were Anita R. Florio and Sheri. S. Roman.

Lower Still

In a March 25 editorial published in the Washington Examiner, a right-leaning online newspaper, Tony Perkins, president of the Family Research Council attacked a House resolution that expressed the “sense of the House of Representatives that the ‘Anti-Homosexuality Bill, 2009’ under consideration by the Parliament of Uganda...threatens the protection of fundamental human rights.”

Perkins wrote “House Foreign Affairs Committee Chairman Howard Berman, D-CA, introduced H.R. 1064 in response to a proposed ‘anti-homosexuality bill’ in Uganda. His proposal advocates for a universal human right based on sexual orientation, and hints at punishing our allies with the withdrawal of U.S. foreign assistance should they demure from accepting Berman's demand.”

Of course, 1064 does nothing of the kind. The resolution was in response to Uganda’s so called “kill the gays” bill, legislation that penalizes a single act of homosexual sex between consenting adults with a potential life sentence and exposes a “serial offender” to a possible death sentence.

The resolution, which remains in the House Committee on Foreign Affairs, is non-binding and establishes no law. As noted on joemygod.blogspot.com, the Senate passed a similar resolution on April 13 by unanimous consent. In other words, it did even get a vote. The resolutions are akin to these bodies stating an opinion on the Ugandan law, which has yet to be voted on in that nation’s parliament.

A few American evangelicals, notably Rick Warren, pastor of California’s Saddleback Church, were shamed into disavowing the law after their links to the law’s Ugandan proponents were exposed in American media outlets. None of these right wingers surrendered their opposition to the gay community even as they condemned the law.

What is confounding is that the council is supporting the Ugandan law and expended lobbying resources to stop Berman’s resolution. Putting aside that the Ugandan law is immoral, what possible political benefit could this organization gain from endorsing it and picking a fight over a resolution? Or are they so blinded by ideology that they no longer make such calculations?