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.