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?”