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.