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.

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.