In Like a Lion, Out Like a Lamb, Hate Case Fizzles

The assault of a gay undergraduate last year—which had at one point mobilized hundreds of students, impelled prosecutors to push for two hate-crime convictions, and prompted a dean to pledge that administrators “are not sweeping this under the rug”—ended quietly last week, having lost its steam after 17 months of legal sluggishness.

A Cambridge man landed one year of probation in the case marked by lenience—six witnesses attested to his guilt that April night, but police made no arrests; prosecutors asked first for the maximum penalty of five years imprisonment, then urged only six months; and legal red tape led to a full year of postponements.

Defendant Timothy J. Kelleher was ultimately found guilty of assault and battery but not with “intent to intimidate”—Mass. state law’s way of describing a crime motivated by hate. And the case against a second man, who reportedly told the victim that, “We’ll follow you all the way back to your apartment, you fucking Jewish faggot,” was dropped, at the urging of the prosecutor.

Memories of the incident—and of the victim, Galo Garcia III ’05—have faded, but those students and observers close to the trial wonder how a case with such impetus fizzled so quickly.

And the court’s failure to find Kelleher guilty of “intent to intimidate” has shed light on a phenomenon that several attorneys and criminal law professors say is a reality in the legal system today: Perhaps easy to prosecute in the court of public opinion, hate crimes are just much too difficult to prosecute in a court of law.

TO CUFF OR NOT TO CUFF?

Garcia and six of his male friends were walking along Bow Street the night of April 30, 2005, heading to an Adams House party called “Inappropriate,” which was hosted by the Bisexual, Gay, Lesbian, Transgender, and Supporters Alliance (BGLTSA). He greeted one of his friends with a hug and a kiss.

Two men inside their car began yelling homophobic and anti-Setimtic slurs at the group, prompting Garcia to approach them and call them “assholes.” The court held last week that the car’s driver, Kelleher, jumped out of the car and delivered repeated blows to Garcia’s head and chest. For this, a judge ultimately sentenced the 26-year-old Cambridge resident to a year of probation and 50 hours of community service.

Harvard police responded to the scene that night, interviewing witnesses and the alleged assailants, escorting Garcia to University Health Services for the treatment of bruises, encouraging Garcia to press charges the following Monday—but neither of the suspects left the scene in cuffs. The lack of an arrest drew some animus from campus leaders in the days following the incident.

“He wasn’t arrested because the assault and battery was a misdemeanor and did not occur in the officer’s presence,” Harvard University Police Department spokesman, Steven G. Catalano, told The Crimson at that time.

The Ames professor of law, Philip B. Heymann, said Wednesday that on-the-scene arrests ought not to be used so frequently, but that they are commonplace.

“An arrest is supposed to be a way of assuring that guy doesn’t flee before trial. Otherwise, you’re not supposed to start punishing a guy before trial,” he said. “On the other hand, most cases, when you have a strong suspect, you arrest him on the spot.”

But Kelleher had his own version of events, and he filed a counter complaint in June 2005 alleging that it was Garcia who assaulted him first.

In his complaint, Kelleher said that Garcia and his friends were blocking the crosswalk and that after he honked his horn once, Garcia flipped him the middle finger. “As the group was passing by, I said, ‘Why did you give me the finger, you faggot,’” Kelleher said in court documents.

He alleged that Garcia began attacking him first with a series of slaps to his head and that as Kelleher was attempting to exit his vehicle, Garcia slammed the car door on his leg.

The judge threw this counter complaint out, ruling that it just wasn’t credible.

Kelleher, of Somerville, Mass. is 6-feet tall and Jose T. Sousa, the second man charged with assault, of Winthrop, Mass., is 5’11” tall. Both weighed over 200 pounds. Garcia, who is 5’3” tall, weighed in at 130 pounds that night.

THE HIGH BURDEN OF HATE

A hate-crime conviction is a high standard to meet, even in places like Massachusetts where the “intent to intimidate” is written into law and convicted suspects are slapped with an extra two and a half years in prison for assaults and batteries.

“When these cases are prosecuted, jurors are reluctant to convict” a defendant of having committed the crime because of prejudice, said Law School Climenko Professor of Law Charles J. Ogletree. “It’s a fluid area of the law.”

This gray area of law is largely debated on philosophical grounds—whether motive ought to be enough to make a penalty harsher, according to Yale’s Dollard Professor of Law and Deputy Dean Dan M. Kahan.

“The debate, which is now more of a moral/political one rather than a constitutional one, is whether punishing a person more solely because his offense was motivated by group animus...treats disfavored ideas as a basis for punishment in violation of liberal principles,” he wrote in an e-mail.

Terry A. Maroney, assistant professor of law at Vanderbilt University in Tennessee, said that it is difficult to quantify the number of hate-crime incidents that occur.

“Claims as to whether [hate crimes] are increasing are always controversial to academics,” she said. “Are the crimes increasing or are the reports increasing? The two can happen simultaneously or separately, and it’s very hard to know.”

‘SHORT BUT STRONG’

In support of Garcia, around 200 students gathered at the Science Center lawn that Monday, donning hot pink bandannas with anti-hate messages scribbled on them. About 25 of them marched to Bow Street to “take back” the scene of the crime, and the BGLTSA sponsored self-defense classes in the ensuing month for both genders.

And although the hubbub died down, many within the BGLTSA community say persecution has not.

The current co-chair of BGLTSA, Joshua D. Smith ’08, said that intolerance on campus is demonstrated in subtler ways than physical violence.

“The fact that these assailants were not from Harvard does speak volumes about the tolerance of Harvard’s students, but only really says that they aren’t willing to punch people because of their feelings of discomfort,” he said in an e-mail.

But David Evans ’05, Garcia’s former roommate who affectionally called him “short but strong” in the aftermath of the attack, said it’s safe on campus.

“I think Harvard is one of the most tolerant places on Earth, and I think that [Garcia’s assault] is something entirely out of the ordinary,” he said.

—Staff writer Reed B. Rayman can be reached at rrayman@fas.harvard.edu.