Hate on Trial

The First Amendment protects hatemongers' racist beliefs. So how can prosecutors introduce evidence of racism at trial?

When Skinhead Kevin A. Johnson got into a fight with Michael Schnelle on Sept. 1, 2002, customers at St. Louis' Courtesy Diner witnessed anything but courtesy. Instead, patrons looked on as Johnson beat Schnelle to death outside the restaurant, spewing anti-Semitic epithets at his non-Jewish victim.

At his trial, Johnson denied making the anti-Semitic statements and argued that he acted in self-defense. The prosecutor produced witnesses who said they had heard Johnson make the statements while he beat Schnelle.

The prosecutor also offered images of the defendant's swastika and Confederate battle flag tattoos, asserting that the body art underscored the anti-Semitic nature of the crime. The Skinhead claimed he didn't know what the symbols meant.

In the end, the jury sided with the prosecutor, finding the Skinhead guilty of second-degree murder. But his case, like so many others involving elements of racial hatred, illustrates an important legal quagmire: The First Amendment protects an individual's right to espouse racist sentiments and to associate with others who have similar beliefs. [See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).]

So, how is it that prosecutors can introduce such evidence during criminal trials?

Essentially, a defendant's racist views or hate group affiliation is admissible only when connected to a legitimate trial issue. There is no per se barrier to the admission of evidence about a criminal defendant's racist beliefs or hate group associations.

But, to avoid penalizing a defendant on the basis of his unpopular or morally reprehensible views, the First Amendment prohibits the admission of such evidence when it has "no bearing on the issue being tried." [Dawson v. Delaware, 503 U.S. 159, 168 (1992)]

Three Supreme Court cases are instructive in deciding whether the evidence is admissible.

Determining Legitimate Trial Issues
In Barclay v. Florida, defendant Barclay and four other black men murdered a white man and pinned a racist note to his body with a knife. In assessing several aggravating factors at the penalty phase, a Florida trial judge considered Barclay's membership in the Black Liberation Army and the group's mission to kill white people indiscriminately and instigate a race war. [463 U.S. 939 (1983)]

Barclay claimed that the trial judge's consideration of his racist beliefs and group membership violated his First Amendment rights. A plurality of the Supreme Court disagreed. The Black Liberation Army's desire to start a race war, the court concluded, was relevant to three of Florida's statutory aggravating factors. [See Barclay, 463 U.S. at 948-950.]

First, the fact that Barclay selected five other victims to kill for being white before settling on his ultimate victim demonstrated that the defendant posed a "great risk of death to many persons."

Second, the evidence of his beliefs and group affiliation was relevant to his intent to "disrupt or hinder the lawful exercise of a governmental function"; the notion of a race war threatened the foundation of American society, the Supreme Court said.

Finally, the sentencing judge's comparison of the racist murder to Nazi concentration camps was relevant to weighing the "especially heinous, atrocious and cruel" aggravating circumstance of the crime. [See Id. at 947-950.]

In United States v. Abel, the issue before the Court was witness credibility. Defendant Abel was convicted of bank robbery. At trial, a fellow member of the Aryan Brotherhood, a white supremacist prison gang, testified on Abel's behalf.

The government admitted evidence showing that both the defendant and witness were members of the Aryan Brotherhood, and that members were sworn to lie, cheat, steal and kill to protect each other.

The Supreme Court found that the evidence of membership in the Aryan Brotherhood was admissible to demonstrate the witness' potential bias, even if organizational membership warranted First Amendment protection. [469 U.S. 45 (1984); see also Dawson, 503 U.S. at 164-165]

In both Barclay and Abel, the Supreme Court found links between the admission of a defendant's racist views or hate group affiliation and an issue at trial. This was not the case, however, in Dawson v. Delaware.

In Dawson, the defendant, another member of the Aryan Brotherhood, escaped from a Delaware prison and killed a white woman during his ensuing crime spree. Dawson was convicted of several crimes, including first-degree murder.

During the death penalty phase, the defense and prosecution stipulated to the admission of evidence that Dawson had "Aryan Brotherhood" tattooed on his hand, as well as a description of the Aryan Brotherhood as a "white racist prison gang that began in the 1960's in response to other gangs of racial minorities" and that "[s]eparate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware."

Upon completion of the aggravating and mitigating testimony, Dawson was sentenced to death. [Dawson, 503 U.S. at 161-162.]

Dawson appealed his sentence, claiming the admission of evidence about his affiliation with the Aryan Brotherhood violated his First Amendment right of association. The Supreme Court agreed.

Racial hatred was irrelevant to Dawson's crime, the court concluded, because the murder of the white victim wasn't spawned by racial animus. Furthermore, the prosecution failed to prove that the Delaware Aryan Brotherhood had committed any unlawful or violent acts, which may have been relevant to an aggravating circumstance, such as the future dangerousness of the defendant.

Finally, the evidence, as stipulated, failed to rebut mitigating character evidence submitted by Dawson — that he was kind to his family members and an active participant in prison drug and alcohol programs.

The Supreme Court concluded that the jurors' consideration of Dawson's beliefs and gang affiliation in the abstract, without any connection to an issue at trial, allowed them to punish him based solely on their revulsion for his racist beliefs and Aryan Brotherhood membership, violating his First Amendment rights.

For prosecutors and other legal practitioners wrangling with criminal cases involving hatemongers, the Supreme Court has made its threshold clear: Evidence of a criminal defendant's racist beliefs or hate group affiliation may be admitted at trial, but the evidence must be relevant to a legitimate issue before the court.

Prosecutors can use such evidence to prove motive, witness bias or an aggravating circumstance, but can't trample on the First Amendment for hate's sake alone.


Catherine E. Smith is an assistant professor at the Denver University College of Law, where she teaches a course on extremism and the law.