The white supremacist accused of planting a potentially deadly back pack bomb on the route of a Martin Luther King Jr. Day unity parade in Spokane, Wash., was arraigned Monday on four charges, including a new federal hate crime charge. His trial was scheduled for May 31 in federal court.
The grand jury indictment returned last week against Kevin William Harpham marks only the third time the U.S. Department of Justice has sought the filing of a federal hate crime charge under the Matthew Shepard and James Byrd Jr. Hates Crimes Prevention Act enacted by Congress in October 2009.
“The filing of this charge is very rare,’’ said Jack Levin, a professor at Northeastern University in Boston and director of the school’s Brudnick Center on Conflict and Violence. That rarity is because hate crimes usually are prosecuted under state law, with 49 states having some form of hate crime statute, Levin said. But even under state laws, only a “very small percentage of perpetrators are ever charged with hate crimes,” said Levin, a criminologist and author of several books on crime.
In federal cases involving bias and more than one defendant, federal prosecutors frequently use conspiracy charges rather than hate crime charges as their primary tool. However, in the Spokane case, authorities are investigating a man who appears to have acted alone, a so-called “lone wolf,” which presumably rules out the possibility of conspiracy charges.
Under provisions of previously enacted federal civil rights laws, federal prosecutors not only had to prove that race, religion, national origin or sexual orientation was a factor in the crime; they also had to convince a jury beyond a reasonable doubt that the accused was interfering with a federally protected right. Those included such things as voting, using interstate commerce or using a public facility.
But under the strengthened 2009 federal hate crimes law, prosecutors only have to show that race, religion, national origin, sexual orientation, gender identity or disability were linked to the crime. Even though no federal right is implicated, they then have the right to bring a federal prosecution, although that rarely happens as a practical matter.
Harpham, a 36-year-old unemployed former soldier with ties to the neo-Nazi National Alliance, was arrested by the FBI near his rural home near Addy, Wash., on March 7 on charges of attempted use of a weapon of mass destruction at the Jan. 17 parade and possession of an unregistered destructive device. Harpham had posted more than 1,000 messages to the white supremacist Vanguard News Network before his arrest.
Last week, a federal grand jury in the Eastern District of Washington secretly heard new evidence in an ongoing FBI investigation before returning a superseding indictment containing two additional counts against Harpham.
In addition to the hate crime count lodged against Harpham, federal prosecutors also asked the grand jury to indict the defendant on the use of a firearm (in this case, an explosive device) during a crime of violence.
If convicted on that last count, Harpham faces a minimum mandatory sentence of 30 years in prison. That sentence would have to be served consecutively with any term imposed on other counts and is not parolable.
To successfully bring the federal weapons of mass destruction and firearms counts (which do require the involvement of a federal right) against Harpham, federal prosecutors are expected to argue that there were at least two businesses near the scene of the planned bombing that are involved in interstate commerce.
So how rare is the filing of a federal hate crime count as opposed to a conspiracy charge?
A press spokeswoman at the Justice Department confirmed that the Harpham case is only the third such filing ever under the Matthew Shepard Act. Details of those other two cases weren’t immediately available.
Frequently, when more than one defendant is arrested in civil rights case, prosecutors find it simplest to file federal civil rights conspiracy charges.
For example, on April 5 a grand jury in the Western District of Arkansas returned a federal conspiracy count and five additional aiding and abetting charges against Sean Popejoy, 19, and Frankie Maybee, both of Green Forest, Ark.
Those charges relate to a racially motivated assault on five Hispanic men last summer in Arkansas. The indictment alleges that on June 20, 2010, the defendants yelled anti-Latino epithets at the victims while at a gas station parking lot. As the victims drove away, the defendants chased after them in a truck, eventually ramming and forcing the victims’ car off the road, where it caught fire. All five victims were injured.
In another Arkansas case, federal prosecutors didn’t bring hate crime charges against four men and a woman accused in the fire-bombing of an interracial couple’s home in Hardy, Ark., in January. Instead the defendants were indicted on charges including conspiracy to deny civil rights; aiding and abetting an attempt to intimidate through the use of a dangerous weapon or fire; aiding and abetting possession of an unregistered firearm and possession of a firearm in furtherance of a crime of violence.
Charged in that case are Jason Barnwell, 37, of Evening Shade, Ark., Gary Dodson, 32, and Jake Murphy, 19, of Waldron, Ark., and Dustin Hammond, 20, of Hardy, and Wendy Treybig, whose age and hometown weren’t available.
In Texas, Henry Clay Glaspell awaits sentencing after pleading guilty in February to a federal charge of damaging religious property. That charge stemmed from the ethnically motivated arson of a children’s playground at the Dar El-Eman Islamic Center in Arlington, Texas, last July 2010. Glaspell, 34, confessed to setting fire to playground equipment at the mosque as part of a series of ethnically motivated acts directed at individuals of Arab or Middle Eastern descent associated with the mosque.
In Modesto, Calif., two men arrested for spray-painting neo-Nazi graffiti on a synagogue and churches were charged with civil rights crimes.
Abel Mark Gonzalez, 23, of Morgan Hill, Calif., and Brian Lewis, 23, have pleaded guilty to conspiring to violate the civil rights of congregants of Congregation Beth Shalom, a synagogue in Modesto. They are scheduled to be sentenced Friday. A third man, Andrew Kerber, 22, of Chico, Calif., was charged with damaging religious property, a federal charge that carries a far-lesser sentence.
In 2006, court documents say, the three men conspired to deface and damage the synagogue. Lewis and Gonzalez admitted spray-painting anti-Semitic and neo-Nazi graffiti on the synagogue’s exterior walls. They also confessed to spray-painting anti-Christian graffiti on the walls of Our Lady of Fatima Church and the Greek Orthodox Church of the Annunciation, both in Modesto.
Kerber, who cooperated with authorities, could face up to a year in prison; Gonzalez and Lewis face up to 10 years, according to the Modesto Bee.