Jessie K. Liu, the United States Attorney for the District of Columbia, says she strongly disagrees with critics who say her office has failed to adequately prosecute hate crimes in D.C., including about half of the reported hate crimes last year in which the victims were lesbian, gay or transgender.
In an Oct. 25 interview with the Washington Blade, Liu said her office has prosecuted the underlying offense, such as threats, assault, murder, or other criminal offenses, in the vast majority of hate crimes cases when her office dropped the hate crimes designation.
As she has stated in recent public meetings, Liu told the Blade prosecutors must be able to prove beyond a reasonable doubt to a jury that hate was a motive for someone arrested by D.C. police for a criminal offense designated by police as a hate crime.
Liu noted that D.C. police, whom she has praised for being highly trained on how to recognize a hate crime, have a lesser burden of showing “probable cause” when they make an arrest and designate the offense as a possible bias related crime.
“We are prosecuting the underlying offense in the vast, vast majority of cases that are brought to us by MPD as potential bias related crimes,” she said. “And so that’s something I think is important to understand – that this is not a situation where the police are bringing us potential bias related offenses and we’re doing nothing at all,” Liu said. “We’re doing quite a bit.”
Liu spoke to the Blade two days after D.C. Council member Charles Allen (D-Ward 6), who serves as chair of the Council’s Committee on the Judiciary and Public Safety, criticized Liu for declining to appear at an Oct. 23 committee hearing on the subject of hate crimes.
Prior to the start of the hearing, Allen released a statement citing a Washington Post investigative report earlier this year that found prosecutions had declined sharply in recent years for cases with a hate crime designation.
“Despite 113 arrests in bias-motivated crimes in the past two years, the U.S. Attorney’s Office prosecuted only five as a hate crime, with two of those ending with a plea deal,” Allen said in his statement.
“D.C.’s LGBTQ residents are being attacked because of bias and hatred against who they are, yet prosecutions using hate crime enhancements are almost non-existent,” Allen stated. “That is a very distressing message to send to victims and survivors and the broader community,” he said.
During the Oct. 23 hearing, Allen criticized Liu for declining his invitation to appear at the hearing to testify on what he called her office’s “failure” to adequately prosecute hate crimes in D.C.
Liu instead sent Allen and the committee a seven-page letter describing in detail her office’s procedures and policies for prosecuting hate crimes and several changes she has made to step up efforts to investigate crimes considered bias related. In a separate statement released to the press, Liu said she chose not to appear at the hearing, in part, because she believed the hearing’s title showed a bias toward her office’s handling of hate crimes cases.
“What I actually said, and I can clarify that, was that I think the title of the hearing, which was “Hate Crimes In The District Of Columbia and The Failure To Prosecute By The Office of The United States Attorney,” suggests that the Council or at least the committee had already reached a conclusion before hearing all of the facts that would be aired at the hearing,” Liu told the Blade.
“In light of that, I thought the more productive thing to do was to send a letter that would provide a more full explanation of our work in this area,” she said. “My office and I remain open to talking with all of our community partners, including the Council if they would like to do that, about how we as a community can address this issue most effectively.”
When asked about one of the findings of the Washington Post investigative report on D.C. hate crimes that significantly more hate crimes prosecutions were brought by the two previous D.C. U.S. Attorneys than have been brought by the office under Liu’s leadership, she said her office was looking to why that appears to be the case.
“That’s something that we’re looking at,” she said. “And I don’t have a very clear answer as to why that might be,” she continued. “What I will say is that there has been a suggestion that maybe there’s been some sort of policy change within the office to not be as aggressive about pursuing bias related offenses. And that’s just not true.”
Washington Blade: In your letter to D.C. Council member Charles Allen, who chairs the committee that held a hearing on Oct. 23 on concerns that your office was not adequately prosecuting hate crimes, you said you would not appear at the hearing because you thought the hearing and Council member Allen might be biased in interpreting the intentions of the U.S. Attorney. Can you elaborate on that?
Jessie Liu: Well I think what I actually said, and I can clarify that, was that I think the title of the hearing, which was “Hate Crimes In The District of Columbia and The Failure To Prosecute By The Office of The United States Attorney” suggests that the Council or at least the committee had already reached a conclusion before hearing all of the facts that would be aired at the hearing.
In light of that, I thought the more productive thing to do was to send a letter that would provide a more full explanation of our work in this area. My office and I remain open to talking with all of our community partners, including the Council if they would like to do that, about how we as a community can address this issue most effectively.
Blade: One of the things Councilman Allen, the chairman of the committee, said at the hearing was he received your letter and read it and acknowledged it was quite detailed. But he said that by you not being there to testify in person prevented him and others on the committee from asking you specific follow-up questions. He said one question would have been about your mentioning that some changes might be needed in the city’s hate crimes law to address possible ambiguous wording that has led to jury instructions that you have said may be bias against prosecutors. Would you be willing to answer those questions if they were to send them to you?
Liu: Yeah, we would certainly take a look at anything the Council would like to send. And again, we have no problem in engaging with the Council. I think we’ve long had a very productive relationship with the Council. But the way this particular hearing was filed and the statement that there was a failure by my office in the very title of the hearing I think just doesn’t give much opportunity for a productive discussion. And so if the Council was interested in engaging productively with us of course I would love to do that.
You have seen me at a number of Hate Violence Task Force meetings. You and I have had conversations at those meetings. We have had meetings with other community groups, including as I said in the letter, the ADL [Anti-Defamation League] and the ANC Rainbow Caucus. And I think all of those discussions have been very, very productive. But those are situations where I think all the participants come with an open mind…and I’m happy to continue those discussions.
Blade: One other thing that came up at the Council hearing was that you reportedly had not responded to D.C. Congressional Del. Eleanor Holmes Norton’s inquiries about D.C. hate crimes.
Liu: You know I can address that. We responded to that. We responded to Congresswoman Norton in writing.
The other thing that I want to just highlight in context on the manner in which we responded to the Council—- as you know, we did send a very detailed letter — seven pages in length. Just historically speaking, I don’t think that any of my predecessors have personally testified at a Council hearing in at least the last 10 years. We did go back and ask around the office to see whether, for example, Ron Machen or Channing Phillips testified personally at a D.C. Council hearing and I don’t believe that they did.
We do of course have a career prosecutor testify. And in the past that’s been Pat Reilly at times who is now retired from my office or Arana Cooper. But we don’t always testify. And the Council’s hearing notices will say you can testify in person or you can send a written statement. And this was an instance where we thought — and frankly some of the complexities of the issues — that it was better to send a written statement.
But this is not a situation where we ignore the Council. We view the Council as a very important partner in the work we do. We hope that they see us in the same way. We wouldn’t ignore them. I understand there has been some commentary suggesting that we’re giving the Council the back of our hand or we’re being disrespectful. And I don’t agree with that.
Blade: As you may have heard, the chair of the committee, Charles Allen, said something like that at the end of the hearing. Are you saying you responded adequately in your detailed letter?
Liu: Well yes. I think it was a very detailed letter. I think in a number of other hearings that happened since the Council returned from recess – there was a hearing on fire arms trafficking. I understand that there was some unhappiness that we did not have someone there in person with that hearing. We did send a very detailed letter on that occasion as well. The committee also held a hearing – I think it was the 17th going into the morning actually into the 18th – on a proposal to decriminalize sex work and commercial sex work. And we had four or five representatives from our office there who testified at around midnight on Oct. 17 going into the morning on Oct. 18.
So these are all career prosecutors who had to stay up until very late at night and appeared before the Council very late at night to give our views. We also had a written statement about which was provided by Arana Cooper on that occasion. I just don’t think the record shows that we are ignoring the Council.
Blade: At yesterday’s Council hearing on the hate crime issue, a deputy D.C. Attorney General testified on the hate crimes issue and said their office has submitted a bill to the Council that would give them authority to file civil suits against people charged with a hate crime even if a criminal charge is not filed or is dropped. They prosecute mostly juveniles. Is that something your office has considered? Could that be a tool to be used for dealing with hate crimes?
Liu: You know I don’t think I would have much to say on that. The AG’s office is the entity that has civil enforcement authority. We file civil lawsuits under federal law. I think maybe there could be something done under federal law that I’m not aware of in terms of civil lawsuits like that. But I’m not aware that we have the ability to do that under D.C. law.
Blade: The Deputy Attorney General also said something some people may not be aware of. She said the statute already has a provision that allows victims of hate crimes to file some civil action. But she said it is very rare that anyone has done that. She said the reason is that the alleged perpetrators most likely would not have the ability to pay any financial penalty they are given.
Liu: It’s a civil judgement. I don’t know. I can’t really speak to that. I do want to point out something which I point out in the letter and have pointed out in public comment as well, which is we are prosecuting the underlying offense in the vast, vast majority of cases that are brought to us by MPD as potential bias related crimes. So it’s not the case that MPD is bringing us arrests and saying, hey, these may be bias related and we’re not doing anything at all.
Even when we don’t bring the enhancement we are bringing in the vast majority of cases criminal charges of some sort. So for example MPD could present us with a defendant who has been arrested for assault and flagged it as a potential bias related assault. Even if we conclude we can’t make out the bias motivation beyond a reasonable doubt, in many of these cases we are charging the assault.
And so that’s something I think is important to understand – that this is not a situation where the police are bringing us potential bias related offenses and we’re doing nothing at all. We are doing quite a bit.
Blade: Most people familiar with the court system would agree that prosecutors have a greater burden to prove to a jury beyond a reasonable doubt that a hate crime was committed while the police have a lesser burden of arresting someone for just probable cause. But the Washington Post pointed out in its report on the prosecution of hate crimes by the U.S. Attorney’s Office in D.C. that in earlier years there were many more hate crime prosecutions than during the past two years under your leadership.
Liu: I think that’s been the thrust of their articles ever since August when the first article came out. That’s something that we’re looking at. And I don’t have a very clear answer as to why that might be. What I will say is that there has been a suggestion that maybe there’s been some sort of policy change within the office to not be as aggressive about pursuing bias related offenses. And that’s just not true.
We have taken a very careful look at our practice and our policies over the last seven years. I guess 2012 was the first year that the Post had stats and there hasn’t been a policy change since then. There’s been a suggestion I think in some quarters that perhaps the current office leadership is less committed to pursuing bias related offenses than my predecessors. And there’s no basis for that either.
So I can’t say that firmly enough. You’ve met a lot of the people who are involved in screening and investigating and prosecuting potential bias related offenses – you have had the benefit of actually meeting our hate crimes coordinators at the Hate Bias Task Force meetings. And up and down the office, these are career prosecutors who have been in the office for years over many, many administrations who are responsible for looking at these arrests, and everything has to be evaluated on its own facts in deciding what to charge.
So I think that to the extent that there is a suggestion out there that I am less committed to doing this, to pursing potential bias related prosecutions than my predecessors, that’s just not true. …
Blade: It was helpful to have listened to them at the task force meeting. But one other thing that Councilman Allen mentioned after the hearing was that if you had been there they could have asked you to elaborate more on whether there is a need to revise the D.C. hate crimes law to deal with the issue of possible ambiguities that you have raised and the issue of the jury instructions. One of the witnesses who testified at the hearing – a defense attorney – said he is on the committee that writes the jury instructions. He said the committee includes representatives of the U.S. Attorney’s office, defense lawyers, and court personnel.
Liu: Yeah, there’s a committee and my understanding is that they are going to consider – take a look at the standard Redbook instructions for bias related crimes. As I said in my letter, I think that there are some confusing elements about the jury instructions. And there is a dispute actually, a legal dispute between my office and the Public Defender Service as to precisely what the government has to show in terms of the degree of motivation to make out a bias related offense. The Public Defender Service has argued in litigation that the government has to show that the defendant’s bias was the only cause of the crime. In other words it was the only reason and that was the reason that the crime occurred.
Our position – my office’s position – is that we need only show that the defendant’s bias was a contributing factor and there might have been other reasons – personal anger, revenge, you know, what have you. But as long as we can show that the defendant’s bias was a factor in the crime that we should be able to get a conviction on the bias related enhancement. So that’s an open legal question that is before the D.C. Court of Appeals. So when the D.C. Court of Appeals rules on that we’ll have an answer to it.
And I think as you and I discussed at the last Hate Bias Task Force meeting, I think the language of the statute itself is a little bit unclear. So the statute defines a bias related crime as a crime that quote unquote demonstrates the accused’s prejudice. And I think people reading that statute could have a legitimate disagreement about exactly what that means.
Blade: One of the witnesses at the hearing, Advisory Neighborhood Commissioner Mike Silverstein, urged the Council to change the law so that it becomes clear that hate need only be one of the motives of a crime in order for the person to be convicted on a hate crime enhancement. Isn’t that the position you are arguing?
Liu: Yes, that’s the position that we have taken in litigation. But as I say, it’s certainly not so clear that there’s no disagreement over it.
Blade: And that’s what the witness asked the Council to clarify. So when I asked Councilman Allen about that he said the U.S. Attorney should come to us and say exactly what she thinks should be changed. Is that something you think you could tell them, possibly in a written brief?
Liu: Yeah, I think that’s a useful conversation to have. So we would welcome having that conversation.
Blade: You and others have mentioned this appeals court case on this issue. But have you said it can’t be released because it may be sealed?
Liu: You know this is interesting. It was publicly argued about a month or so ago and I believe the briefs are still publicly available. But one of the defendants was subject to a Youth Act set aside. And so we have been just out of an abundance of caution not mentioning that person’s name publicly. So what we could do. I don’t know what your deadline is. But we can dig into that a little bit more and see if there’ s more information we can provide you. Just because of the Youth Act element we’ve really tried to be careful and not run afoul of that statute.
Blade: OK. And one final question — the same witness, Mike Silverstein, called on the Council to change the juvenile law so that the dispositions in juvenile cases become public without releasing the name or identifying in any way the juvenile offender. He noted that in a number of recent cases where transgender women and also LGBT people in general have been attacked and injured the people arrested have been juvenile males.
Liu: I think that’s something for the Attorney General to comment on. You may know we do Title 16 cases involving 16 and 17 year olds who are charged with very serious offenses. But because the AG has jurisdiction over juveniles more generally, that question is better put to him.
Blade: Is that something your office decides on, whether to charge a juvenile as an adult if it’s a very serious crime?
Liu: Yes, a very, very serious – and I don’t recall an incident where we had 16 or 17-year-olds who qualified for a Title 16 treatment that was involved in a potential bias related offense. And there could have been one that I’m just not aware of it or I’m just not recalling right now. But there’s a pretty small number of cases where we charge 16 and 17-year-olds as adults under Title 16. And the vast, vast majority of juvenile cases are handled by the AG’s office.
Blade: What message would you have to members of the LGBT community should they unfortunately become of victim of a hate crime in terms of how the case would be handled by your office for prosecution?
Liu: Well in terms of prosecution as with any crime that’s brought to us for potential prosecution we are going to look at the facts of that case. We’re going to make a fair determination about the most appropriate charge to bring. The cases that are flagged for us as potentially bias related by MPD, we have been bringing criminal charges in the vast majority of those cases. And we have a very robust victim-witness unit. We are committed to working with victims and to staying in touch with them. We take all of our obligations under the victims’ rights statutes very seriously.
But we want to go beyond that too. I really think we do have a great set of advocates. We have about 17 people in the office right now whose job it is to help victims and witnesses of crimes through the criminal justice process. We’re committed to ongoing and robust engagement with the community.
And you’ve seen what we do with the Hate Bias Task Force. We have community prosecutors and community outreach specialists who are out in the community pretty much every night of the week. I personally have met with Mike Silverstein’s group, the ANC’s Rainbow Caucus We welcome dialogue with our partners in the community. And they should reach out to our community outreach division if there’s something they want to talk about. And we absolutely welcome that dialogue.