Tuesday, March 17, 2015

Bias Crime Statute Void For Vagueness

The New Jersey Supreme Court has held that the state's bias crime statute is unconstitutionally vague.

The facts from the case headnote

 Defendant David Pomianek, Jr., co-defendant Michael Dorazo, Jr., and Steven Brodie, Jr., worked for the Parks and Recreation Division of the Gloucester Township Department of Public Works. Defendant and Dorazo, who are Caucasian, worked as truck drivers. Brodie, who is African-American, worked as a laborer. On April 4, 2007, these men were assigned to work at an old garage used for storage by Public Works. In the garage was a sixteen-foot long and eight-foot wide steel storage cage. The cage was enclosed by a heavy chain-link fence on three sides and a cinder block wall on the fourth side and was secured by a sliding chain-link door with a padlock. A number of employees were horsing around in the building and "wrestling" in the cage. In a ruse, Dorazo approached Brodie and told him that their supervisor needed an item from the cage. Once inside the cage, Dorazo shut the cage door, locking Brodie inside.

A number of Public Works employees began laughing, but Brodie found no humor in his predicament. Brodie recalled defendant saying, "Oh, you see, you throw a banana in the cage and he goes right in," which triggered more laughter among the men. Brodie considered the remark to be "racial" in nature. From his perspective, the line about "throwing the banana in there" was like "being called a monkey in a cage." Brodie admitted, however, that he never heard defendant call him a monkey. The cage door was unlocked after three to five minutes. Brodie felt humiliated and embarrassed. After his release, Dorazo was heard saying, "You all right, buddy? We were just joking around." Brodie replied, "Yeah, yeah, I’m fine."

The incident led to a 16 count indictment and conviction on the bias charges.

The court

At issue in this appeal is the constitutionality of N.J.S.A. 2C:16-1(a)(3), a bias-crime statute that allows a jury to convict a defendant even when bias did not motivate the commission of the offense. Under the statute, a defendant may be convicted of bias intimidation if the victim "reasonably believed" that the defendant committed the offense on account of the victim’s race. Unlike any other bias-crime statute in the country, N.J.S.A. 2C:16-1(a)(3) focuses on the victim’s, not the defendant’s, state of mind. The defendant’s fate depends not on whether bias was the purpose for the commission of the crime but on whether the victim "reasonably believed" that was the purpose. Whether a victim reasonably believes he was targeted for a bias crime will necessarily be informed by the victim’s individual experiences and distinctive cultural, historical, and familial heritage –- all of which may be unknown or unknowable to the defendant.

Although a jury found defendant David Pomianek, Jr., guilty of the disorderly persons’ offense of harassment, it found him not guilty of purposely or knowingly harassing the victim because of the victim’s race or color. The jury, however, convicted defendant of bias harassment on the ground that the victim either "reasonably believed that the harassment was committed with a purpose to intimidate him" or that "he was selected to be the target [of harassment] because of his race [or] color." Based on the bias-intimidation verdict, defendant was also convicted of official misconduct.

The Appellate Division reversed the bias-harassment conviction. It concluded that a conviction "based on the victim’s perception" and not on the "defendant’s biased intent" would violate the First Amendment of the United States Constitution. State v. Pomianek, 429 N.J. Super. 339, 343, 358-59 (App. Div. 2013). To save N.J.S.A. 2C:16-1(a)(3), the Appellate Division rewrote the statute to impose a state-of-mind requirement and remanded for a new trial on both bias harassment and official misconduct. Id. at 343-44.

We hold that N.J.S.A. 2C:16-1(a)(3), due to its vagueness, violates the Due Process Clause of the Fourteenth Amendment. In focusing on the victim’s perception and not the defendant’s intent, the statute does not give a defendant sufficient guidance or notice on how to conform to the law. That is so because a defendant may be convicted of a bias crime even though a jury may conclude that the defendant had no intent to commit such a crime. We are therefore constrained to reverse...

The decision is unanimous. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2015/03/the-new-jersey-supreme-court-has-held-that-the-states-bias-harassment-criminal-stature-is-unconstitutionally-vague-the-fact.html

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