Actor's beating raises hate crime issues
By Steve Irsay
(CourtTV) -- Trev Broudy's voice is steady and clear.
For the past five years the actor has made his living with that voice, recording commercial spots for television and radio. Speaking with him, it's hard to believe he was near death just a year ago.
Broudy suffered a brutal baseball bat attack outside his West Hollywood apartment in early September 2002. The 10-second flurry of blows to the head left him in a coma for more than a week. A series of strokes and brain surgeries wiped out his memory of the attack, along with his abilities to see, speak and even think clearly.
"I'm doing well," he said recently over the phone. "I'm still legally blind and can't read anymore but cognitively I am doing much better."
Broudy's recovery has been remarkable. Equally remarkable to some is that, despite allegations that Broudy was attacked because he is gay, the Los Angeles District Attorney did not charge his three suspected attackers with a hate crime. This controversial decision has outraged the West Hollywood community, known for its sizable gay and lesbian population, and highlighted some of the legal hurdles to be cleared by hate crime prosecutors.
Jury selection began Monday in Beverly Hills Superior Court for two of the suspects, who face up to life in prison if convicted on all charges. A third pleaded guilty Wednesday.
A controversial decision
Murky eyewitness testimony and conflicting police statements given by the suspects are the only records of what happened in the early morning hours of October 2, 2002.
Broudy spent the night hanging out at his small apartment with his friend Edward Ulett. Ulett testified at the pretrial hearing that he left the apartment shortly after midnight. The two hugged goodbye and Ulett opened his car door. That is when he saw headlights and heard loud voices coming at them.
Seconds later, Ulett said, he saw an assailant hitting Broudy in the back of the head with a bat. Someone also hit Ulett and smashed his car window. He drove to get help. The assailants fled without taking any money or other possessions.
A month after the attack, three suspects were charged. Larry Walker, then 29, his brother Vincent Dotson, 18, and Torwin Sessions, 19, were charged with two counts each of assault with a deadly weapon and one count each of attempted robbery and conspiracy to commit murder.
Walker pleaded guilty Wednesday to one count of mayhem and one count of conspiracy to commit robbery and will be sentenced to 13 years in prison.
Many in the community were outraged over prosecutor's failure to file hate crime charges, and some feared they would be the next victims of a bias-related attack.
"A lot of people in the gay and lesbian community came to the conclusion that this was homophobic on the part of the district attorney, but I think that was a leap," said Roger Coggan, director of legal services and public policy for the L.A. Gay and Lesbian Center.
Coggan was one of the thousands who protested in the streets of the two-square mile Los Angeles suburb of West Hollywood.
The Los Angeles County Sheriff's Department, which investigated the case, recommended hate crime charges to the district attorney's office. Los Angeles Mayor James K. Hahn and Sheriff Lee Baca joined the chorus publicly urging District Attorney Steve Cooley to file the additional charges.
Cooley's office initially accepted the case under the assumption that it was a hate crime, and in fact assigned it to the hate crimes unit, said district attorney spokesperson Jane Robison. Hate crime specialist Olivia Rosales is prosecuting the case.
In the face of public and political pressure, prosecutors staunchly claimed that Broudy's sexual orientation was not a factor in the attack, which they believed was motivated purely by robbery.
"There was no evidence that it was a hate crime," said Robison. "They were street thugs and it was a robbery."
Two weeks after the preliminary hearing in the case, citing the extent of Broudy's injuries, prosecutors added a charge of aggravated mayhem, which meant the defendants now faced life in prison without parole. A hate crime charge would have tacked just two years on to the maximum 19-year sentence.
Seen by some as appeasement, the mayhem charge may have been a legal victory but it still disappointed many people in the community.
Motivation gets murky
There were 1,659 hate crimes reported in California last year, according to California Department of Justice statistics released last month. Of those incidents, some 366 incidents, or about 22 percent, were related to sexual orientation.
Broudy says he "absolutely" believes his attack was motivated by his sexuality.
"They did not ask for money or take any money," he said. "I know they saw me give a friend a hug and they thought, 'We are going to go bash some fags.'"
But in order to secure a hate crime conviction, prosecutors have to prove to a jury that gay-bashing was the suspects' intent.
"One of the most difficult things to prove in any crime, not just hate crimes, is intent or what is going on in the mind of the perpetrator," said David LaBahn, executive director of the California District Attorneys Association.
Some hate crime suspects make the case easy for prosecutors through affiliations with hate groups, racist tattoos or their own boastful admissions.
"In the case of hate crimes, you can have people who are quite proud of what they did," said LaBahn.
When more obvious indicators of hate as motivation are not present, prosecutors often rely on what was said at the time of an incident or perhaps a clear lack of other motivations, LaBahn added.
Hate does not have to be the sole motivation in a hate crime, said Santa Clara County Assistant District Attorney and hate crime expert Karyn Sinunu. But it must be more than an "incidental motivation," she said.
For example, a bar fight touched off by a dispute over a woman that includes a racial slur in the heat of the moment would not likely be prosecuted as a hate crime, according to Sinunu.
Making intent even more slippery is the fact that the suspect's perception of the incident often dictates whether a suspect is charged with a hate crime.
Weeks after prosecutors decided not to file hate crime charges against Broudy's suspected attackers, two other men arrested in a similar attack were quickly hit with the allegations even though the district attorney's office did not know the sexual orientation of the 46-year-old victim.
The defendants in that case, Ever Wilfredo Rivera and Selvin Orlando Campos, allegedly used an anti-gay epithet in the attack. According to prosecutors, such clear indications of motive were absent in the Broudy case.
'No problems with gay people'
Witnesses did not recall any anti-gay epithets being hurled as the bat was coming down on Broudy's head, but three suspects made contradictory statements to police regarding their motives that night.
Dotson reportedly told detectives that he, Walker and Sessions were driving around West Hollywood looking for people to rob. They chose that area because there were "white people with money," according to his statement.
Dotson said it never crossed his mind whether or not the victims were gay and that he had "no problems with gay people."
When Walker spoke to detectives, however, he reportedly told them that he and his friends saw two men who were "hugging and kissing" and that he heard Sessions say, "Oh, they are gay ... I am about to bust me some faggots."
Dotson told police he did not overhear that comment and also claimed that Sessions did demand money before he set upon Broudy with the bat.
Under California law, the statements of suspected co-conspirators cannot be used against each other in court.
West Hollywood mayor pro tem and practicing criminal attorney John Duran believes circumstantial evidence points to hate as a motivation for the attack.
"They were two blocks away from all the gay bars," said Duran, who was often at Broudy's side during his recovery. "And a bat is not a weapon of choice for a robbery. A bat is a weapon of choice to pummel someone."
While Duran believes that aggravated mayhem convictions would be a "just outcome" he and others are disappointed that hate crime charges were not filed because of the message it sends to the community.
"We are really talking about symbols here," said Coggan of the L.A. Gay and Lesbian Center. "The importance of filing hate crime charges had to do with sending a message that these sorts of actions and violations of an entire community would not be tolerated."
Broudy agreed, saying, "Calling it a hate crime might have a greater impact even though it does not have a huge impact on the trial and the punishment."
On the eve of the trial, Broudy is upbeat about his life -- past, present and future.
Before the attack, he was the longtime voice of Fresh Step Cat Litter, he noted with a laugh. Earlier this month he completed his first job in nearly a year when he narrated the VH1 sexuality special "Totally Gay," which debuted August 18. Because he still cannot read, Broudy learned and recorded his parts by listening to them in an earpiece.
Broudy also hopes to continue the advocacy work that he began in June when he traveled to Washington, D.C., to push for stiffer federal hate crime laws at the "Rally Against Hate" alongside Senators Edward Kennedy and Diane Feinstein and others.
And on September 7 celebrities such as Margaret Cho and Kathy Griffin are scheduled to appear at a benefit show for Broudy at the Pacific Design Center in West Hollywood. A smiling photo of blue-eyed Broudy adorns the show's promotional poster.
Surprisingly, Broudy worries a bit that his recovery could hurt the criminal case against his alleged attackers with respect to the aggravated mayhem charges. Broudy, who now speaks well and bears no physical scars, wonders if a jury will be convinced of the extent of his injuries when he testifies.
"I am much better than I was at the pretrial when I could barely speak a word," he said.
Still, his physical and emotional health are more important to him than anything that does, or does not, come out of the trial.
"I was so despondent initially," said Broudy, who once had thoughts of taking his own life after the attack. "But I have had so much encouragement. My life is not over."