Triple killing may not be a hate crime

Story highlights

  • Craig Stephen Hicks faces first-degree murder charges in shooting of three Muslim students
  • Mark O'Mara doubts Hicks will be charged with a hate crime, which he says is difficult to prove

Mark O'Mara is a CNN legal analyst and a criminal defense attorney. The opinions expressed in this commentary are solely those of the author.

(CNN)In Chapel Hill, North Carolina, Craig Stephen Hicks faces first-degree murder charges. He's accused of shooting three students in the head because of what police say could have been a dispute over a parking space.

The victims, two young women and a young man, were Muslim. The women wore distinctive hijabs. Many now wonder, including the families of the slain, if Hicks should also be charged with a hate crime.
A crime becomes a hate crime when motivated by a bias against a person of a protected minority class: race, religion, disability, sexual orientation, ethnicity, gender or gender identity. The designation acknowledges that crimes committed with malice for a particular protected class are more sinister.
    Mark O'Mara
    Most states now have some form of a hate crime law on the books, as does the federal government. Hate crime laws are a good idea. A true hate crime is committed, ideologically, against all people who share a similar identity, while a crime committed without a "hate" motivator is committed against the victim or victims individually.
    Designating a crime as a hate crime is a serious matter. In many states, the enhancement has the effect of upping a charge by one degree; a second-degree felony becomes first degree, and first degree becomes a life felony. Because the consequences of a hate crime are so severe, the designation should not be brandished capriciously. Remember that a "hate" enhancement also has to be proven beyond a reasonable doubt.
    Just because a crime is perpetrated upon somebody in a protected class doesn't automatically make it a hate crime. It should, however, sensitize investigators to the possibility, and it should prompt a rigorous inquiry. They should look into the elements of the crime to see if biased language was used during the crime. Were there symbols of hate, such as a swastika or a burning cross? Does the accused have a history of prejudiced speech or actions against the designated group?
    In effect, we are asking investigators to look into the heart of the accused to see if it harbors hate, and if they find it, our criminal justice system will require them to prove it -- beyond a reasonable doubt. It's a tough standard, and difficult to prove.
    Which takes us back to Chapel Hill, where friends and family demand a hate crime investigation. Initial reports -- and it's still early, so we know little -- reveal not much more than an alleged Facebook post that could, possibly, be interpreted as hateful against Muslims. It is very subjective, and it barely qualifies under one of the FBI's 14 points for establishing objective evidence of a hate crime. It's not enough to make a case, certainly not a case strong enough to withstand the scrutiny of a good defense attorney.
    Unless investigators turn up significant new evidence that connects Hicks with known hate groups, or can identify witnesses that will testify that Hicks has spoken out against Muslims, or can somehow otherwise establish a history of animosity against Muslims -- unless they can do these things, they won't be able to make a hate charge stick.
    But that doesn't mean Hicks is beyond suspicion. The so-called execution style of the shootings is unusual. And there is a sense that even if the suspect didn't kill them just because they were Muslim, it still feels like there was less regard for their lives because they were Muslim.
    Chapel Hill Mayor Mark Kleinschmidt issued a statement that read, in part, "We do not know whether anti-Muslim bias played a role in this crime, but I do recognize the fear that members of this community may feel."
    This "subtle" hatred, after all, is the most insidious kind. It is the hatred that seethes but is not apparent. It is this kind of bias that is the focus of so many inquiries nationwide when we see our youth killed by others, sometimes by police. The investigation that will be undertaken in North Carolina should be a model of how we will stand up for those in protected classes. If there is to be silver lining, or a lesson, it is that we see in our communities a growing vigilance in protecting those in at risk, while protecting the rights of those accused.
    After thousands gathered in Chapel Hill on Wednesday night to mourn the tragic loss of these three students, it's clear the community is concerned. And that is not insignificant, because the eighth point on the FBI's 14-point list of objective criteria says this, "A substantial portion of the community where the crime occurred perceived that the incident was motivated by bias."
    The friends and family of these three victims should get their wish. There should be a thorough investigation into the hate crime allegations. Based upon what we know now, however, I do not think Hicks will be charged with a hate crime. If that is a disappointment, perhaps this will provide some small consolation: Hicks faces three counts of first-degree murder, and in a state that has 150 people on death row, if Hicks is found guilty, he will almost certainly face a sentencing hearing that will include the death penalty as an option, or life imprisonment without parole.