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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Here are two interesting and important things that happened in court yesterday. One, a judge in New York announced that he will throw out Sarah Palin's libel suit against the New York Times. The reason, there was no libel. The Times made a factual mistake, corrected it, and apologized. For something to be libel, they would have to have had done it on purpose and there was no evidence of that.

There is a weird twist, though, to keep our eyes on. The judge announced this as the jury continues to deliberate toward a verdict of its own. The judge gets the final say, but how would it look in a politically charged and polarizing case if a whole jury decides in one way and a judge says never mind?

As that case comes to a close, another one is opening. The hate crimes trial of the three men who were convicted of murdering Ahmaud Arbery when he was out for a run in Georgia. That was a state of Georgia murder conviction. The new trial is on federal hate crimes charges of killing Arbery because he was Black. The three murderers are white and are not denying they have made racist statements in the past.

There was another hate crime in Manhattan's Chinatown this weekend or was there? 35-year-old Christina Lee died in a way that is so many women's nightmare. A stranger followed her on the street and attacked her as she entered her home that was on Chrystie Street in Chinatown.

A 25-year-old homeless man said to be mentally ill and recently released after a misdemeanor charge of randomly punching a 62-year-old man at a subway station has been arrested and charged. He has not been charged with a hate crime as of now, but there was a protest in the neighborhood denouncing Asian hate crimes. The victim was Asian American, the alleged killer was not.

The New York Times calls Ms. Lee the latest person of Asian descent injured or killed in a string of random attacks in New York City, many of them committed by people who had severe mental illness. Now, the NYPD reported in December that anti-Asian hate crime reports tripled in 2021 compared to the year before and account for a quarter of all hate crime reports in the city.

The largest share of such complaints more than 30% to the police was for hate crimes against Jews but reported hate crimes against Asian Americans have been growing at the fastest rate. Nationally, as reported on the new site Nikkei Asia and elsewhere, there were 274 reported incidents targeting Asian Americans and Pacific Islanders in eight cities, more than four times as many as the year before according to data from the Center for the Study of Hate and Extremism at California State University. New York City accounted for nearly half the total at 133, followed by San Francisco with 60, and Los Angeles with 41.

With me now is Brian Levin, Director of the Center for the Study of Hate and Extremism at California State University. It's the branch in San Bernardino. He's a civil rights lawyer who has previously been with the Southern Poverty Law Center's Klanwatch and Militia Task Force in Montgomery, Alabama. He's also a former NYPD officer. Professor Levin, thanks for your time today. Welcome to WNYC.

Brian Levin: Thank you so much for having me. Just one quick point. The data that we have from the eight cities, it wasn't four times although New York went from the 30s into the 130s. What I think is so interesting, just bear with me, the eight cities that we looked at, and we have more coming in every day, these are ones that tend to be higher hate crime reporting cities. A lot of them have hate crime units, specialized investigation protocols, et cetera, but just bear with me. Those cities alone, and this is preliminary, stuff can be changed later on if they find something was not hate crime, but listen to this, 274 suspected hate crimes just in those cities, official police preliminary data, 274.

Last year the FBI counted 279 for the whole country. We're just five shy of what last year's numbers were. In some cities last year, we hit records or probable records. One last quick thing. 1995 and '96 were the peak years nationally for anti-Asian hate crime with 356 in '96. I think we may very well break that this year. We're seeing horrendous records being shattered.

That being said, as you pointed out, New York has a bulk of these cases. What we're finding is large, densely populated coastal cities, with areas like a Koreatown or a Chinatown, and that have an Asian American population that is significantly higher than the national average, that's where you're going to see a lot of these.

Last, in 2020, just bear with me, in 2020, we found, eventually, in the dozens of cities that we looked at about 124% increase. When the FBI data came out, they only showed 73% increase. How is that possible? As you spread out, the number of agencies and cities that give data, remember that in any given year, listen to this, 85% to 89% report affirmatively zero hate crimes, including over 70 cities of 100,000 or more that said we had nothing in 2020. That's why it moderates by the time the FBI comes out with their data later in the year. What this data is great for though, no matter how you slice it, is looking at trends.

Brian Lehrer: Right. You're quoted in that Nikkei Asia story saying generally these increases are most pronounced in large densely populated coastal cities with high Asian populations and extensive mass transit systems. You were just explaining right now why it would tend to occur in highly populated coastal cities with high Asian populations. What's the relationship you're suggesting between these hate crimes and mass transit?

Brian Levin: In New York City, a large number of hate crimes were in the subways, in the transit system.

Brian Lehrer: In this latest terrific incident in New York, police have not charged the alleged killer with a hate crime, at least not so far, but there was a protest near the scene of the murder denouncing it as a hate crime. Here's one of those protesters named Susan Lee.

Susan Lee: "I'm at the point where I can't take it anymore. Our elected officials need to act. I am begging them to act so that not another life is lost. Too many lives have been lost. This is supposed to be a time of celebration in our community, and we're holding vigils. That is not the way we should be operating right now."

Brian Lehrer: "Supposed to be a time of celebration, the Lunar New Year period, and instead, we're holding vigils," she said in case there was too much background crowd noise for you to really hear it, listeners. Professor Levin, how do you, as an expert on hate crimes, judge whether it was hate-motivated or not, and how does the law judge it?

Brian Levin: Thanks for those great questions. First of all, I'm not the arbiter, but the law sets a very high standard with regard to hate crimes. The FBI, for instance, came out with a checklist of various items that are relevant. One of the relevant items is, is there a holiday around this time? How does the community feel? It's really a totality of the circumstances kind of thing.

Here's the problem. Communities feel this pain as an act of terrorism. Whether or not we can get the proper evidentiary legos together to establish that, many homicide cases actually are not tried as hate crimes because it doesn't add a significant amount to the eventual penalty, but for communities, this feels like an act of ongoing terrorism. What we have to do is address those issues and tell the community that irrespective of what the high and narrow legal threshold is, we are going to be part of a rainbow of community resilience, and we will be there in a variety of ways. For instance, providing patrols, having outreach, meeting with government and law enforcement on a regular basis, but this is like a scar that just keeps happening.

For instance, the James Byrd killing, the Matthew Shepard killing, those were not tried as hate crimes. A lot of times prosecutors want a tight factual case, particularly when they can establish, bear with me, there are two things, intent. Intent is your awareness, your level of awareness in committing the crime. Most of the things that we look at with regard to intent are, "I meant to do this crime and I knew what the harms and effects would be."

With hate crimes, you have to establish an additional factual finding and that is that the crime was done in whole or significant part because of the person's actual or perceived group membership or even the association. In other words, if I'm going out with an Asian person and they punch me because I'm with an Asian person, that would be a hate crime as well. Bottom line is, this is a terrible thing.

In my heart, I believe this probably was, but it doesn't matter what I think, it matters how communities respond on the one hand and how they feel. We have to address that in ways that don't necessarily get filtered through the criminal justice system. On the other hand, proving this kind of motive which the Supreme Court says we can't do. In fact, I wrote Supreme Court briefs on this exact topic. What the Supreme Court said is, if you're going to charge something as a hate crime where someone will have the added penalty, it's got to be established beyond a reasonable doubt not merely with a lower standard.

That's what the Supreme Court unfortunately or fortunately has dictated but it doesn't take away from our ability to reach out to these communities and say, "We've got your back, and here are seven or eight things that we're going to do." These kinds of killings have actually spurred legislation here in California Assembly, which I hope is done in New York state as well.

Brian Lehrer: We'll get to that high legal bar in the case of the killers of Ahmad Arbery and their hate crimes trial which opened yesterday. Listeners, we also can take your calls on the hate crime trials of the convicted murderers of Ahmaud Arbery and the rash of anti-Asian hate crimes, and frankly, other hate crimes in New York and around the country. 212-433-WNYC, 212-433-9692. Have you experienced a hate crime? Is the current environment with hate crimes on the rise making you change your usual behaviors in public? Asian Americans, especially, invited to call in on that. Anyone also welcome, 212-433-WNYC.

Asian Americans tell us your stories. Anyone else too, but as we're hearing and as everybody's experiencing, that's the fastest rising group of victims in New York and in major cities around the country right now. 212-433-WNYC, 212-433-9692.

To reference that clip we played of Susan Lee, downtown, "Too many lives have been lost. Our elected officials need to act. I'm begging them to act so that not another life is lost." What would you like elected officials to do? 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer as we continue with Brian Levin, Director of the Center for the Study of Hate and Extremism at California State University in San Bernardino.

Here's a tweet that has already come in that says about the attack downtown in Manhattan. "More than hate crime. Another violent person released with leniency that could have been prevented. Soft on crime led to two attacks, not just specific hate crime." You know that's part of the conversation in New York and elsewhere right now.

When you as a civil rights attorney who's concerned with hate crimes but as you know the larger notion of being a civil rights attorney also includes trying to reverse mass incarceration, how do you thread that needle?

Brian Levin: With facts, couple of things. First of all, in 2020, 40% of the known assailants for hate crime in New York City had a documented history of mental illness. We are not treating people who have mental illness and especially people who have no homes or who are in poverty. If somebody has a mental illness and lives out in suburbs, they can go in somewhere park, beat somebody up and leave. If you have no home, you're more likely to be arrested again.

The issue is we are not addressing a whole variety of social indicators and personal indicators where people need help. Then these kinds of people, just bear with me, a couple of friends of mine at Northeastern University came up with a typography with regard to offenders and I added the mentally ill offender. The thrill offender who acts on a shallow prejudice, oftentimes young people.

Then you have the defensive reactive offender, they're responding with fear or anger from everything from a terror attack overseas to somebody of another group moving into their neighborhood. Then you have the mission offender, the Klansmen, the racist skinhead. I spoke to my friends who came up with this and I said, "I think we should add a mentally ill offender." Why? Because there's something that Dr. Robin Williams, not the comedian but a professor who used to be at Cornell said, "There's a printed circuit of stereotypes."

When these stereotypes go out in the ether, when politicians and others make it okay to dislike Asians or African Americans, we see that it impacts those types of offenders but also sometimes people who have mental illness or distress because they'll react to whatever the publicized object is. One time it might be an institution like the CIA or a church. Another time it might be an Asian person but the bottom line is, we do have to seek non-carceral responses.

Let me just throw out one quick fact to it, actual prosecutions with people actually going to jail or prison is quite rare. Out of the 20 folks-- I'm sorry. Out of 20 identified offenders, there was a long time where there's only one trial and it was an Asian on Asian. Here in California, and just listen, I think it's really interesting. There was a new DA, a controversial fellow named Gascon and he wanted to get rid of all enhancements and that included hate crime enhancements.

That's a bad idea because the way that the Supreme Court set this up to make it constitutional, they said you have to punish an underlying crime first because then we know that you're not creating a thought crime because somebody just said something. Anyway, there were only three felonies out of all of the LA county that were going through the pipeline at a time when that year there were 360 just in Los Angeles City alone, leaving out the other 6 million that were covered by different agencies.

You see what I'm saying? Even in a city that has the one or two highest numbers of hate crimes this year and you expand to the county that it's in, there were only three felony cases in the pipeline. Two of them were attempted murders of transgender people, and another one was an attack on a Black motorist with a shovel while one of the people there was doing white power salutes and the other one saying "white lives matter".

There weren't a lot of these cases. The idea that we see a lot of prosecutions under hate crime statutes really isn't true even if something is initially tagged as a hate crime upon complaint to police because many of them are not solved and even among ones that are solved, oftentimes there are juveniles involved. They may not be serious. When I say serious, as far as physical injury or death. They're certainly serious to anyone that's been attacked but they're not resulting necessarily in serious physical injury.

Among the most common types of hate crimes are threats and simple assaults. What this does is send the power throughout various communities and creates kind of a tilt where one vulnerable community doesn't trust the rest of the folks that live in the areas that they're in.

Brian Lehrer: An experience of living in a terrorized situation as you were describing before. Let's take a phone call. Shang in Chinatown, you're on WNYC. Shang, thank you so much for calling in.

Shang: Yes. Hi. First-time caller, always a listener.

Brian Lehrer: Thank you for that.

Shang: I actually live about three blocks away from the incident that happened. The problem is the city is dumping these homeless shelters, changing the hotels into homeless shelters, and just flooding these neighborhoods with these wackos and these ill people, so, of course, things are going to happen. It's happening in Chinatown, Manhattan. It's happening in Flushing Chinatown. They're dumping shelter centers. It's happening in Brooklyn Sunset Park, they're dumping shelter centers, creating shelter centers, and it's not right.

This community is a peaceful community, we live day by day, and have no issue with anybody because we are the peaceful minority for the entire country. Everybody look up the responsible minority that want to strive and make a better of your life but you get all these roadblocks and dumping all these shelters into the community.

There's one happening right now on 91 East Broadway, right next to Manhattan Bridge, underneath. They want to create that into a shelter center. Which is, they're going to bring all these services, and all these mental health issue people and all these homelessness and this is going to dirty up the community. That is the biggest problem.

Brian Lehrer: Shang, thank you very much for your call. Of course, Brian, even that call raises interest against interest, stereotype against stereotype. He was pursuing what some Asian Americans would object to as a model minority stereotype there for one thing, and then other people will say, "Wait, homeless shelters are not crime factories. They're places where people who need housing can get housed."

Now, if they're too densely placed in one community as opposed to other communities as a form of dumping, I think he used that word, that's one thing but you have interest against interest, sympathetic person against sympathetic person, rights against rights.

Brian Levin: Yes, and let me just say, first, we stand with the AAPI community and our center is spending every day on this. Let me just also say that I was also on the board of the National Coalition for the Homeless, and I've had family who unfortunately had been homeless. To call them wackos and things like that I don't think gets us anywhere. I think what we're seeing is that there's a problem with regard to taking care of people who are vulnerable, like homeless people, but also immigrants.

What I can tell you that the homeless, and I've done a lot of research on that, face an explosion of crime, oftentimes by domicile people so that for many of the years that we were looking at this, murders of homeless people by domicile folks was more than all the other hate homicides that we traditionally collect, combined. We're talking about violence against different groups that also have vulnerabilities.

I think one of the things that we have to do is look right in the mirror and say, "What are we going to do about those who are vulnerable, who may not have access to mental health services, who may have various issues." It might be a gay kid that's thrown out by his parents, it might be someone who's mentally ill. These people are victimized.

Listen, these homeless folks are victimized at levels. A study in California some years ago showed that in a six-month to a year period that their risk of victimization is higher than many suburban people face across a whole lifetime. We're dealing with exactly as you said, but what I think we have to do is not name-call each other.

One other quick thing that came up, by the way. Attacks generally in some way, anti-Asian attacks, tend to match the demographics of the city or area that they take place in. There are big headlines in some of the right-wing press about caught perpetrators, which are going to be tilted towards people who are more poor and who don't have the ability to go out of the area. Moreover, the majority of hate crimes against Asians in 2020 in the United States were by white folks.

Brian Lehrer: Let me take one more from Chinatown and then we're going to turn the page and talk about the Arbery killers case on hate crimes charges. Victor in Chinatown, you're on WNYC. Thank you for calling in.

Victor: Hi. I'm a longtime resident, I've been here for 72 years. I grew up in Chinatown in the 1950s during the McCarthy era where we were attacked during the Korean War, we were considered spies. We couldn't even walk the street, you couldn't walk outside of Chinatown because you would be attacked with baseball bats. I never thought in my lifetime 50, 60 years later that I'll see this happening again. [unintelligible 00:25:12] as a demonized and the city has policies of discriminating us by building a 50 story jail in our community, homeless shelters without any input because we lack the political clout to stop it. We need the city to recognize that Chinatown is a valuable part of the city and it needs to be respected.

Brian Lehrer: Victor, thank you very much for your call. Tomorrow, by the way, folks, we're going to be talking to a member of the city council from Manhattan so we will raise this. We're also going to do a separate segment on tomorrow's show specifically about mentally ill homeless people in New York City, and what they need. This will continue on tomorrow's show in that respect.

After a short break, we'll turn the page with hate crimes expert Brian Levin and talk about the trial that has now opened for the killers of Ahmaud Arbery in this respect. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we continue with Brian Levin, Director of the Center for the Study of Hate and Extremism at California State University in San Bernardino. He's a civil rights lawyer who has previously been with the Southern Poverty Law Center's Klanwatch and Militia Task Force in Montgomery, Alabama. He's also a former NYPD officer.

Now we're going to transition to the other main case that we invited him on about, the hate crime trial that had opening arguments yesterday for the three white killers of Ahmaud Arbery. There are past racist statements that will be entered as evidence in the case and that the defendants acknowledge, but I gather, Brian, as you were saying before, there is a high legal bar to prove the murder was motivated by racism. What does the prosecution have to prove in that case?

Brian Levin: Oh, I am so glad that you had me on for this because while we saw a 342% increase in attacks against Asian Americans, the last couple of years have been an inflection point in the wrong direction with regard to racial hate crime. Thank you so much for having me on and discussing this particular law because there are actually a bunch of laws that one could possibly use with regard to federal hate crime charges or what we would call hate crime.

Let me take you briefly through just a few of them. There were a couple that were enacted after the Civil War. One applies to conspiracies, and they have a wording in there that says, "including in disguise upon a highway," what do you think that is? That's referring to the Ku Klux Klan. That refers to conspiracies. A conspiracy is an agreement between two or more parties to commit a crime. In this case, it would be a violation of civil rights. It doesn't even mention race in that statute.

That statute is not being used nor is the companion one, that doesn't require conspiracies for the deprivation of civil rights but requires someone who's a state official, like a police officer or a corrections officer. One requires conspiracies, the other requires that someone be in law enforcement, but they're not being used. They're the first hate crime laws, if you will, because they were enacted after the Civil War. They were used against the Klan, particularly in the early 1870s when they were cutting the Black vote by 80%.

Fast forward to another one, which is actually the one that's going to be used. Most people when they think of a hate crime law, at least over the last 10 years, are thinking of the Shepard-Byrd Hate Crime Act, which expanded the number of categories that are protected and also expanded the number of situations that would apply.

What the Shepard-Byrd Act did was basically improve and amend, although with a separate statute, the law that is being used in this case, so let's talk about that one. I hope I haven't confused everybody. We had a couple of laws from the Civil War. We had another law that became effective in 2010 but there's a middle law in there called Deprivation of Civil Rights, and people can look it up. If you just put in 18USC, which stands for US code, 245, you'll be able to read it.

What's so interesting about this law is that used to be the law in the '70s and '80s and even entered around 2010, it was the most commonly used federal hate crime law. Here's the problem, and I'll illustrate it with an actual case. If you remember Vernon Jordan, he was head of the Urban League and he was almost murdered by a sniper who shot at him when he was with a white assistant and they were in the parking lot of the Fort Wayne Marriott Hotel in Indiana in 1980.

The jury found that he was indeed targeted because of his race. Indeed, the person who shot at him was the same guy who tried to kill Larry Flint and also killed two Black joggers who were jogging with white people in Salt Lake City. He's a bad guy. His name was Joseph Paul Franklin. He was eventually killed in Missouri under state law for murders.

Bottom line though, in that case, the jury found that, yes, this assailant, who was a dyed-in-the-wool hardcore bigot, did want to kill Vernon Jordan because of his race, but there was another requirement under the federal law. It's not only the group that you're in, race, national origin, it's the interference with a particular listed right. In that particular case, it was the right to use the public accommodation of the Fort Wayne Marriot Hotel.

In this case, they're not only going to have to show that Mr. Arbery was murdered and deprived of his civil rights not only he was Black but because he was using a federally funded thoroughfare or sidewalk, which any sidewalk or place is going to be.

One quick thing to show you how crazy this law can be and why we had it amended is there was a killing celebrating Hitler's birthday by a skinhead in April '93, but because the killing took place under a private railroad trestle, maybe it was like Burlington Northern and Santa Fe, the federal law could not cover it. There was another attack involving a skinhead in California, a racial attack, and the reason the federal law could apply, there was a Patman machine, which made that 711 an area of public amusement and something that is covered by the law.

Brian Lehrer: The prosecution in opening arguments in this case said the evidence will prove that if Ahmaud Arbery had been white he would've gone for a jog, checked out a cool house under construction, and been home in time for Sunday supper. Instead, he went out for a jog and ended up running for his life. That's a quote from the prosecutor yesterday. The defense said, no, the reason they followed Arbery was because he was the man who had been illegally entering the house that was under construction.

Now, the prosecution has social media posts and other written messages from defendant, Travis McMichael, for example, saying, "Zero 'N-word' work with me. They ruin everything, that's why I love what I do now not an 'N-word' in sight." He obviously is a racist, but how much can that be entered as evidence to link those attitudes to what he did with Ahmaud Arbery on the road?

Ahmaud Arbery: Great question. Under the federal rules generally, evidence is not allowed in if it is more prejudicial to a jury than it is probative. Probative meaning establishing facts. In this case, I think that these comments are indeed-- Well, they may be somewhat prejudicial. The main purpose is its relevancy in connecting a motive to the killing.

This is why I think using this law is really interesting, because a lot of times now the Shepard Byrd Act is used, which looks specifically at, for instance, racial crimes. This one looks at the activity that's protected. I tell you, I think a lot of people will be able to relate to, "Wait a minute, I can jog places where other people can't." So that gets you to that protected activity. In other words, they didn't go after anyone who was jogging through the neighborhood in the past few months, but they did go after a Black person.

That's where I think on both fronts, there was some really interesting analysis done by the Feds to say, "Yes, I think we got enough on the race side, but we could also show that there was an interference with that protected right and it's obvious." That sounds like a winner as far as using this [crosstalk] statute, which oftentimes it is not.

Brian Lehrer: Last thing. Interesting in this case as well is that the McMichael was at first tried to plead guilty to the hate crimes charge and the judge rejected the plea agreement because it gave the killers too much. Specifically, it would've allowed them to serve 30 years in federal prisons rather than Georgia state prisons. The judge apparently rejected the deal so they don't get to pick their prison. Arbery's family objected on those grounds specifically. Do you know if federal prison is a more comfortable place to be than state prison?

Ahmaud Arbery: I think federal prisons have more resources. They probably could be more comfortable, but here's the thing, I think these guys are worried about getting killed, and people get killed both in state and federal prison. If I were a defendant, I'd want to go to a federal prison because I think there's national standards that may differ from that of the various states.

Brian Lehrer: All right. Brian Levin, Director of the Center for the Study of Hate and Extremism at Californian State University in San Bernardino, a civil rights lawyer who has previously been with the Southern Poverty Law Center's Klanwatch and Militia Task Force in Alabama. He's also a former NYPD officer, and I didn't even get to ask you my NYPD officer in the 1980s related questions. Maybe another time, but thank you for everything you gave us today.

Ahmaud Arbery: Thank you so much for your service to our community. Public radio is a tool of a pluralistic democracy and I thank you so much.

Brian Lehrer: Thank you.

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