Courtesy of Southern Voic
As Elke Kennedy continues to cry for her lost son, she feels the state of South Carolina laughing in her face. Sean Kennedy, a 20-year-old gay man, died in May 2007 after being brutally attacked in the streets of Greenville, S.C.
“Our judicial system is a joke, and it is trying to make you believe that it is there to assure justice,” Elke Kennedy said after her son’s killer, Stephen Moller, was sentenced last week to three years in prison.
Because a South Carolina grand jury indicted Moller on involuntary manslaughter charges instead of murder, the maximum sentence Moller faced was five years in jail. A murder sentence in South Carolina carries a mandatory minimum sentence of 30 years.
“There was no justice for my son, Sean,” Elke Kennedy said. “The sentence that Stephen Moller received is a joke and a slap on the wrist.”
As part of a plea agreement on June 11, South Carolina Judge Ned Miller gave Moller a suspended sentence of three years in jail and three years of probation. Miller also gave Moller credit for seven months he has already served in prison following Kennedy’s death, making Moller eligible for parole as early as 2009.
“The easy thing to do would be to give him five years and move on,” Miller said, according to the Greenville News. Instead, Miller said he wanted to offer Moller, 18 at the time of the attack, a chance to be rehabilitated.
Mark Moyer, the Greenville assistant solicitor who prosecuted Moller, characterized the judge’s sentence as “pretty much the maximum” available for Moller.
“That was as strong a sentence as could be given under the circumstances,” said Moyer. “We acknowledge that the decision was reflective of South Carolina law.”
But when South Carolina law allows an admitted killer — who bragged about beating up a “fucking faggot” minutes after the attack — to walk free after just three years in prison, federal intervention is appropriate, said Cristina Finch, senior counsel for the Human Rights Campaign, a national gay political group.
“It’s a perfect example of why we need a federal hate crimes law” that includes sexual orientation and gender identity, Finch said.
“I think [South Carolina prosecutors] were just constrained by the legal tools they had to work with,” Finch said. “The circumstances of the case didn’t lend themselves to a hate crime charge, especially since there is no state hate crime law to even charge under.”
‘YOUR BOY IS KNOCKED OUT’
South Carolina is one of 18 states, including Georgia, which does not have a hate crimes law that specifically includes sexual orientation.
Elke Kennedy believes her son was not only targeted because of his sexual orientation, but that it was also a factor in how Sean’s death was investigated and prosecuted.
“I believe if Sean wasn’t gay, it would’ve been different,” Kennedy said. “In fact, I believe that Sean’s case has been mishandled from the beginning. … Sheriff’s deputies did not take it seriously.”
According to court records, Sean Kennedy was leaving a Greenville bar on May 16, 2007, when he ran into some female friends who were talking with Moller and other young men in a car. Kennedy allegedly distracted the young women from talking to Moller, who also alleged that Kennedy accidentally burned his face with a cigarette.
Moller exited the car and delivered a single blow to Kennedy’s face, knocking him to the ground and causing Kennedy’s brain to separate from his brain stem and ricochet inside his head.
After fleeing the crime scene by car, Moller placed a drunken call to one of the women who witnessed the attack.
“Hey, I was just wondering how your boyfriend’s feeling right about now [laughter],” Moller said, according to a transcript of the call that was read during Moller’s sentencing. “The fucking faggot … Yea boy, your boy is knocked out, man. The motherfucker. Tell him he owes me $500 for breaking my goddamn hand on his teeth, that fucking bitch.”
The Greenville Solicitor’s office looked into whether Moller attacked Sean because he was gay, “even though motive isn’t an element” in prosecuting a crime, Moyer said.
“We know he used some ugly language in a telephone call right after, and from that standpoint it might give some people reason to believe there was an underlying motive to what he did,” said Moyer, who added that there were “equally strong” indications that anti-gay bias did not provoke Moller’s violence.
Both Moller and Kennedy consumed lots of alcohol prior to the attack, Moller’s rage appeared to be triggered by Kennedy grabbing the attention of the young women Moller was flirting with, and several gay people interviewed by Moyer vouched that Moller was not homophobic.
“All of them said they never, ever noticed any sort of discrimination or trouble based on their sexual orientation,” said Moyer, who added that Moller and Kennedy didn’t know each other before the attack.
“So it would’ve been an instantaneous” decision to attack Kennedy because he was gay, Moyer said.
Ryan Beasley, Moller’s attorney, did not respond to interview requests.
‘HALLMARK’ OF A HATE CRIME
While Moyer said his office investigated anti-gay angles in Kennedy’s killing, some prosecutors in conservative areas like South Carolina shy away from making a victim’s sexual orientation a part of a trial, said Miller Shealy, an assistant professor at the Charleston School of Law who was also a former assistant solicitor in South Carolina.
“Sometimes as a prosecutor, I’d just rather that information stay out,” Shealy said. “It might put my victim in a bad light [for jurors who are opposed to homosexuality] and I don’t want anything to invite bias.”
Such reasoning shows why it’s important to add sexual orientation to the federal hate crimes law, Finch from HRC said.
“It would’ve allowed the FBI and Department of Justice to come in and fully investigate the case,” Finch said. “When you’ve got the FBI or Department of Justice down there, I think the investigation is going to be much more thorough.”
Had Kennedy’s killing been declared a federal hate crime, Moller would’ve possibly faced life in prison, Finch said.
If South Carolina had a state hate crimes law, “I think there would’ve been a much more serious effort [by investigators] at first to identify it as a hate crime,” said Warren Redman-Gress, executive director of the Alliance For Full Acceptance in Charleston.
Even if Moller’s attack wasn’t officially declared a hate crime, it’s had that affect on many gay people in South Carolina, he added.
“I think people are feeling vulnerable because it looks like people get away with serious crimes like this,” Redman-Gress said. “It was a horrible crime, and many people are hurt by that action because it has all the hallmarks of a hate crime.”
SENTENCE ‘THE NORM’
As gay activists and bloggers from across the country decry Moller’s sentence as too lenient, Shealy cautions people about portraying South Carolina as a safe haven for gay bashers.
“In any case, unless you’re on the jury, unless you’re there, unless you’ve sifted through the evidence, you should be very careful about second-guessing [the legal process],” Shealy said.
Even the prosecutors in Moller’s case believe he got off too easy, but mainly because of the 25-year gap in sentencing between involuntary manslaughter and murder.
“We wish the legislature had written a law in such a way that it carries more than five years,” Moyer said.
The solicitor’s office presented a grand jury with the option of seeking a murder or involuntary manslaughter conviction, Moyer said. Deciding that Moller’s actions lacked “malicious intent,” the grand jury returned a charge of involuntary manslaughter.
Legal experts in South Carolina and Georgia agreed that a three-year sentence for a manslaughter conviction is “not surprising,” with Moyer noting that “you see a lot of people walk out with probation.”
“A three-year sentence for a manslaughter conviction is the norm,” said Russell Covey, a professor at Georgia State University College of Law. “It sounds pretty light for a sentence if it’s considered a hate crime.”
Unlike South Carolina, felony murder in Georgia does not require malice, meaning prosecutors could have sought the maximum penalty for Moller or in similar crimes committed in Georgia, said Nicole Vaughn, a spokesperson for the Fulton County District Attorney’s office.
Also unlike the Palmetto state, Georgia prosecutors do not leave it up to grand juries to decide which level of crime a defendant should be charged with, Vaughn said.
“By the time we go to the grand jury, we’ve already made a determination as to what charges we feel are necessary for the crime that was committed,” she said. crime a defendant should be charged with, Vaughn said.