Darkside Rainbow

Back in June, we looked at the case of Michael J. Sandy, a gay man who died as the direct result of the actions of a group of men who targeted him through an online gay chat room and set him up for robbery. Today that case is still open for debate; three of the men involved have been tried, while the fourth, Anthony Fortunato, stands trial before the Supreme Court now. The last time we talked about this, I asked if hatred has to be involved for something to be considered a hate crime.

This time, I have to ask: do you believe this man?

Lawyer Claims Defendant in Hate Crime Is Gay, Too - New York Times

One of the defendants accused of killing a gay man in Brooklyn last year because of his sexual orientation offered a startling courtroom revelation yesterday: He, too, is gay. [...] All along, homosexuality has defined the case. Prosecutors have used it as a sword, seeking heavier sentences for a hate crime.

As the trial began in Brooklyn Supreme Court yesterday, Mr. Fortunato’s lawyer, Gerald J. Di Chiara, sought to use sexual orientation as a shield. [...] Not only was Mr. Fortunato gay, Mr. Di Chiara said, but so was the main prosecution witness, Gary Timmins, 17, who has pleaded guilty to attempted robbery in exchange for his testimony.

In fact, Mr. Di Chiara continued, Mr. Fortunato had planned to tell his friends of his sexual orientation on the night in question. Luring a gay man out to a secluded lot in Sheepshead Bay was part of that plan, Mr. Di Chiara said.

Right. Planning to rob a gay man was all part of a clever coming-out plan. So does that mean that Fortunato engineered the plan, and talked his friends (another of whom is also conveniently gay now) into going along with it all for the sake of this elaborate scheme to come out of the closet?

It just seems too opportune to me - that he’s trying to avoid the maximum sentence possible for a hate crime by saying “Oh, I’m gay too!” The entire argument presented (read the full article) seems shaky, flimsy, and wholly concocted as a last-ditch attempt to save himself.

The worst part?

You can’t really prove or disprove it.

The judge can’t force Fortunato to commit a witnessed act of physical intimacy with another man in order to prove his sexuality; to do so would be inhumane, not to mention that any straight guy will kiss another guy if he’s desperate enough and it’ll keep him out of prison. You can’t even look at Fortunato’s life in the past; how many gay men live in the closet, with friends and family none the wiser?

If you ask me, it’s just a clever ploy by Fortunato’s lawyer to try to reduce his sentence.

Not to divert too much, but it brings to mind the issue of airlines logging personal data such as religion and sexual orientation for the sake of national security. How do you verify something like that? Even polygraphs can be fooled; a clever person can lie right past one if they know the right tricks. Something that’s so personal, whose outwardly defining characteristics can change so drastically from person to person, can’t really be proven or disproven. It has no place in national security, and in this case, I really think it has no place in the Supreme Court - not when used this way.

Maybe if Fortunato had been openly gay, this might be believable, and valid evidence. I know, he can’t be blamed if he really is a closet case…and if I thought he really was, I wouldn’t be so skeptical. I just don’t think that’s the case. I think the sudden revelation about Fortunato’s sexuality is deliberate obfuscation.

If his sexuality can’t be proven concretely, his lawyer may hope to divide the jury, maybe even get Fortunato off on reasonable doubt. He’s sure as hell succeeded in confusing people, and distracting from the real issue of the trial: the death of Michael Sandy. Clever? Yes. Believable?

Not from where I’m standing.

michael j. sandy, hate crimes, hate crime legislation, murder, john fox, ilya shurov, anthony fortunato, justice jill konviser-levine, seth lieberman, gerald di chiara, homophobia