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Hate-crime charges have not been ruled out against two men faced with first-degree murder charges in the killing of a gay man in Montrose, Colo., a prosecutor said Tuesday. Assistant district attorney Mark Adams said the investigation into the July slaying of Kevin Hale, 36, is still ongoing. "We are waiting as is appropriate in a case of this magnitude," he said. "It's appropriate for us to proceed with caution and be certain of what we are doing."
Todd Fiske, 24, and Adam Hernandez, 21, have been charged with murder, robbery, and other charges. They were advised in court Monday that if convicted, each could be sentenced to death or to life without parole. Family and friends of Hale have said he believed he was being harassed and physically threatened in the months before his death because he was gay.
The Colorado Anti-Violence Program is urging prosecutors to charge Fiske and Hernandez with a violation of Colorado's hate-crimes law, which was expanded last month to include crimes motivated by antigay bias. "We believe the hate motive should be an element that's present in the trial," said program director Avy Skolnik. "We're not necessarily wanting a harsher sentence but a willingness on the part of investigators to fully and accurately investigate all the potential motives in this case, of which antigay bias is a potential."
Under the state's Ethnic Intimidation Act, people motivated by bias based on race, sexual orientation, disabilities, religion, or other characteristics who knowingly injure somebody else can be charged with an additional felony punishable by up to six years in prison. Prosecutors sometimes won't file a hate-crime charge even when evidence suggests it because it can be so difficult to prove a suspect's motivation, said Adams County district attorney Don Quick. "There are cases where it's appropriate and you want to charge ethnic intimidation because you want the offender to acknowledge that's what happened," he said. "But there may be other situations based on proof where you can get the same penalties and not have an element that may be harder to prove."
Skolnik said his group wants prosecutors to charge Fiske and Hernandez with a hate crime based on statements made by Hale's family that he believed he was being threatened because he was gay. Hale reported to police last year he was being harassed, but he did not tell authorities the harassment was based on his sexual orientation, Montrose police commander Gene Lillard said. "Kevin did stop by the police department and reported he was being harassed by society in general," Lillard said. "He felt that he was not getting a fair shake in life." He said officers were still interviewing or trying to find witnesses.
Hale's uncle, Larry DeVinny, has said his nephew believed the harassment was based on his sexual orientation. Tammy Gonzales, who divorced Hale in 1997 when he stopped hiding his homosexuality after 10 years of marriage, said Hale told her he was worried someone would try to kill him. DeVinny and Gonzales could not be reached for comment because their phone numbers are not listed. Public defender Harvey Palefsky did not immediately return a call.
Hale's body was found in a park July 30. An arrest affidavit said Fiske told investigators he grabbed Hale by the neck from behind to break up a fight between Hale and Hernandez and then let go of Hale when he went limp. Fiske told a detective he heard Hernandez say to Hale, "You like to molest people. You tried to molest me." Montrose County coroner Mark Young said he could not determine the cause of death until toxicology test results are received.
Denise de Percin, former head of the Colorado Anti-Violence Program, said her group trained law enforcement officers in the Montrose area on bias-motivated crimes several years ago after the October 2000 shooting death of a gay man in Cedaredge. "The concept isn't new," she said. "All anybody wants is a fair and thorough investigation and by folks who, hopefully, know something about the nature of bias crimes, had some training on it, and know what to look for." Her group was active in calling attention to antigay crimes after University of Wyoming student Matthew Shepard was beaten to death in 1998 by two men who told jurors they pistol-whipped him because he put his hand on one of the suspect's legs. (AP)