UPDATED: The first U.S. prosecution under a new federal law against anti-gay violence ended with a Kentucky jury acquitting two cousins of hate-crime charges while finding them guilty of kidnapping in a 2011 attack on a gay man.
Prosecutors had argued that Anthony Ray Jenkins and his cousin David Jason Jenkins attacked 29-year-old Kevin Pennington at a rural state park because of Pennington’s sexual orientation, violating a hate crime law that was expanded in 2009 to cover assaults motivated by bias against gays, lesbians and transgender people.
It was not clear why jurors late on Oct. 24 rejected that argument.
Responding this evening the to result, Brandon Combs of the Kentucky Equality Federation said, "The acquittal of these individuals from the hate crime aspect of this case is truly a disappointment. This is a failing by prosecutors to make their case beyond a reasonable doubt, but this should serve as a rallying point around which the LGBTI community can gather and we thank the U.S. Department of Justice for responding to our request to prosecute this case. If there is any positive to take away from this ruling, it is that Mr. Pennington did receive some measure of justice, albeit not what he deserved."
Anthony Jenkins’ attorney, Willis Coffey, said after the trial that jurors didn’t find Pennington’s account of the events credible.
“You’d like to have an acquittal on all counts, but he’s happy he was found not guilty of a hate crime,” Coffey said of his client. “So am I.”
Government attorneys have said this is the first U.S. prosecution charging a violation of the sexual orientation section of the Matthew Shepard-James Byrd Jr. Hate Crimes Prevention Act passed in 2009.
Pennington held hands with family members and let out an audible sigh when the not-guilty verdicts on the hate-crimes charges were announced. He left the courtroom without talking to news reporters.
Jimmy Jenkins, an uncle who raised Anthony Jenkins, dropped his head into his hands and cried when the cousins were found guilty on the charges of kidnapping and conspiracy to a kidnapping.
They are scheduled to be sentenced on Feb. 21.
Throughout the trial, the defense argued that any dispute between the Jenkinses and Pennington was over a drug deal gone sour.
Andrew Stephens, the attorney for David Jason Jenkins, argued that his client had at least 21 beers on the day of the assault and was too drunk to have formulated a plan for such an attack.
“These people who were stoned and drunk were going to form a plan? When this event took place, they were all about drugs,” Stephens said.
Coffee argued that Anthony Jenkins has an IQ of roughly 75 and was merely a follower who does not hate gay people. He called the allegations “the nearest thing to nothing I have ever seen.”
Coffey said Pennington pushed the idea that he was attacked for being gay to serve his own political agenda. Coffey invoked the name of President Barack Obama, who is unpopular in Kentucky and lost badly in the state four years ago.
“If the government and President Obama want to bow to the special-interest groups, that’s their business, but they picked the wrong case,” Coffey said.
U.S. Justice Department civil rights attorney AeJean Cha told jurors that the Jenkins cousins and two women planned to kidnap, beat and kill Pennington because of his sexual orientation.
“This is not about drugs, this is about the fact that Kevin is gay,” Cha said.
Hawkins also played a tape of Pennington’s 911 call after the attack. On the tape, Pennington’s voice can be heard cracking as he tries to describe the attack and relay information.
“They’re trying to kill me,” Pennington told the 911 operator on April 4, 2011. “I didn’t know what they were going to do. I think it’s because I’m gay.”