LONDON — The brother of a man accused of attacking a gay Letcher County resident because of his sexual orientation went to jail Monday rather than testify as a prosecution witness.
Alex Jenkins, 18, told U.S. District Judge Gregory F. Van Tatenhove that he could not testify against his older brother, Anthony Jenkins.
Van Tatenhove told Alex Jenkins he would go to jail if he didn't.
"Yes sir, I apologize," Jenkins said when Van Tatenhove asked whether he was refusing the judge's order to testify.
Van Tatenhove had federal marshals take Jenkins to jail.
The dramatic development came as the trial continued for first cousins Anthony and Jason Jenkins, who lived in Harlan County.
They are charged with conspiracy; with kidnapping Kevin Pennington, who is gay; and with injuring him because of his sexual orientation.
The charges were the first in the nation under a section of the federal hate-crimes law that outlaws attacks based on the victim's real or perceived sexual orientation.
The two could face up to life in prison if convicted.
Defense attorneys have acknowledged that Pennington, 29, was assaulted but said that other factors, such as drug and alcohol abuse or an aborted drug deal, were the reasons, not Pennington's sexuality.
However, Anthony's wife, Alexis, and his sister, Ashley, have testified that the two men targeted Pennington in the April 2011 attack because of his sexual orientation. The men shouted anti-gay slurs as they punched and kicked Pennington on a secluded road in Kingdom Come State Park, said the two women, who were there and have pleaded guilty to aiding in the attack.
Defense attorneys have said the two women were drug addicts who lied to try to get less time in prison, although the women insisted that they told jurors the truth.
Federal prosecutors subpoenaed Alex Jenkins to testify.
When Angie Cha, one of the prosecutors, asked whether Anthony and Jason Jenkins told him why they attacked Pennington, Alex Jenkins said nothing, and he became emotional when Cha asked a second time.
During a break, he mouthed "I love you" to his brother.
After Van Tatenhove and attorneys discussed the issue without the jury present, the judge had Alex Jenkins brought back to see whether he would testify, then ordered him jailed when Jenkins said no. The judge said he would give Jenkins another chance to testify Tuesday morning.
In other testimony Monday, a police officer said that soon after the attack, Anthony Jenkins said that he was Pentecostal and that his religion did not "believe in homosexuality."
Jenkins used the word faggot when he made the comment, said the officer, James Taulbee.
Jenkins made the unsolicited comment while waiting to be questioned by police, Taulbee said.
Taulbee, a Pentecostal himself, said he told Jenkins he disagreed with him.
He said he asked Jenkins if he didn't think Christians are "supposed to love everybody regardless of their sexual preference."