An acquittal in the first federal trial for people charged with attacking someone because of the victim's sexual orientation will not deter future prosecutions, federal authorities said Thursday.
Late Wednesday, jurors in federal court in London found Jason Jenkins, 37, and his first cousin, Anthony Jenkins, 20, not guilty on a charge that they beat Kevin Pennington in April 2011 because he is gay.
The government's argument for a hate-crime conviction appeared to go awry as jurors heard inconsistent stories from witnesses about the motivation for the crime, as well as testimony that Jason Jenkins had wanted to have sex with Pennington and that two women who aided the attack — Ashley and Alexis Jenkins — acknowledged bisexual affairs.
The jury convicted the cousins on charges of conspiring to kidnap Pennington and of carrying out the kidnapping. They could face up to life in prison when they are sentenced in February.
Still, the acquittal on the hate-crime charge was a high-profile loss for the government. The trial was the first in the nation for people charged under the section of the federal hate-crimes law that covers attacks motivated by the victim's real or perceived sexual orientation.
Thomas E. Perez, head of the Civil Rights Division in the U.S. Department of Justice, said Thursday in a news release that the department will "continue to vigorously investigate hate crimes allegations and support state and local law enforcement in their efforts to identify these crimes."
U.S. Attorney Kerry B. Harvey, the top federal prosecutor for Central and Eastern Kentucky, has said he made enforcement of civil-rights laws — including the hate-crime law — a priority since taking over in May 2010. That focus will continue, he said in an interview Thursday.
His office and its law-enforcement partners "go where the evidence leads us," Harvey said. If that results in additional hate-crime cases, his office will prosecute them, he said.
Jason and Anthony Jenkins, as well as Anthony Jenkins' wife, Alexis, and sister, Ashley, were first charged in local court in Harlan County in the assault on Pennington, 29.
Perez certified having the federal government take jurisdiction, and his department assigned a trial lawyer from headquarters to help prosecute — an indication of the priority of the case.
Ashley and Alexis Jenkins pleaded guilty, becoming the first people in the nation convicted under the gay-bias section of the federal hate-crime law.
Attorneys for Jason and Anthony Jenkins argued unsuccessfully before the trial that the hate-crime law was unconstitutional and that the federal government should not have taken jurisdiction.
"There are many things wrong in this country, and this prosecution is one of them," Anthony Jenkins' attorney, Willis Coffey, told jurors.
Coffey said in closing arguments Wednesday that the government didn't prosecute Pennington, who concealed information about his drug involvement from the FBI for months, but did take on a case against a drunk, Jason Jenkins, and against Anthony Jenkins, a "slow kid" with an IQ of 75 that ranked him in the bottom 5 percent in the nation.
Harvey countered that the convictions on two of the three charges against each man vindicated the decision to assume federal prosecution.
"Our over-arching view here is that we are very pleased that all four participants in this sorry episode have been convicted of very serious charges," Harvey said. "Of course we should've taken this case."
The Herald-Leader did not contact jurors Thursday because of a court rule that appears to prevent such contact, so there was no way to gauge why the panel ruled as it did.
The jury either believed the attack on Pennington was motivated by something other than his sexual orientation, or didn't feel the government sufficiently proved that was the reason for the assault, said Jason Jenkins' attorney, Andrew Stephens.
Several observers said the verdict should not be read as a repudiation of the federal hate-crime law.
"It doesn't really have any bearing on the next case," said Mark Potok, senior fellow at the Southern Poverty Law Center, which monitors anti-gay hate groups.
Jordan Palmer, president of the Kentucky Equality Federation, an advocacy group that pushed for a federal takeover of the Pennington case, said justice is still being served even without a hate-crime conviction.
"I don't think this is a setback at all," he said. "Tomorrow someone may be arrested for a hate crime that results in a conviction."
Stephens noted the law survived a challenge in the case, with U.S. District Judge Gregory F. Van Tatenhove ruling it was constitutional. But the facts didn't hold up on the hate-crime count in this case, he said.
"I just think factually there was a question on what was the motivating factor in this case," Coffey said.
Pennington's credibility may have suffered because he did not first tell the FBI that he went with his attackers to get drugs. There also was testimony that he had sold drugs.
Ashley Jenkins, 20, and Alexis Jenkins, 19, testified that they helped lure Pennington into Anthony Jenkins' pickup truck with a bogus request to help Ashley get drugs. The request was a pretense. Pennington's sexual orientation was the real reason Jason and Anthony Jenkins beat him, the women testified.
Pennington said he begged to be let out of the truck after he figured out who the men were — because he had seen them attack a gay man on another occasion — but the group took him to a secluded spot atop a mountain in Kingdom Come State Park, in Harlan County, where the men punched and kicked him while yelling anti-gay slurs.
Pennington said he escaped into the woods when the men stopped beating him to look for a tire tool, allegedly to use in killing him.
Defense attorneys argued the women lied in order to get lower sentences.
The beating was really motivated by factors such as drug and alcohol abuse and an aborted drug deal, Coffey and Stephens argued.