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2nd anti-gay attack spurs new call for change

MONTGOMERY (AP) — The beating death of an 80-year-old Elmore County man who allegedly made sexual advances on a 20-year-old man has added momentum to a call for sexual orientation to be made a protected category under Alabama's hate crime law.

James Oliver Bailey's death at his Lake Jordan home Nov. 26 was the second violent assault in six weeks in which the victim allegedly made sexual advances — the first victim, in Montgomery, is still comatose.

While the cases have prompted a new push to expand the hate crime statute, some in the criminal justice field say hate crime laws have little impact in sentencing, and sometimes do more harm than good.

Also, the man accused of beating Bailey to death with a two-by-four, Chris Nieves of Marbury, already is charged with capital murder, which can bring a death sentence if convicted.

Nieves was charged with a capital offense — not because of any hate crime element — but because he told investigators he had intended to steal the elderly man's car all along, Elmore County Sheriff Bill Franklin said Monday.

But District Attorney Randall Houston said he would still bring Nieves' statement about the alleged sexual advances to trial.

"As far as an Elmore County grand jury is concerned, that's not going to be an acceptable excuse for them," Houston said. "The fact that he (Bailey) was homosexual is not an excuse."

In the earlier case, Marcus Dwayne Kelley, 26, said he beat a Montgomery man with a hammer on Oct. 19 for making sexual advances toward him. Billy Sanford, 52, is still in a coma at Jackson Hospital, Montgomery police said.

Protection under law

Gay rights groups in Alabama are confident that the two cases, plus another last year in Baldwin County, will prompt the Legislature to pass an amendment to the state's hate crime law that would include sexual orientation as a protected category — an effort that has failed during the last two regular sessions.

"I think it's a matter of time," said Norma Mitchell, president of the Montgomery Gay and Lesbian Association. "I think this year we have a very good chance because the recent occurrences since 2004 show how much hatred is there."

Alabama law defines hate crimes as those motivated by a victim's race, color, religion, national origin, ethnicity or physical or mental disability. A hate crime charge on attempted murder or murder increases the minimum sentence from 10 years to 15.

State Rep. Alvin Holmes, D-Montgomery, who has unsuccessfully called for a change to the statute in the past, has promised to raise the issue again Jan. 10, the first day of the regular session.

But others say hate crime laws do little to enhance sentences, because tough jail time is routinely sought in violent crimes. One prosecutor said the statutes are a step back because they magnify the gap between different groups.

"To start saying that some people are more valuable to society than others . . . I think the law separates us from each other," Baldwin County District Attorney David Whetstone said.

Whetstone is preparing his own capital case against three defendants suspected in the death of 18-year-old Scotty Joe Weaver, a gay Bay Minette man who was beaten, stabbed, strangled and his body burned in woods near his mobile home on July 18, 2004.

"In my opinion we do not need hate crime laws — what we need to do is prosecute hate crimes," Whetstone said, reasoning that people who commit crimes of violence because of hate are more dangerous to society than those who commit crimes of passion.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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