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Area records hate crime conviction

By Clay Wilson

Amidst the publicity surrounding a Fulton County case invoking the state's little-used "hate crimes" law, a Henry County judge has sentenced a man under the law.

Flint Judicial Circuit Superior Court Judge Hal Craig sentenced Timothy Steven Gearin on Monday to 20 years in prison with 6 years to serve. At the recommendation of Flint Judicial Circuit District Attorney Tommy Floyd, Craig added 4 years to Gearin's actual jail time under Georgia's "hate crimes" statute.

Floyd said Wednesday that this is definitely the first time the statute has been invoked in Henry County, and to his knowledge it is the first time it has been successfully used in the state.

Passed in 2000 by the Georgia General Assembly, the so-called hate crimes law allows judges to impose harsher penalties for crimes if they or a jury find that the accused "intentionally selected" a victim or his property "because of bias or prejudice."

Gearin submitted a guilty plea before Craig Monday to the charge of first-degree cruelty to children.

According to Floyd, on May 20, 2002, Gearin was attending the funeral of his father at a Henry County funeral home. At some point during the services, Gearin struck 12-year-old Esperanza Alvarez in the forehead.

This was the basis of the cruelty charge, to which Gearin pleaded guilty. However, Floyd further charged that Gearin struck the Hispanic girl after making comments to the effect that his father "would not want any (racial slur) at his funeral."

"That, I thought, is exactly the type of situation that the hate crimes statute was formulated to deal with," Floyd said. "This was not a fight, no one was messing with (Gearin), he did it because she was there and had the appearance of being Hispanic."

Floyd said that, without factoring in the hate crimes statute, Gearin would have been up for a 20 year/ 2 to serve sentence because of his extensive criminal history (under the Recidivist Act). But the hate crimes law allowed Craig to tack on an extra four years of time to serve (the law allows a maximum of five additional years).

Plus, Floyd said, the hate crimes law also requires that Gearin serve at least 90 percent of the prison sentence (54 months) before he is released on parole. The balance of his 20-year sentence will be served on probation.

The most recent attempt to use the hate crimes law occurred in Fulton County. There a jury last week convicted former Morehouse College student Aaron Price of aggravated assault and aggravated battery in the beating of fellow student Gregory Love.

However, the jury failed to find, as prosecutors had argued, that Price attacked Love because he thought he was gay and had made a sexual advance.

The case refocused attention on the hate crimes law, which caused controversy before it was passed. Critics argue that the law unconstitutionally penalizes opinions (violating the U.S. Constitution's First Amendment) and that it does not really mean anything. (Under the law, any additional sentence imposed cannot exceed the maximum sentence already allowed for a crime.)

Lloyd Matthews, the Jonesboro-based attorney who was Gearin's court-appointed defender, raised these criticisms Wednesday.

"I just think it's kind of unnecessary," said Matthews, who has been practicing law since 1987. "I think the hate crimes legislation is more politically motivated, but it doesn't really do anything to protect the citizenry."

Matthews also said he thinks that tacking on an additional sentence because his client's crime was allegedly motivated by race is unfair.

"I think it's double punishment, because he's already admitted to malice (a necessary element of the crime of cruelty to children) ? does it make sense to punish him for a hate crime when he's already admitted that he was malicious?" Matthews asked.

He said that, as instructed by his client, he plans to appeal the sentence imposed by Craig.

Under the hate crimes law, the finder of fact in the case (whether a judge or jury) must first find the defendant guilty of the crime charged. Then they must find "beyond a reasonable doubt" that the crime was motivated by prejudice or bias.