Prosecuting a group of white supremacists for violently disrupting a black family’s birthday party seems straightforward: if anything meets the definition of a hate crime, the incident in Douglasville in July 2015 was it.
Unlike 45 other states, however, Georgia has no hate crimes statute.
Douglas County District Attorney Brian Fortner and his two trial prosecutors looked at the case in front of them and saw elements of a hate crime.
Fifteen white people calling themselves Respect the Flag had gone on a two-day ride through Paulding and Douglas counties, taunting and threatening African-American motorists and shoppers nearly everywhere the group went.
The group put guns in their pickup trucks, attached Confederate flags to the truck beds and then trolled Paulding County on a bright summer day. They drank and cursed black motorists, taunting them with cries of, "Look at that (racial slur)," and "(expletive) that (racial slur)."
The next day, the caravan was on the road again. By the time the group happened upon the birthday party in Douglasville, the taunts had escalated. One of the 15, Jose Ismael Torres, was threatening to "kill all of you (racial slur)s." He leveled a pump-action shotgun at the partygoers, some of whom were no more than 8 years old.
Georgia’s hate crimes law was struck down by the state Supreme Court in 2004 as being unconstitutionally vague and has never been replaced.
The prosecutors couldn’t try a case under a law that didn’t exist. So Fortner and Assistant DAs David Emadi and Norman Barnett looked at Respect the Flag and its rampage and saw something else: a street gang.
Using the 1992 Georgia Street Gang Terrorism and Prevention Act, along with charges of aggravated assault and terroristic threats, the district attorney’s office sought maximum penalties against four in the flag group: Torres, Kayla Rae Norton, Thomas Charles Summers and Lacey Paul Henderson II.
"We have displays of Confederate flags out here in west Georgia, we've seen it before, nobody gets charged," said Fortner. "That's what they believe and that's their First Amendment right. But if that behavior ever starts to violate the law and it starts becoming an escalating pattern, then it becomes something else."
The trial prosecutors, Emadi and Barnett, said that escalation was the key.
“When they got together to fly the Confederate flag, that’s not something we would have ever prosecuted,” Emadi said. “But it was that moment when they started assaulting African-Americans, they started pulling weapons on African-Americans, they started using racial slurs, that’s when they crossed over into the realm of a street gang. That’s when they became a group who was furthering a white supremacy ideology through the use of racial threats and violence.”
Under Georgia law a street gang is three or more associated people engaged in criminal street gang activity.
“There has to be a nexus between the criminal activity being done and the gang itself,” Barnett said. “Through social media, 911 calls, testimony from co-defendants at trial, we were able to show what this group’s ideology was, their hateful rhetoric and how the activity they were doing was connected with that. What they were doing was what they were about.”
‘The absolute last thing we need’
Summers, 46, and Henderson, 38, recently pleaded guilty to terroristic threats charges. Summers was sentenced to four years in prison, Henderson to two.
But it was the dramatic sentencing of Torres, 26, and Norton, 25, last week by Superior Court Judge William "Beau" McClain that made national news. Torres and Norton cried throughout their sentencing as McClain castigated them for their behavior nearly two years before.
"With the tension in this country, the absolute last thing we need is people riding around with the Confederate flag, threatening people," McClain said. "It was grace that there wasn't a lot of dead bodies on Campbellton Street that day."
Torres, convicted on three counts of aggravated assault with a deadly weapon, terroristic threats and violating the state's street gang terrorism law, was sentenced to 20 years, with 13 to serve in prison.
Norton, convicted on one count of terroristic threats and one count of violating the street gang law, was sentenced to 15 years, with six to serve.
Others in the group either pleaded to misdemeanors or were put into diversion programs.
Some observers said the lengthy sentences were just. Others questioned why Norton and Torres, a couple who have three children under the age of 9, were sentenced to so much time.
Michael Ivan, attorney for Norton, argued that the sentences were too stiff. He said they were meant to send a signal to the people of Douglas County, which has become increasingly racially diverse in the past 10 years. It was a message that he interpreted as meant to address any questions about why there were no arrests the day of the party.
“I think it was a sign to the community that, ‘Yes, we do care, we’re not neglecting you,” Ivan said.
Ivan said his client rejected a plea deal a week before the trial. He wouldn’t disclose the details of the deal but said she was offered something similar to other defendants who testified against their co-defendants in exchange for lighter sentences.
‘The victim is still a victim’
The Georgia Supreme Court overturned the state’s hate crimes law in 2004, four years after it was enacted.
Then-Sen. Eric Johnson, R-Savannah, said at the time there were already enough laws on the books that had the flexibility to increase penalties for felonies.
“An assault is an assault whether committed by a racist or a robber,” Johnson said in a statement in 2004 when the law was ruled unconstitutional. “The victim is still a victim and the criminal is still a criminal.”
At the time, the hate crimes law had only been invoked a handful of times. Legislators had wrangled over whether to expressly add gays and lesbians as a protected class under the law. Ultimately, lawmakers chose not to include a person's sexual orientation in the hate crimes statute or, for that matter, a person's race, religion, ethnicity, gender or disability — which most other states specified in their hate crimes laws.
Because of this lack of specificity, the law was challenged as being too broad and too vague. In 2004, the state Supreme Court agreed and struck down the hate crimes statute. While there were promises over the years to revisit the legislation, no replacement has made it onto the books.
“If Georgia had a hate crimes statute it would have made more sense to people and possibly been easier to prosecute the case,” said Fortner, who wants to see a new statute enacted.
So, working with the statute they had, his office teamed up with the Douglasville Police Department to build the case that Respect the Flag had operated as a gang.
Douglasville police came under criticism from McClain and some members of the public for not arresting anyone in Torres or Norton’s gang that day.
In a police report, Hyesha Bryant, a party guest, said that after police arrived, they did "nothing but shake hands and let them continue to threaten and leave." It's a charge the department pushed back on hours after McClain delivered his remarks from the bench. Police said they were more concerned with de-escalating the confrontation at the party before anyone got physically hurt.
Tracking racist social media posts
During their subsequent investigation, police obtained social media posts that outlined the group’s ideology. The back and forth often was damning.
In a Facebook post on June 2, 2015, Chad Wigley, who was part of Respect the Flag, wrote about his desire to attend a Ku Klux Klan rally in Temple, Ga.
“You can ride with me,” Wigley wrote to a friend who’d invited him. “I’m yet to go to a rally out there.”
The friend responded by telling Wigley he’d “like it.”
“Awesome man thanks,” Wigley responded. “I’m finally gettin my life back in order so I can be alot more active in this movement.”
On June 17, 2015, white supremacist Dylann Roof massacred nine black worshippers at Emanuel A.M.E. church in Charleston, S.C. The same day, Manda Dyson Upchurch, also part of Respect the Flag, wrote to a friend on Facebook, "Glad I'm white. Everything about a (racial epithet) is disgusting."
The friend responded, “Lmao omg. To which Upchurch replied, “Hey just sayin lol.”
The tone changed after the confrontation at the birthday party. A concerned Kayla Norton took to Facebook with Levi Bush, who was also part of the group, to complain that they were all giving different accounts to news outlets and she feared they would be caught in a lie.
“Did u tell them y’all had guns outside of the truck,” Norton wrote. “Because I told fox 5 our guns never left the truck.”
The next day she pressed him about whether he told the media they’d used racial slurs.
“U should make sure to tell them that only one person used a racial slur.. Not everyone.”
Later, Norton seemed to have regrets when she wrote in another post that she didn’t want to ride with the group anymore. “I love riding and I’m all about doing it for the right reasons .. but I don’t agree with going around calling people (racial slur) at all .. That ain’t me.”
That evidence, along with a flood of 911 calls that rolled in over two days as Norton and Torres and crew terrorized people in Paulding County, laid the foundation for the street gang charges.
“This was a pretty obvious one,” Emadi said. “It was a pretty easy connection for the jury to make.”
Credit: Henry P. Taylor
Credit: Henry P. Taylor
‘Now their kids have no parents’
By the time the group got a flat tire near the birthday party in Douglas County and began threatening the 5o guests, the terroristic threats charges were mounting as they uttered each slur. When Torres leveled the shotgun, that became aggravated assault. The terroristic threats statute, while not explicitly naming a hate group, references using a burning cross or other "flaming symbol … with the intent to terrorize another" as a crime.
“We don’t feel like we were stretching the law,” Fortner said.
“It fit all the elements of the statute,” Barnett said.
On Friday, Stacie Ryan, the mother of Kayla Norton, said her daughter and Torres were innocent.
“Kayla and Joe are not white supremacists like they are being painted to be,” Ryan said. “Things happened that shouldn’t have and it just got blown up. Now their kids have no parents.”
Ryan said she and Torres’ mother would be sharing childcare duties.
Fortner, Emadi and Barnett said the prosecutions were simply a question of justice.
"The hardest aspect of this case for us, is that it's 2017 and we're still dealing with this same hate, this same racially motivated violence, this inexcusable nonsense," Emadi said as Fortner and Barnett nodded in agreement.
“You have children who can’t have a birthday party with a snow-cone machine and a bouncy house without having to fear they’re going to be attacked in their front yard because they’re black.”
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