Criminal Law - Bias-Intimidation Laws - New Jersey Supreme Court Holds That Conviction Based on Victim's Reasonable Belief That Bias Motivated the Offense Violates Due Process

Harvard Law Review, January 2016 | Go to article overview

Criminal Law - Bias-Intimidation Laws - New Jersey Supreme Court Holds That Conviction Based on Victim's Reasonable Belief That Bias Motivated the Offense Violates Due Process


Criminal Law--Bias-Intimidation Laws--New Jersey Supreme Court Holds that Conviction Based on Victim's Reasonable Belief that Bias Motivated the Offense Violates Due Process.--State v. Pomianek, 110 A.3d 841 (N.J. 2015).

In 2010, Dharun Ravi used a webcam to spy on his Rutgers roommate, Tyler Clementi, having sex with another man. (1) The situation garnered national attention when Clementi leapt to his death from the George Washington Bridge. (2) Ravi was convicted under New Jersey's bias-intimidation statute when the jury determined that Clementi "reasonably believed" that he had been targeted because he was gay. (3) Recently, in State v. Pomianek, (4) the New Jersey Supreme Court ruled that the same provision used to convict Ravi was unconstitutionally vague. (5) in so ruling, the court declined to follow the reasoning of the state's Appellate Division, which had resolved the case through constitutional avoidance grounded in free speech concerns. (6) Instead, the New Jersey Supreme Court ruled on due process grounds. (7) Although the outcome was effectively the same, the New Jersey Supreme Court's departure from the lower court's First Amendment reasoning may obviate deeper free speech issues in another part of the bias-intimidation statute.

On April 4, 2007, laborers and truck drivers working for the Gloucester Township Department of Public Works were relaxing at an old storage garage. (8) According to Steven Brodie, Jr., an African American laborer, (9) most of the workers were acting "wild"--throwing footballs and roughhousing. (10) Among the "out of control" employees were David Pomianek, Jr., and Michael Dorazo, Jr., two white truck drivers. (11) Dorazo decided to trick Brodie, telling him that their supervisor needed an item from a steel storage cage in the garage. (12) When Brodie entered the cage, Dorazo locked him inside. (13)

While Brodie was stuck in the cage, Pomianek taunted him. (14) Brodie heard Pomianek say to the other workers, "you see, you throw a banana in the cage and he goes right in." (15) Other onlookers heard Pomianek call Brodie a "monkey." (16) Brodie thought the taunts were "racial." (17) He was "humiliated" and "embarrassed" by being "locked in a cage like an animal." (18)

Pomianek was charged with harassment by alarming conduct, (19) harassment by communication, (20) bias intimidation, (21) and official misconduct. (22) After a ten-day trial, a jury convicted him of harassment by alarming conduct and by communication. (23) The bias-intimidation statute gave the jury three ways to convict Pomianek. First, the jury could convict him under subsection (a)(1) if it found that his "purpose" in harassing Brodie was to "intimidate" him "because of race." (24) Second, the jury could convict under subsection (a)(2) if it found that Pomianek harassed Brodie "knowing" that Brodie would be "intimidated because of race." (25) Third, the jury could convict under subsection (a)(3) if the circumstances of the offense caused Brodie to be intimidated, and Brodie "reasonably believed" that Pomianek either had harassed him "with a purpose to intimidate" because of his race or had targeted him for harassment because of his race. (26) The jury acquitted Pomianek of the "purpose" and "knowing" charges, but convicted him under subsection (a) (3). (27) Based on the bias-intimidation conviction, the jury also convicted Pomianek of official misconduct. (28)

The Appellate Division reversed the bias-intimidation conviction and remanded for a new trial. (29) Writing for the panel, Judge Reisner (30) concluded that subsection (a)(3) of the bias-intimidation law would "run afoul of ... First Amendment principles" if it criminalized Pomianek's verbal taunts just because Brodie reasonably believed those taunts were intended to intimidate him on account of his race. (31) The court traced the statute's legislative history and concluded that the legislature "[c]learly" thought the statute "required proof of the defendant's intent to commit a bias crime. …

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