Hate crime might be hard to prove for cotton ball prosecutors

Prosecutor has yet to read police report or file charge
Friday, March 5, 2010 | 6:53 p.m. CST; updated 8:19 p.m. CST, Saturday, March 6, 2010

COLUMBIA — An attorney for one of the MU students arrested in connection with the Feb. 26 cotton ball incident at the Gaines/Oldham Black Culture Center doubts that prosecutors can make a convincing case that this was a hate crime.

"We don't believe (hate crime laws) apply," said Christopher Slusher of Columbia, the attorney representing Zachary Tucker.

Tucker, 21, and Sean Fitzgerald, 19, issued an apology through their attorneys Friday morning, saying they "deeply regret the pain their actions have caused others and the negative attention this incident has attracted to the campus and community."

In the statement released by Tucker's and Fitzgerald's attorneys, the night's events were attributed to a "series of foolish acts" including "riding" the tiger statue on the campus's South Quad and hoisting a pirate flag at Crowder Hall, the MU ROTC building.

Mike Waldhauser, commander of MU's Naval ROTC unit, confirmed that an Air Force ROTC commander saw the flag the following morning, removed it and contacted authorities. Nobody at the time thought it was related to the cotton balls, Waldhauser said.

Tucker's family declined to comment, and the Missourian was unable to reach Fitzgerald's attorneys, Milt Harper and Kevin O'Brien, also of Columbia.

Eric Miller, associate professor of law at St. Louis University, said that despite the suspects' apologies, prosecutors might still have a case for a hate crime. 

To win a tampering conviction, the prosecution will have to prove the cotton balls interfered with the enjoyment of the culture center property, Miller said. To make a hate crime charge stick, they would have to prove the cotton balls are a reference to race, such as slavery and cotton picking, and that they would not have had the same meaning if they had been placed in front of a fraternity house or a women's center, for example.

The Missouri statute on hate crimes also comes with a list of aggravating factors that, if proved, can enhance a Class D felony to a Class C, Miller said. Racist motivation is one of those aggravating factors.

Slusher said that Tucker, along with his parents, apologized in person to Nathan Stephens, director of the Black Culture Center, before Tucker hired an attorney.

"He was apologetic," Stephens said. "I expressed no ill will towards him... and on behalf of the Gaines Oldham Black Culture Center, we accepted his apology."

Stephens added that he is interested in seeing Tucker's development in understanding that "these events are harmful toward more than just minority groups."

Slusher said Tucker might not have understood how the community would react to the vandalism.

"I think they have an understanding of the the message now," he said. "I don't think they understood how it would be received."

Missourian reporters Ally Anderson and Jessica Stephens contributed to this report.

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