What is a hate crime?

Why wasn't the stabbing of a rabbi who was sitting on the steps of a synagogue immediately classified as a hate crime?

Is this similar to a random stabbing of a protestor at a BLM protest or LGBTQ parade?

What are the consequences of a hate crime classification?

Why does a hate crime classification matter?

Does the timeline make a difference?

On this episode of the Tribecast, we sit down with former Assistant District Attorney, Michael Thaler, to discuss the different factors that prosecutors will consider in determining whether or not to classify a particular crime as a hate crime. The case that catalyzed our discussion involved an assailant attacking stabbing Rabbi Shlomo Noginski in Brighton, Massachusetts eight times. Rabbi Noginski was simply sitting on the stairs of a Jewish house of prayer and religious school with children inside.

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This is a rough transcript of the first 15 min. that has not been scrutinized over but summarizes many points discussed:

If stabbing a rabbi who was sitting on the front stairs of a synagogue is not immediately considered a hate crime, then what is? I'm Yehuda Katz. This is the Tribecast at tribejournal.org.

News clips:

A rabbi stabbed several times in Brighton, outside of a Jewish day. School, 24 year old Khaled Awad of Brighton and will be held without bail. Despite the pain from eight stab wounds, [the rabbi] says, he's thankful his attacker went after him to spare the lives of the children attending a summer camp at Shaloh House.

Roginski: He want to kill me. I heard, I felt this. You don't want to go until he killed me. … He tried to hit to hit again and again and again, they tried and he tried and HaShem made a miracle.

Katz: You knew this guy?

Roginski: No. no. never.

Katz: If a rabbi sitting on the stairs of a synagogue, getting stabbed eight times is not immediately considered a hate crime, then what is? In the days following the arrest, there's been a lot of discussion on social media and amongst community members asking why this was not initially called a hate crime. It is expected that the Suffolk county district attorney Rachel Rollins will add hate crime charges to the case if she hasn't already, by the time this episode is published Our goal today is to better understand the legalities, timeline considerations and procedures surrounding hate crimes in general and especially as it pertains to apparently obvious cases like this one To help us answer this question we sit down with attorney Michael Thaler. Attorney Thaler is a former Assistant District Attorney in private practice since 2016 as a former ADA he's prosecuted well over a thousand cases, he's going to be able to help walk us through not just the we galleries, but the procedures in which the prosecution looks at cases like this.

We're including here at the raw interview with Attorney Thaler in order to provide the fullest picture possible. This was recorded before my interview with Rabbi Roginski. We hope you find this insightful. You can find us on social media at @tribejournal, and please consider joining us www.tribejournal.org. Stay safe folks.

Interview

Katz: We're here with Mike Thaler from Thayler law. Mike is a criminal defense attorney who is going to help us break down the idea of hate crimes, how it relates to actions that we, as the general public would normally perceive as clearly a hate crime and help us really understand the processes and procedures around the district attorney's office and the prosecution determining whether it's a hate crime and the different considerations around that determination. Mike, thanks so much for joining us here in the Tribecast.

Thaler: Thanks so much. I really appreciate you having me.

Katz: Okay, great. So first of all, maybe just give us an overview what your thoughts are on some of the issues pertaining to the case that just happened literally right around the corner from me with the rabbi who was on the stairs of a synagogue and was stabbed eight times. I think some of the facts that have been emerged from the various investigative reports show that [the rabbi] was held by gunpoint, he was brought over to a car, he wouldn't get in, he tried to give him the keys, he couldn't give him the keys. And then when the rabbi realized that this was going to be either a murder or a kidnapping and wasn't had nothing to do with the car, he made a run for it as far away from the school at which time, once he realized that the perpetrator was going to actually catch up to him, [the rabbi] is a apparently a trained black belt or something like this, the rabbi, was able to defend himself with his arm, apparently, being stabbed eight times, none of them fatal, until police officers arrived at the scene and [the attacker] pulled a gun on the police officer, then from I guess to two different locations, the other two police officers told him to drop the weapon at which time they arrested the suspect who is now in custody and awaiting arraignment in the coming days. So, from the general public, especially the Jewish community, we would look at this as like, okay, you got a rabbi sitting on the steps of a synagogue Jewish school and he was essentially, you know, someone walked up to him with a gun. And then you know, when it's clear that it wasn't a car theft or anything like that, proceeded to try to murder this particular rabbi.

Why is this not a hate crime? What are the different generalities? What are the different procedures and help us break this down. Unpack this baby.

Thaler: Sure. And it's one of these things where it's early and most prosecutors, I was a prosecutor for a period of time, try not to jump to conclusions, especially because even though the media wants it and you know, the public want it, it's difficult. This happened last Thursday, thankfully that Rabbi Noginski, frankly, is a hero, the fact that he, his first thought was to protect the people in the synagogue, not his own wellbeing. And, you know, from the information, as you said, that's come out there and more information will come out. But the initial information, the police is suggesting the person wanted to make him go on a van to kidnap so no one would recognized that could be inside and that this was going to be, this was a very risky circumstance.

He made sure to get himself away from where the kids were. So obviously he was heroic and what he did and thankfully is okay. I could tell you as well from more and more information will come to light, but initially happened Thursday. They arrested him. They needed to have him arraigned in front of the judge and (Brighton Municipal Court) MC in Brighton, which is the district court in Brighton, Friday morning. So, the information that was presented to have him charged is not the information that will actually eventually be all the facts of the allegations against. Oftentimes Boston police will do shorter reports initially, as they investigate, they just need to get them charged. He's facing seven charges right now. He was arraigned on Friday and the Suffolk county DA's office moved for dangerousness to have them held without bail. What that essentially means is they are arguing and will almost, almost definitively successfully argue that this is a person who poses a danger to the community or to the public at large, or people, individual, individual people specifically that there is clear convincing evidence that he committed some charges that meet the statute under the dangerous statute, which is 2 76 and 58 a the chapter and section. And that there are no conditions of release that can show the safety of the community initially, that how old would be for 120 days without bail. And right now, everything is still kind of delayed due to COVID. So, 120 days will be longer than 120 days. They move for dangerous this on Friday and the hearing itself is actually going to be this Thursday, July 8th. Oftentimes in these circumstances, they just put it in the reports. They don't always necessarily have live witnesses because that's the information they need to have them helped. The reality is that it is, it is hard for people as much as everyone it's seemingly obvious that there was a racial, a, some, antisemitic component of this. But it's hard to just always jump to that conclusion because you can't walk that back.

He has seven charges he's facing now, and I'll read them for you. These are all publicly available

1. assaults, a matter of the dangerous weapon causing serious bodily injury that has a maximum up to 15 years in state prison.

2. assault the matter of the dangerous weapon.

3. First count of assault with a dangerous weapon,

4. Second count of assault with a dangerous weapon

5. one count of assault with intent to murder, which is up to 10 years in state prison,

6. attempt to commit a crime and

7. carrying a dangerous weapon on school grounds. I'm not sure if that's the knife or the firearm. I would presume it's most likely to be the firearm that reports will, there'll be more and more reports, but they needed to get him charged. And then they're going to do a much more detailed investigation as the underlying basis for this, the hate crime statute, Massachusetts, at least for state courts, not attorney generals, is it carries significant penalties, but not necessarily more than what he's already facing.

They have to prove three things or show three things that:

1. assault and battery occurred, assault or battery, which is obvious too.

2. It was done with the intent to intimidate an individual.

3. And it's because of that person’s race, color, religion, national origin, sexual orientation, gender identity, or disability.

So the first one is obvious. The questions is, was this done specifically because he's Jewish? Obviously he's a rabbi on a synagogue. I think, you know, I, I'm not sure what he was wearing. The body Whitely was relatively obvious what this individual of what the rabbis identity is. But the question is, is what was the reason this individual Mr. Awad, the defendant who charged, did it or was there some other reason that they didn't have that conclusively shown by Friday morning? The issue is that they charge it one minute, that probable cause that there's a basis to charge it. So there has to be something that they know by Friday morning in order to have them charged. And if they don't have a conclusive, that is probable cause, the concern I would presume is often if you charge it and then in your investigation realize [you] probably don't have it…Now, suddenly they're telling the Jewish community or whatever, the racial reason if it's a different community especially with the rise of hate crime violence involving all sorts of different genders and racial makeups, that, 'Oh, never mind this wasn't due to that.'

And then they feel like they have the owe an explanation. That's, that's an issue, especially it's an issue because the reality is you don't want to make things worse for that community. You want to make things better. The District Attorney Rachael Rollins, who I believe was present for the arraignment and she was present at the vigil made it very clear. She stands with the community and she's there. We're gonna make sure this is investigated. But on Thursday they're going to seek to have them held without bail for four months. And then the process would go down the road towards grand jury investigation, grand juries have much more authority to seek records, whether it's social media accounts or phone records or otherwise to fully flesh out what was the motive here?

What was it? Was there an animus involved? If so, additional charges could be brought in both the Brighton court or potentially going to Suffolk Superior court and through the grand jury, because oftentimes they charged stuff initially.

And then when they, especially when circumstance where it might not have been as clear what was the rabbi's long term prospects from the stab wounds he suffered… If it becomes clear that he's going to have suffered further, there could be different kinds of accurate aggravating factors where they could do additional charges, he charges assault or murder. They could change it to armed assaulted river through the grand jury process. If it's a circumstance that he suffers, other kinds of long-lasting injuries, they could change some of these. And if it's a circumstance that they do, social media investigation, they see he's made different kinds of threats. There could be additional charges there. So the long and short of it is they needed to get this person in front of the judge. And they want data for probable cause, which they did have seven charges, even if they might've had it already. At that point, given the obvious circumstances here, the rush to judgment can be a real concern if you to walk it back.

So I would suggest that that is part of the reason why they might not have initially charged it, even if it seems obvious, even if the information in the public viewpoint is that it's obvious.

Katz: Okay. So, so the short answer is that, and thank you for that in depth answer, but the short answer is that if there's a religious figure at a place of prayer, that whether it be an Imam, whether it be a rabbi, whether it be a priest, whoever it may be… the fact that during the during the arraignment process, which is usually the next day, just because it wasn't classified as a hate crime doesn't mean that down the road, it won't be added to the charges. Thaler: Yes. And the very obvious examples that are in the recent media, the shootings that occurred in Atlanta with the massage parlors, I believe, but I'm not a hundred percent on this, I think five of eight victims were Asian-Americans. So, there's obviously a rush to judgment. This is the reason why, it might be the reason why, but generally the prosecutors want to make sure they actually fully flushed that out because it's a very serious accusation, not necessarily a more punishable accusation… The hate crime statute wouldn't even be at a more serious potential maximum penalty.

Katz: Speak that out for us. It's a good segue. If it was a hate crime or they add that on, what are the additional penalties or consequences from the classification as a hate crime?

Thaler: So the statute in Massachusetts is chapter 2 65, section 39, assault and battery for a purpose of intimidation, there are three different, basically divisions of that statute, based on the nature of the consequences, the three elements I mentioned before committing an assault or battery, battery with the intent to intimidate a person due to race, color, religion, national origin, et cetera. If that's the charge, it's a maximum two and half years in jail. Obviously, some of the charges a person is facing is, are much more, uh, much higher, maximum. So it's serious. It is an aggravating factor. So, say … these are not the correct numbers. Say a judge was likely to give someone seven years in prison. If this charge is there, or this reason is there, instead of seven maybe they get 10. So even though the actual charge itself is a lower punishment, or maybe they get seven plus two and a half, even though the maximum fees and other charges are more, it's an aggravating factor that likely raises what they're facing. And the other subdivisions is that it is up to two and a half years. And I do have the statute in front of me, cause I obviously want to make sure I give this a hundred percent correct. I just double check if that battery results in bodily injury and it's a maximum of five years…

Background of Story

Rabbi Noginski was sitting on the stairs of a place of worship and religious school when the alleged criminal went out of his way to walk on the property and first attempt to kidnap at gunpoint and later attempt to murder with a knife. In an effort to defend himself, the rabbi was stabbed eight times before the assailant fled and when police officers apprehended him he drew his gun until he eventually threw his gun to the ground and was arrested. Thank G-d the rabbi survived the attack. He and Rabbi Dan Rodkin, Executive Director of Shalom house in Brighton, characterize the event as miraculous.

At the time of this interview with former Assistant District Attorney Thaler just days after the attack, the prosecutors still had not categorized this as a hate crime. Members of the religious community were both grateful for the Boston Police Departments successful response to detain the alleged criminal but also confused why this was not immediately called a hate crime by government officials. Video surveillance footage captured the initial hold up which will likely prove important to the case against the suspect.

Mark Baker, President of the Combined Jewish Philanthropies expressed gratitude saying, "Thank G-d we raised millions of dollars and put millions of dollars into this community. I'm not sure the cameras would be in this building if we had not helped to invest in the hardening of these buildings and the locks. We've done alot already but more is needed. There's no question. We're going to keep thinking of how we can both raise and invest more dollars to make sure that every building in this community and every community is safe and secure. Over the last couple of years the schools and the synagogues didn't have locks or cameras and thanks to our community security initiative [they now do]. We've trained hundreds of rabbis, lay leaders and educators."

The community remains on heightened alert as antisemitism continues to increase across the United States were seeking answers as to why this was not immediately called a hate crime. Baker added that, "The story of the past 16 months has been the story of multiple crises hitting at once...I think we're living in a time when no one has the luxury of being a peace-time leader."

Many community members were questioning why hate crime wasn't determined immediately after the attack. It took one week after the attack during the dangerousness trial for the prosecution to add the hate crime classification to the charges. In this in depth interview on the Tribecast at tribejournal.org, Yehuda Katz interviews Assistant District Attorney Michael Thaler and unpacks the factors and timeline considerations surrounding a hate crime determination.

Rabbi Noginski is now raising money to build a place of Torah learning in order to raise up eight rabbinic students in response to the eight times he was stabbed and miraculsouly lived to tell about it.

J.P. Katz is Director of The TRIBE Group, a boutique mentoring firm helping individuals identify, access and actualize their true potential.