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Blow Pony April 2009 Gay Bashing Case Botched By DA Office Incompetence/Negligence

The verdict for the trial of a gay bashing on Wed was a huge disappointment in a long line of disappointments. City officials have been telling the queer community that if we want something done about gay bashings we must report. This case, in particular was brought up in a press conference with the mayor. Airick Heater (the victim & well known local DJ for Blow Pony) was encouraged to prosecute. This trial was to showcase the effectiveness of reporting hate crimes in Portland. I think you'll have a clear opinion on that after reading what happened.
First, the DA office mistook a witness (Erich) for the victim (Airick) and all trial information was sent to this witness, who had moved to another state. By the time Airick Heater had been made aware this happened, the case had gone to court and the charges had been dropped. When the case was brought up again, only 2 of the original 5 charges were able to be reinstated. Even worse, the DA office lost contact with 7 key witnesses that saw the entire incident from start to finish. This included 3 people that Blake McCune had begun harassing and calling "a bunch of AIDS infested fagots" when they ignored his drunk friend bumming a cigarette. The person who picked up Airick's phone to talk to dispatch when he was assaulted and called a "stupid fagot bitch". Plus 3 other bystanders. This left only one witness who only caught the end of the bashing and was 20 ft away so he couldn't hear the homophobic epithets.
The two charges that were able to be reinstated was Intimidation based on perceived sexual orientation and Interfering with a police report. The Intimidation charge is basically offensive contact with a biased crime enhancement. Interfering with a police report is preventing or interfering with someone attempting to call police. The prosecuting attorney had to prove beyond a shadow of a doubt that Blake McCune made offensive physical contact with Airick Heater because he is gay and that he assaulted him while on the phone in order to interfere with his report. This case should have been a slam dunk. But due to DA office incompetence and negligence it was clearly botched and prosecuting attorney Adam Gibbs was left little to work with.
First thing Tuesday morning when I arrived, we received news that Mr. McCune had fired his public defender for being a lesbian and had opted to hire a private straight, white, male attorney. Then upstairs to the court room where we would be spending the next 9hrs. The judge started by asking for motions and other formalities. The defense asked that Mr. McCune's offensive statements to the police be hidden from the jury. Surprisingly, this was granted without a fight. I thought it demonstrated clearly that Mr. McCune was not the calm, easy going snowboarder dude he painted himself to be. Next came jury selection. This part was fascinating. Like a Portland town hall discussion on homophobia, racism, and bullying. Anyone who had any experience that related to teasing/bullying was removed from the jury pool.
Next was opening statements. The Prosecution put forth that Mr. Heater came out of Blow Pony that night around 2am to calm a situation that was brewing outside. There he found a belligerent Mr. McCune shouting at 3 people on the curb "You're just a bunch of AIDS infested fagots!". When Mr. Heater stepped in between, Mr. McCune asked, "What, are you one of these fagots?" Heater, 'Yeah, I'm gay, is there a problem?' McCune then shoved Mr. Heater in the chest. McCune made a retreat into a stairwell leading up to apartments above Casey's bar. Beside/behind Mr. McCune was one of his friends, Nick Woytuk. Heater said he appeared to be lunging at someone like he was going to hit them. So Heater pinned him against the wall inside the stairwell with one arm and dialed 911 with his free hand. The 911 operator told him to back away from the men. Heater immediately walked out and as he walked out McCune shouted & mocked his words as he followed him outside. Once outside, McCune punched Heater in the face (knocking the phone to the ground) and then called him a "Stupid fagot bitch". Daniel Perez, (the only witness the DA office didn't lose and) an impartial bystander, said he wasn't close enough to hear what McCune said, but that he definitely saw McCune punch Heater in the face.
The Defense put forth that Mr. Heater was a man "besieged by homophobia" as an overzealous gay rights activist and thus made a mistake in his assessment of Mr. McCune. The defense's witnesses were pretty unclear. One witness had a consistent story if told alone, but the other witness did not and often completely contradicted the other witness' testimony. Their story started off with one witness saying they had all been drinking, had gone to four bars, and decided to end the night at a friend's apartment downtown above the bar where Blow Pony (a famous all inclusive queer dance night) was being hosted. The next witness, Torren Daniels, said it was one bar and McCune had only one drink because he was the designated driver. McCune said it was several bars and that he had not been drinking at all. One of the witnesses changed his story to be that they were all walking that night because he had an apartment downtown that they all stayed at. Whatever they had done that night and however they had gotten there, they agreed that they had waited to be let into a friend's apartment that lived above Casey's bar. Daniels said that next Woytuk was very drunk and tried to bum a cigarette and everyone ignored him or sneered. Daniels said the response was "a little hostile", then changed it to "pretty hostile", then to "actually extremely hostile" all in one sentence. Daniels said Woytuk asked them repeatedly why they were being so rude. Woytuk said they were yelling "hostile things" at him without provocation. At this point Daniels says Heater came out very aggressive and allegedly shouted at McCune, "Ever heard of Hell's Angels, bro?". (An extremely bizarre thing for defense to claim. Mr. Heater was wearing a white denim jacket and spandex bicycle shorts on the night in question. Also Hell's Angels have been disbanded for nearly a generation. All I can figure is they must have been trying to play off the potential jury's prejudices on beards and tattoos.) McCune claimed that Heater grabbed his shirt at the chest when he allegedly asked this question. To which he allegedly replied, "They don't accept fags like you!" Then the apartment door opened and they went into the stairwell. Heater allegedly shouted, "He called me fag". Then according to Daniels, Heater choked Woytuk and shoved a key in his neck unprovoked. According to Woytuk, he just held him back with one fore arm in the chest and pulled out the cell phone. Heater then went outside on the phone with 911 dispatch. McCune claimed that he tried to leave but Heater was blocking him "like a basketball defender", so he slapped the phone out of his hand out of frustration. Daniels said he only saw Heater put his hand up defensively and McCune "limply slapped the phone out of his hand like he would slap his little sister". The defense played a clever word game that confused the jury by switching what is necessary for each of the charges. Also by claiming that Heater alleged McCune said "Stupid fagot bitch" before punching him, when the allegation was actually that the comment happened after the punch.
There was a 911 recording played for the court several times. It starts with Heater in the stairwell telling the 911 operator what is happening. There is unintelligible yelling in the background. The 911 operator asks if Heater can remove himself from the situation. Heater says yes and as he walks past McCune you hear his voice clearly mocking/shouting at Heater and then grows faint as Heater gets outside. More unintelligible yelling in the background, from a male voice. Then a crackling and a snap sound. A male yelling in the background. A bystander man (who could have been a witness if not for the DA office errors) picks up the phone and continues to report that police have arrived.

The next day, Wednesday, the jury deliberated for hours (I was at the court house approx 4 hrs). They were overheard in the jury room listening to the 911 recording over and over and debating the contents. Presumably listening for the evidence suggested by the Defense, instead of the judge and prosecutor (because of the clever word play). I don't believe it was clear to the jury that the offensive contact because of orientation was based on the initial shove and homophobic remarks (to which McCune more or less admitted to in different words). The 911 call interference was associated with the punch. Also McCune's final homophobic remark could not be heard on the tape because it happened after the phone was knocked away by the punch (not before as the Defense suggested).

The jury came back with a Not Guilty verdict for Intimidation based on sexual orientation (biased crime law), but Guilty for Interfering with a police report. Prosecution had Heater make a final statement where he simply explained to Mr. McCune the extent of the emotional damage the experience had caused him. McCune then addressed the court to ask that the judge not allow the $300 fine because he "had to ask for my parents money for a lawyer" and his reputation had been damaged and he "had to explain this to friends because of things they saw in the news paper". He then asked to have his community service in the gay community because he feels bad about the pain he caused.

The judge gave Blake McCune the maximum sentence. 18months bench probation, $300 Fine, & 80hours community service. She denied the stipulation that he do community service for the gay community. She specifically cautioned that he should only volunteer for GBLT community organizations if he is truly sincere and expressed hope that he really had learned his lesson.

Great Reporting 25.Jan.2011 21:19

Bern Haggerty bernardh@interchange.ubc.ca

This is fantastic reporting, hard to come by in the commercial press. Also, an excellent description of the reality of a typical hate crime prosecution. You can tell they treated the case like a simple assault instead of a high-profile prosecution with important ramifications in the community. And, yes, this is a good example of how to discourage victims from reporting hate crimes. It sound like a missed opportunity.

Great Article! 27.Jan.2011 21:09


Great article of what REALLY went on! Thanks for posting this up!

McCune, please don't "volunteer in the gay community." 04.Feb.2011 08:52

Erin Rose

I'm not sure what it would mean to "volunteer in the gay community" (smyrc, HIV hospice...?), but I certainly hope that McCune doesn't try to improve his damaged rep with his friends by charging in to queer agencies, demanding that he be allowed to take up space. I'm assuming he wouldn't make it past a screening with most agencies, but this is a horrible idea! It's like when someone makes a racist comment or action, and then wants the person of color to educate them about how it feels to be the victim of racism. Dude needs to read some books and do some serious soul searching of his own volition before he tries to "volunteer" anywhere. I really do work to have commission for all people, so I hope that this man is able to do the work he needs to do to be a happier and more secure individual, just as I hope that traditional, heteronormative masculinity, as a construct, will become less restrictive and intimidating, so that straight dudes don't need to be so threatened by queers (well, and for a host of other reasons).
When I read this, I also think of how belittling and infuriating this must have felt to the victim/survivors. I see this kind of situation play out in the court system often for the survivors of domestic violence that I work with. Institutionalized white dude privilege is getting all of us no where, quick. Serisouly, even the white straight dudes who cash in on this unearned privilege would benefit from some accountability, because I don't think that getting away with rape and murder and assault is spiritually, psychically and emotionally good for anyone. I see the havoc it wields in the lives of survivors, and that alone is reason enough for some accountability up in this place.
Anyway, I am impressed with Airick's ability to stand up in the face of such painful and scary bullshit, to demand that this world treat all of us with respect and dignity...no matter who we sleep with, what we wear, how our bodies are shaped, etc., etc.
We know what happened, Airick. Even if the DA can't get it together and figure it out. Xo