STATE OF NEW JERSEY~ Plaintiff

SUPERIOR COURT OF NEW JERSEY MIDDLESEX COUNTY LAW DIVISION - CRIMINAL PART

v.

CRIMINAL ACTION

DHARUN RA VI~ Defendant

Ind. No. 11-04-00596 Pros. File # 10002681

SENTENCING MEMORANDUM ON BEHALF OF DEFENDANT DHARUN RA VI

BENEDICT AND ALTMAN Attorneys for Defendant 247 Livingston Avenue New Brunswick, NJ 08901 732-745-9000

ON THE BRIEF: STEVEN D. ALTMAN, ESQ. JOSHUA ALTMAN, ESQ.

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In Rutgers time five,

August

of

2010,

Dharun

Ravi

began years

his and

college it was until Ravi every

career the

at

University.

He was

eighteen anyone

old

first

that he had Dharun

lived with

but his parents. His father, and

the age of who date

lived attended

in Chennai, every

India.

Pazhani, trial

faithfully together

court

appearance

with his mother,

often

traveled

when Dharun was young as part indicated that his father States. where The Ravi

of his job as a software traveled family still to Germany,

consultant.

Dharun

other parts

of Europe to the

and the United United his States, own

made works

a decision

to relocate

as a software

consultant,

owning

company

in New

York City. When they moved his Dharun and his family When Dharun first arrived in the brother United was States, they

resided to

in Woodbridge. where He

his younger had lived a his 3.0

born,

Plainsboro degree. near a

until GPA

departing In high In

to pursue school, he in high yet was high jump

college a in His

maintained score on

achieved enrolled school.

perfect number of

SATs.

addition, classes the

Advanced years

Placement school,

(AP)

first

three

in high

he did

and the triple years. sport Dharun team. During of

jump on the high school his senior year,

track

team, lettering committed for the

all three

he became him

deeply no time

to the club track team. of his well as

Ultimate

Frisbee,

leaving Frisbee involved

excelled His

at Ultimate

and was one of the captains organizing to Dharun, all this to for games was pay as

responsibility appearances. each

tournament sport;

According

not for

a varsity his fees own and to

rather, help

student the

participating schedules They and

had pay

equipment, travel

arrange to

entry

expenses

tournaments.

were

however,

permitted

participate

on behalf Knights top ten

of the West-Windsor-plainsboro found in team the success county Dharun in Ultimate and was made

Knights. Frisbee, to as the an as they Eastern excellent to the from

The WWP were ranked

it

Championships. player , receiving Youth Nationals

Individually, many

regarded and being

recognition paired teams

awards composed

invited

which

of the best

players

the Tri-State

area,

against

each other.

1

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After looking

high

school, to

Dharun a

began in

attending economics or

Rutgers. and legal then

He was seeking As

forward

pursuing and the a

degree the

post-graduate was skills. personal to his evidenced He

studies during created

entering trial,

business has

world.

Dharun named at

quite

advanced functions

computer as a

program residing or and

Jarvis, Rutgers,

which Jarvis advise

secretary. upcoming bus he stop has a

While classes was

would alert him where to

him the

events when the

and 'bus a

even was

closest Al though

scheduled for

arrive. Dharun

fascination a degree in upon Dharun

and

passion

computers, it

specifically him broader

sought

economics graduating continued classes

as he believed from to

would give After by

opportunities from Rutgers, finance seeking and to

a uni versi ty. his

withdrawing taking has work he online been

pursue

education

economics his

through but

Harvard. Dharun classmate

Not only has begun

further

education, with

on a website Columbia Immediately

focused University.

on fashion

a former

who now

attends

upon arrest, in an the media.

Dharun became the He was old, by an he

face

of cyber year old with and

bullying college friends, through

and

homophobia As

eighteen

freshman. acquaintances emails sound but

eighteen everyone

year else

communicated tweeting,

and

texting, the

and Facebook. mean or even person As an articles articles, in contact
I

Admittedly, off-color, ever

some of especially or old

comments he would express out Dharun the of context, as a of and

when taken thought who has and friends of

not

one

perceived year

Ravi

hatemonger. scholarly magazine to and were the again letters. rather and the than keep

eighteen television he withdrew with him. and

become countless and

subj ect

specials from his He also emails

newspaper

anyone who wanted

received from

a number of threatening who he years thought later, are

negative his

voicemails and so

some people and with one-half and

friends he

classmates.

NOW,

one

friends

frequently of most media his

communicated life.

hung-out

with

becoming These all

a part are the

Many of into the

them submitted person since like that

character Dharun of is, 2010 and

insightful reports of

generated

September Ellen

uninformed

comments

celebrities

DeGeneres

2

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others

who so corrupted

the facts in making

Dharun

Ravi out to be this

evil, hatemongering "Dharun homosexual.
If

monster. not are hate the homosexuals. words of We both have friends who are

does These

Taimur

Shah,

a friend

of Dharun "AN has

from high school. Alisa submitted describes Although

See Character

Letters

attached

as Exhibit during and

Agarwal, a the letter young

who testified that man more

for the State appropriately to be those could

the trial,

more

insightfully 21, 2012.

who

is set through

sentenced

on May

she only knew Dharun that

first few weeks turn to Dharun awkward humor,

of school, for a laugh she wrote,

she recognized or academic

she, and others, Of his

assistance. may

possibly

"Although with have his no

his humor

seem offensive by experience, Never a was

to people I can could bully, having

who are not vouch

familiar words

personality, malicious Rather on one

easily I

that

intentions. than

imagine she

him

bullying Dharun's algebra problem,

someone." actions and he

epitomize when room she

recalled with the

occasion in her

difficulty through

remained

while

she

worked

"dedicated A Ultimate before
.i

to helping from with

[her] complete the eighth

[her] calculus Cameron

homework." Erdogan, who played

friend Frisbee the

grade,

Dharun

also wrote chatter him do

of the person that not
/I

that now stands should any be thrown this

court. that

When

he hears like "deeply

Dharun deserve As

n

j ail

and

people

mercy,

childhood eighth

friend

becomes

emotional.

a friend

since the

grade,

Cameron

saw that,

Dharun is a good person, and I know this for a fact. He's helped me out on proj ects when I've needed it. This was most apparent during college applications during our senior year of high school. I was highly stressed out and freaked out a lot, but Dharun was one of the people I could talk to to get through it. He cares about people. I wouldn't be friends with him otherwise. He's not hateful and not a bully, and doesn't deserve to be painted as such. Miraj Barodia, was a high school the now studying classmate high of journalism Dharun South Ravi as a sophomore and club. they He both at Rutgers, served as "As

officers seniors,

for

school

Asian

observed,

the rest

of the club would 3

look up to us and our high

school

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was

very

diverse to hate bully

and on

it

would people and with

never just

occur because

to

me of

that how

Dharun were.

was He

somebody would members

other

they were treat

never and

somebody along

to my

knowledge, else,

there would

a few gay everyone

Dharun,

everyone

with the same level of respect As friends qui te well watch

at all times." grade, Solange Moran found without knows Dharun Ravi difficult to

since the sixth his

and being

friend,

he has

it "very "being

the trial

and peoples'

responses,"

able to defend

a friend played wrote, such

to the public." out In the media news

Recognizing and created

the pressures a monster

of this case as it in Dharun occurred Ravi, then he in

"Watching

the

portray given

the

events

that

a one-sided audience

manner against

has

the media they've

the power met

to pita

very

gullible

someone

never

before."

Growing

up with Dharun

in Plainsboro,

he stated,

never, have I experienced anything during our friendship that could be construed as harassment, so I couldn't imagine that changing once we got to college ... For something to be interpreted as bullying it has to be intentionally hurtful or abusive, and I just can't see Dharun, let alone anyone from our community, doing anything that would damage another human being that way. The malicious intent associated with such actions also implies intolerance which is something I have never seen in Dharun or his actions in the time we have known each other. Mohini middle Singal, with who attended came high to school him and "as the latter part of and

school

Dharun,

know

a very wrote, could

friendly

easygoing joke

person." with

Referring people,

to his humor, Mohini though his humor

"He loved to sometimes be

around

classified is who

as sarcastic. was.

Not many people were a fan of this, but that Never did spent he have any intentions years to injure Dharun,

Dharun As

anyone." Mohini

someone

who

has

his

formative

with

offered

his interpretation

of what occurred:

I believe that's what happened when he set up a web-cam in his dorm, not to intimidate his roommate at all, but rather to show people what he could do with computers. He was careless with his actions but not at all malicious. It is extremely unfair how he is being portrayed as such by the media because people who don't know Dharun at all only know him the way the media has been showing him as. Any young
4

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teen like Oharun would not think of such an action so extensively because he knew that he had not done something that was worthy of the title of a "crime". Oharun is not an evil person; he is not a vicious person. He is a regular teen who played a prank that got out of control. Like of his so many other people school were who know Oharun, proj ects part and when Ujaas Barvalia, others Ojaas needed "can wrote help. attest

helpfulnes s with the facts

Recognizing

that

of the

trial,

to the fact that Oharun homophobe. Clementi:
fI

Ravi is NOT a bigot. Ojaas had talked conversations about Tyler, he's

He is not a racist, or a with Oharun about Tyler he said

In fact, "Whenever he's

Oharun

the only things

to me were,

a good Based his

roormnate because

qu i et; and it's easy to Ojaas admitted He heard he was

live with him.N jealous Oharun's anything because

upon these roommate gay

conversations, was "quite

own

obnoxious." and "never

spoke of him say

interactions demeaning

with

individuals

to homosexuals.

He was accepting

of them and never

complained

about them." is a person feel who does not want to exclude included. Josh Rutstein others and looks his high like the

Oharun to make

everyone

recounted

school a bit

experience of a for

and how Dharun made outcast to lunch to my senior

it better year apex in of

for him: "Feeling high school, with

social rides be

scramble would provide social

being thrown

the me

of my the back

anxieties, of his

Oharun car and or

always

willing that

validation groupings." friend that

I wasn't

alone

in my distaste

for cliques

Another Caltech, said

from "to

high brand

school,

Athrav as

Vaish, someone

now who

studying could

at

[Oharun]

have with

cormnitted a hate crime

is unfathomable

to me given my experiences

him over those four years." Daniel old offers Huang, valuable who has known Dharun since they were twelve years

insight

into his personality

and his motivations.

He saw Oharun as someone who was extremely social and liked to talk quite a bi t . To some extent, this was the exact opposite of his myself, but I still got along with Oharun because Onlike outgoing traits did not prove to be intimidating. some other kids I knew who exhibited more intimidating
5

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personalities, Dharun always maintained his approachability by having a carefree attitude and witty sense of humor, which had come to define a part of who he is. Knowing accept this the about jury's his childhood that friend, Dharun Daniel has has found it hard to In

verdict

bullied

anyone.

expanding

on these thoughts,

Daniel wrote:

I know that he loved to joke around, tease his friends, and say outrageous things to elicit funny, gullible responses from people. At the end of the day though, he has always been extremely generous and inviting. Dharun always had people over at his house and anyone was invited to join; he never had issues with anyone else ... is a thoughtful person He and it is simply not wi thin him to go out and try to destroy or hurt someone with complete disregard for his/her feelings. More Chen. over the She support still comes from Dharun's writing weeks the high school friend, Lucy

She knows four years to of

Dharun - even and

quite well, spent never three once

that she has known him "for metaphorically word and bully that 'attached by my mind." "has never

hip' spoke

himhis

did of his

cross

strong

sense when

humor

Dharun

shied

away

from

an apology

comments

inadvertently but the person

offended." she knows: of

Expressing "I am more bias that

her confidence, certain

not in the media, Dharun in

in this-that I have as a

Ravi never had any intention else." NYU, She also not Ravi

intimidation-than in her experiences

anything at

indicates found meant a to

student that

she

has

"single attack

student Tyler

or professor based

here

believes

Dharun

Clementi

on sexual

preference

or should

face up to

ten years in prison Raj Dharun's a smile, Kishore energetic making

or deportation." has known Dharun for four seeing people years. Dharun and He wrote of

Ryali

and positive jokes, Dharun talking

personality, to various

always with making them

laugh. making

He found jokes and

as someone smiles

who is "always on people's

full of personality, Through that a story "is

putting

faces."

recounted, not it's a bad

Raj hoped person who

to allow does

the court

to understand

Dharun

things When

out of malicious hearing the media

intent. or others

In fact, speak of

the exact

opposite."

Dharun

as "unbelievably

biased

and
6

incredibly

homophobic,"

Raj can do

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nothing biased laugh

but

nlaugh

at the

stupidity hard

in their

words. out

Dharun with

was never and not

towards

anyone,

it was

to go hang

him

at the things he said to everyone." Expressing his thoughts from India, Dr. Avinash, based Dharun's cousin, with to

was

shocked

to hear of the conviction His knowledge "there and

upon his interactions with Oharun bias leads him

Dharun. believe

familiarity

that

was not

an iota of premeditated

intimidation

on his part." Oharun's the present. years mother Sensing Sabitha the Ravi, spoke of Dharun from childhood to

pride States culture.

in her words, where He

she wrote learned school at went

of Dharun's English and in and the

early

in the United American the

he quickly excelled in

quickly Fifth

adopted Grade

entered After

Center

for high

Talented school, He was

Youth Dharun "full

Johns to

Hopkins and and

university. received plans his

graduating

India

grandparents'

blessings.

of excitement

for his career path." Insightful into who of new Dharun friends is, she recognized and a new social that, life although at her

son

found

lots

Rutgers

University, the our dorm dog

he "came home all the weekends younger brother, younger Being who

on the 3 weeks he stayed at was only Jay, now 8 at the time adores ten, heart her Dharun does and and not

to see his Lance."

Dharun's for him.

brother, so young,

Dharun

is

a mentor what

Jay

understand if his big

is happening. is going

It breaks to be okay

Sabitha's and asks

when he asks him

brother

to promise

that he will b€ okay. Sabitha sees first-hand son. the impact the pressures of this case has

had upon her oldest

She wrote:

When it all started and the media was ripping him apart wi th the misleading facts and the statements people made about his moral values, he really broke into pieces. He was barely 18 and entering into adulthood, he couldn't lay down in my lap and cry. I was watching him helplessly and hugged him and cry. I didn't have any power to stop all these and save my son and prove the world he is kind hearted and loving person he lS and doesn't have hatred towards anybody.

7

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"Dharun me old and makes brother,

is the best brother sure Jay. I'm safe." Like life. so

in the whole

world.

He always

helps

These many

are the words others, soccer

of Dharun's has an

ten-year impactful

Dharun

presence guides finish laugh.

in his Jay's him through

He plays math

with him, other games and He wants to see Dharun

difficult

problems.

college,

be happy

and continue,

as he always

does,

to make him

These letters Dharun Dharun He was

and the words

expressed opinions that

by the people on which Dharun

who best know of

Ravi are the most should be based. high

qualified

the sentencing

It is clear school people,

lacked joked

hatefulness. around and from

a passionate smiles to

student even

who those

always who

brought him. crime

so many

were

different

It is against and the

this backdrop, now that

considering before

both the

the nature that

of the it is is

person

standing a

court, of

respectfully

submitted

non-custodial

period

probation

both appropriate

and psrmissible.

8

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Legal Argument
I.THE COURT IS PERMITTED THAN THOSE TO DOWNGRADE THE ON WHICH AND THE SENTENCING FOUND RANGE DHARUN TO ONE GUILTY THE

DEGREE AND

LOWER

JURY

BASED

UPON AND IN

THE GIVING

FACTS DUE

CIRCUMSTANCES TO THE

SURROUNDING OF

CONVICTION RAVI, THE AND

REGARD OF THE

CHARACTER OF JUSTICE

DHARUN

CONSIDERATION

INTEREST

STANDARD,

PRESUMPTION

OF IMPRISONMENT

HAS BEEN

OVERCOME

A balancing the mitigating

of

the

aggravating predominating the as if

and mitigating over on were can the the In

factors

results to such

in a

factors degree that

aggravating va r aous the third as

substantial offenses similarly, offenses can

sentences they

second degree fourth

degree range; degree of sub of the

be

treated third

the for

degree

offenses purposes.

be treated While the case,

sentencing would still of the details would

presumption the In to matter terms allow

imprisonment judice offender presumption then, the is court is

apply

in

the

ordinary of offenses, offense, serious

outside and to that is, actual

heartland of create of the a

both that

apply the

inj ustice. has been a

The result overcome and

presumption question,

imprisonment empowered to

without

impose

non-custodial

sentence. To punishment, the discretion rather achieve as well of than State Albin for those the as trial the v. purpose uniformity courts offender' Evers, of in by the Code of Criminal the on the Justice,

sentencing, focusing

Code "channel[s] gravity or of the for

offense

sblameworthiness 175 noted those N.J. the 355, four 387

capacity

rehabilitation." omitted). range of Justice

(2003) (citation of crimes, the is the

In Evers each ranges, of

degrees and which

sentences within practice.

degrees of

presumptive no longer a

sentences standard

the

latter

A sentencing degree statutory clearly lower than

court that

is

free

to they

sentence were in

a person convicted.

for

a crime

one

which

This court

two-step is [1 J

authority convinced

was recognized that the

Evers: factors

"Where the substantially

mitigating 9

outweigh

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the the

aggravating court

factors

and

[2J where the convicted

interest of

of

justice of the

demands, firstor

may sentence within at 388,

a person the citing

a crime of

second-degree lower." Rice, Id 2012

sentencing N.J.S.A. (App. Div.

ranges

crimes See noted can also

one

degree v. the
1

2C: 44-1f (2) ; 2012). As

State

WL
still

1252952 applies,

earlier, be

presumption Relying the

however authority,

that

presumption Justice Albin

overcome. out that

again

on statutory that

pointed

Code provides

a sentencing

court

Shall deal with a person who has been convicted of a crime of the first or second degree by imposing a sentence of imprisonment unless, having due regard to the character and condi tion of the defendan t., it is of the opinion tha this imprisonment would be a serious injustice which overrides the need to deter such conduct by others. Ibid, citing, N.J.S.A. 2C:44-1d. (Emphasis in original). The sentencing defendant in court can cons ider whether the character and condition would result in the of the from

determining

a serious a residuum few cases

injustice of power it

imprisonment. court not to

" [T] he Code left imprison to do in so." those Id. at

sentencing be entirely 95 N.J. Court have

where

would v. the goal:

inappropriate 334, 358

389, to this

quoting Dharun

State Ravi,

Roth, Evers

(1984). steady held in those of his

Highly

relevant to

recognized consistently exercised the from

adherence that truly this

sentencing of and power

"We

residuum

may be

legitimately cases deter where others and which

extraordinary a particular

unanticipated defendant to

human cost committing

punishing offense marks

would be It

too is

great." thus,

Ibid. a broad

(ei tation inquiry

internal looks, the

quotation not only to

omitted). defendant, facts coupled

the the
r

but and with

the

circumstances are

surrounding so unusual of

offense.

Here,

circumstances the

(arguably

unprecedented)

predominating

presence

In the context of overcoming a mandatory minimum sentence, the court instructed that the "decision to waive or reduce the mandatory minimum may be made even in the absence of a downgrade. Rice, supra at 7. Thusr the court in the instant mat t.er , even without regard to the decision to downgrade, is still empowered to overcome the presumption of incarceration on the second degree counts.

10 __ ._---

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mi tigating third

factors,

allow

this

court

to

sentence

Dharun

Ravi

as

a

degree offender

and to overcome

the presumption

of imprisonment.

II.

THE

COURT

MUST AS

WEIGH TO ANY

THE

AGGRAVATING PUT FORTH

AND

MITIGATING IN

CIRCUMSTANCES CONSIDERATION

ARGUMENT SENTENCE

BY DEFENDANT

OF IMPOSING

At

sentencing,

a

defendant v. Towey,

is

entitled

to

be

considered 593

as

a

'whole' person. 1990), citing

State

224 N.J. 547,

Super. 566

582,

(App. Div.

State

v. Green,

62 N.J.

(1973).

In evaluating 'all the

aggravating current factors."

and mitigating

factors, to

the court must an appropriate

also consider appraisal of

information

relevant

State v. Towey,

supra at 593. and mitigating number on of a factors to be
lS

Weighing quantitative factors weight the are to be

of aggravating basis not of the

not done

on a The

factors

balanced. The

interchangeable each

one-to-one of its

basis.

proper to

given of the 354

is a function State

gravity supra; den.

in relation

severity

offense.

v. Roth, certif.

State

v. curtis, (1984). include factors 105

195 N.J. Super. The Court's a

(App. Div. 1974), of reasons of the

99 N.J. 212 imposed must mitigating

statement

for the sentence aggravating and

memorialization

considered. N.J. 354 A.

State v. Hartye,

105 N.J.

411

(1987); State v. Kruse,

(1987).
ONE

AGGRAVATING

FACTOR

ApPLIES

AND

IT

SHOULD

NOT

BE

ACCORDED

ANy

SUBSTANTIAL WEIGHT

Under Defendant carrying

N.J.S.A. submits

2C:44-1,

there

a

numerous factor

aggravating applies,

factors. albeit not

that only one aggravating

much weight.

(9) The need for deterring violating the law

the defendant and others from this is a general offense. noted
11

As to the issue of deterrence, be found to be applicable N.J. 304, 405 (1989), the to every Court

factor which

can 114 and

In State v. Jarbath, personal deterrence

that

-----,

__

,

--

----------------

-

-"-------,-----,_

-

-

-

-------------,------ ---

general held

deterrence the the the has of The

are

interrelated of of any a

but

distinguishable deterrent as a

concepts effect

and

that

absence efficacy Court

personal sentence

greatly

undermines Moreover, deterrence weakness supra. B.A.R. ,

general

deterrent. to As v. specific to the

said,

general

deterrence penal see, in the the

unrelated value. State of

relatively

insignificant alone, State put

general Supreme

deterrence Court,
(1982)

also,

Gardner, and in

in
,

Interest of

C.A.H.

89

N.J.

326

factor

deterrence

perspective:

Deterrence as a tool and goal in the treatment of offenders does not stand alone. In determining the appropriate penal disposi tion, a court must weigh the need for justice and determine fairness to the individual against the need for deterrence which services primarily society's demands for justice. This discretionary, balancing process necessarily focuses on the quality of the conduct underlying the crime. Although accorded This this
lS

this

factor weight so in

must

be

considered, Court's the

it

should

not

be

substantial especially

in this light of

sentencing

determination. attention that Dharun

extraordinary

case has generated.

As noted

throughout

this memorandum,

Ravi has now become As told ad infinitum to hateful of

the face of cyber bullying in the media, Dharun was

and that of homophobia. forced and to quit cannot or been old a school, maintain

subj ect any form

emails

and diatribes This of an
lS

on blogs

anonymity. vilification that brought

no

ordinary Ravi

offense has year

sentencing; broadcast freshman

rather

the

Dharun

which

worldwide, forever deterrent aggravating

anonymous discussion, and

eighteen has

into

the

bullying both

served

significant this

effect,

generally

specifically.

Therefore, weight.
lS

factor should not be afforded even heavier from than the and any United adjusted

any significant need to deter, As

Wieghing possibility observed, quickly. who was of he

the

real

removal

States. to

Dharun's culture

mother very

assimilated

American

Dharun born

is as American but for

as any twenty-year his status as a

old college permanent

student

here,

resident. to a

Knowing

that a sentence

of imprisonment

could lead to deportation

12
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. __ . __

-

,

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country has

where

he has not lived deterrent

for over fifteen far more

years. than

This fact alone aggravating

tremendous

effect,

this

factor. The State may offer trust. To count this aggravating aggravating factor factor (4), involving against Dharun a breach of would be for

impermissible within

double

counting of privacy

as this element statute.

is already

accounted

the invasion

That statute

requires

a person This

to know that he was not licensed is tantamount an attempt, to a breach requires that

or privileged Similarly, would

to view Count be

another. Five,

of trust. the

regarding to be

person

not

expected

observed.

Accordingly,

this aggravating burden it

factor should not apply. of each and every by 247 clear and

It is the State's aggravating convincing 1984). other their factor evidence.

to prove the existence claims is applicable

which State

v. Merlino,

208 N.J. apply, and

Super. weakly,

(Law Div. are no for

While

aggravating factors

factor for

(9) does which

there

appropriate application.

clear

convincing

exists

B.

FIVE

MITIGATING

FACTORS OUTWEIGH

ApPLY THE

AND

By

CLEAR

AND

CONVINCING

EVIDENCE,

THEY

SUBSTANTIALLY

SINGLE

AGGRAVATING

FACTOR

Conversely, factors contained

it

is

respectfully

submitted do apply.

that

five

mitigating

ln N.J.S.A.

2C:44-1(b)

(2) The defendant did not contemplate case or threaten serious harm Dharun While invade the his Ravi was eighteen that there years old

that

his

conduct would

when

this to

offense

occurred. T.C. that and he

jury

found

it was is

his purpose at all

intimidate to indicate

privacy,

nothing

perceived nothing anyone

his conduct at all risk that

as creating threatened physical weighty.

any serious any kind of

harm. bodily

In fact, there is inj ury or placed should

at

serious

harm.

This mitigating

factor

apply and be considered

13

---_.

__ _
..

..

_---- _._--- -----

--_._:::.....:._-'-_

.. _-

-

-_._-------_:._--"--_.:...._-

_:::._

-------:;__;_-~--....;_....:,;__.

--

_.:........=- __

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(7)The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense This with This factor does apply as Dharun either Ravi has never been involved

the criminal

justice

system,

as a juvenile

or as an adult.

factor should be weighted

heavily.

(8) The defendant's conduct unlikely to recur The circumstances surrounding recur for a multitude of cyber of reasons. bullying

was

the result

of circumstances are unlikely to as

the instant

offense

Dharun Ravi has now been painted unjustifiably to occupy country, so.

the picture questionable hall at

or homophobia,

It is

as to whether college or

he would be allowed university in this

any residence making the After a

any

opportunity being lengthy whether more

for this circumstance being where v i Li fied his face

to recur, in was the

all but impossible. and sitting

charged, trial

media

through the

broadcast

throughout

world,

one considers

it a crime or a moral the consequences University. conduct Rice,

deviation, occurred

Dharun

Ravi has first find the

than understood at Rutgers

of what

in those he would

few weeks himself affirmed

There would

is no situation even cross should

in where trial

similar in

his mind. accord

Like

court

this at 3.

court

this

factor

great weight.

See Rice,

supra,

Of course, Ravi will not

this analysis be removed

is made with the presumption the Un i. ted states

that Dharun of his

from which

as a result

conviction.

If removal, factor

is a very real possibility, even greater weight.

does occur,

this mitigating

contains

(9) The character and attitude of the defendant that he is unlikely to commit another offense Despite painted is by the public vilification, intimately of the the character know him,

indicate

of Dharun Ravi, as a person who

those going

who most to run

evidence law

never

afoul with

criminal

again. death

Forever of Tyler Dharun

recognized Clementi,

and coupled there is

the tragic by any

and unfortunate to

nothing,

stretch,

suggest

that

14

- ----------------- ----_._-------- -- -- -- ----

,-- ---._~ _-

--'-.

---_ .. ,------

--"';___;_--.'~

----

- ----

--------------------------

---- ---

-------

-

--- -

.. _--

-

- ---

Ravi will be a repeat him best speak to make of a

offender. young man

Quite who and there

the opposite is full of

as those who know always tell of

personality, friends

wanting countless In an

someone

laugh

a

person

whose

stories

of him being or social

when they need him, whether Similar to the trial

it be

academic

endeavor.

court's

conclusions

in Rice,

this mitigating

factor be considered

weighty.

(10) The defendant is affirmatively to probationary Never numerous Dharun missing court and there anything

particularly treatment always

likely

to

respond

flanked

by

his to

parents suggest

and that This

family Ravi

friends, be

is absolutely but an

nothing

would

ideal

probationer. weighty. be applied

mitigating

factor should

similarly

be considered factor that Molly

A non-statutory disposition she was elected that

mitigating

should Wei.

is the

of Dharun's into the

co-defendant, Pre-Trial There

Prior

to indictment, while Dharun

entered

Intervention was

Program,

to proceed

to trial.

evidence

presented

at trial, conduct that M. B., was is

at times, Tyler

Ms. Wei was Clementi

just

as culpable For example, between it to

as Dharun there was Tyler others.

in her

towards she, opened enrolled facing

and M.B.

testimony and

after the In

viewing iChat the

the again

encounter and showed

Clementi Yet,

Ms.

Wei Ravi

Pre-Trial five years the "Code

Intervention in State of

Program

and

Dharun conduct.

at least that

Prison for similar Justice

It is limit

axiomatic judicial
lD

Criminal

endeavored undue 413

to

discretion

and promote v. Lee,

uniformity 235 N.J.

and reduce Super. 410,

disparity (App. oiv. 169 is

sentencing.

State

1989), N.J.

citing N.J.S.A. 387, 391 to (2001). the

2C:1-2b(4), The court of

(6); See also State v. Fowlkes, observed that and "our Judiciary of

committed disparity." While degree

concept

uniformity

reduction

undue

Ibid. Dharun Ravi was subsequently by virtue of the indicted on a number of second

offenses,

sentencing

enhancement

in the bias engaged in by In

intimidation Dharun Ravi

statute, and Molly

it cannot

be said that the conduct 19, 2010 was

Wei on September

any different;

15

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_._:_,

__

-:........0 ..

.:

~

,__;__:___,_

_

_

_.

--- -------

-

fact,

the conduct

of Ms. Wei can be characterized that she showed the iChat This concept should be

as more

culpable,

as

the testimony knowing as it what

revealed was

to others

even after

occurring. a core

considered in the

in mitigation Criminal Code, Dharun and as

promotes

contained

uniformity to a state

and the avoidance prison sentence

of sentence extending jail)

disparity. as far as

To subject ten years,

little equally,

as three if
2

(or county more,

seems wildly defendant who

disproportionate received

to an

not

culpable

diversionary

treatment. After the

consideration but the that

of

the

mitigating quality

factors, of those the

not

necessarily it any

quantity,

sUbstantive they

applicable, of

becomes

manifest factors standard

predominate minimal

over weight.

presence

aggravating of justice

that possess is met,

Further,

the interest

compelling

a downgrade.

III.

THE

INTEREST

OF

JUSTICE

STANDARD

IS

ESTABLISHED AND MITIGATING

AND

ALONG

WITH CONSIDERATION JUSTIFIES The articulated decision. guide Court A In

OF THE AGGRAVATING IN OFFENSE Megargel, should

FACTORS,

DOWNGRADE State that a v.

LEVEL 143 N.J. 484, in the 500 (1996)

factors

court

consider

downgrade that will The

It cautioned,

however,

"that there Ibid.

is no calculus (Citation that

the pen must crime

to the perfect "reflect now must focus the be on

sentence." Legislature's

omitted). the

sentence of the process. inexorable

intention factor than The

severity

the most the

important rather Ibid.

in the sentencing the offender served
1S

The in

offense
/I

formulating

sentence.

purpose

by

such a focus is "to assure of others. need court The higher

the protection

of the public

and deterrence the public When a

the degree

of the crime, need of

the greater

for protection evaluates

and the more severity the

for deterrence." crime, crime the

Ibid. Megargel focus

the

the of the

Court of the

instructed, ZA sentence

"[a] 1though

degree

is the

of imprisonment initiated against Dharun. another aspect that .reeks sentence.

may very well result in removal proceedings to be See- 8 U.S.C. § llOI(a) (48) (A). This is yet of disproportionality and favors a non-custodial

16

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_"-_.=..:...._

.::.:. '--

_.__ __:_:,--___::'

.. _--=- _:_-.-=------=---

--

-- _- ---------_ ._-

,-----

--

-

sentence, sentencing Appellate consider,

facts

personal
II

to

the

defendant

may be the a facts

considered to

in

the the

process. Division

Ibid. in Rice

Surmnarizing stated, that

consider, court

sentencing

should

The degree of the crime which is the focus of the sentence; whether the surrounding circumstances of an offense may make it very similar to a lower degree offense; and facts personal to the defendant, including his role in the incident. Rice, supra, at 4. (ei tation and internal quotations omitted). Although Jones, these pre-dating Super. absent. accounts company, the both 604, Rice 607 There, and Megargel, (App. the Div. court the decision illustrates the State v. when sentence over by

197 N.J. factors upon from ten are an a

1984),

considered who

imposed $720,000 almost offense.

receivable thus making it

employee a second qualify

embezzled offense, second

degree as a

times

amount necessary held that the

to

degree This

The court the of

downgrade standard that

was inappropriate. was not. met.

was because a downgrade this

interest offenses,

of justice and noting

In reversing unusual

there

was nothing

about

particular

case,

stated:

Defendant used her position of trust to steal in excess of $700,000 over eight years. The Legislature has classified the seriousness of this type of crime by the amount taken. This theft was a second degree offense because it exceeded $75,000. N.J.S.A. 2C:20-2 (b) (1). By downgrading it for sentencing purposes, the trial judge treated it as a theft of $500 to $75,000. N.J.S.A. 2C:20-2 (b) (2) (a). The legislative mandate should be followed in the absence of some compelling reason to the contrary. The trial judge s desire to rehabilitate the defendant is understandable but must give way to the requirement that the sentence reflect the Legislature's intention to focus on the degree of the crime. (Citation and internal quotation marks omitted) .
I

Here, bias

there

is

no such

clarity to

in the

statute. an

The application offense carry that

of the would be

intimidation in third

statute degree for and the the

enhance not to

punishable of

range,

mention

a presumption a particularly

non-incarceration standard part of

a first-time interest of

offender, justice

creates

unusual first

warrants the

a downgrade. court that

The the

analysis

should

satisfy

17

-- ----_.- ----

-------,---

----,-----------

_.

-

-

-

-_.

------- -----------

-

-------------

-

...

---- -------_.

--

------- ------

mitigating aggravating sentence justified The instructions application violation, based, be in

factors factors the

have and with

such the

a

prevailing

presence

over

the a

interest range is

of justice not only

standard

met,

third

degree

warranted,

but

and necessary. analysis, in however, Megargel and cannot Rice follow because directly the with the

unprecedented of privacy are

of the bias not

intimidation the facts

statute upon

to an invasion which the

to mention such

convictions that

create

an unusual, to stand here

uncharacteristic with that earlier overcome case

situation law.

cannot

compartmentali zed facts prevent do

Nevertheless, that would standard than in has the

compelling otherwise been

exist

the barriers of justice evidenced

a downgrade This is

and the interest no more clearly

established.

closing remains

corrunentsof the court on the used the of the matter offense

in Rice: not

"Nonetheless, the offender,

because the

the focus

and

surrounding should at 8. arlse The to that

circumstances from within

as compelling context of the

reasons offense

for a downgrade itself.u degree of rd.

uniqueness the present

application satisfies

of a second the interest

bias justice

intimidation standard

consideration

is made. are very careful, downgrade particularly and the that the the in Rice to separate 'in or out' following interest the

The courts two inquiries it

- the
lS

decision submitted to

decision. discussion

However,

respectfully an

incorporates standards other by

both

argument on the or bias of

overcome and

of

justice from also, serious

focusing crime'

offense

its utter

distinctness and the

'hate the

intimidation Ravi as

prosecutions it relates to

addresses injustice IV..

character

Dharun

standard. PRESUMPTION OF IMPRISONMENT SHOULD NOT APPLY TO

THE STATUTORY

THOSE COUNTS ON WHICH

DHARUN

RAVI WAS FOUND GUILTY

Incorporating contain must be and those

these that

two

analyses contain was 18

together, a presumption guilty

the

counts

that

do not Ravi

of incarceration at least some

examined.

Dharun

found

on,

------

------------

--

-

-

--

_,----,_------,--

.-

---_.

--

----,----

sections,

of

all

of

the

fifteen

counts

contained

in the

Indictment. applies charges. Three,

It is well-established to See Dharun Ravi, with

that a presumption respect to the third would

of non-incarceration and fourth Counts degree One,

N.J,S,A.

2C:44-1(d)

This

include Thirteen, there and

Two,

Five, Six, Seven, Nine, There incarceration, intimidation, present to to matter are four Counts The and

Ten, Eleven, counts Two,

Fourteen is a all is

and Fifteen.3 presumption charging in of bias the Ravi

where Six

Four, on can

Eight,

presumption this court

these

counts

overcome

appropriately The fact

sentence that

Dharun

period trial

of non-custodial rather in any than

probation. a plea

Dharun into

proceeded court's states

accept The guilty

cannot

factor

the

decision

manner.

sentencing

statute

specifically

that a failure or imposing Here, the offense determination incarceration. them up

to plead

"shall not be considered N.J.S.A. be

in withholding

a sentence not only

of imprisonment." Dharun Ravi

2C:44-1(c). but the nature of the of

must

examined,

and the underlying that a serious The the Evers

conduct

must would on of

be explored result these

in making

injustice case

from any period factors and

focuses force

stands be

against

question

and

deterrence

that

would

achieved

by imprisonment:

[T]rial courts should look to the statutory sentencing mi tigating factors and determine whether those factors are present to such an extraordinary degree and so greatly exceed the aggravating factors that a particular defendant is distinguished from the 'heartland' of cases for the particular offense. Id. at 394. Further, with "The trial to court must the peculiar will be in also look at the gravity facts the of given a case to of the offense determine Id., at how 395.

respect

paramount

deterrence

equation."

(Emphasis added). In Evers, of child the defendant This pled guilty to forty counts was a second degree of possession The trial

pornography.

offense.

3 The presumption should not apply to Count Twelve, although this is a seconddegree offense. This was amended at the time of trial and Due Process concerns should overwhelm any presumption of imprisonment with regard to this count.

19

--------,------ -------------

--_.

_,------

---

court

downgraded

the offense to

to a third

degree

offense upon of

and ultimately days at the was in

sentenced Essex

defendant Jail. the

probation That

conditioned portion the

364 the

County and

custodial to review

sentence progress

suspended outpatient challenge but had

court

was

defendant's

counseling the

after

six months. of the offense that Court

On appeal,

the State degree

did not offense,

downgrading

to a third

challenged been

the determination The Supreme

the presumption held that the

of imprisonment trial court's

overcome.

findings The

did not overcome instant matter

the presumption. is distinguishable a sentencing and court exemplifies should the

extraordinary

situation

in

which

overcome

the presumption. in Evers, case not that be Justice

In determining Albin the wisely serious

that the serious cautioned, injustice the

injustice

was not met

"Although standard,

it may be the rare trial courts need of a

satisfies to

afraid

examine

whether

character

and test."

condition

defendant

in a particular

case meet this rigorous

Id. at 401.

A.

THE

SERIOUS

INJUSTICE

STANDARD

TO OVERCOME THE ApPLICATION THREATS

PRESUMPTION

OF

INCARCERATION STATUTE

IS IN

SATISFIED

BY THE EXTRAORDINARY
OF VIOLENCE OR

OF THE BIAS

INTIMIDATION

THE ABSENCE

ANy

OF VIOLENCE

The here

context

of

the

bias

intimidation of justice applies

statutes

must

be

examined injustice the court

to address and

both the interest how it

and the serious In pled Evers, guilty

standard looked harm

understand statute

here.

at the

for which sought

the defendant "The

to and what weighed the the The that the or

it particularly caused

to punish:

Legislature

evil and harm act of

by the trade as a

in child pornography crime." off not Id.

and graded at 400.

distribution for which the basis

second-degree was

conduct formed

Dharun for

Ravi

convicted was

and the conduct contemplated by

that

conviction,

Legislature, the existence In Seton

particularly

in the absence

of any threats

of violence

(let alone the possibility) Senator Joseph

of any violence. an article
J.

2002,

Vi-tale contributed 26 Seton Hall

to

the He

Hall

Legislative

Journal.

Legis.

363.

discussed

the bill that he introduced penalties for crimes

(Senate Bill 1897) which

allowed

for increased

that were determined

to have a bias

20

----------------------------

-

-

- ---------------------

----------

intent. under

It

was enacted

into

law on January

11,

2002

and

is

the

law

which Dharun Ravi was charged In the opening he put wrote: a hate motivated paragraph, "In crime 1981,

and convicted. New Jersey's became This burning
4

discussing New Jersey

original of the

hate first acts or of the

crime states

law, to

one

law on the such as

books. the

law banned of crosses hate

intimidation painting

by bias Id.

of swastikas" sentencing

(Emphasis it

added).

The original to

crimes of

law and the core to

scheme

created namely

was found the Sixth

be violative

constitutional the States

principles, the (2000)

Amendment as See Apprendi to of fix the

applied v. the New bias

through 466

Fourteenth

Amendment. his

Jersey, law in

530 U.S. New Jersey, decision, its

In discussing Vitale was wrote, left

effort

Senator

"As a result without a the bias one

Supreme law to
by

Court's protect Apprendi."

New Jersey against added).

crime

citizens Id.

crimes

such

as

perpetrated

(Emphasis Vitale,

Senator clearly

the a law

author that This

of

the

bias

intimidation that involved direct

statute, violence to the

envisioned

punished is

crimes

and threats the conduct

of violence. of Apprendi. of that

evidenced States

by his

reference recited

The United case as

Supreme Court by the

horrific Court:

facts

presented

New Jersey

Supreme

At 2:04 a.m. on December 22, 1994, petitioner Charles C. Apprendi, Jr., fired several .22-caliber bullets into the home of an African-American family that had recently moved into a previously all-white neighborhood in Vineland, New Jersey. Apprendi was promptly arrested and, at 3: 05 a.m., admitted that he was the shooter. After further
Professor Marc R. Poirier highlighted the threat of violence that accompanies the acts of drawing a swastika or of burning crosses, See Attached article as Exhibit "e". His paper references a study by Professor Jeannine Bell and the move-in violence against blacks and the significance of those acts: "Effectively, a cross burning sends a message to the new Black neighbors that they are not welcome because of their race, and indeed are unsafe if they remain in the neighborhood. Spray-painted swastikas and vandalized churches, temples and cemeteries send similar messages that the targeted group cannot dwell safely in a locale because of the threat of recurring, targeted violence. (Emphasis added). This provides even more evidence, as will be noted below, that the bias intimidation statute is focused upon acts of bias accompanied by violence or threats of violence, rather than an act not involving either, such as an invasion of privacy violation.
If

21
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. ....:::::..:c.

~.....:......:~_.

__

-_

..

_"....;.;.;_.;_;'---

__

_;_"_.---

..

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---------

-

-------- --------

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---

-

-

questioning, at 6:04 a.m., he made a statement-which he later retracted-that even though he did not know the occupants of the house personally, "because they are black in color he does not want them in the neighborhood. Apprendi, 530 U.S. at 469. No argument the The same can be made as that the conduct of a clearly is that of Dharun racially the facts Ravi is anywhere motivated upon which in

universe of this stand, to be

that

shooting. Dharun's

import

distinction

conviction considered importantly, cannot

are outside prosecuted any hint

of the heartland under the bias or

of offenses crlme

which were More it

statute.

without

of violence

threats

of violence,

be stated of

that the legislature coupled with

contemplated charge

that a third degree would necessitate a

invasion

privacy sentence.

a bias

state prison with this at the

This is especially who lS now

so when this idea is paired coming certainly foresaw or befora the the court. is an his it,

specific Senator

defendant Vitale's ever

Looking whether eighteen roommate

comments, envisioned,

question that

Legislature

imagined

year old college and a

student,

who viewed and

an encounter then tweeted

between about

"questionable"

visitor

should be treated Pulsating result the

in the same manner cases where

as Apprendi. a prison term was imposed as a

through

of a hate crime threat (Law

conviction, of violence. Div. 2000),

is the presence The facts

of violence,

if not 334 are

omnipresent Super. 133

of State to

v. Allen Apprendi,

N.J.
When

decided worthy

prior

frightening, compared

tragic

and undoubtedly facts of state sheer the

of a state prison Ravi,

sentence. and of the

to the loudly In

v. Dharun distinction

the inequity the conduct conduct of

injustice the

ring

by tha Allen,

between the

defendants.

court

recounted

defendant: The Monmouth county Grand Jury indicted the defendants for kidnaping 2C:13-1(b), conspiracy to commit same 2C:5-2, aggravated assault and harassment by bias intimidation 2C:12-1{e); 2C:33-4(d), terroristic threats 2C:12-3, weapons offenses 2C:39:4(d); 2C:39-5(d), and aggravated criminal sexual contact 2C:14-3(a). The victim, E.K., is a twenty-three year old male who is learning disabled, of low I.Q., exceptionally short in stiture, deaf in one ear,

22

---

._-------

--------:.....

-------_-_---

----=--.

---

_._---___:___------=--._--

--------

-_....:_-_._._---------_._

-------- --,--------------,.

-- -----

speech impaired, and has a pin hole in his heart. E.K., and some of the Defendants, attend special education classes together. Over a three day period, in January of 1999, it is alleged that E.K. was kidnaped, forced to drink a mixture of iced tea and alcohol, taped to a chair, had his head and eye brows shaved, punched about his face and body, forced to drink urine, kiss the shoes of the Defendants, lick a drink off the floor, dress in women's clothing, beat with beads and a curtain rod, had lit cigarettes put out on his chest, ashes flicked into his mouth, had a pillow case placed over his head and was ultimately dumped into a deserted wooded area known as the "pitH.

In
another went

State

v.
of

Anthony, as

2010 Exhibit

WL
"B"),

391844 the the

(App. court

Div.

2010) (unpublished) (Attached series troubling

recounted conduct at the victim months

facts.

There,

defendants'

far beyond it

words.

In fact, the words were spoken directly into violence of and the the attack victim even was left

victim, suffering later:

escalated the serious

effects

forty-two

At approximately 3:30 a.m. on June 20, 2003, M.D. Morshed, a taxicab driver of Bangladeshi descent, was walking along the streets of Atlantic City. Morshed had been drinking in the Dej a Vu Lounge for several hours. A. K. Mohammad, a fellow cab driver who was also of Bangladeshi descent, saw his friend and exited his parked cab to greet him. The two men conversed for a short time on the sidewalk before a gray truck with Oklahoma license plates passed by, circled back toward Mohammad's cab, and parked behind it. Defendant and his co-defendant, Danny Vlado, emerged from the truck and as ked Mohammad, "What the hell are you doing here?" They were "aggressive," cursed Morshed and Mohammad, and told them to "[ gJ 0 back to [their] country." Morshed tried to avoid them, but defendant and Vlado continued to approach, calling the two men "[m]other fucker, Muslim, son [s] of bitch." Both men "attacked [Mohammad] simul taneously [,l " but he ran to the other side of his cab and was able to avoid them. The men then turned their attention to Morshed, striking him in the nose and breaking it. One man held him "from the back [,]" while the other continued to hit him "allover [his] body." Morshed fell to the ground and was repeatedly kicked by defendant and Vlado. He claimed that one of the men retrieved an iron rod from the truck and hit him in the head. His assailants left the scene in their truck.

23

-_. . -- -- --_ -------- --_ .. -

-----

---------------------=.--

--'

- -- --.....:..:....;_-_ ._-"-----'-- -.;_---~ -_-__;_,;. --------_,---=------- ,_-_..._------_. _,._--_. ----

Morshed passed out; his next memory was awakening in the where he was treated in the Atlantic city Medical Center intensi ve care unit for four days. He remained unable to return to work for two years, and, as of the date of the trial, forty-two months after the events, Morshed still suffered from blurred vision. Examining instructive hate Hate crimes Crimes to the the much publicized analysis. Federal Hate Crimes Congress, Law the is also

In passing

through

federal Jr.
It

law was entitled prevention requires Act." that

"The Matthew Shepard It the injury of is codified at cause

and James Byrd, 18 U.S.C. bodily 249. injury r ace ,

specifically attempts religion imposes resulted sexual shall federal to or a or abuse be up

defendant based any upon

or

cause national sentence the or to

bodily origin of

"perceived 18 U.S.C. years; or

color; It

person." ten

249(a) (1). if

not

more

than

however

death

offense an

included or an

kidnapping attempt The to

an attempt, kill, then

aggravated the sentence of this injury origin, 18 U.S. c.

attempt

life

imprisonment. law, imposes victims gender the

second

subsection if bodily

hate

crimes

same penalties religion, or

was caused gender, 249(a)(2). This the gay. reaction

based

upon the

perceived identity

national

sexual

orientation,

disability."

law, of

finally the

passed

In

2009, death

was enacted

in

large

part

to

vicious

beating

of Matthew Shepard,

who was

According

to the

Matthew Shepard

website,

The horrific events that took place shortly after midnight on October 7, 1998 went against everything that Matt embodied. Two men, Aaron McKinney and Russell Henderson, led him to a remote area east of Laramie, Wyoming. He was tied to a split-rail fence where the two men severely assaulted him. He was beaten and left to die in the cold of the night. Almost 18 hours later, he was found by a hicyclist who initially mistook him for a scarecrow. Matt died on October 12 at 12:53 a.m. at Poudre Valley Hospital in Fort Collins, Colorado with his family by his side. http://www.matthewshepard.org/our-story. An article and the fact of the in that sexual the one New York Times, of the followed some of the had a testimony motivation

defendants

clearly

because

orientation

of Mr. Shepard:

24

_. ---=----

=-_--=------_-_-:._--..:._._

.. --_:::..:..::..__--_.---=-=-:...._-

_.

__

...:.. ....:....::.:--_._....:...._-_

.. ----

,--,

_.

-- ------------

--------

-

_- --- --

By Mr. McKinney Is account, the detective said, the attack began after Mr. Shepard had placed his hand on Mr. McKinney's leg as they drove through Laramie. IIGuess what, we1re not gay, I I the detective quoted Mr. McKinney as saying he had told Mr. Shepard. IIYoulre going to get jacked. It I S Gay Awareness Week. ' http://www.nytimes.com/1998/11/21/us/witnesses-tracebrutal-killing-of-gay-student.html?pagewanted=all The police article officer also
T

recounts Detective Price, said that

McKinney's Ben Mr. in

clear

motivation: testified 18-year-old violence, about that

\\A Laramie he had

Fritzen, McKinney's

interviewed Detective had told

Kristen Fritzen Ms. Price,

girlfriend. Mr. McKinney Id. gruesome:

explaining

the

"Well,

you know how I feel Jr. is

gays[.]"

The death

of James Byrd,

even more terrifyingly

One hot night in June 1998, a trio of young men driving along a country road near Jasper offered Byrd a ride. Instead, they beat him, chained his ankles to the back of their pick-up truck and dragged him for more than two miles. Byrd tried to prop himself up by his elbows, but they were sheared to the bone. As the driver swerved from side to side to bounce Byrd across the road, the asphalt tore away parts of his body. His agony ended when he slammed into a culvert and he was beheaded. His killers left what was left of his torso alongside the road near a cemetery. Then they drove home and went to bed. http://www.kens5.com/news/130314468.html (A CBS News Affiliate in San Antonio Texas) . Interestingly, his racist the tattoos: showing article 'Like off the for references a cross images hate." that This focus one of the killers' comments on KKK,' he turned of his

burning cut into

and an intertwined his This is flesh the that kind to

explains, body the into kind

a billboard of bias

Ibid. caused

hatred, its

in·timidation legislation. Vitale's

New Jersey not in the

implement of the

own hate Ravi
l

crimes

conduct,

conduct

Dharun history

was Senator statute. The conduct

and concern

discussing

of the

and

sheer law and here. bias

brutality the

that

fueled

the

passage

of

the

federal statute c r i.mes and

hate is for

crimes not at

amended New Jersey Examining these are in cases

bias

intimidation the to the

play the

establishes applied in

which the

enhancements intent was

appropriately an

what

legis lati ve

creating

upgrade

25

- - - --- - -- -- -------------

- - - ---

-

---- -- ---

-

- _------------------

-

_-----

--

-

-- - ----

-----

-

gradation

of

offenses.

The

conduct

of

Dharun

Ravi

cannot

be

swept

into a similar

vein and should not justify

a state prison

sentence.

B.

THE

SERIOUS

INJUSTICE THE

STANDARD LEGISLATURE

IS

MET COULD

AND THE NOT

PRESUMPTION THAT

OF THE

INCARCERATION BIAS

IS

OVERCOME BECAUSE STATUTE

FORESEE

INTIMIDATION

WOULD ApPLY

TO AN INVASION

OF PRIVACY

CONVICTION

An the

additional

compelling

example prison

that

Dharun was

Ravi's not

conduct

and

subsequent

presumptive is that

state the

term

foreseen

by New codified to

Jersey

legislators 2C:14-9

invasion

of privacy

statute,

at N.J.S.A. the New

was not even enacted Intimidation Statute

at the time the amendment was introduced and

Jersey

Bias

passed.

The invasion on January a full two

of privacy

statute was adopted

in 2003 and made Vitale

effective

8, 2004. years

The bill introduced earlier. The bias of the

by Senator intimidation offenses Act.

was enacted does not its

statute

specifically ambit

delineate

a number

that
5

fall within

like the Graves broad

Act or No Early language

Release

Rather,

the statue of an

contains offense Jersey N.J.S.

sweeping

encompassing

the

commission 2C of

"specified Statutes; 2C:39-5.,,6

in chapters N.J.S.

11 through N.J.S.

18 of Title 2C:39-3; been

the New or the

2C:33-4; it

N.J.S.

2C:39-4 for

Again,

would

have

impossible

Legislature

to envision

that bias intimidation

statute would

apply to

5

For example, the No Early Release Act specifically requires a court to impose NERAwhen there is conviction for eighteen specific offenses, which includes attempts and conspiracies. See N.J.S.A. 2C:43-7.2(d) (1 - 18), This is contrasted against the bias intimidation statute which merely states that it applies to offenses contained in chapters eleven through eighteen of the criminal code. Surely, the Legislature was not as exacting in making the bias intimidation statute applicable.

The Graves Act specifically applies to eleven different offenses. See N.J.S.A. 2C:43-6(g). It, unlike the bias intimidation statute, does not apply sweepingly to all firearms offenses, but rather specificallY denotes what sections and what offenses it applies to. The broad, arguably oversweeping language of the bias intimidation statute was not so carefully drawn.
6

The sections from 11 to 18, include criminal homicide, assault, terroristic threats, stalking, kidnapping, criminal restraint, sex offenses, robbery, arson, criminal mischief and burglary. The overwhelming bulk of the enumerated offenses involve the possession of a firearm or other weapons. The focus is upon violence and threats associated with violence, not conduct similar in kind to that criminalized by the invasion of privacy statute.

26 _

---

-------- --- ------ -_-----

-

------

---------

-------------

- --

-'_-

_;..:.:...___;_

-----'-'---_-_'

.'---'---

.

__ .-

-

-- - -----

_--

--_.

-- ---_._------------

---

an

invasion at

of the

privacy time. readily

violation This exhibits

when

it a

was real

not

even

a of the

criminal serious instant

offense injustice matter.

creates its

question In

and

misapplication

C.

THE EXTRAORDINARY AND UNPRECEDENTED USE CONJUNCTION WITH AN INVASION SERIOUS INJUSTICE OF PRIVACY

OF THE BIAS STATUTE IS

INTIMIDATION SUFFICIENT

STATUTE IN TO MEET THE IS ABSENT IN

STANDARD AS THE REQUISITE

LEVEL OF INTIMIDATION

THE UNDERLYING CRIME

During the jury,

the course

of the jury of the

instructions,

the court statute, T37:25,

instructed that "To The

in the means that

context to put another

bias person

intimidation in fear."

intimidate requirement intimidation should victim be to

another

40:19.

be placed the to

in fear element another simple

is not unique

to the bias in fear, that the the to

statute.

Thus, Analogized In

of placing statute assaul t

another

examined. be

requiring by

placed

fear, can

menace, applied a

intimidation an assault,

aspect a

required or

easily a

be understood violation

when as

robbery when

even

stalking

predicate

offense. and the

However, facts

applied case,

to an invasion

of privacy

conviction, aspect of

of this

the presence

of a well-defined

intimidation creative simple

goes beyond in the by menace,

any realm New Jersey

of the imagination Legislature. that the

of even the most 2C:12-1a(3),

people

N.J.S.A.

assault

requires

state must prove beyond a reasonable defendant had the purpose to put a victim of serious bodily injury.

doubt that the in imminent fear

Physical menace is accomplished through an act or acts which are physically threatening acts. Words alone are insufficient to constitute physical menace. See Model Jury Instructions. In that exposure physically physically with statute, to the legislature culpability acts. was careful upon
lS

to limit words, a

an individual's unaccompanied absence by of this

criminal threatening

based

Here

there

complete Ravi.

threatening

acts on the part of Dharun Shepard 27 case,

Contrast Byrd,

the facts

of the Matthew

the James

Jr. case,

-------------------

----=---....:.--

--____.:~---=------=-----___:::_---:.---.:.......:.-~--.---=---

-------_.

__ ._--------------

---_. ----_._-

-'

-----

--- -----

--------

-

State

v. Allen, both brutal

supra,

and

State and In

v. Anthony, two there

supra of which was

clearly

involving in the the not and the

violence, victims' defendants approve torture victim, violence Anthony, upon his

threatened deaths.

realized, Shepard, to

resulted

evidence that to they

that did whip

communicated his sexual

directly orientation

their and

victim

of

proceeded fatal

pistol

him until because and the

ultimately

suffering

injuries. to torture life;

In Allen,

of his handicap, for the

was subjected value of

in a show of similarly, attack in

disregard victim,

human of

suffered No

the such

effects

a brutal horrific

based

national

origin.

compellingly

facts exist

in the present

matter.

D.

THE

SERIOUS

INJUSTICE THERE

STANDARD EXIST

IS

Ml!:T AND THE

PRESUMPTION

OF

INCARCERATION OVERRIDE

IS

OVERCOME SIGNIFICANT

BECAUSE FORCE

EXTRAORDINARY

CIRCUMSTANCES

THAT

ANy

OF DETERRENCE

In

Evers

the

Court

had

a

very

clear

expression

of

and

understanding importantly, Here, it
lS

of what what

the Legislature of

intended

to criminalize appropriately evidence invasion Unlike did not

and more apply. bias

level and

punishment there to is

should

muddled was not was

compelling to an

that of

intimidation violation. cited

meant no

apply of any

privacy cases any

There

evidence

threats. Dharun no

the

above,

every

witness

testified There

that was

utter

homophobic contained

or hateful

remarks.

conduct

similar

to that statute

in the included into law. Albin, met, the in

statutes

when

the bias

intimidation

was enacted Justice standard

analyzing

a case the

where "The

the sum on that

serious of the the

injustice

was

observed level of us

that h€r to

[defendant's] continuum of

character-and reckless

culpability conclude injustice 175 N. J. 9

manslaughter-led constituted
FI

defendant's the needs State of v.

imprisonment general Jarbath, omitted) . The general

a serious supra at 408

outweighing at 452,

deterrence. supra,

Evers, N.J.

quoting

114

(1989). (Internal

quotations

minimal and

strength has

of deterrence been

in the

instant

matter,

both

specific,

comprehensively
28

addressed

throughout

----=- "___.:_,.--~------------.

--_. -----

_ ___;.;....:;.._-- -- ._-------- ---- ----

-------

-- -- ---_._- --------

this memorandum the mitigating the need

and need not be repeated factors predominate

here. the minimal

What

is clear

is that

and

singular weight.

aggravating The weight

factor, accorded of

for deterrence, effect

carries

to any deterrent Ravi

is lessened has been Dharun's know who at

even more when the person accomplished behalf from him he and through through who the the have with

Dharun

is examined, letters who him

That

many words

character of those with

submitted

on

most and the

intimately from those

hi m ,

those

interacted others; of

have trial

seen that

associate never

course, or hateful

testimony

uttered

homophobic cannot be

remarks,

particularly

to and about his roommate, Piled on top of all of this branding cyber Dharun Ravi as From

ignored

in this media, homophobe

consideration. often and

is the omnipresent a hatemonger, Obama a

(and cruelly) the face of

bullying.

President losing

to local news blogs, when he was

Dharun Ravi has become just an eighteen

that face, college

all

anonymity Unlike

year-old

freshman. who took

the defendants Shepard's

who murdered Dharun Ravi

James Byrd, Jr. or those does not revel in his

Matthew

life,

notoriety. who fired

Incarceration guns into

for the defendants' home

in the above cited cases, they were black, who a

a neighbors' because

because

dragged young and

a man

for miles he was

he was black,

who beat

and tortured

man because

gay or handicapped, conduct similar of Dharun

is expected Ravi, This

from society and

wholly

warranted.

The

his character case,

attitude worldwide

do not warrant media

such

treatment.

generating

attention,

is truly extraordinary.

E.

THE

IMMIGRATION ARE

CONSEQUENCES AND THE

RESULTING REACTION OVERCOMES

FROM THE OF THE THE

IMPOSITION TO

OF THE

A

STATE

PRISON VERDICT AND

SENTENCE AND

SEVERE

COMMUNITY SERIOUS OF

GUILTY

POSSIBLE THE

INCARCERATION COURT TO OVERRIDE

INJUSTICE

STANDARD

PERMITS

THE PRESUMPTION

INCARCERATION

Federal deported) U.s ,C. period upon

law from

dictates the the United

whether States.

a

resident Codified, of

will to the

be some

removed extent at of

(or 8 a

1101, of

immigration can

consequences have

imposition

incarceration

extraordinarily in this

detrimental country

effects

Lnd i v i dua ls who have been

residing
29

for over two-

------"

~--_"-"-"

_"-"------------=----"-"

-".~~~

thirds

of their entire for Dharun of

lives. Ravi.

Removal That

from the United possibility

States

is a real if of is is

possibili ty the

becomes If the

a reality a period

presumption

incarceration over one

is year

not is

overcome. imposed,

imprisonment, perceived as

anything an so or

conviction This

aggravated with witness Under

felony to

and any

subj ect counts would

to

removal.

particularly apprehension through includes which

regard 8 U. s. C.

involving include

hindering counts nine felony

tampering.

This

fifteen. an

1101 (a) (43) (3), an aggravated of justice,

"offense

relating

to obstruction is at least felony

pe r j ur-y.cf or of a

the term of imprisonment sentence on an

one year." makes

The import a

one-year certainty. The Dec. 173

aggravated

removal

virtual

clearest

manifestation the

of this

is In re Song, Court considered

23

I. and N. by

(2001), where convicted

Immigration

an appeal

an alien

of an aggravated being

felony,

by virtue

of his If that

sentence sentence coming United

on an enumerated remained, to this

felony

in excess

of one year.

the alien country at

would the

be ineligible of eight
I

for any relief and having been

despite in the

age

States and

since

1981. The alien's was revised

sentence nunc pro the

of one-year tunc alien to

was later vacated, 360 days which that was the that any ln

the

sentenced Id. was at

suspended. sentence the

175.

Because

demonstrated court It is

less than proceedings

one-year would on

the Immigration be terminated. nlne through where nature

determined clear that

removal

sentence, excess Another of

particularly one-year of Along of the

counts a

fifteen,

that is case

lS

create the

situation

deportation of this the

certain. is thus and

aspect

extraordinary the this

presented. uniqueness the

with offense, that it

character fact

letters, be the

nature

should

considered heartland

in making of cases the

determination

falls

outside Support

contemplated presumption The

by the Legislature. of imprisonment. community for has Dharun

is existent

to overcome

Indian

examined Ravi,

this not

case and has

shown

their that

overwhelming

support

to mention

the belief

he was treated

unfairly.

For example,

30

------

---

-------

-

-

----

-- - -------

-

--

-------

--

-------------

-

-----

--

--

Ravi's case has been discussed widely in Indian language newspapers, and on EBC, a South Asian Radio station, and lTV, an Indian-American public access station in New York. Poonam Bhuchar, a Princeton immigration attorney, who has hosted the radio discussion several times, said a momentum is building. 'As people learned more about the facts of the case, there is greater concern among Indians that this boy was prosecuted harshly,' she said. See Star Ledger, From Indian-American community, a call for justice for Dharun Ravi, April 29, 2012.7 The article highlights the efforts to bring this perception of unfair treatment to the forefront:

On Friday, Mehtani will open his Mirage banquet hall in Edison, the largest Indian catering hall in the state, to a growing force of Indian-Americans who have concerns about how the Ravi case was handled by the Middlesex County Prosecutor's Office. They have also scheduled a rally outside the Statehouse on May 14, from 9 a.m. to 2 p.m. Id. Further, the White signed statute the article notes, "Since the verdict, an online petition on

House website petitions

was signed by 13,749 people, asking that the case ~ and

and another the Id. returned. hate

2,000 crime

local

that seems to be subjectiVe Ravi has spoken with the

~ be re-examined." the verdict and was

Dharun provided program, that said. being an

Slnce Star

He

interview

Ledger

appeared

on the news admitted Ravi

20/20.

In his interview with his

with the star Ledger, roommate: "But and I wasn't Excl usi ve

Dharun

he had no problem "I didn't gay." See

I wasn't

biased,"

act out of hate star about Ledger, Tyler', letters

uncomfortable with

with Tyler Dharun Ravi: is

interview 2012.
8

'I'm very wri tten in

sorry

March and the

22,

This at

confirms trial

what

character

testimony

where

there

was no evidence or that letter they

that Dharun had

ever threatened Most

his roommate

with violence

even by

an argument. Barvalia, Dharun

interesting deserves Tyler

is the character reiteration here.

authored

Uj aas

which thought

He specifically

recalls

that

was

a good roonunate

7

http://blog.nj.com/njvmarkdiionno!2012/04/fromindian-americancommunity.html http://blog.nj.com/njv_mark_dlionno/2012/03/exclusive_interview_dharun_rav.html

8

31

-- _._--_,_,=------~-.------.

-

- _--------

-------

--------------

-

-

-- ------------

-- ---

-

- ---

----

--

---

-

.. _----,--

and

that he was

quiet.

Their

conversation of discomfort caused

never with

approached Tyler. in

the topic their

of hatred,

or even about not with

a feeling their

Rather Ujaas

conversations he, Ujaas,

roommate was

jealousy his his

because This is

Dharun, Dharun's Star Ledger:

unhappy

with

roommate.

consistent DiIonni High jeans Korean you

comments

during school

interview

with

Mark

at the

"'My high

(West Windsor-Plainsboro in blue Chinese, hate His those when own who

School and

North) a black some around

has all kinds of kids,' pullover. Hispanic, so many with and 'There white were
a

said Ravi, dressed lot of Indians, to
n

kids, up

kids.

It's

hard of at

form rd. of

grow

different the those

kinds

kids.' trial

words

are

consistent with Dharun,

testimony who knew

interacted

him

through

middle

school

and high school.

Simply,

there is no hatefulness

in Dharun Ravi.

32

"-

-",,

::..:_

- -'-"

-----'~~

=____

-

c:__- _-

c:_,_ ~

_

-------

-

CONCLUSION

The uniqueness absence nature letters than

of applying

the bias

intimidation the truly support,

statute

in the

of any violence of this

(or threats) The

manifest prevalent

extraordinary the character

prosecution. a careful allow

and even

examination

of the facts of this case more serious injustice

appropriately

the court

to find that the

standard

has been met.

It is in light of all that has been presented, submits that a period and of non-custodial with the

that the Defendant probation sentencing is

respectfully

appropriate,

permissible Code.

consistent

goals of the Criminal

Respectfully BENEDICT

submitted,

AND ALTMAN

By:
STEVEN D. ALTMAN

By:

DATED:

May 3, 2012

cc:

First Asst. Pros. Julia McClure Mr. D. Ravi

33

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