whose rights?

How a fight between 3 gay men at Dallas BBQ exposed our racist double standards

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Bayna-Lehkiem El-Amin walked into court, escorted by two police officers, from a holding cell in Manhattan’s criminal court building last week wearing a brown shirt and a white kufi. His hands were cuffed behind his back, but he was still able to carry in them a small, black Quran.

As he’s done at his every court appearance over the last year, he smiled to the courtroom, and gave a little nod to the queer activists lining the back rows who had come out to support him.

There were 30 minutes of arguments between the prosecutor Leah Saxtein and El-Amin’s state-appointed lawyer Percy Gayanilo. Then El-Amin spoke: “From the very beginning of this case, I haven’t been heard,” he said. He asked the court to recognize his contributions to his community, to recognize that race potentially played a factor in his case. Then Judge Arlene Goldberg sentenced El-Amin to nine years in prison.

El-Amin smiled at his supporters as he left court, headed back to his holding cell, as a couple of activists threw up the black power fist.

Whether you believe Bayna-Lehkiem El-Amin deserves to go to prison for nine years depends on your view of the U.S. court system, the media, race, and sexuality. Lenses distort. Through the mainstream media lens, through the prosecutor’s lens, through the judge’s lens, through white, gay New York’s lens, El-Amin was a “towering terror” and a “brute” who—“unprovoked”—“assaulted” two white gay men, Ethan York-Adams and Jonathan Snipes, by hitting them over the head with a chair at a Dallas BBQ.

Through El-Amin’s lawyer’s lens, things are more complicated: Snipes and York-Adams appear to have started the fight which ended in El-Amin throwing a chair. Apparently the couple did not seek treatment at a hospital. They readily gave media interviews. They claimed the attack was a hate crime; it was then revealed El-Amin identifies as gay, that he’s a leader in the New York ballroom scene, and an HIV/AIDS activist. The couple did not respond to request for comment for this story, nor did the office of the Manhattan District Attorney.

To those throwing up the black power fist in the back of the courtroom in early September, justice could never have been served for a man like El-Amin.

Through the lens of the queer activists in the back of the courtroom at El-Amin’s sentencing, what happened that night at Dallas BBQ is kind of irrelevant. As El-Amin said shortly before being sentenced, if the situation had been reversed—with him starting the fight and it ending with a white person throwing a chair at him—he would likely still be the one in court on an assault charge.

Queer activists have picked up on this case for precisely this reason: The double standard highlights the dividing line in our perspectives of justice. To the media and the court system, justice was served. To those throwing up the black power fist in the back of the courtroom in early September, justice could never have been served for a man like El-Amin, because the justice system is not set up to provide people like him with justice. If it was, why would El-Amin get nine years in prison for a fight that did not end in a hospital stay, while two white men in the same city, convicted of beating up a gay, black man until he was blind in one eye, received 150 hours of community service?

“This could have never hit the courtroom and actually be judged fairly,” said Mitchyll Mora, an organizer and a co-founder of F2L (Freedom to Live), which supports queer and trans people of color in the prison system. “You have a racist system, and white judge and a white prosecutor, and they’re sitting there telling people this isn’t about race.”

El-Amin’s case is one of several in New York in the last year that has underlined that while gay equality increases in our laws and our courts, gay, queer, and trans people of color often seem to be left behind.

There was Merci Chrisette, the black, trans woman who was portrayed by the media as a “subway slasher,” instead of a woman defending herself against a transphobic attack, and who was then sent to an all-male jail by the NYPD. And there was the case of Edwin Faulkner and Juan Carlos Martinez-Herrera, two sex workers who were accused of murdering a man who had hired them in a trial full of transphobia (the prosecution alleged that Martinez-Herrera, who goes by CiCi, was faking their trans status in order to gain sympathy).

Activists have used all three cases to push for a recognition that while the media and politicians celebrate increased mainstream gay equality, queer and trans people of color are still being treated unjustly.

But while in each case the activists can point to the huge, systemic ways in which the court is weighted against the defendants, in order to have a chance to tangibly help those defendants, they’ve had to focus on the small, policy-level factors. El-Amin was convicted and sentenced, and so now activists are hoping to help him appeal his case by arguing his lawyer did not adequately represent him.

While gay equality increases in our laws and our courts, gay, queer, and trans people of color often seem to be left behind.

It’s hard to judge a lawyer by one case, but there were several points in this trial in which defense lawyer Percy Gayanilo, after delivering sputtering and convoluted arguments in court, was actively assisted by the judge. In one instance, after Gayanilo suggested that Judge Goldberg be lenient with El-Amin’s sentencing because a prior criminal conviction on El-Amin’s record happened more than a decade ago in Michigan, the judge asked Gayanilo if he was arguing that that conviction could not be considered in this case, because it relied on a different state’s criminal statutes. Gayanilo, essentially fed the suggestion, said yes, and the judge agreed.

“I feel like he’s not focused,” one of El-Amin’s friends complained after a sentencing hearing last month.

New York’s system of legal representation for those who cannot afford their own defense is unique: New York does not have a public defender’s office. Instead, most cases are given to Legal Aid and a few other non-profits. And in cases that are complex, involve multiple defendants, or are more likely to end up in a protracted court battle (the majority of court cases end in plea bargains, which means many Legal Aid lawyers aren’t experienced arguing in a courtroom), 18B lawyers are hired by the city. 18B lawyers are private practice attorneys who earn $60 to $75 an hour from the city to represent clients.

In the attorney world, $75 an hour is not a lot of money. Lawyers need to fund their own office space, administrative assistants, and everything else, and so 18B lawyers have a reputation of being constantly frenzied, jumping from case to case, and borough to borough, in order to make enough money to survive. 18B lawyers also have the reputation of not being the best lawyers—if the majority of a lawyer’s cases are 18B, that means the lawyer is probably not not finding work from clients willing to pay more than $75 an hour for legal representation. Gayanilo said most of his cases are 18B.

“18B was meant to serve indigent defendants, it wasn’t meant to be welfare for lawyers,” said Scott Greenfield, a lawyer and the managing editor of the law blog Fault Lines. “You have some great lawyers who do 18B and some horrible lawyers who do 18B and unfortunately who you end up with is luck of the draw.”

Defendants unhappy with their 18B lawyers can file a motion to replace them with another one, but Greenfield says those motions are rarely granted.

After El-Amin’s conviction, Gayanilo briskly walked out of the courtroom, told the two dozen or so supporters of El-Amin they could email or call him to follow up, and then ran to catch an elevator down to the lobby. He was off to another case.

After Gayanilo left, just a few friends and a few dozen activists remained in the court hallway. Many did not know each other intimately—they were just here, temporarily united in support of El-Amin. So they grouped together for a few minutes in the hallway, and discussed strategy. They joked about the quality of El-Amin’s legal representation. Some left to put up fliers in support of El-Amin around the courthouse. The rest milled about, and chatted quietly about what to do next.

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