Painter had heard about the crowds of people who were traveling down from Bellingham each day to watch the trial, the Russian and Ukrainian supporters of his three Evangelical attackers. The crowds scared Painter. He feared his presence at the moment of judgment might kindle in the attackers' compatriots a desire for revenge.
Jurors also noticed the Russians and Ukrainians jamming the benches in court. Looking at the crowd, "a lot of us felt intimidated," one juror told me. "When you would look out there, you would get a lot of dirty looks." When deliberations began, this juror told me, there was nervous talk about the Russian mafia, and some jurors expressed fear of running into the attackers' friends later.
In the end, those worries, justified or not, didn't prevent the jury from finding all three attackers guilty of a hate crime and varying degrees of assault. But arriving at the verdicts wasn't as easy as some jurors and prosecutors had expected, nor were the verdicts as serious as prosecutors wanted.
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The question in the trial was never whether there was enough evidence to convict. The evidence was there, and it was damning: Two of the bashers essentially admitted to the attack after their arrest; multiple eyewitnesses saw them do it; and after the assault, one attacker bragged about having "beat that faggot."
Instead, the question was whether 12 randomly selected King County residents, after listening to weeks of impassioned excuse-making and counter-argumentation from a trio of defense lawyers, could still think straight enough to agree on anything. In a criminal trial, all it takes is one juror with one reasonable doubt, and the accused may walk. The defense lawyers aimed their arguments at that one juror, whoever he or she might be.
This one-juror strategy almost torpedoed the hate-crime conviction. Thomas Olmstead, the born-again Pentecostal defense lawyer from Poulsbo representing Vadim Samusenko, the principal attacker, had repeatedly suggested to the jury that gays are unfairly overprotected these days. When the jury began deliberating and took its first vote on whether the attack had been a hate crime, 11 people said yes immediately. Olmstead's inflammatory tactics had backfired, several jurors told me, offending them and causing them to dig in their heels on the need for a hate-crime conviction.
But one juror initially voted "no," jury foreman Al Snyder said. That one juror, echoing Olmstead, said he didn't like the "thought police" aspect of hate-crime laws. This could easily have created a hung jury, but his fellow jurors convinced him that it was his job to enforce Washington's hate-crime law, not to quibble with why it exists in the first place. He changed his vote.
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When it came to the assault charges, however, the one-juror strategy was more successful. Had the attackers been convicted of first-degree assault, which is what prosecutors wanted, each might now be facing a probable sentence of more than 10 years in jail. Instead, all three were convicted of lesser assault charges, and none is now facing more than a few years. (When they are formally sentenced in the coming weeks, Samusenko will likely get 2.5 to 3 years, and his two accomplices, who are not U.S. citizens, will likely get nine months to 1.5 years, plus the potential for deportation afterward.)
How this happened is a tale of a divided jury, a risky gamble by prosecutors, and one older juror with a particular sense of what a gay-bashing is, and is not.
The defense argued the attack on Painter was self-defense. "Clearly [the jury] didn't buy that," Kravchenko's lawyer, Timothy McGarry, said after last Wednesday's verdict, sounding like he might never have believed it himself. But what some of them did take seriously was the defense team's assertion that the attackers had not intended to inflict "great bodily harm," the threshold for first-degree assault.
Snyder, the jury foreman, said as many as eight jurors were ready to convict Samusenko on first-degree assault. "If you go at someone with a broken vodka bottle, your behavior reveals your intention," he said. But one juror, a man in his 80s, believed he knew what a gay-bashing was, and that the intent of a gay-bashing was "just to gay-bash," not to inflict great bodily harm. It didn't make a lot of sense, but there was no budging him. Ultimately, the jury could only unanimously agree on convicting Samusenko of second-degree assault, for which the threshold for guilt is lower: "recklessly" inflicting "substantial bodily harm." That left many on the jury angry and frustrated.
Then the jurors turned to the other attackers, David Kravchenko and Yevgeniy Savchak. Now a gamble by the prosecutors backfired. For Samusenko, the jury had four options for the assault conviction: first-, second-, third-, or fourth-degree assault. With Kravchenko and Savchak, only two assault options were provided: first-degree, a felony, or fourth-degree, a misdemeanor. Sean O'Donnell, one of the prosecutors, told me this omission was a tactic. Prosecutors were betting that given only two choices, the jurors would choose the felony. It was the wrong bet. With Samusenko having already received second-degree assault, the jurors felt they couldn't give his accomplices anything higher. That left them with no choice but to give Kravchenko and Savchak fourth-degree assault. "I was not happy," said juror Jan Weber, a homemaker from Kent. "I felt like they needed more than a slap on the hands."
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"Guilty is guilty," Micah Painter told me, "and I feel validated."
He was more upset with a gay community that seemed to think his meth use the night of the attack made him a poor candidate for the role of gay-bashed-martyr; the number of gay supporters at the trial never made it out of the single digits. And while the courtroom was filled with his assailants' family members, neither of Painter's parents--both Evangelical Christians, like his assailants--was present at the trial.
Painter doubts he'll speak at the sentencing hearings. What, he wonders, could he say that would have an impact on people who did something like this? "The only thing I can hope," he said, "is that for one moment they will feel half as terrified as I did. Once they go to prison, may they finally feel half as bad as I did."
Looking ahead, Painter said he's feeling good about a plan to move in with an old friend, a father figure of sorts. The friend has work to offer Painter, and may be a force that can steer Painter onto a steadier path than the one he was traveling before, and after, the attack.
"Maybe I'll finally get my family," Painter said, sounding hopeful. "Things are gonna be alright."
