By Ruben Castaneda
Washington Post Staff Writer
Monday, October 26, 1998; Page D01

The death of a gay college student pummeled during a robbery and left to die lashed to a fence outside Laramie, Wyo., has emerged as a symbol of anti-gay violence in the country, prompting major rallies and calls for strong national hate crime legislation.

But the death of a Salvadoran dishwasher in a similar way -- viciously stomped during a robbery in Laurel and left to die on a street corner -- has brought no equivalent outcry. The only demonstration was a candlelight vigil in Laurel.

Despite the similarities in how the two died, the killing of Matthew Shepard, 21, is classified as a hate crime; the slaying of Gilberto Hernandez, 40, is not. The difference, according to the experts: Hate crimes are defined by motive, not by the acts themselves.

Although there appears to be a clear bias motive in the Shepard slaying, there is no hard evidence, at least so far, of anti-Latino sentiment driving the killers in the Hernandez case, according to investigators and experts.

"If a gay man were robbed and beaten up, without any derogatory words being said, one could not say that crime was committed because the victim was gay," said Carla Arranaga, the deputy Los Angeles County district attorney in charge of the district attorney's hate crime unit.

But the two men charged with killing Shepard, Russell Arthur Henderson, 21, and Aaron James McKinney, 22, made anti-gay remarks after they allegedly lured the victim from a bar by pretending they were homosexual, then pistol-whipped him with the butt of a .357 magnum and left him in an isolated rural area in subfreezing temperatures.

McKinney's girlfriend, Kristen Price, 18, who is charged as an accessory in the case, told a reporter that the two men attacked Shepard because he flirted with McKinney at the bar and caused embarrassment. Some gay-rights activists likened the explanation to what some call the "homosexual panic" defense, the notion that some heterosexuals react hysterically, even violently, to a gay overture.

By contrast, though the circumstances surrounding the attack on Hernandez suggest anti-Hispanic or anti-immigrant bias as a motive, there is no specific evidence supporting that theory, according to Laurel police and Prince George's County prosecutors.

Hernandez and two of his brothers were walking home Sept. 4 from their jobs at a Route 1 restaurant when they were surrounded by about 15 young men, two or three of whom had knives, according to police and the surviving siblings.

The assailants announced a robbery, and the brothers ran in different directions. Gilberto was surrounded by seven African American teenagers, knocked to the ground and savagely kicked about the head, according to police and court records.

Hernandez's wallet was still in his pocket when paramedics arrived, and police do not think anything was actually stolen from him.

These circumstances -- the extreme violence inflicted on Hernandez, the attack by a mob typical of bias assaults and the fact nothing was apparently taken from him -- are suspicious but are not enough evidence to call the attack a hate crime, police, prosecutors and experts said.

"It's suggestive, but not conclusive," said Donald Green, a political science professor at Yale University who has written extensively about hate crimes.

"You can have a dual motive," Arranaga said. "You can do a robbery and single out your victim based on their nationality. Are you targeting your victim because they are vulnerable or because they are of a [different ethnicity]?"

For the attack on Hernandez to be characterized as a hate crime, police and prosecutors would need specific evidence of racial bias, said Green and other experts. That evidence could include epithets uttered during, before or after the attack or writings by suspects expressing animosity toward a particular group.

Police and prosecutors so far have found no evidence that any ethnic slurs were directed at Hernandez during the attack. Juan Hernandez, 21, one of the brothers who escaped, said in an interview that he did not hear any epithets and that he thinks the attack was part of a robbery.

Nor did police find any hate-fueled writings by the suspects, or anti-Hispanic or anti-immigrant literature, when they searched the homes of the seven suspects, who range in age from 15 to 19. (Each of the suspects is charged as an adult with first-degree murder. The Prince George's County state's attorney is expected to seek grand jury indictments against the seven tomorrow.)

The question of whether Hernandez was the victim of a hate crime is complicated by the fact that immigrants in the Washington area and throughout the country often are targeted specifically for robbery because bandits see them as good targets. Many immigrants are unlikely to report crimes because they distrust the criminal justice system, are in the country without documentation and do not want to draw attention to themselves, or fear retaliation.

The victimization of Hispanic workers "is a problem not only in this region but in all metropolitan communities where there are large numbers of Latinos. A great many crimes are underreported," said Carmen Joge, civil rights analyst with the National Council of La Raza, a Hispanic advocacy group.

In addition, many immigrants who work in the service industry or in construction are paid in cash and are likely to carry their earnings with them, making them even more inviting targets for robbers. Some immigrant workers carry large sums of money not only in their wallets or pockets but also in their shoes; in some cases, the workers are reluctant to leave their cash at home because they share living quarters with other immigrants, some of whom they may not know well.

Citing the findings of police and prosecutors, some Hispanic activists are refraining from calling the Hernandez case a hate crime. Joge and others aren't so sure.

"If it was robbery, why did it become such a heinous crime?" she said. "There are more questions than answers." La Raza has asked Attorney General Janet Reno that the Justice Department monitor the investigation for possible federal civil rights violations, Joge said.

A former Justice Department attorney who prosecuted federal civil rights violations said investigators at times think they are dealing with a bias crime but refrain from bringing those charges because they cannot develop the evidence needed to persuade a jury beyond a reasonable doubt.

Because investigators are in effect trying to look inside hearts and minds to decipher motive, some hate charges are brought only after a participant in the crime decides to cooperate with the government and testify against his cohorts, said Kerry Scanlon, deputy assistant attorney general in the civil rights division from 1994 to 1997.

"Typically, what happens in a lot of these cases is you'll have cooperation from one of the participants . . . and you'll have some idea why they committed their crime," Scanlon said.