Under fire for her record on prosecuting hate crimes, the U.S. attorney for the District of Columbia refused to appear at a D.C. Council committee hearing Wednesday to discuss her performance, saying the hearing would be biased.
Her refusal to appear angered council members and advocates, several of whom argued that the no-show demonstrated the need for D.C. statehood.
“I find it utterly ridiculous that we do not have the United States attorney’s office represented in this conversation,” the judiciary and public safety committee’s chairman, Charles Allen (D-Ward 6), said near the end of the 4½ hour hearing. “It’s not just offensive or insulting to the council or to me. It’s insulting and offensive to the entire city, to every District resident. What in the world do you think it tells our LGBTQ community that the USAO won’t even show up for a conversation about hate crimes?”
The hearing was in response to an investigation this summer by The Washington Post showing that despite record numbers of arrests for bias-motivated incidents, the number of cases charged as hate crimes by the U.S. attorney’s office plummeted in 2017 and 2018.
Last year, police made arrests in a record 59 hate crime cases involving adults, The Post found. But Liu’s office, which handles most criminal cases in the capital, prosecuted only three as hate crimes, and one was quickly dropped.
“I think that’s atrocious and doesn’t represent who we are as a city,” Allen said of the statistics.
The District is the only place in the country where local crimes are prosecuted by the U.S. attorney’s office, whose leader is appointed by the president. The setup makes it hard to hold prosecutors accountable, advocates say. Liu was appointed by President Trump in September 2017.
This year the number of suspected hate crimes is on pace to reach a new high, eclipsing the record of 204 set last year. Reports of hate crimes were up nearly 14 percent through the end of September, according to data from D.C. police.
Allen and council member David Grosso (I), who was sitting in on the hearing, noted that the U.S. attorney’s office also did not appear at an Oct. 3 committee hearing on firearms trafficking.
“Not having them at the table is causing us to continue to seek what they are going to do to help try to resolve these issues in our city,” Grosso said.
Council Chairman Phil Mendelson (D), who sat in on part of the hearing, said he found Liu’s letter “quite defensive.”
“While I don’t want to make the U.S. attorney . . . defensive, at the same time I think the U.S. attorney has to be held accountable for how she or he is handling hate crimes,” Mendelson said.
In her statement, Liu said the hearing’s title showed the committee already had reached a conclusion, regardless of whether she testified.
“This unjustly maligns the Office’s dedicated career prosecutors, who carefully review every arrest identified as a potential bias-related crime and make principled charging decisions based solely on the law and the facts,” she wrote.
In a separate letter, Liu added that the hearing notice “gives the inaccurate impression that USAO-DC is not prosecuting alleged bias-related crimes at all unless it charges the bias-related enhancement,” when, in fact, her office had charged most cases referred by police — just not as a hate crime.
As The Post’s investigation pointed out, however, Liu’s office secured a far lower conviction rate in bias-related cases it declined to charge as hate crimes in 2017 than previous U.S. attorneys achieved by charging cases as hate crimes.
And advocates say that a failure to charge bias-motivated violence as a hate crime leaves victims and minority communities feeling like their identity has been ignored or erased.
The Post’s months-long analysis of more than 200,000 D.C. police and court records found that hate crime prosecutions and convictions are at their lowest point in at least a decade.
In her letter, Liu said the District’s hate crime law allows for jury instructions that may create “confusion” during hate crime trials, resulting in fewer convictions.
Mike Silverstein, an advisory neighborhood commissioner in Ward 2, echoed those comments.
“Please clarify jury instructions on what constitutes a hate crime,” he told the committee. “Clean it up.”
But Allen pointed out that the council does not write jury instructions. Instead, that responsibility falls to a committee of local legal practitioners, including judges, defense attorneys and the U.S. attorney’s office.
Katerina Semyonova from the D.C. Public Defender Service said she was on the legal committee and did not recall Liu’s office mentioning the issue of confusing jury instructions for hate crimes.
Richard Gilbert from the D.C. Association of Criminal Defense Lawyers said he would raise the issue at the legal committee’s meeting Friday.
Part of the hearing centered on two bills that would limit the ability of people charged with violent crimes to claim that they acted in self-defense when they learned the victim was gay or transgender — the so-called gay or trans “panic” defense.
While several advocates and advisory neighborhood commissioners spoke in support of the bills, Semyonova, Gilbert and Nina Ginsberg, president of the National Association of Criminal Defense Lawyers, all argued that the legislation would unconstitutionally curtail a defendant’s right to a full defense.
But Liu’s absence left a hole at the center of the committee hearing. Allen apologized several times for asking advocates about their conversations with the absent U.S. attorney’s office.
“I’d ask them if they were here,” he said at one point.
And when it came time for government officials to speak, Allen called out repeatedly for the U.S. attorney’s office, as if reenacting the classroom scene from the movie “Ferris Bueller’s Day Off.”
“Is Ms. Liu here?” Allen asked. “Or any representative from U.S. attorney’s office for the District of Columbia? Anyone from USAO here?”
“Okay,” he continued. “Should the United States attorney’s office show up, we’ll certainly pull up a chair.”
Liu’s seat remained empty.