November 25, 1997

E-Mail Hate-Speech Case Ends in Deadlock

By REBECCA FAIRLEY RANEY

n the nation's first federal prosecution of an alleged hate crime on the Internet, the jury deadlocked in deciding whether a 20-year-old man interfered with the civil rights of Asian university students to whom he had sent threatening e-mail.

Judge Alicemarie H. Stotler of federal district court in Santa Ana, Calif., declared a mistrial after jurors failed to reach a verdict Friday. The jury voted 9 to 3 for the acquittal of Richard Machado of Los Angeles, who has been in federal custody on civil rights charges for eight months. Government prosecutors may decide later whether to retry the case. If convicted, Machado faces up to 10 years in federal prison, although a prosecutor said two years would be a more likely sentence.

Related Article E-Mail Is New Conduit for Hate Messages (February 16, 1997)

Machado's nine-line, profanity-filled e-mail, which went to 59 students in September 1996, said that Asians were responsible for all crime on the campus of the University of California at Irvine, told them to leave the university and said, in part: "I personally will make it my life carreer [sic] to find and kill everyone of you personally. OK?????? That's how determined I am."

It was signed "Asian Hater."

The federal case focused on Machado's intent upon sending the e-mail, the reactions of the people who received it and the meaning of such a message within the context of the brash culture of the Internet.

The defense depicted the e-mail as a "classic flame," and therefore harmless in the context of online communication, and prosecutors called it a serious death threat that left students fearing for their safety.

Ultimately, the jurors could not agree on Machado's intent upon sending the e-mail — whether he meant it as a threat or as a prank.

Sylvia Torres-Guillen, a lawyer for Machado, portrayed her client as a frustrated, distraught teen-ager with a hard-luck story.

Machado, a pre-med student, flunked out of the university in summer 1996, distraught over the death of Roberto Machado, the oldest brother and a father figure in the family, who was killed in a carjacking. The younger Machado, the only member of the family to go to college, did not tell his family he had flunked out, so another brother drove him to the university every day. Every day, Machado sat in the computer lab and spent hours on the Internet. It was during one of those days that he sent the e-mail.

"He sent it because he was bored," Torres-Guillen told the jury in closing arguments last week. "He wanted someone to talk to. He wanted someone to talk to him.

"Richard Machado is not a member of the KKK. He is not a member of any hate group. He has no guns or arsenal at home. There is evidence to show that he was bored."

“He meant to intimidate, to interfere. He meant to shake people up and scare them.”
Mavis Lee, U.S. Assistant Attorney

The prosecutors, however, said his troubles made him hateful.

"He thinks Asians get better grades, and blames them for his failure," U.S. Assistant Attorney Mavis Lee told the jury. "He needed a scapegoat."

Further, she said, Machado, as a Latino, should have been especially sensitive to the impact of racial epithets.

"He of all people would be in a better position to know what it was like to receive a message like that based purely on skin color," she said. "The difference between him and the victims was that he didn't make it academically."

Both lawyers focused on the way Machado sent the e-mail. Before sending it, he set up an obscene e-mail alias and sent himself a test message to see if it worked. Then he looked to see who was online, selected users with Asian-sounding names and directed the message to them. Twenty minutes later, he checked for a response and saw none. So he sent the message again. Then he posted another message under his real name that said people had better watch out for that first e-mailer.

The prosecutor said Machado's actions showed he was fueling people's fears. The defense lawyers said the actions showed he just wanted a response.

"The defendant is not a kid," Lee, the prosecutor, said. "He knew exactly what he was doing. His actions were deliberate, exact, and well-thought-through. He meant to intimidate, to interfere. He meant to shake people up and scare them."

“Richard Machado was 19 years old, and as much as the Government wants to ignore that, they just can't.”
Sylvia Torres-Guillen, lawyer for Machado

Torres-Guillen, in building her client's image as a misguided teen-ager, said: "Richard Machado was 19 years old, and as much as the Government wants to ignore that, they just can't. Because that's so much of who he is. He never meant to hurt anyone."

The lawyers also described the reactions of the people who had received the message. Lee, the prosecutor, in characterizing the testimony of Yen Nguyen, said: "You could hear the quiver in her voice. You could see the fear in her face as she related what it was like to receive this death threat."

Lee described students who were afraid to walk on campus at night after receiving the message. Of one student, Jason Lin, she said: "Although he wasn't physically harmed, he was emotionally harmed. He was traumatized."

Torres-Guillen, on the other hand, argued that 80 percent of the students who received the message did not take it as a threat. Some, she said, were merely annoyed at receiving what they considered spam. She described some of the students who testified as "ultra-sensitive" and cautioned members of the jury that they must consider how a "reasonable person" would react.

"The Government is asking you to convict Richard Machado because some people lost sleep," she said. "The law is about whether he had specific intent to interfere with their education."

Lawyers for both sides also called on expert witnesses to describe Internet culture.

Torres-Guillen called Sara Kiesler, an expert in computer communications from Carnegie-Mellon University. In characterizing Kiesler's testimony, Torres-Guillen said: "Sara Kiesler said this stuff happens, and it happens often. This is part of what you think about when you see e-mail like this. Thirty-seven people who did not respond to this e-mail agreed with her."

Lee called Robert Anderson of the Rand Corp., a think tank in Santa Monica. His testimony, Lee said, indicated that a common practice is to offer cues, such as smiley faces, to show that a message is just a flame.

Further, she argued, in cyberspace, threats are more serious and more frightening because of the anonymity and the absence of context in messages.

"There's nothing unique in cyberspace that makes it different from the real world," Lee said. "There's nothing that makes it immune from federal crime."

Because of the debate over whether the message was a death threat, it was not clear whether Machado's words were protected under the First Amendment. But Torres-Guillen made an appeal to the jury to consider free speech.

"We should not have to fear the government, and fear that the government is going to try to strip away our liberties because of the words we use," she said. "Oftentimes words don't mean what they say, whether it's Howard Stern or our own children who say: 'I hate you. I wish you would die.' What the prosecution is trying to tell you is that words are enough."

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Rebecca Fairley Raney at rfr@nytimes.com welcomes your comments and suggestions.

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