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Attack victim unhappy with prosecutors

Pair accused of beating man because he was gay

Published: Saturday, Sept. 21, 2013 5:57 a.m. CDT • Updated: Saturday, Sept. 21, 2013 6:21 a.m. CDT

(Continued from Page 4)

STERLING – Benjamin Brainerd, a muscular former football player, admits he got into his share of fights years ago.

The 28-year-old says he did so because people harassed him for being gay. 

Earlier this year, a father and son attacked Brainerd in a home in Sterling. Authorities charged the pair with aggravated battery and hate crimes, both felonies. 

It's rare someone is charged with hate crimes. In the past 6 years, no other local case involving such an offense could be found in Sauk Valley Media's archives.

Brainerd, who co-owns a stucco and plastering business with his father, is unhappy with Whiteside County's prosecution of the case.

According to Brainerd's account:

On the night of Feb. 21, Brainerd was minding his own business in the apartment of a friend's cousin, in the 1000 block of Fifth Avenue. While his friend and others went on a beer run, Brainerd stayed behind with a woman he barely knew. She was texting.

A little while later, three men he didn't know walked into the apartment without knocking.

Two of them were James Velasquez, 42, and his son, Nicholas Velasquez, 23, both area residents. Nicholas was the woman's former boyfriend. 

James asked Brainerd, who was sitting down, whether he was gay.

Brainerd stood up.

"Yes, I am gay," he said. "Is that a problem?"

The father and son started punching him in the face, using anti-gay slurs. Brainerd fell. He was able to get up and flee, calling 911 from his cellphone. He walked to his house, about a block away.

The attackers drove off.

According to a police report, officers saw Brainerd bleeding from behind one ear and his face was swollen. An ambulance took him to the hospital, where one arm was placed in a sling.

His hospital bill for $2,900 has been sent to collections.

At the end of May, after an investigation, warrants went out for the father and son. They were arrested in the weeks that followed; authorities didn't release information about the arrests in daily media reports.

Deal reached with attacker

On Sept. 4, Assistant State's Attorney Brian Brim reached a deal with James, a sex offender with a history of violence. James agreed to plead guilty in exchange for a reduced charge of misdemeanor battery. He was given 91 days in jail, time he had already served.

On Sept. 12, Nicholas also pleaded to misdemeanor battery. He served only 1 day in jail. He was placed on conditional discharge for a year, meaning that if he follows certain conditions during that time, he'll face no further penalties for the crime.

Also, $1,450 of his bond money will cover half of Brainerd's hospital bill. A hearing for James' portion of the restitution is scheduled for Oct. 7.

Brainerd said his friend who owned the apartment apologized to him afterward for the attack.

"If he was there, it wouldn't have happened," Brainerd said. 

At Dixon High School, Brainerd was on the football team, but "they kicked me off the team for fighting with teammates who harassed me for being gay." Later, he was expelled for altercations.

His father sent him to a high school in Utah, where Brainerd's half-brother lived, but the Dixonite got homesick.

He returned and later received his GED.

As for the recent case, he said the prosecution treated him as if he were a criminal, "probably because I have battery in my background."

Online court records in Lee and Whiteside counties show that Brainerd was charged a number of times with battery, but prosecutors dropped the charges in those cases. His convictions were for obstructing justice, possessing drugs, drunken driving, and being a minor with alcohol. 

According to Whiteside County records, James was convicted in 1995 of criminal assault with force, mob action and criminal sexual abuse, making him a registered sex offender. He was found guilty of felony aggravated battery in 1993, domestic battery in 1994, and misdemeanor battery in 2010.

Like Brainerd, he had battery charges that prosecutors threw out. 

James' son, Nicholas, was convicted of resisting officers in 2008.

Brainerd said he was told that his criminal record would hurt the state's case at trial.

In an emailed response to Sauk Valley Media's questions, Brim, the prosecutor, said all of the witnesses can have their credibility questioned based on their criminal histories. 

"Mr. Brainerd wants to make the defendant's criminal history part of this, but doesn't seem to understand that the defense also has the opportunity to make Mr. Brainerd's relevant criminal history part of the case," Brim wrote. 

The state's attorney's office, he said, has several attorneys review cases such as this one, and the group determined that it was more likely that a jury would find Velasquez not guilty of aggravated battery. The evidence wasn't strong enough, he said.

"We do feel that a conviction for battery and the chance at restitution is better than no conviction at all," Brim wrote. "In this case, there are several witnesses who claim that the altercation was not as represented by Mr. Brainerd. Mr. Brainerd's recitation of the incident has also shown some inconsistencies."

He stressed that the state's attorney's office considered Brainerd the victim.

Brainerd said his account was supported by a man who came along with the Velasquezes into the house. The woman in the apartment declined to give a statement, he said. 

Through a Freedom of Information Act request, Sauk Valley Media obtained Brainerd's witness statement from the Sterling Police Department. The agency said the state's attorney's office interviewed the other witnesses and had those statements in its possession.

The state's attorney's office declined to release the witness statements, saying it's office is not subject to the Freedom of Information Act.

'I was brutally beaten'

Brainerd missed the hearing in which James pleaded guilty to the lesser charge and was sentenced. He said the state's attorney's office failed to notify him. 

Because the sentencing was not a separate hearing, Brim said, Brainerd would not have been able to speak in court.

"The scheduling of a plea is controlled by the court and judge availability, rather than the state's attorney's office's desires," Brim said.

Brainerd doesn't buy that explanation.

"As for them trying to get in touch with me, Mr. Brim, it's called a telephone," he wrote in a Facebook message to Sauk Valley Media. "I was never advised there would not be a separate sentencing hearing. My attorney can second that."

In many cases, Brim said, even prosecutors have little notice about hearings.

"Often times, the court says it has time for plea deals to be done," he said in an email. "In this case, as in many, we don't know which attorneys will show up and which plea deals will be done (as an example, I had another one yesterday where I had 10 minutes notice). When we have time, even a few hours, we do call the victim. In this case, we could not."

After Brainerd raised the issue, he received notice about Nicholas' sentencing and got the chance to speak.

Brainerd said he told Brim that he wanted to take the case to trial, which is a rarity in the modern judicial system. 

"Walking away innocent and having a battery misdemeanor is the same thing to me," Brainerd said in an interview. "I was brutally beaten. I don't want this to happen to someone else. I don't want other victims to be treated this way. They're letting him [James] off easy. I don't want this to get swept under the rug."

Nicholas' attorney, Mike Lancaster, and James' attorney, Lester Weinstine, declined to comment.

Now, Brainerd is considering whether to file a federal civil rights lawsuit in the matter.

"I need to do some soul-searching," he said. "I want people to be aware of this. These are new times. You can't go around bullying people like this."

 

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