Albany

Probation ordered in case of falsely reported hate crime

Women's lawyers plan to file appeals
Attorney Frederick Brewington addresses the media outside the courtroom after sentencing Friday, as Asha Burwell, looks on.
Attorney Frederick Brewington addresses the media outside the courtroom after sentencing Friday, as Asha Burwell, looks on.

Two former University at Albany students facing possible jail terms were sentenced on Friday to three years probation and 200 hours of community service after being convicted of falsely reporting a racially motivated attack on a CDTA bus. 
 
Asha Burwell and Ariel Agudio, both of whom are black, were convicted in April on two counts each of falsely reporting an incident. They each faced up to two years in jail.
 
A pre-sentencing evaluation compiled by the Albany County Probation Department recommended jail terms for Burwell and Agudio, but Judge Roger McDonough relented, saying there had already been significant consequences for both women.
 
“I don’t think there’s any benefit in sentencing you to a jail term,” he said, “no benefit for society and no benefit for you.”  
 
Agudio and Burwell were expelled from UAlbany last May. 
 
Moments before she was due to be sentenced, Agudio left the defense table and cried in the arms of her father. Seated in the gallery behind the families of both women were roughly a dozen supporters who staged a protest before the sentencing and voiced their support afterward. 
 
During the trial prosecutors said Burwell and Agudio lied on a 911 call shortly after the Jan. 30, 2016 incident, claiming a group of males struck them and called them the “N-word.” 
 
In sparring with attorneys — Frederick Brewington, for Burwell, and Mark Mishler, for Agudio — McDonough said the real victims in the case were those that suffer legitimate racial persecution and may not be believed because of cases like these. 
 
He further admonished the pair using Aesop’s fable of the boy who cried wolf, who enjoyed manipulating his village out of boredom. 
 
“What’s clear … is you chose to selfishly manipulate the village, just like the boy who cried wolf,” said McDonough, adding that their initial lie was compounded by later claims of racial bias on social media and at a social justice rally. “The moral of the story is that no one believes liars, even when they tell the truth.” 
 
During the sentencing, Chief Assistant DA David Rossi, who prosecuted the case, said he was willing to cut a deal with the women from the very beginning of the case if they apologized to police and the community for making the story up. Even now, he added, he would recommend probation and community service to the judge if they apologized in open court. 
 
“One of the three defendants took advantage of that offer, she walked out of the courtroom with 100 hours of community service,” said Rossi. “Her records are sealed and she’s moved on with her life.” 
 
Rossi was referring to a third woman, Alexis Briggs, was also charged in the case but pleaded guilty last summer to disorderly conduct and apologized for fabricating the story. She received 100 hours of community service and was not made to testify against her former co-defendants. Briggs was suspended from UAlbany for two years in connection with the incident. 
 
At sentencing, the central argument of both attorneys was that their clients were essentially being punished for their perceptions of what happened that night. Mishler rejected Rossi’s offer to have Agudio apologize. 
 
“I don’t know what the DA’s office wants Ms. Agudio to apologize for, aside from her perception [of what happened],” he said during sentencing. “Her perception was that she was attacked and that it was racially motivated … we are at a loss as to what she could apologize for.” 
 
Both attorneys said after sentencing that justice was not served. 
 
“I think the main focus of today was to ensure that liberty continues, and I think that that’s been satisfied, but that does not end the saga,” said Burwell’s attorney, Frederick Brewington, who maintained that racially charged language was directed at both women in the incident. 
 
Mishler said in an interview after the sentencing that the language, captured on cellphone videos recorded by those present, include one person calling Agudio “f—–g ignorant” and telling her to “get a job.” 
 
“A white person yelling [that] at three black people, I guess there can be different opinions about the import of that, but our clients experienced it as a racially derogatory incident,” said Mishler. 
 
Both women also claim that another person called Agudio “f—–g ratchet,” which sparked the physical confrontation caught on CDTA camera footage that was used against Agudio and Burwell at trial. The “ratchet” comment was not caught on camera, Mishler said. Agudio and Burwell were each acquitted of assault charges they were initially facing in the case. 
 
In comments outside the courtroom, Mishler said, “I think there’s no question that Ms. Agudio and Ms. Burwell were prosecuted, brought to trial and convicted, and now sentenced because they dared to say that they experienced a racial incident.”
 
He added that victims of hate crimes will indeed be harmed by what happened in the case, but not in the way McDonough said. 
 
“They will be harmed because … people will become hesitant to call for help or to seek assistance or to ask their community for assistance if they know that if they possibly are perceived to get even one detail wrong that they will be vilified, prosecuted and face the possibility … of jail,” said Mishler. 
 
McDonough, in his comments at sentencing, pointed toward portions of the 911 tape that he said indicated Agudio’s state of mind in reporting the alleged hate crime. The judge said that on the tape, which The Daily Gazette has not listened to, Agudio claimed to have been assaulted by 20 men and said she would “contact the news” if the incident wasn’t handled properly. 
 
Mishler chalked the laughter up to natural nervousness of having just been involved in an altercation. McDonough countered that Agudio boasted of beating the other passengers. 
 
“I beat the [s–t] out of them,” Agudio said on the tape, according to McDonough. “I had three [b—–s] down, so funny I beat a boy down.”
 
Brewington and Mishler both filed notices of appeal with the Albany County DA’s Office immediately following sentencing. Part of their appeal will be a motion that was denied at sentencing to overturn the verdict. 
 
The grounds, said Mishler, were that Agudio and Burwell were previously acquitted on false reporting charges related to an interview they gave to a police after the incident. He added that the police interview tracked closely with what was said on the 911 tape. 
 
Brewington, in an interview after the sentencing, said what the women told the officer was more detailed than what they said on the 911 call, and questioned how they could be convicted on the 911 tape but not on their statements to law enforcement. 
 
The judge quashed the 19-page motion to overturn the verdict after a short conversation, a decision that Brewington later criticized. 
 
“The judge didn’t give a clear reason for [dismissing the motion],” he said. “I believe that the level of analysis contained in the motion can’t be spoken about in five minutes … just essentially blowing it off.”
 
Prosecutor Rossi said outside the courtroom after sentencing that it was a shame both women proceeded with the trial instead of apologizing when they had the chance. 
 
“This case was never about sentencing or punishment for us, it was about exposing the lie and vindicating the truth, and that’s what we’ve done,” he said.  
 
Agudio’s father, Carlton Agudio, also addressed reporters after the sentencing. 
 
“Ask yourself one question .. .if there were three white girls on that bus, with a busload of black people, and they were drunk and disorderly, do you for one second think we would be here right now?” he said. “If you can’t tell yourself the truth about that, look at yourself … not anybody [else].”
 
Mishler and Brewington have 30 days to file appeals on behalf of their clients. If the sentence sticks, both women will be on probation until June 16, 2020. 
 

Categories: News, Schenectady County

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