Both sides have again asked to delay a case that will determine whether former Marshall University football player Steward Butler can be charged with a hate crime for allegedly punching two men after seeing them kiss.
After the state Supreme Court declined to consider whether the state's hate crimes law could be interpreted to include crimes based on sexual orientation, Cabell Circuit Judge Paul Farrell, who is presiding in Butler's case, said he would rule on whether Butler could be charged with a hate crime.
Farrell asked for written arguments from assistant Cabell prosecutor Lauren Plymale and defense lawyer Raymond Nolan by March 21. The judge had said he would rule 10 days after that.
Shortly after the arguments were due, Cabell Prosecuting Attorney Sean "Corky" Hammers told the Gazette-Mail that neither party was prepared, so they asked for an extension. The judge granted the request, and set a new deadline of April 12.
This week, a Cabell courts employee said that both sides had again filed a motion to extend the deadline. She said Farrell was not in the office to rule on the motion.
In April 2015, Butler allegedly punched two men and shouted homophobic slurs at them after he saw them kiss on the streets of Huntington.
He was indicted the following month on two felony civil rights violations and two counts of battery. He has pleaded not guilty to the charges.
The state hate crimes law extends protections based on race, color, religion, ancestry, national origin, political affiliation and sex, but does not explicitly include protections based on sexual orientation or gender identity. Hammers has said his office chose to charge Butler with a hate crime anyway, based on sex discrimination instead of sexual orientation, because prosecutors believe Butler would not have attacked the men if one of them had been a woman.
In December, Plymale said she and Nolan were sending a certified question to the state Supreme Court, asking whether the state hate crimes law could be interpreted to include protections based on sexual orientation. In February, the state Supreme Court, in a split decision, said they would not consider the question.