LONDON, Ky. — A federal jury acquitted two cousins on charges that they assaulted a gay Letcher County man because of his sexual orientation.
The jury convicted the two on kidnapping and conspiracy charges.
However, the jury's decision not to convict on the allegation that the victim's sexual orientation motivated the attack was a setback for the government, in the first case of its kind in the nation.
Jason Jenkins of Harlan County and Anthony Jenkins of Letcher County were the first people tried under a section of the federal hate-crime law that makes it illegal to injure someone because of the victim's real or perceived sexual orientation.
In that respect, the case was a test of the law.
U.S. District Judge Gregory F. Van Tatenhove turned away a challenge to the constitutionality of the hate-crime law, though he said Congress had to use the "full breadth" of its regulatory power to come up with a way to justify federal jurisdiction.
The ruling allowed the hate-crime charge to proceed.
However, Wednesday's verdict indicated the jury did not find sufficient evidence to convict Jason and Anthony Jenkins of attacking Kevin Pennington because Pennington is gay.
Still, the two could be sentenced to life in prison on the kidnapping conviction. Sentencing is scheduled for Feb. 21.
Anthony Jenkins' attorney, Willis Coffey, said his client wanted to be acquitted on all three charges.
However, "He's happy he wasn't found guilty of a hate crime, and so am I," Coffey said.
Coffey said it's likely the cousins will appeal.
The verdict was emotional for both sides. Pennington looked disappointed, and relatives of Anthony Jenkins wept.
A spokesman for the U.S. Attorney's Office was not immediately available after the verdict, returned late Wednesday after nearly five hours of deliberation.
Jason and Anthony Jenkins allegedly took Pennington, 29, to a secluded spot atop a mountain in Kingdom Come State Park in April 2011 and punched and kicked him while yelling anti-gay slurs.
Anthony Jenkins' wife, Alexis, and his sister, Ashley, were there as well. They pleaded guilty to aiding in the attack.
The two young women said they lured the victim into Anthony Jenkins' pickup truck with a bogus request for Pennington to help Ashley Jenkins get drugs.
The women and Pennington were drug abusers.
Anthony and Jason Jenkins concealed their identities by pulling ball caps low and turning off the dome light in the truck, the women testified.
Both said the attack was motivated by Pennington's sexual preference.
Pennington said he escaped into the woods when the two men stopped hitting him in order to look for a tire iron in the truck with which to kill him.
Alex Jenkins, Anthony's younger brother, said his brother and cousin later told him they assaulted Pennington because he was gay.
In closing arguments Wednesday, prosecutors reminded jurors of that testimony.
"They brutally assaulted Kevin because he is, in their words, a ... faggot," prosecutor Angie Cha told jurors.
Prosecutors acknowledged Pennington first concealed the reason he went with the others, but said that was because he was afraid authorities would not believe him if he said he went along to buy drugs.
But Cha said Pennington's account of the crime has been consistent in all other details since his first panicked call to 911, after he hobbled to the vacant park manager's house and broke out a window so he could reach a phone.
Defense attorneys, however, argued the government's case was built on lies.
The assault stemmed from drug and alcohol abuse and an aborted drug deal, not Pennington's sexual orientation, defense attorneys argued.
The drug dealer Pennington planned to take the group to was rumored to be a police informant, said Jason Jenkins' attorney, Andrew Stephens.
The group ended up not going to the man's house to buy a pill. Jenkins, angry that Pennington might have put them in police crosshairs, "goes ... redneck," Stephens said.
"So all of a sudden, nobody's going to get stoned now, and they lost control," Stephens said.
Anthony Jenkins' attorney, Willis Coffey, said Ashley and Alexis Jenkins lied about the attack in order to get less time in prison.
The women told a number of people in the months after the attack that it was motivated by drugs, but they changed their stories after learning they could face long federal prison sentences, Coffey said.
And Coffey noted that Ashley and Alexis Jenkins said they are bisexual, that Jason Jenkins had wanted to have sex with Pennington at one point, and that Anthony Jenkins didn't get mad when Pennington offered him drugs to have sex with him.
The theory that the two men attacked Pennington because he is gay doesn't make sense, Coffey said.
"This turned out to be the most sexually tolerant group that I've ever heard of," Coffey told jurors.
Coffey said if the Obama administration wanted to bow to special interests an apparent reference to the gay community it could do so, but that it was wrong to prosecute the Jenkins cousins to do so.
In response, prosecutor Hydee Hawkins said the case had nothing to do with politics or any other agenda.