Defense Opens in Broderick Boys Case

The defense’s task is clear, and they will be parading witness after witness who will testify to the fact that there is no nuisance and that they have minimal personal awareness of or contact with the gang.

While the plaintiffs brought a few such citizens forward, they made their case largely on police reports and the testimony of police officers and experts. These witnesses portrayed that individuals were gang members based on police contacts, photos and various crimes committed.

There is a shortcoming to that portrayal.  The real cases and evidence, when scrutinized, may show much weaker evidence of gang activity than in the sanitized version presented by the police. 

Even a case like the Memorial Park beating, which was supposed to be a seminal event, when looked at closely appears to be much less about gang activity than about a small fight that got out of control.  The victim arranged the fight and then complained when things got out of hand.

On November 3, lawyers from both sides took a tour of the safety zone with Judge White.

On Thursday, Mark Merin, attorney for the defense, asked if Judge White can provide her opinion regarding what she saw or did not see.

Judge White stated that this was unnecessary because she does not need to provide an opinion and she saw what everyone else saw that day.

Importantly, she found nothing remarkable or terrible about the safety zone.

According to Mr. Merin, the defense will be presenting community members to speak of their experiences and feelings in the three-square-mile safety zone of West Sacramento.  They will also have three expert witnesses to rebut the testimonies of Detective Joe Villanueva and Sgt. Jason Winger.

Professor James Hernandez is a professor of Criminal Justice at Sacramento State and a gang expert with a 20-page resume.  He has extensive knowledge of prison gangs, and will argue that the Broderick Boys is NOT an organized street gang. He will testify instead that there is no nuisance in West Sacramento and give an opinion as to the uselessness of a gang injunction in that area.

Daniel Vasquez has worked with the Department of Corrections for over 36 years. Mr. Vasquez has been a warden in different state prisons.  He has extensive experience with gangs as the Director of Corrections in Santa Clara, and has had a consultation role with different facilities all around California.

He will testify that there is no street gang in West Sacramento.  He will argue that there is no street gang of the Norteno sect, and that he believes there is no ongoing nuisance in West Sacramento.

Finally, Jason Drew Anderson has been a resident of West Sacramento, attended Sacramento State, and became aware of community concerns in West Sacramento.  He did his thesis on the Broderick Community , and concluded the community is stressed by the injunction itself, the constant police surveillance, police harassment and police brutality.  His findings suggest that the injunction has had a negative impact on the community of Broderick.

The defense’s first witness was Charlotte Dorsey, who currently lives in the Broderick area.  She testified that she daily spends seven hours outside her home in the community.

The people on the streets she sees are usually the homeless.

She has never seen boys or groups of boys gathering together, fighting, creating fights, intimidating the community, flashing colors or flashing tattoos.

Ms. Dorsey described her neighborhood as family-oriented, where families gather to celebrate together, and that she enjoys living in Broderick.

Under a long cross-examination, Jay Linden repetitively asked Ms. Dorsey if she has heard of the crimes committed by the gang members, and if she has seen graffiti, tattoos or gang-related crimes in the safety zone.

She responded repeatedly that she had not, and that the only crimes that she knew of were those in the paper.

When Mr. Linden asked her if she felt the injunction was necessary, she said she needed more information about it to answer that question. She herself didn’t know how it works, what it does, and would like that information prior to making a conclusion.

Mr. Linden then wanted to go through every crime mentioned by the plaintiffs regarding the defendants, and get her opinion.  However, Judge White did not allow it.

Judge White ruled that the witness has no prior knowledge or personal knowledge of those crimes, and therefore it was irrelevant and pointless to go through every alleged crime regarding the Broderick Boys. The witness herself has no knowledge to formulate an opinion about whether there is a nuisance, as she has already testified that to her, she has not witnessed any nuisance in the safety zone.

At this point, it is difficult to know where this trial stands.  Judge White has already expressed disappointment, and the plaintiffs made a concerted effort to tie defendants to crimes and to evidence of gang activity.  The problem is, to some extent, a nuisance is in the eye of the beholder and it may require a subjective judgment and weighing of the facts to determine whether the gang, which probably exists in some form, presents a nuisance and whether the gang injunction is needed above existing laws.

The problem that the plaintiffs have is that they have shown a number of individuals who committed some crimes.  But the total number of incidents related over a ten-year period was maybe just under 100.  The total number of named individuals was less than that. 

Many of the crimes that were described were not really gang crimes.

As Sgt. Winger, one of the plaintiff’s gang experts, had himself testified under cross-examination at the end of the plaintiff’s case, not all crimes committed by a gang member are gang crimes, under Penal Code section 186.22.

When asked if the crimes identified by the plaintiffs and posted, with push pins, on a map were gang crimes, Sgt. Winger responded that he has not matched every crime associated with the pins to signal if those, in fact, were gang crimes.

This is in contradiction to his testimony under direct examination, where he stated plainly and without qualification, that all those crimes identified by pins were part of the nuisance created by the Broderick Boy members in West Sacramento.

It should be pointed out that a lot of those were not gang crimes, and were handled with standard law enforcement techniques and investigation.  And in only a small handful of cases did the gang injunction play any role in the apprehension and incarceration of the individuals.

Sgt. Winger also talked about methamphetamine problems in the area.  He testified that those who sell meth may be doing it to support their own habit.  And he testified that he knows some gang members are also common meth consumers.

Mr. Merin was able to demonstrate that those alleged gang members who have been accused of meth sales have done it to support their own habit and when caught, were in possession because they consume it, not for sale purposes for the benefit of the gang.

Mr. Merin then asked if in those drug cases previously talked about, whether those sales were for the benefit of the gang.

Sgt. Winger said he had not reviewed those cases to have an opinion as to whether they were selling meth for benefit of the gang. Again, these were cases he had included in his PowerPoint, and he had testified on direct that they were convicted as gang mambers and that the sale of meth was for the benefit of the gang.

The bottom line here is that, to some extent, the plaintiffs need to draw a nexus between crime and gang activity.  They argue that case law suggests that they do not have to show that crimes are committed for purposes of the gang, as PC 186.22 would require.  However, as a practical matter, if all they can show is that a bunch of people who are gang members are out committing crimes, it is not clear how a gang injunction would have any impact on those crimes.

When you have an alleged gang member arrested and convicted for selling meth to support his own personal meth habit, how is a gang injunction going to stop that crime in the future?  It will not.

Jesse Garcia, one of the defendants, is in prison now for a domestic violence case – how is that going to be relevant to the gang injunction?  And yet, in some cases, the plaintiffs tried to do exactly that – tie non-gang-related crimes committed by alleged gang members together, to attempt to show a nuisance.

The defense has not put on their case yet, but right now I have a lot of doubt that the plaintiffs have proved their case to the civil standard of preponderance of the evidence.  We shall now see how effective the defense witnesses and experts will be in punching further holes in the plaintiff’s case.

—David M. Greenwald reporting