Back in the summer of 2010, lasting for six excruciating months – on again and off again – the gang injunction trial was an underwhelming experience. Trotting out biased police officers who were stunningly allowed to testify, not just to what they witnessed, but also to what they were told, the District Attorney’s office managed to produce dozens of cases over the course of a decade in hopes of proving the existence of a nuisance represented by the Broderick Boys Criminal Street Gang, and thus laying the justification for a gang injunction.
In the end, we were left with the abiding belief that, while there may be areas where gang injunctions are necessary as a tool to reduce gang violence, the case was not made that West Sacramento was such an area.
While the District Attorney’s office could point to very real crimes such as the Memorial Park fight that escalated from fisticuffs to a savage beating, and the Amtrak Train attack, by alleged gang members, on the train’s conductor, not only were these cases the exception and not the rule, but it seems that the system, punishing the main perpetrators with years in prison, already had a means to address the crimes.
After all, one can argue, why would a civil injunction deter what a life prison sentence cannot?
As we observed at the time, many of the crimes that were described turned out not to be charged as gang crimes. And what evidence that could be derived from the prosecution’s case was little more than a few scattered crimes with no clear nexus of central planning, in a given geographic area over the period of a decade.
“The real critical thing is the question of acting in concert,” Defense Attorney Mark Merin told the Vanguard on Thursday.
For the People, the crimes that occurred by the various people over the course of a decade are significant because that comprises the nuisance.
“It’s not really true,” he continued. “A nuisance is a condition, something that is ongoing, that can only be caused by people who are acting in concert.” But a completed crime that occurred in the past was “present at the scene of someone else’s activity, which could be considered nuisance activity. It can’t be attributable to that person, so you can’t aggregate all of this activity and say that’s the nuisance, because they’re not acting in concert.”
In this case, “The collective activity described by the Court was simply not shown to exist, and there was no evidence of a gang ‘entity,’ that is, an identifiable group which operated, however informally, to aid or co-ordinate individual crimes.”
Mr. Merin instead argues, “The supposed ‘gang’ in Broderick-Bryte was a social identity, a sense of loose affiliation based on neighborhood and family, particularly among neighborhood youth…”
While the defense points to the lack of evidence of a concerted effort by the same members over a period of time, we focus on the lack of overall evidence that a nuisance exists.
As Mark Merin argues in his brief, “The evidence relating to gang activity was summed up in a ‘pin chart’ which located 108 incidents (including 42 incidents that led to criminal prosecution and conviction; 51 individual identified gang members were convicted of crimes in these incidents) from August 7, 2001 to September, 2010; two crimes (the Memorial Park fight on March 19, 2010, and the Amtrak assault April 16, 2007) occurred outside the safety zone. Of the criminal convictions, 38 of the crimes were committed by one individual.”
He continues, “Seventeen of the pins located points where West Sacramento P.D. officers documented contacts with persons who ‘admitted’ or were believed to be ‘Broderick Boys’ but where no criminal conduct occurred. Eleven of these contacts occurred within the last five years; two occurred in 2010.”
The total number of assaults committed by 94 identified Broderick Boys was 31 over the course of the entire decade.
Think about this for a second. The evidence that the District Attorney’s office submitted is that 3.1 assaults occurred per year for a decade. That is the evidence that they rely upon to preemptively strip people of their constitutional rights to freedom of assembly and association.
Moreover, the involvement of some of the named defendants is remarkably thin.
Mark Merin told the Vanguard, “People were involved in incidents for a very short time.”
He cited that one of the named defendants was active during a six-month period and was “never heard from again. Never appears on the transcript again.”
“So how could that person, their activities be contributing to or causing or responsible for an ongoing nuisance?” he asked.
For one of the alleged gang members, the only evidence was that when she was 20-something years old she was asked by a police officer if she were a Broderick Boy, and her answer was, “I was jumped in when I was 11.”
That’s the only time her name appeared on the record and she was not associated with any crime or criminal activity.
Mark Merin argued that this is very different from the precedent-setting Acuña case, where the defendants were all acting together in a small geographic area – they protected each other, sold drugs openly, intimidated each other, were all together and acted in concert.
A former resident of West Sacramento once told me that the problem there is not a gang problem, but rather a drug problem. Many of these cases were simply drug cases – possession or possession for sale, and there was little to no showing by the prosecution that linked these cases to gang activity.
What evidence there was came in as a form of hearsay.
Mr. Merin argues that hearsay statements “by non-Defendants were admitted over the Defense’s continuing objection as admissions of a party opponent, the gang entity. Defense hearsay and relevance objections were overruled, or rather deferred, subject to the People ‘connecting the dots’ and establishing the foundation for admissibility. Ultimately, these were all admitted after the trial in the SOD.”
In his phone conversation with the Vanguard, Mark Merin indicated that Judge White allowed hearsay evidence “to come in subject to connecting the dots.”
“Then it turned out that, whoops, she never did connect the dots,” he said. “Until in her statement of decision (SOD) so she said… all of these people that were mentioned were gang members at the time the alleged statements occurred.”
“She had no basis for saying they were gang members,” he argued.
As one attorney points out, the reason hearsay evidence is inadmissible in court is because someone testifying as to what someone else said is unreliable.
An attorney told the Vanguard all one needs to do is compare officers’ recollections of the conversations that they write in their police report to a tape and you see a string of inconsistencies, errors and false attributions.
Moreover, the defense had no way to actually rebut the evidence.
The defense contends in their legal brief that the “admission of hearsay declarations of supposed Broderick boys, both named defendants and nonparties, and crime victims, was prejudicial, reversible error on a number of grounds.”
Here the defense shows that the Acuña decision, upon which gang injunction case law is largely based, did not rely on “gang members’ hearsay declarations concerning the alleged ‘turf’ of the gang, and the gang’s alleged goal of controlling that turf through crime and intimidation, to establish the existence of acting in concert to further that plan.”
The defense argues, “Hearsay declarations by alleged gang members cannot be used to impose liability on another individual member for pursuance of a common purpose in the absence of independent evidence of a concerted action” and “The fact of conspiracy cannot be proved by evidence of extra-judicial declarations of an alleged conspiracy.”
Instead, conspiracy must be proven before such declarations can be admitted.
The bottom line is that we end up in the same place we were when the trial concluded. We have evidence that crimes occurred in a geographic area over a period of more than a decade, the number of crimes that the prosecution actually identified was very low, and most of the claims about gang membership came from highly subjective accounts from police officers, at times relying on memory and a decade-old police report.
At the time, the belief was that Judge Kathleen Whilte could not deny the DA’s seminal initiative without consequences, even as she moved from criminal court back to family court.
Mark Merin in 2011 expressed a lack of faith in the independence of the judicial system and Judge White in this matter.
“I couldn’t say I’ve been impressed with Judge White’s independence,” he remarked. “She appeared to me to buy the prosecution’s version hook, line, and sinker and in part because she sees those people all of the time. It’s a little harder for her to discount their testimony.”
“The reality is that we’re talking about whether a public nuisance exists. That’s the nub of this case,” he told the Vanguard. “Whether there is a public nuisance ongoing in West Sacramento and you can ask anybody who lives there, is there a public nuisance, is it caused by the Broderick Boys? The answer’s going to be no.”
“It seems to me that she’s way out on a limb concluding that there’s a public nuisance,” he added.
Because this was a civil trial, the defendants were allowed no appointed counsel. Mark Merin and a team of eight attorneys would agree to try this case on their own time, on their own dime. The length of the trial caused financial hardship for some of the attorneys, but they believed in the cause.
However, because of this lack of representation, the gang injunction case law is relatively incomplete.
Mr. Merin noted that this is a case with no prior precedents. Other gang injunctions have been able to show a real ongoing nuisance that is visible and is caused by a group of identifiable people.
“We’re going to win on this,” he said. “This is a case that’s going to get reversed.”
He said their appeal takes on the precedents upon which the District Attorney’s office relied to make their case, and all this case law suggests that there has to be a certain level of activity and acting in concert that “just doesn’t exist here.”
“It’s tissue paper,” he said referring to the thinness of the case and Judge White’s ruling. “If we have any decent scrutiny on the court of appeal… this case is going to be reversed.”
“It’s just such a travesty of justice,” he said. “But the problem with these cases is that they don’t allow people to have counsel, so most of these cases don’t get tried. We’re the first case to really just conscientiously make the record and the record shows that there was just no evidence to support these claims that there was a gang causing a nuisance.”
Whether they win or not, we will probably not find out for a couple of years, as the Attorney General’s office has a year to file their response.
—David M. Greenwald reporting
