Prosecuting gang cases: what local prosecutors need to know.

AuthorJackson, Alan

TRYING A GANG CASE is one of the most difficult undertakings a prosecutor can face. Reluctant witnesses, perjurious testimony, and hostile and intimidating courtroom crowds are but a few of the myriad problems a gang prosecutor can expect in trial. And sadly, we're talking about the prosecutor's own case-in-chief. Indeed, the trademark characteristic of a gang case is the difficult witness. Some witnesses are uncooperative and openly hostile--those community members who fear for their lives and, therefore, actively duck service of process, ignore subpoenas and either refuse to testify or lie on the witness stand. Other witnesses, however, may be cooperative, but extremely unsympathetic because they have been granted leniency or immunity in exchange for testimony. The prosecutor may, therefore, be in the unenviable position of arguing in the same case that the "elderly-neighbor-down-the-street- witness" lied on the stand, and that the "co-conspirator-crook-in-handcuffs-witness" should be believed. On top of all this, the prosecutor is faced with the very real concern of simply keeping these witnesses alive.

Moreover, gang cases present unique challenges in terms of explaining motive and complex theories of liability. The gang culture is rife with idiosyncratic mores that define individual gangs and sub-cliques. These customs often define the motive underlying the crime, how the crime is carried out, and the identity of the perpetrator. It becomes incumbent upon the prosecutor to educate the jury about gang culture and habits, and to buttress that explanation with the proper theory of liability, such as conspiracy, aiding and abetting, or vicarious liability.

This article seeks to address various pre-trial and trial issues in the context of gang evidence. Hypothetical examples are used for illustrative purposes. Additionally, this presentation includes references to California's Street Terrorism Enforcement and Protection (STEP) Act, (1) which has spearheaded the country's state legislatures' answer to the growing national epidemic known as gang crime. (2)

OVERVIEW OF A GANG CASE: GETTING JURORS OUT OF THE COURTROOM

The first question to come to the prosecutor's mind is, "why use gang evidence in the first place? "After all, prosecutors can expect that the defense bar will cry foul at the first mention of gangs. For their part, judges--especially those who have been ill-prepared to address issues concerning gangs--will often have a knee-jerk reaction to side with the defendant in his claims that gang evidence is overly prejudicial. Finally, police officers may be hesitant to testify about gangs because they have never been qualified as an expert. Wouldn't it simply be easier to leave the gang aspect of the trial alone?

Is it easier? Maybe. Is it a better trial technique? Never.

Successful prosecutors do not try their cases in the antiseptic environment of a courtroom. Crimes are not committed within the confines of mahogany walls adorned with the great seal of the state. Rather, they are committed on the streets of the city, in darkened alleyways and abandoned buildings. Good prosecutors seek to transport their juries to those streets, alleys, and buildings. Gang evidence is one of the most powerful tools in the government's arsenal to accomplish that goal.

Gang evidence is highly probative in explaining what takes place on the streets because it gives deep insight into the conduct of both defendants and witnesses. While courts have determined that gang evidence is admissible only for specific purposes, they have recently been broadening the scope of those purposes. Today, a prosecutor can successfully argue the admissibility of gang evidence for a range of purposes, including proving intent, motive, and identity, establishing a theory of liability, explaining witnesses' demeanor, and explaining gang culture. Gang evidence can set the tone for the trial and, at the same time, educate the jury. Gang experts can explain the inexplicable, define the indefinable, and can add rich color to an otherwise pale fact pattern. In other words, if the crime includes gang evidence, use it.

Faced with the prospect of defending a case involving gang evidence, defense attorneys cower. Understanding the power of such evidence, the defense bar will try almost anything to prevent a prosecutor from admitting gang evidence against their client. The first and most clamorous cry is always the same: "Objection! Gang evidence is prejudicial. "The prosecutor's response should be equally strident: "Of course it is! That's the point!"

No court in the land disallows evidence against the defendant solely because it is prejudicial. Indeed, every word a prosecutor speaks in a courtroom and every item of evidence submitted is, or should be, prejudicial to the defendant. The question is not whether the evidence is prejudicial, but whether it is substantially more prejudicial than probative? Given the extraordinary probative value of most gang evidence, prosecutors should rarely give in on this point. In arguing for its admissibility, it is incumbent upon the prosecutor to steer the court toward the proper use of gang evidence

What Gang Evidence Can Prove: The Tip of the Iceberg

Every day, courts are sanctioning broader uses for gang evidence. Nothing requires that prosecutors allege a gang enhancement or charge a gang crime in order to properly use gang evidence to prove their case. Indeed, the vast majority of cases in which gang evidence is applicable include no specific gang allegation. In those cases, the prosecutor must focus the court's attention on the reason for its admission. It is important to remember, however, that the proper use of gang evidence is expanding. The following illustrations merely scratch the surface.

To Prove Intent

As any prosecutor can attest, one of the most difficult elements to prove in a criminal trial is intent. Prosecutors rely largely on circumstantial evidence to prove the defendant's purpose in committing the crime at hand; gang evidence provides that circumstantial evidence. Look at a hypothetical set of facts as told in two different ways, one without the use of the underlying gang evidence, and the second enriched with gang facts. The same question will be posed for each set of facts.

In the first set of facts, we find the following: the victim is attending a late-night party at a residence. During the night, the defendant drives up in a car, stops and opens the car door. The defendant then points and fires a gun at the victim, who is standing in the front yard. The victim is struck, but lives. The question is, was the crime an assault with a firearm or an attempted murder?

Now assume the same facts, but include the following gang evidence: the victim's late-night party is in Compton Varrio Grape Street gang's claimed neighborhood. The defendant is a known Florencia-13 gang member. Grape Street and Florencia have been at war for several years over their respective territory and drug trade. Three weeks before the shooting at the party, a known Florencia-13 gangster was shot and killed by a known Grape Street gangster. The gang expert testifies during the trial that in the gang culture, when a gang is victimized, the expected reaction is to strike back with equal or more violence. That is, if a gang member is murdered, the usual reaction is retaliatory murder. Again, the question is, was the crime an assault with a firearm or an attempted murder? With the admission of the highly probative gang evidence, the answer becomes clear. Gang evidence of rivalry and violence is admissible to establish that the intent harbored by the defendant was the intent to kill.

To Prove Motive

Seldom, if ever, is a prosecutor legally required to prove motive in a criminal trial. Motive is not normally an dement of a charged offense. Nevertheless, prosecutors should always attempt to prove motive in trial. Jurors will ask the "why" question, if not of the prosecutor, at the very least of each other. If it is not answered to their satisfaction, the jury will see it as the prosecutor's failing. For that reason, motive evidence is always relevant.

Gang evidence is properly admitted to prove motive. The motives for a gang crime can include payback and rivalries, as outlined in the example above. Additionally, motivations can be derived from more arcane sources. Drug sales, weapons transactions and extortion can all be at the root of violent gang crimes, all of which are permissible subject matter for a gang expert. Moreover, gang evidence that explains the history of rivalries and violence between and among hostile gangs is admissible. Therefore, gang experts can testify to violent acts committed by the defendant's fellow gang members. A useful technique for arguing the admissibility of such evidence is to accede to a limiting instruction by the court.

Of course, nothing will befuddle a jury--and oftentimes a prosecutor--more than the proverbial "random act of violence" Rarely, however, is a gang crime truly random. Gang experts can shed a bright light on the murky corners of gang life. What appears to be, at first blush, an amorphous act with little in the way of rhyme or reason will take shape when the gang expert explains the concept of respect in the gang culture. Consider the following:

A 40-year-old man stands at a gas station filling the tank of his car. A young gangster rides up on a bicycle and fires a bullet into the man's head, killing him. There is no connection between the two. Jurors yearn for an explanation; the gang expert provides one. The expert will explain that in the most violent gangs, recruits must show loyalty to their brethren by committing murder. Only then will they be considered a true member. With few exceptions, the victim is a stranger to the killer. When the act is complete, the new member is said to have earned the "respect" of his fellow gang members.

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