Conviction, Confrontation, and Crawford: Gang Expert Testimony as Testimonial Hearsay

• Publication year: 2011
• Citation: Vol. 34 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 34, No. 3SPRING 2011

ARTICLE

Conviction, Confrontation, and Crawford: Gang Expert Testimony as Testimonial Hearsay

Hon. Jack Nevin (fn*)

I. Introduction

As a sitting trial-court judge in Tacoma, Washington, since 2004, I have seen numerous applications of Crawford v. Washington,(fn1) a case that has changed the application of the Confrontation Clause(fn2) to "testimonial hearsay." Federal and state courts use Crawford(fn3) to apply the Confrontation Clause to testimonial hearsay in a variety of contexts, from 911 calls offered under the excited utterance hearsay exception(fn4) to statements of laboratory analysts.(fn5) Increasingly, Crawford issues arise when prosecutors seek to present gang expert testimony, ostensibly under the provisions of Federal Rule of Evidence (FRE) and Washington Rule of Evidence 703 (collectively ER 703).(fn6) This trend raises an important question: Should the principles of Crawford extend to gang expert testimony?(fn7)

Crime in America has become more sophisticated in the twenty-first century. Law enforcement, in an effort to keep pace, has developed a number of subspecialties in investigation. These expert subspecialties include accident reconstruction, methamphetamine production, and even drug recognition.(fn8) As a trial-court judge, I have seen a number of these law enforcement experts testify. While often qualifying as experts under ER 703, they also retain the status of fact witness, typically as the lead investigator. Their dual status creates a natural tension: Are the witnesses rendering fact testimony or are they testifying as experts? Among the blurred areas of factual versus expert testimony is that of gang expert testimony. Here, the police officer often occupies two roles, one as investigator and one as expert. Although the use of gang expert testimony is relatively unique to Washington State,(fn9) such testimony presents the same "fact witness/expert witness" tension as testimony given by other types of law enforcement experts. Often, testimony from a law enforcement expert contributes to a defendant's ultimate conviction. I offer the following hypothetical to illuminate the Crawford issues presented by gang expert testimony.(fn10) Both federal and state courts throughout the United States commonly encounter these issues, following the pattern depicted.

For the purposes of this hypothetical, the case name is State of Washington v. Alexander Morano. The charge was sale and trafficking of controlled substances under Washington's Racketeering Influenced and Corrupt Organizations Act.(fn11) The complaint alleged that as a member of a criminal enterprise, the GD 18 gang, Morano led a criminal organization that distributed drugs, committed car thefts, and bribed public officials. The complaint further alleged that Morano engaged in a large-scale operation selling controlled substances with a number of other GD 18 gang members.

In its case-in-chief, the prosecution sought to present Alexander Ortiz as a gang expert to testify about the organizational structure, methods, history, and vocabulary of GD 18, a gang well-known in King County and throughout the State of Washington. In his curriculum vitae, Ortiz revealed that he was an eighteen-year veteran of the Seattle Police Department and had been a narcotics investigator since 2000. Five years before the trial, Ortiz was assigned to the Greater Puget Sound Gang Narcotics Network (GANGNET). He was also the chairman of the Gang/Narcotics Committee of the Washington-Oregon Information Network, an organization comprised of narcotics investigators throughout Washington and Oregon.(fn12)

In its motions in limine, the defense objected to Ortiz's proposed testimony, arguing that he would rely on inadmissible testimonial hearsay in reaching his conclusions. The accompanying memorandum of authorities relied in part on the authority of Crawford,(fn13) Davis v. Washington,(fn14) and State v. Mason.(fn15)

During oral argument preceding trial, defense counsel was allowed to voir dire Ortiz. In response to defense counsel's questioning, Ortiz said he had participated in over 200 GD 18 investigations. As an investigator, he said, he had conducted approximately 100 custodial interrogations of "dozens" of GD 18 members. When asked whether he could distinguish between information learned during custodial interrogations and elsewhere, Ortiz replied that his testimony was "an amalgam of information acquired from numerous sources." Additionally, he stated that he had attended a dozen separate gang "seminars" sponsored by state and federal law enforcement agencies. During these seminars, gang experts, all of whom were state or federal law enforcement officials, lectured on the dynamics of gang organization.

Ortiz admitted that he had little formal education, other than the police academy and numerous gang seminars. His formal education was limited to one year of community college, during which he took only one class that addressed criminal conduct: sociology. The class did not address gang issues.

In response to an inquiry from the court, the government stated that Ortiz would offer, if allowed, an expert opinion that the defendant was a member of GD 18, that his business operations and procedures were consistent with those of GD 18, and that the lexicon of words used in writings seized from his residence during the execution of a search warrant were consistent with those of GD 18. At the conclusion of the hearing, the defense argued that Ortiz was not qualified as an expert. Alternatively, the defense argued that Ortiz's testimony was based in large part on inadmissible hearsay, much of it qualifying as testimonial hearsay barred by Crawford.(fn16) Supplementing this argument, the defense pointed out that, on a practical level, there was nothing to prevent the witness from giving the jury a laundry list of facts and telling the jury what to conclude from them. Specifically, the defense worried the jury would determine that the defendant was a gang member. Because the crimes charged fell within Washington's RICO statute, a finding by the jury that the defendant committed the charged crimes as part of a criminal enterprise would subject him to a longer sentence.(fn17) Should the court deny its motion, the defense asked that the court limit Ortiz's testimony to those matters that were not hearsay, did not violate the Confrontation Clause, and stayed strictly within the confines of his expertise. The defense explicitly asked the court to exclude from evidence Ortiz's personal opinion as the investigating police officer.

The court denied the motion, ruling that, under the provisions of ER 703, otherwise inadmissible evidence, including hearsay-even testimonial hearsay-could form the basis for an expert opinion.

At trial, most of Ortiz's testimony concerned the background of GD 18. He testified about its history, presence in the state, and connections with sister criminal organizations around the United States and abroad. He identified the gang's colors, hand signs, graffiti, and tattoos showing affiliation. He explained in detail the sociology of the gang, including formal and informal communication systems, the most common modes of communication, the organizational chain of command, and the rules of leadership. His testimony included descriptions of a gender hierarchy in which women were not allowed affiliation, but were instead relegated to an auxiliary role, not unlike a "support group" for the male gang members.

With regard to the gang's operation in Washington, Ortiz testified that since he began gang investigations some seven years earlier, he had seized approximately forty weapons from GD 18 gang members. Finally, he described in great detail how the gang put a "drug tax" on sales of narcotics at certain bars. Throughout the testimony, he explained how his knowledge, training, and experience led him to conclude that the defendant was not only a member of GD 18, but also a leader.

On cross-examination, the defense focused on the sources of Ortiz's information about the defendant.(fn18)Q: You testified that the gang supported itself in its early years by the sale of marijuana imported from Mexico?A: Yes.Q: Is it fair to say that someone told you that?A: Yes. I learned that from numerous custodial interrogations of known and reputed gang members. I have also learned that from other law enforcement members who have conducted numerous GD 18 custodial interrogations.Q: You also told the jury that gang members placed a tax on narcotics sold in certain bars, isn't that correct? And that your undercover investigation placed the defendant in those same bars on a regular basis?A: Yes, I learned that in casual conversation with a gang member.Q: Actually, it was more than causal, wasn't it? In fact, it wasn't a casual conversation at all. It was a custodial interrogation of a gang member, and it took place at the county prosecutor's office? Q: Why was this person arrested?A: It was part of the same investigation concerning your client, Mr. Morano.Q: Is it fair to say that most of what you learned about GD 18, at least as it relates to Mr. Morano, and have expressed here, is a result of your interrogation of multiple suspects in custody?A: Yes. Q: How many suspects? A: Nine. Q: Of these nine suspects, how many are currently present and available for this trial?A:...