Friday, March 30, 2007

Gang Prosecutions - Politically Correct Prosecutions going after Low-hanging fruit

I've written about it before, but it's become ever more absurd where I practice law. As noted in this Los Angeles Times article, the Los Angeles DA is filing ever more cases with "gang allegations" against people, no matter what the case, increasing exponentially the amount of time people are getting in prison.

First of all, what am I talking about? California has passed a number of laws aimed at gang members over the years, generally in Penal Code Section 186.22. They have basically made it so that if a gang member commits a crime, the punishment is significantly larger than if any other member of society does it. Fair enough, one may say, gang members are wreaking havoc on society.

But, consider the effects. 18 year old kids who spray graffiti on a wall are suddenly being punished not with misdemeanors and a few hours of community service, or even a little bit of jail, but with felonies. And not just any felonies, but due to the gang allegation, the charges are now "strikes" (meaning that for the rest of the kid's life, he faces prison for any offense, no matter how minor, and possibly 25-life for even the most minor of offenses. This follows him forever). Furthermore, they face mandatory PRISON when convicted in most cases (that's to be contrasted with county jail, which people normally get). The prison minimum is generally at least 3 years 8 months, and can go up to 8, 9, 10 years for some of these extremely minor offenses.

Again, we hate gang members, so what the hell, they deserve more than the average person, right? That's the general consensus among society.

However, it gets even worse. Due to the fact that there is this "allegation," it must be proven to the jury. How is that proven to the jury? A police officer ("gang cop") gets on the stand and talks about how evil gangs are in general, how evil this gang is, and all of the terrible things the gang has done. They talk about what great ties this person has to the gang, what his nickname is, and generally slimes him by association with others and the things that they have done.

So consider a robbery case, one committed by a gang member, another committed by a non-gang member (or a gang member against whom the prosecution chose not to pursue the gang allegation). In the case without the gang allegation, the prosecution must prove that this person committed the offense, and if identity is not very strong, the person may very well be acquitted due to the weaknesses in the identification.

In the case of the defendant with the gang allegation, the prosecution will also present a huge amount of evidence that will amount to, not only bad character evidence, but, even worse, character assassination using guilt by association. The identification against the person may be weak, but no matter, the jury will hear all of this evidence about what a bad person this defendant is, if only by way of his associations, and will feel that where there is smoke, there must be fire.

Think about how insidious this is when the prosecution starts seeking more gang allegations against people. This means that more and more people will be charged with exceptionally weak cases, with the prosecution knowing that these people would never be convicted absent the gang allegation. Or, you get cases where the prosecution wants someone so badly that they file gang allegations on people who have weak cases just to strengthen the substantive guilt part of the case.

The net result, more innocent people convicted, more cynical presentations to the jury ("he's a gang member, convict him or else he'll go out and do a drive-by in your neighborhood"), longer prison sentences for less and less serious charges. More people saddled with strikes that result in life sentences later for ever more minor offenses. People who make minor mistakes as kids that they used to be able to outgrow now following people forever, with no chance of redemption.

I can't tell you how many ex-gang members there are out there in society who are making good with their lives in their mid-20's into their 30's and beyond. They are all over, although you probably don't notice them anymore. They could be waiting on your table, or supplying the restaurant that you go to, or even could be your professor at college. These 2nd chances are a hallmark of democratic society that allows for people to move from one strata of society to another. By taking these chances away from kids when they are very young, forever, we risk creating a permanent underclass, and worse. We risk pushing people like this into permanent gang status (they have no incentive to leave because no other part of society will ever take them) or warehousing them forever for even the most minor types of offenses imaginable.

So, there are very real world consequences for these idiotic choices that the prosecution have engaged in pursuing excessive gang allegations against these teenagers. And it is only going to get worse, in the minds of prosecutors, these are not people, only low-lying fruit that is ripe for easy picking.


Windypundit said...

Help a non-lawyer out. I've never understood how gang membership is proven in court. You say:

A police officer ("gang cop") gets on the stand and talks about how evil gangs are in general, how evil this gang is, and all of the terrible things the gang has done. They talk about what great ties this person has to the gang, what his nickname is, and generally slimes him by association with others and the things that they have done.

That sounds like a lot for one officer to have personal knowledge of. Surely some of this must be hearsay? Or is this somehow considered expert testimony?

Gideon said...

Windy, it's just like any other circumstantial evidence.

Tattoos, observations, company they keep, sometimes admissions, previous prosecutions, etc.

Anonymous said...

Very interesting. I clerk at the PD in Illinois (Chicago) and we got lots of gang stuff too. I never thought of it like that, but I think you're right. It's totally improper character evidence. They are using the character trait of being in a "gang" to show conformity therein. But, I can see the other side too. The legislature needs to deter gang violence, it's just out of control. I'm not sure about CA, but our law is such that you shouldn't be allowed to bring in evidence of gang relationship unless there is no other reasonable explanation to explain the crime. (i.e. drive-by). However, it's a pretty low threshold to meet for the prosecution it always ends up coming in. new to the post but love it.

P.S. Aren't those "gang" cops, like, the dirtiest of them all?

Anonymous said...

Couldn't you move for a 2 part trial? I have heard of 2 part trials for possessing a gun as a felon charges since evidence of being a felon may prejudice the jury on the issue of possession.

Anonymous said...

P D Dude, I agree with you, prosecutors will go to any leangth to to win a conviction and putting fear into the minds of the jury is like putting on blinders. Forget the fact that the person is innocent. What they are doing is a crime. Prop.21 is destroying the lives of our children, for the benefit of the prosecutors carriers. So which gang should we fear?

Dakotamom said...

The Criminal Justice System spends so much money on prosecuting gang members. I do believe there are criminals out there but i know for a fact that alot of the people being prosecuted under this gang enhancement that should not be. Personally I believe that in order to stop gangs we as a society need to stop stereo-typing our youth as gang members. So many young men and young ladies have been effected by this act that it is sad. There are many adults with families,college educations,and that live a upstanding life being effected by this act. It seems pointless to me. More and more of our youth are being locked up and fathers and mothers of children are being locked away since the passage of not only the S.T.E.P act but also by our Three Strike Law. It makes me wonder what do we have for our future???

Celeste said...


Anonymous said...

My friend is actually in jail and they are trying to give him the gang enhancement, but it's his first offense. Does anyone know how long he would do in jail for fighting? The victim said he was saying lots of gang names but I was there and did not hear such a thing and now they are trying to put gang enhancement on him.

Anonymous said...

To Anonymous
I am not sure about the time it was 10 years.
Back in 2004 the supream court made a ruling on the enhancment,I dont remember all the details but ask his Attorney or better yet do your own research. God Bless & Good Luck. said...

you are so right...i was once 16 yrs old and liked hanging out with the crowd getting into minor trouble. I visited different juvenile halls and camp. I turned 18 in jail. And when i got out i tried my best to keep my nose clean. And i did, once my probation was over i decided to seal my juvenile record and change for the better. I have two children, 6 and 12. I married my second childs father. He too changed his life. One day gang cops raided my house because someone identified him as a shooter. He did not commit anything. I was also arrested and they are trying us together and adding gang allegation on both of us. We have old tattoos and are going by that to convict us. How could this happen? I'm out on bail, but everytime those gang cops see me they pull me over and take pictures of me, just plain harass me.Then they bring those pictures to court and say i admitted to the gang envolvement. How is that? They never even knew about me util that day. Now they act like i'm the Mafia. HELP!!! We have children and we dont deserve to be judged this way...