First Expert Witness Takes the Stand For Defense in Gang Injunction Trial

HernandezJamesThe defense called their first expert witness on Friday, Professor James Hernandez of Sacramento State.  Professor Hernandez is a former law enforcement officer, having been assigned  back in 1993 as a gang expert by the Department of Justice, and having served as a police officer in Pittsburg, California.

Professor Hernandez argued that the Nortenos are not a criminal street gang because they lack central command.  They are not organized, but simply appropriate an identity they wish to use.  He testified that there was no criminal street gang in West Sacramento and there never was.

In a bit of an ironic twist, Deputy DA Jay Linden sought to have Professor Hernandez’ testimony excluded because of his lack of understanding of PC 186.22(a) and his misapplication of this.

Professor Hernandez stated that he does not use the law to determine gangs, because the law as written could be applied to anyone.

When Mr. Linden moved to exclude the witness, however, Judge Kathleen White denied the request, ruling that he was not in court to testify merely upon 186.22(a) or his understanding of it.  The reason for his testimony is far more broad than what the law states.  She stated that he has extensive knowledge on this subject, and that she wanted to hear it.

This is an ironic argument by Mr. Linden since his own expert witness, Detective Joe Villanueva, was unable to distinguish between 186.22(a) and 186.22(b)(1) under cross-examination, with “a” being the stand-alone crime and “b” being a “gang enhancement” to another charged crime.

Professor Hernandez testified that there was no logic behind the wearing of one color over another.  It was mostly symbolism and identity, and he likened it to the colors of a sports team.

He further argued that the infamous plaintiff’s exhibit, made up of a map with push pins signifying the criminal acts the police testified to during the plaintiff’s portion of the trial, was insufficient as there were really not enough pins on the map to demonstrate a recurring criminal street gang activity problem.

According to Professor Hernandez, the pins simply reflect what events that the DA wants to put up. He said it does not tell him anything, other than they just represented one set of events that occurred over a period of time.

From what he reviewed from the DA’s various documents, Professor Hernandez opined that he did not see a hierarchy in the alleged Broderick Boys group. To him, this was not an example of a criminal street gang.

He also suggested that the validation process in place at West Sacramento is way too imprecise, as every agency has a different set of rules on how to do things.

Moreover, he argued that the validation form looked more like a coerced document than a voluntary admission of gang membership. 

He pointed out that there were repercussions in prison for failing to join a gang.  For Latinos, there is a choice between Nuestra Familia or La Eme (Mexican Mafia).  Northern Latinos in prison are often assigned to the Norteno affiliataion of Nuestra Familia by default, and not by choice.

When asked by Defense Attorney Mark Merin what he looks for when identifying a criminal street gang, Professor Hernandez responded that you can’t just look at the number of crimes.

He said that he looks at the number of school dropouts, power structure, community attitudes towards gangs, very high crime rates, what streets look like, conditions and nighttime activity.

He testified that he did not see such indications in West Sacramento when performing his investigation prior to his testimony.  It should be noted that he was not being paid for his services, that they were voluntary.

In cross-examination of Professor Hernandez, Deputy DA Jay Linden read passages from the witness’ book of his past research on tattoos and gang crimes. However, Hernandez said that much of that information no longer applies today.   Hernandez’ book, cited by Mr. Linden, was 17 years old, and criminal street gangs, gangs in general, have changed since the 1990’s. It also relied heavily on  information from police intelligence.

Hernandez also told DDA Linden that there are two different sets of gangs. One set depicts a group of individuals who identify with symbols and beliefs, while the other shows an actual criminal street gang, who has the same characters, but is organized and also has large groups of members, a hierarchy and commits crimes.

Mr. Linden asked him what he looks for when identifying a criminal street gang. Professor Hernandez responded that he looks for a group of individuals committing a series of crimes.

Then Mr. Linden made reference to the AMTRAK case and the claim that there was a group of individuals who beat up the train driver, and that all the perpetrators were charged with criminal street gang activity.

Professor Hernandez responded that he read that information when reviewing the documents for this trial, was aware of the convictions, and that particular event would constitute criminal street gang activity.

Mr. Linden proceeded to ask the Professor if he understood there was a system in place at the West Sacramento Police Department to validate gang members.

Professor Hernandez said he has read and knew of the system, that it is similar to those in other counties and stressed that it lacks a system of checks and balances.

Asked his belief about the gang injunction, Professor Hernandez responded that he understood that the makeup of the community, mostly Hispanic and of low income, made it a lot easier to put an injunction into place, as opposed to in other areas where there is a large wealthy population. But he stressed that this community does not need it.

Mr. Linden asked him to look at the exhibit the People had created to show the gang crimes and connection with all the Brodereick Boy members. 

Professor Hernandez responded that he was assuming that there were connections that could be made, but he didn’t see such an indication in the People’s exhibit. In his view, a “criminal street gang” is double that [of the push-pin exhibit], and should show that the connections exist without any doubt. Then he pointed out that Billie McFadden, for example, represented only  a single event, and there was no direct connection to any of the other members on the exhibit. 

Professor Hernandez definitely presented an interesting and well-conceived alternative perspective, one which Judge White admitted she would have to think about.

Judge White did us the favor of summarizing her take on the expert witness’s testimony.  She observed the conclusion of the witness to be that anyone can be affiliated with or associated with a gang or organization, but there is not necessarily criminal street gang activity.

Furthermore, Professor Hernandez said that the shared symbols in this case are not that of a criminal street gang, but of a social and cultural nature. Therefore, he said, tattoos, clothing and colors alone are not elements to distinguish criminal street gang activity or to indicate the presence of such. The criminal acts alone also do not demonstrate an organized street gang, nor that they are done so for the benefit of a criminal street gang. They CAN just be criminal events, committed by members of a gang or organization.

While we believe the Professor probably has too narrow a view about what constitutes a criminal street gang, he does identify a number of key points that law enforcement tends to gloss over.

First, 186.22 actually presents a very broad definition of a criminal street gang.  It defines “criminal street gang” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated.”

The problem is, that is a hugely-broad categorization of what a gang may be.  As Professor Hernandez deftly testified, a group of people may be tied together through common identity.  They may end up committing crimes, but that common identity combined with the commission of crimes is not sufficient to prove that a gang exists.  And yet, that is precisely the case that the plaintiffs have tried to make here.

This is a point that former DA Investigator Rick Gore made to the Vanguard last year in an interview.  While he does not agree that there is no Broderick Boys gang, Mr. Gore argues that their significance is less than clear.

Moreover, he agrees with Professor Hernandez that the gang lacks a formal structure.

“Nobody can point to who’s the leader.  Nobody can say this guy leads it, here’s his second-in-command.  They want to talk about this structure and they [just] have lieutenants and gang members.”

“Gangs do have an [idea of] who’s been around the longest, who’s the oldest, who has the most experience… sure there’s  things like that, but I have never seen in Broderick anyone who has said this is the head Broderick guy.  He knows all of the members, who’s in charge, who’s his lieutenants, and who are his worker bees.  No one has ever told me that,” he continued.

“The gang structure as a whole, the way it comes…  have I ever seen that?  Absolutely not.  No one has ever told me that this is King Broderick and this is No.2 Broderick.  No one has ever told me that and to me if it was that big and that structured we would know that,” said Rick Gore.

The lack of a structure is not necessarily fatal to the idea that there is a gang, but it makes the process much more murky.  Professor Hernandez made a strong point by casting doubt on the pin-display by the DA’s Office, because they are talking about less than 12 crimes a year over a period of nearly ten years.  Is that really evidence of ongoing criminal street gang threats, or just evidence that there is crime and some of the crime is committed by people that may be gang members?

But if there is no formal structure, are these crimes really being committed for the purpose of a criminal street gang?  And if they aren’t, does the gang really even represent an ongoing nuisance to the community that cannot be abated through normal law enforcement practices and procedures?

What Professor Hernandez’s testimony does, we believe, is to force the DDA to have to double-back over ground that he probably thought he had locked down. 

It puts into play other doubts that have crept up: the notion of forced declarations under the threat of prison time, the notion that prisons are creating some of these designations artificially and finally the notion that these common symbols and affiliations may be less a matter of organization for the purposes of committing a crime than simply the ties that form a common identity with an old neighborhood in Broderick and Bryte.

Finally, the DA’s Office has not sufficiently been able to separate what it considers gang identities from a broader understanding of hip-hop culture.  A culture that has routinely glorified, fictionalized, and incorporated gangster symbols.

In the end, I suspect the Judge will still rule that there is a gang, but at least Professor Hernandez and his research will make her have to think about it a bit longer.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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22 Comments

  1. Roger Rabbit

    Does it say that the gang has to have a structure? If so, the Defense Expert said no, Retired DA Investigator Gore said no, what did the DA expert say? It seems if the structure was there, someone would know it.

    As for the DA just pointing out crimes he wants, this is what the DA does for everything he wants. I know guys at probation that tell me to help justify grants for the DA, they lump lots of crimes that are close to what the grant requires. Like for a gun grant they will report not only gun crimes but crimes with knives, bats or other weapons, so they can get the stats up to justify the grant. Common practice it appears.

  2. biddlin

    My biggest problem with this proceeding is that it distracts from the investigation and prosecution of real gangsters. It is infinitely more profitable to solicit funds to slay imaginary dragons than to fight real ones. There are real gangsters who are buying properties in Yolo county for illegal purposes that pose a real life threat to neighbors. They don’t wear baggy pants or bandanas. They wear Armani. They have 1st class criminal defense attorneys on retainer. It is much easier to prosecute “Broderick Boys” who must rely on public defenders. It would seem that Mr. Reisig weighs the risks and rewards and goes for the rewards every time.

  3. Fight Against Injustice

    I thought the point of this trial was to see if there is enough nuisance by a gang to have a gang injunction permanently put in place.

    If the number of crimes is so low (10 per year) and their is no formal gang organization, I don’t understand why the gang injunction needs to become permanent.

  4. Superfluous Man

    “He also suggested that the validation process in place at West Sacramento is way too imprecise, as every agency has a different set of rules on how to do things.”

    Isn’t the CALGANG criterion, with which all local law enforcement agencies model their own after, pretty imprecise? As such, IMO, all law enforcement criteria for gang validation is ambiguous. What makes WSPD any different from the rest?

    “He said that he looks at the number of school dropouts, power structure, community attitudes towards gangs, very high crime rates, what streets look like, conditions and nighttime activity.

    He testified that he did not see such indications in West Sacramento when performing his investigation prior to his testimony. It should be noted that he was not being paid for his services, that they were voluntary.”

    Probably would have helped the defense if the Professor had done some investigating or research into this neighborhood’s gang activity pre-gang injunction because his investigation took place in a post-gang injunction era. It could be argued that the absence of those indicators is a result of the WS Gang Injunction, so it must be working.

    “One is a group of individuals who identify with symbols and beliefs, and a Criminal Street gang, who has the same characters, but are organized and also have large groups of members, a hierarchy and commit crimes.”

    Do they both have the capability of creating an ongoing nuisance in a community, neighborhood or town? Did Professor Hernandez state that one posses more of a threat to a community than the other and why?

    Mr. Gore wrote, “Nobody can point to who’s the leader. Nobody can say this guy leads it, here’s his second-in-command. They want to talk about this structure and they [just] have lieutenants and gang members.”

    Is having Lieutenants and underlings not considered a structural form?

  5. Superfluous Man

    Rabbit,

    “I know guys at probation that tell me to help justify grants for the DA, they lump lots of crimes that are close to what the grant requires.”

    What incentive does probation have to do the dirty work for the DA?

    “Like for a gun grant they will report not only gun crimes but crimes with knives, bats or other weapons, so they can get the stats up to justify the grant.”

    What is a gun grant?

  6. Superfluous Man

    biddlin,

    “It is infinitely more profitable to solicit funds to slay imaginary dragons than to fight real ones.”

    How do you figure?

    “My biggest problem with this proceeding is that it distracts from the investigation and prosecution of real gangsters.”

    So are these real gangsters being investigated and prosecuted then?

    “There are real gangsters who are buying properties in Yolo county for illegal purposes that pose a real life threat to neighbors. They don’t wear baggy pants or bandanas. They wear Armani.”

    Who specifically referring to here? Do you have examples you can share?

  7. E Roberts Musser

    dmg: “In the end, I suspect the Judge will still rule that there is a gang, but at least Professor Hernandez and his research will make her have to think about it a bit longer.”

    Why? If she does rule there is a gang, does that necessarily mean she will feel a gang injunction is in order? I am not quite sure what you are trying to say here…

  8. valerie

    Moreover, he argued that the validation form looked more like a coerced document than a voluntary admission of gang membership.

    He hit it on the nail with this statement! Villanueva got on stand using certain names of defendants on the injunction list, and stated their was admittance,when in reality it was Villanueva and the DA (Reisig) who had the injunction put on these defendants, and not by admittance. The bottom line is the DA chooses who he wants to be on the injunction list and that is where we are at today. The reality is, lets say there are 50 alleged gang members on the list and 25 of them are currently in prison at the moment. Some of them will not even communicate with each other on the streets because some are considered to be active ( in a prison term) and some are dropout (in a prison term). If Villanueva did his homework he would know gang members do not dropout. If Villanueva did his homework he also would know that a dropout is not an admittance to a gang, but simply stating you are not an active gang member. When a hispanic goes to prison you have NO CHOICE to either be active or non-active (dropout). YOU CANNOT BE AN INDIVIDUAL, NO SUCH THING IN PRISON WHEN YOU ARE HISPANIC. Majority of the guys on the injunction are dropouts, so if they were gang affiliated they would not dropout. The sad thing here is that this injunction carrys these guys in prison and they get 6 points added to their point system automatically because of this injunction. The problem with this injunction is they are portraying it to be from a prison standpoint, when in reality it is not even close. This community is very family oriented, an everybody knows everybody kind of community. Hopefully the judge can see it for what it really is….

  9. Roger Rabbit

    The two Probation guys (girl) I talked to, a gun grant is a grant to go after gun crimes so probation gets some money and the DA gets some, so it is beneficial for both to get the grant approved. When it was explained to me, this grant was an older grant and not sure if it is still around.

    All law enforcement have incentive to get along with DA. The DA gets to investigate them, gets to assist them with personnel to do investigations, the DA decides to prosecute their cases or dismiss them, the DA gets to do press releases and make them look good or look not so good, the DA has long fingers and with an ethical DA who has the right intentions this can be good, but with an unethical DA who has only his own interest, this can be very destructive to the process.

  10. David M. Greenwald

    Elaine:

    [quote]dmg: “In the end, I suspect the Judge will still rule that there is a gang, but at least Professor Hernandez and his research will make her have to think about it a bit longer.”

    Why? If she does rule there is a gang, does that necessarily mean she will feel a gang injunction is in order? I am not quite sure what you are trying to say here… [/quote]

    My point is I don’t know that this testimony will change anything but at least it gave her some pause. Ruling that there is a gang is only the first step, she has to also determine that they represent a nuisance to the community.

  11. David M. Greenwald

    Superfluous:

    “Isn’t the CALGANG criterion, with which all local law enforcement agencies model their own after, pretty imprecise? As such, IMO, all law enforcement criteria for gang validation is ambiguous. What makes WSPD any different from the rest? “

    I don’t think anything makes the WSPD different from the rest, although Linden and Winger argued that they have more oversight as they send it up the chain of command rather than determine at the street level. Still there is no independent check and balance as Prof. Hernandez.

  12. Mr Obvious

    I see an issue with Prof. Hernandez expert opinion. If we are to accept his assertion that there is no Norteno street gang then I guess we would have to accept that all individuals convicted of gang enhancements as Norteno gang members were wrongfully convicted.

    I don’t think we are there yet.

  13. David M. Greenwald

    Two responses to that Mr. Obvious.

    First, I think a lot of gang members are wrongly convicted of gang enhancements (technically an enhancement is not a conviction but a finding that an enhancement is true).

    Second, when we looked at the record in West Sacramento, most of the gang enhancements were plead to and few were the result of jury findings.

  14. Superfluous Man

    Rabbit,

    “The two Probation guys (girl) I talked to, a gun grant is a grant to go after gun crimes so probation gets some money and the DA gets some, so it is beneficial for both to get the grant approved. When it was explained to me, this grant was an older grant and not sure if it is still around.”

    Then they aren’t just trying to, as you put it, “help justify grants for the DA,” but are trying to justify their own too? As you phrased it before, it sounded as though the Probation Dept was just acting to benefit the DA’s Office when in fact Probation has a stake in the “gun grant” monies as well.

    “All law enforcement have incentive to get along with DA.”

    I don’t think you can lump probation in with “all law enforcement.” They have a very different role in the criminal justice system than, let’s say…the Sheriff’s Dept.

  15. Superfluous Man

    DMG,

    “although Linden and Winger argued that they have more oversight as they send it up the chain of command rather than determine at the street level.”

    I’m sorry, what’s the difference re: going up the chain of command and street level?

    “Still there is no independent check and balance as Prof. Hernandez.”

    Agreed.

  16. David M. Greenwald

    SM:

    “I’m sorry, what’s the difference re: going up the chain of command and street level?”

    In my view or theirs? In my view, not much. In theirs, they argue that it is carefully considered and has multiple layers before an individual is validated.

  17. Superfluous Man

    DMG,

    “In my view or theirs? In my view, not much. In theirs, they argue that it is carefully considered and has multiple layers before an individual is validated.”

    If that’s their view, doesn’t that imply that gang validation on the street level is insufficient as a way of identifying gang members?

    Regardless, a validation is a validation, so what difference does it make? They just believe the chain of command validation is more credible? Did they really say that?

  18. valerie

    Mr Obvious: I see an issue with Prof. Hernandez expert opinion. If we are to accept his assertion that there is no Norteno street gang then I guess we would have to accept that all individuals convicted of gang enhancements as Norteno gang members were wrongfully convicted.

    He is correct. Norteno is not a street gang, but a structured prison gang (nuestra Familia) representing Northern California. The gang enhancements are not based on Norteno gang members, they are based on Broderick boys. The prosecution is trying to base it on a Norteno street gang. A majority of the tattoos that the prosecution refer to are done in prison, not on the streets in reference to a street gang (Broderick boys). Also, the majority of the pictures and graffiti that the prosecution uses was from years ago. Also, the crime rate has not went down since the first injunction was put in place in 2005, it has fluxuated in the past 10 years. To keep validating and sending people to prison is definately not the answer to a problem that does not exist. Basically, what we have here is an overzealous DA (reisig) who will stop at nothing on our tax paying money.

  19. CANCENURGY

    They have injunctions for Nortenos in San Francisco. Since San Francisco seems to believe they are a “criminal gang”… Wouldn’t the DA argue that it has already been determined in another county that groups of people calling themselves Nortenos are members of a criminal gang?

    Personally, in this case, I don’t believe that enough evidence has been presented to label them as a criminal gang. The feeling that I get from what you wrote is that the judge is professionally enjoying this “match” between two equally paired opponents. (in most court cases, one side always seems to be much stronger than the other) Also, it’s almost as if the judge appreciates this opportunity to learn something new about the law. (it’s got to be boring to have the “same place, same thing” every day – except the names have been changed) LOL

    Anyone agree?

  20. michael jordan

    Valerie, you are very wrong in 2 things… There is a such thing as a drop out gang member. In prison, it is blood in blood out, the only way out is to die. On the streets, you CAN drop out because street gangs arent as hard core or as strict. In street gangs you can drop out if you have a child and are trying to provide better for them. It may not happen often for this reason, but it happens and you can drop out. MY uncle is a former gang member from the streets who was able to just walk away once he had his first child.

    The second thing you are wrong about is there is a Norteno street gang. The Nortenos dont stay in jail forever, and once members get out, they are instructed by those higher up to set up shop on the streets in the name of the Norteno gang. So essentially they dont go back to their street gang, but recruit people to join the Nortenos and represent them in the streets. And since they are now working in the streets they are infact more than just a prison gang. Hence thats why La Eme, or The Mexican Mafia, has weight in Southern California. Because once those member got out, they didnt go back to their old street gang, but infact started doing work in the streets and continued to use the Mexican Mafia name. This would entail a criminal street gang. Prison Members from their gang come out of prison and recruit first their old friends from their old street gang under the influence of working “for a greater power, a greater reason.” Now your not just representing your street, but all of northern california, or southern califronia, where ever you may be.

    Now as for my thought on this case, are the Broderick boys a “gang,” yea they are, they are a group of kids who hang out together. ARe they a criminal street gang, that answer would be no. The crimes they commit are out of boredom and because of immaturity and stupidity. A crime with a gang enhancement is suppose to be a crime to enhance something for the gang. I dont see their crimes enhancing anything for broderick boys. They dont do specific crimes to enhance their name or group, but themselves as individuals. their crimes dont gain them money for all the group to share. I have actually taken a class with professor Hernandez, and while we didnt see eye to eye on everything, I think he is very knowledgable in this area and the judge should listen to him. I think hernandez has good points of view on some things, and an old way of thinking on others that he needs to re evaluate. Times change and situations change and he doesnt realize that. But i think in this case, he is right all the way.

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