Defense Attorney Mark Merin Speaks To Vanguard About Gang Injunction Ruling

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Merin-MarkOn Tuesday, Yolo County Superior Court Judge Kathleen White issued her long-awaited ruling on whether to grant a “permanent” gang injunction.  The trial had lasted from July until December 15, and we have been waiting over three months for a ruling.

There was a large contingency of attorneys representing the defendants in this case.  Several of these attorneys declined to speak on the record, however, the Vanguard did speak at length with one of the lead attorneys, Sacramento attorney Mark Merin.

Mr. Merin told the Vanguard in a phone interview that while he was disappointed with the ruling, this was not surprising, they did not expect to win at the trial level, but he felt they would ultimately prevail at the appellate level, primarily because there is no nuisance posed to the community from a criminal street gang.

“I am saddened and disappointed,” he told the Vanguard, “that she didn’t give a little more consideration to the substantial arguments that were made by the defense and consider the rights and interests of the persons who were alleged to be gang members and the community that denies that the gang exists or that there’s any public nuisance in West Sacramento.”

Like many, Mr. Merin was expecting the ruling to come down as it did.  However, he was surprised in what he called the “surface treatment” as to how it addressed the major issues.

“She gave very little consideration to the law,” Mark Merin told the Vanguard.

He argued that she did not have support within the law for her conclusions and noted that she relied almost exclusively on her “credibility resolutions” or, as he described, a way of giving her “cover” because “courts of appeal tend to allow the trier of fact to make credibility resolutions which are not set aside unless they are not clearly supported.  That’s a way for her to add heft to her decision and to avoid actually having to state something which would be so easily penetrated with a legal analysis.”

He refers here to a determination which argues that the “this case turns, in substantial part, on the credibility of the witnesses.  The Court, sitting as trier of fact, made credibility determinations based on the evidence and the totality of the circumstances.”

Judge White would go on to argue, “The court found the testimony of the victims and of percipient witnesses to the crimes described during the trial particularly credible and compelling, notably the testimony of James Hopkins III, Reece Hopkins and their father, James Hopkins, Jr., and also James Kephmi, Jacob Keating and Su Matsumoto.”

On the other hand, she wrote, “The court found less credible the testimony of these defense witnesses as to the nonexistence of the Broderick Boys gang. These reasons included the witnesses’ relationships to named defendants and their apparent motive to minimize the defendants’ actions, their lack of personal knowledge regarding certain events, their use of the phrase “I don’t recall,” and/or gaps in their knowledge or recollection.”

Mark Merin expressed a lack of faith in the independence of the judicial system and Judge White in this matter.

“I could’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.

One of the rulings that Judge White made was, “There is no adequate remedy at law in that criminal prosecution has not stopped the nuisance created by the defendants’ activities. Without the injunction, defendants, and each of them, will continue to maintain the nuisance by participating in and encouraging their criminal and nuisance activities, irreparably harming the community and the individuals who live and work in the Safety Zone.”

The question, though, is why would a civil injunction make a difference in stopping this supposed pattern of criminal activity, when the full force of the California Penal Code and the prosecution of individuals for a variety of felonies has not.

Mark Merin agreed with this problem.  He told the Vanguard, “The injunction has no force and effect in preventing crime.  What it does is interfere with people’s ability to associate.  It chills the freedom that they feel in being in their own neighborhood.”

“It imposes some weird and irrelevant – as far as the criminal mind is concerned – restrictions on where people can go, what people can do, and when they can do it,” he added, “But, as far as actually preventing crime or anything of that sort, I can’t see that it has any effect whatsoever.”

The net impact, he argues, is that it gives the police more authority and power to stop individuals on the streets, ask them questions, and even take them into custody under the guise of the violation of the terms of the injunction. 

“I think it is going to have more of a polarizing effect on the community then it will have any beneficial impact on the crime statistics in the area,” he added.

The key question is where do they go from here.  When asked if there were plans to appeal the ruling, he said, “Oh absolutely.”

He added, “We didn’t spend five months in trial on this making a record in order to listen to what the judge had to say in her [opinion] – and take that as the final word.  Everyone knows this case is going on appeal.”

Mark Merin remains confident they will prevail in the appellate courts.

“This is a case where they have pushed the law beyond its limit,” he said.  “You can’t have a civil injunction of a public nuisance that doesn’t exist.  So I think it falls of its own weight.  It doesn’t get out of the starting gate, frankly.”

An appellate court had previously allowed the preliminary injunction to remain in place, finding sufficient evidence, except in two limited circumstances, to show a reasonable likelihood for success provided the claims of the DA’s Office were proved out in court.

Mark Merin argues that this did not happen.

“What the court said in the preliminary injunction is that if the stuff gets proved out then you’ve made a case,” he said.  “The stuff didn’t get proved.”

“All they proved were that there were crimes committed over the course of ten years in this community,” Mr. Merin said.

“They didn’t say there were more crimes than in other communities.  They didn’t show that the people that they alleged to be Broderick Boys even still live in the community,” he added.  “Most of them that they identified are in custody.”

The most concerning aspect of Judge White’s ruling, according to Mark Merin, is her listing of nearly 100 individuals who she ruled are in fact gang members.

Judge White wrote, “During trial, the court allowed plaintiff to present certain out-of-court statements of alleged Broderick Boys members. The court permitted these statements on the condition that plaintiff prove by the close of its case that the declarants were members of the Broderick Boys and that the statements were, therefore, admissions by party-declarants under Evidence Code § 1220.”

She added, “For the limited purpose of admitting statements in this trial under Evidence Code § 1220, plaintiff has proved, by clear and convincing evidence, that the following persons were, at the relevant times, Broderick Boys.”

Mark Merin, however, does not take solace in the fact that she declared these individuals to be Broderick Boys for a “limited purpose” of granting exceptions to hearsay.

He told the Vanguard pointedly, “She basically labeled those 92 people as members of a criminal street gang, without giving them the opportunity to be heard, to come in to defend themselves, or even inform them that their status as Broderick Boys was being considered.”

“I think that anybody who is on that list has reason to complain,” he added.  “They’ve been stigmatized as members of a criminal street gang who were allegedly creating a public nuisance, without having an opportunity to come in [and refute the claims].”

“That’s surprising that she would do that,” he said, “and I know why she did it.”

The problem that the plaintiffs had was having not brought in these individuals that were listed, they needed an exception to the hearsay rule.

“The only way these statements came in, because they were hearsay upon hearsay,” Mr. Merin explained, “is if the people who made the statements were making the statements against interest at the time they were made.  The only way they would be against interest is if they were members of the Broderick Boys criminal street gang.  So she had to find they were members.”

This was a huge issue.  The problem that was brought up in court, is that these statements were not necessarily against interest at the time they were made.  At times, the prosecution has actually allowed individuals to admit to gang membership in exchange for no state prison terms in their plea agreements.

Judge White left this issue open the entire trial and then had to address it in her ruling.

The Vanguard will have more on this ruling in the coming days.

—David M. Greenwald reporting

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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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8 thoughts on “Defense Attorney Mark Merin Speaks To Vanguard About Gang Injunction Ruling”

  1. E Roberts Musser

    dmg: “”I am saddened and disappointed,” he told the Vanguard, “that she didn’t give a little more consideration to the substantial arguments that were made by the defense and consider the rights and interests of the persons who were alleged to be gang members and the community that denies that the gang exists or that there’s any public nuisance in West Sacramento.””

    “The community that denies that the gang exists…” That is a rather sweeping statement w/o much foundation. As far as I can tell, the only members of the community to deny the existence of the gang were those who were related/connected to gang members. Hardly unbiased…

    dmg: “”I think that anybody who is on that list has reason to complain,” he added. “They’ve been stigmatized as members of a criminal street gang who were allegedly creating a public nuisance, without having an opportunity to come in [and refute the claims].””

    How many are on that list? It was my understanding from yesterday’s article that only 17 are subject to the injunction. Is that incorrect? If so, how many are subject to the injunction? And again, how can they opt-out or show through inactivity that they are no longer subject to the injunction?

  2. David M. Greenwald

    “As far as I can tell, the only members of the community to deny the existence of the gang were those who were related/connected to gang members.”

    On what do you base that statement? I know a lot of people from West Sac not related to gang members who believe that there isn’t any sort of organized CSG in West Sac. I still have the story to tell about one such person who did a documentary.

    “How many are on that list? “

    92

    “It was my understanding from yesterday’s article that only 17 are subject to the injunction. Is that incorrect?”

    17 was the number of defendants. 92 is a number of non-defendants who Judge White declared gang members without affording them a chance to dispute it in court.

    “And again, how can they opt-out or show through inactivity that they are no longer subject to the injunction? “

    Trying to figure that out.

  3. Superfluous Man

    Judge White wrote, “”There is no adequate remedy at law in that criminal prosecution has not stopped the nuisance created by the defendants’ activities.”

    Yet, according to Merin, “Most of them [92 Broderick Boys/17 Defendants, I assume] that they identified are in custody.”

    I don’t see how the judge can argue that the alleged gang members, who have been causing a nuisance in the community, can’t be dealt with through conventional methods of enforcement and prosecution, while “most” of them are incarcerated. If that is in fact the case.

    How many were incarcerated at the time of the trial?

    Merin said, “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.”

    Perhaps she did. Nevertheless, judges will often regularly encounter cases in which the prosecutor is familiar to them, especially in smaller counties. That alone is not a very strong case for judicial bias.

    Mr. Merin told the Vanguard, “The injunction has no force and effect in preventing crime. What it does is interfere with people’s ability to associate. It chills the freedom that they feel in being in their own neighborhood.”

    Yet the Vanguard reports that “The net impact, he [Merin] argues, is that it gives the police more authority and power to stop individuals on the streets, ask them questions, and even take them into custody under the guise of the violation of the terms of the injunction.

    It sounds to me like the injunction gives law enforcement greater authority to interfere with the lives of people that have been targeted due to their gang/criminal behavior, whether I personally agree with it or not, so I don’t see how it has no force and/or effect.

    I feel like he’s saying the injunction is futile, yet is overreaching in how it limits the movement and association of alleged and named gang members/criminals within the “safety zone.” Odds are, the more legal authority you give LE to stop people the more likely it is they will do just that and find causes to detain/arrest them. Ergo, a more forceful and effective tool in preventing crime, as they believe these gang members are criminals whose gang-related activity presents an ongoing nuisance in the community of B&B.

  4. E Roberts Musser

    erm: “As far as I can tell, the only members of the community to deny the existence of the gang were those who were related/connected to gang members.”

    dmg: “On what do you base that statement?”

    From Judge White’s statements…

  5. David M. Greenwald

    I don’t think she used the word “only.”

    Here is her full statement which I never quoted verbatim: “For various reasons, the court found less credible the testimony of these defense witnesses as to the nonexistence of the Broderick Boys gang. These reasons include the witnesses’ relationship to name defendants and their apparent motive to minimize the defendants’ actions…”

    I don’t take that the mean that the only people who believe in the nonexistence of the Broderick Boys gang are relatives of named defendants.

    I don’t even think it’s accurate to say that of the witnesses who testified.

  6. JustSaying

    [quote][u]DG article[/u]: On the other hand, she wrote, “The court found less credible the testimony of these defense witnesses as to the nonexistence of the Broderick Boys gang. These reasons included the witnesses’ relationships to named defendants and their apparent motive to minimize the defendants’ actions, their lack of personal knowledge regarding certain events, their use of the phrase “I don’t recall,” and/or gaps in their knowledge or recollection.”

    [u]DG response[/u]: Here is her full statement which I never quoted verbatim: “For various reasons, the court found less credible the testimony of these defense witnesses as to the nonexistence of the Broderick Boys gang. These reasons include the witnesses’ relationship to name defendants and their apparent motive to minimize the defendants’ actions…”[/quote] Am trying to stay out of this, but I don’t why you’re challenging Elaine’s initial reading that: “…as far as I can tell, the only members of the community to deny the existence of the gang were those who were related/connected to gang members.”

    You’ve responded to her with a verbatim–but oddly truncated–version of your own report. The paragraph appears to be her direct quote. Even if you’re implying that you erred in using quote marks, one has to assume you were accurately reporting her written ruling with some paraphrasing.

    Then, you’ve incorrectly quoted Elaine–switching her point about your report on the trial proceedings (“…only members of the community [b]to deny the existence[/b] of the gang were those who were related/connected to gang members….”) to an awkward, inaccurate paraphrasing of her point (“…only people who [b]believe in the nonexistence[/b] of the Broderick Boys gang are relatives of named defendants….”

    The judge’s findings obviously are based on evidence at the trial, so one way to correct Elaine would have been to point to testimony that contradicts her observation–from witnesses who were not alleged gang targets/friends/relatives or who did not have have have any of the memory lapses, knowledge issues or any of the other credibility problems you reported that the judge cited. Simply stating that you “don’t even think it’s accurate to say that of the witnesses who testified” is weak way of trying to discredit her view–even if you’ve reworked her statement to make her an easier target.

    So, in order to call out Elaine, you’ve changed the wording of your own report, changed the wording of the judge’s quote and changed the wording of Elaine’s comment. You are in charge of this place, but it seems like overkill just to discredit her opinion on such a small point.

    How many people you know in West Sac who don’t think there’s not an organized gang there isn’t relevant if they didn’t show up to testify. Proving that something “is not” is a tough task; it’ll be interesting to see how the documentary takes that on. That, of course, is why the burden rests on the DA to prove something “is.” The judge decided he did.

  7. JustSaying

    Sorry: …I don’t UNDERSTAND why you’re challenging Elaine’s initial reading…

    P.S.–What kind of lawyer goes on public record calling his judge biased in favor of prosecutors because she knows them better, stating he expected all along to lose in her court, claiming she gave little consideration to the law, announcing he doesn’t have faith in the independence of our judicial system or her independence, and accusing her of inappropriately twisting her findings in an effort to avoid them being overturned on appeal.
    (Answer: One who is planning to move to another jurisdiction and/or to become a farmer.)

  8. Superfluous Man

    JS,

    “What kind of lawyer goes on public record calling his judge biased in favor of prosecutors because she knows them better… (Answer: One who is planning to move to another jurisdiction and/or to become a farmer.)”

    I have a feeling Merin knows what he’s doing, not that guy’s first rodeo. Planning…he’s not exactly a “local” defense attorney, which is likely why he’s not too concerned about blasting Judge White in the media. If he were a DPD or local defense attorney, that would be unwise, though. Then again, Judge White now presides over delinquency cases so…

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