Defense Attorney Mark Merin Speaks To Vanguard About Gang Injunction 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.

“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