Commentary: Recent Decision Shows We Can’t Count On Appellate Courts to Fix Bad Decisions

I was stunned earlier to get the notice that the 3rd District Court of Appeals had so quickly affirmed the Gang Injunction ruling from Yolo County Superior Court.

The court ruled, “Appellants argue evidentiary error, insufficiency of evidence, constitutional claims, and miscellany. They fail to show prejudicial evidentiary error, yet appear to assume in their substantial evidence argument that we should disregard the evidence they challenged.”

Having watched the oral arguments just a few days before a 40-page ruling came out, I felt like the appellants had made a strong argument and that the trial court ruling was weak.  Clearly, most of this was written before oral arguments.

Having witnessed two sets of oral arguments – I wonder why the court wastes everyone’s time.  They couldn’t have written this lengthy opinion in just a few days.  So why not simply bypass oral arguments or focus the arguments on areas that need clarification?

From the Vanguard’s perspective, the trial court decision seemed based on a weak case in two ways.  First, the district attorney’s office, during the six-month gang injunction trial in the summer and fall of 2010, relied heavily on hearsay exceptions to admit evidence of an ongoing nuisance.

Last summer, the California Supreme Court closed some of those avenues to admit hearsay evidence in gang cases in the Sanchez ruling.

Adding to that is the challenge that was put forward by attorney Cathleen Williams last week – what she called a “lack of nexus,” which was that the injunction basically represents the opinions of gang experts with no evidence to support these opinions.

As the appellants argued in their brief, “there were no actual witnesses who had first-hand observations or interactions which revealed the Broderick Boys’ composition and organization as a gang as defined by Engelbrecht – that is, an ongoing organization, association, or group in which ‘active’ members ‘participated or acted in concert:’ in other words, collaborated with each other on behalf of the gang entity over time.”

Our observation during the lengthy 2010 Gang Injunction trial is that the DA put forward a large number of crimes – just under 100 – that occurred within a fairly large geographical area over TEN YEARS as evidence of an ongoing nuisance presented by the gang.  The problem was that there was never a showing that there was a structure, a hierarchy, or communications.

In other words these were random crimes, some of them not even gang crimes, for which the DA failed to show any real connection other than slogans, tattoos and other surface evidence.

The key is this, and one of the judges pointed it out last week.  I happen to agree with the appellate attorney about the insufficiency of the evidence.  What the DA showed in 2010 was that there was a series of unrelated crimes over a ten-year period over a large area – they showed about 10 per year.  There was no showing of acting in concert, no showing of a hierarchy or even some sort of communications structure.

All they showed were crimes, some of them not even gang crimes, committed by a bunch of young people that loosely identified as gang members.  More troubling still was the heavy reliance on hearsay and the court’s summary rejection that the Sanchez decision applies.

As weak as this case was from the start, the burden that the appellants had is obvious.  As a judge pointed out, insufficiency of the evidence requires an abuse of discretion and, while I think the case was weak, I think showing that the trial judge abused discretion here was too high a lift.

But the hearsay portion of the decision is even more troubling.  Here the court noted the new ruling from the Supreme Court, where the Court held “a gang expert cannot base an opinion on the assumed truth of case-specific facts that are inadmissible hearsay for which no independent competent evidence is adduced.”

The appellants had argued that “the People relied entirely upon police employed experts and the inadmissible hearsay evidence introduced through them ‘not for the truth of the matter stated,’” as well as other improperly admitted hearsay.

Throughout the trial, attorneys for the alleged Broderick Boys gang members “objected to the inadmissible hearsay cited by the experts for precisely the reasons outlined by Sanchez.”

The appellate brief argues, “Appellants’ counsel objected that this testimony constituted hearsay and stated ‘there’s no exception for it, and it’s being offered for its truth right now.’ The trial court denied the objection, stating that the hearsay was being offered not for the truth of the matter stated but rather ‘as the basis for his opinion.’”

As the brief notes, “As it turned out, on the basis of this muddled record, the trial court ruled that almost one hundred people who were not shown to collaborate in any ongoing common enterprise or on behalf of any ongoing group were collectively liable for over 108 crimes and incidents during a ten year period, crimes which cumulatively were held to be a public nuisance.”

The appellate court writes, “To avoid potential complications that might otherwise arise in light of Sanchez, we focus in this appeal on evidence that did not depend on experts’ assuming the truth of case-specific hearsay not proven by independent competent evidence or subject to a hearsay exception –, e.g., records of criminal convictions, trial testimony or spontaneous statements by victims, and non-case-specific hearsay about gang culture.  We reject post appellants’ suggestion that evidence improperly admitted may have been the deciding factor in the trial court’s decision.”

How they can come up with that when testimony after testimony was based on difficult to impeach hearsay evidence over a ten-year period is beyond me.

And that gets to my main point – we cannot rely on the appellate courts to fix problems like this that occur at the trial court level.

We saw this with the Ajay Dev conviction – again, I think the evidence there in the trial was very weak, the length of the sentence appalling, and maybe they will have better vehicles for overturning it at the habeas level, but the appellate court was not going to fix – apparently – a lot of trial court errors.

That makes what we saw last week all the more surprising.  The Lovett case was filled with a host of questionable decisions along the way.  And yet it might have been a hard lift, and certainly a lengthy lift to overturn on appeal.  But the Sanchez decision and an unusually meticulous judge in Dan Maguire believed that the case was a close enough call that even a small and clearly unintentional error was sufficient for a mistrial and potentially a new trial.

All of this points once again to why we need a court watch – we have to shine the light on the inner workings of the legal system, because errors at the trial level mean years of appeals and sometimes a failure to appeal.

—David M. Greenwald reporting