Yes on Proposition 6: Gang Intimidation of Witnesses Is a Big Problem
Tomorrow I will cast a vote for Proposition 6, a measure that would significantly enhance public safety. The Yes on 6 folks have a summary of the changes here, but here are some of the ones that I particularly favor:
- Illegal immigrants arrested for violent felonies or gang crimes will not be released on bail or on their own recognizance without a judicial hearing.
- People lose public housing benefits if they buy or sell drugs, become involved in gang activity, or illegally possess firearms. Housing benefits are conditioned on an annual criminal background check.
- Strengthens the 10-20-Life law to penalize not only offenders who personally use firearms in the commission of certain felonies but their accomplices as well.
- Authorizes admission of statements by witnesses to crimes who die or are unavailable to testify at the time of prosecution because of flight or intimidation.
Some oppose the measure because it mandates spending on public safety. This doesn’t bother me, because I believe the primary function of government is to protect its citizens. (Full disclosure: as a Deputy D.A., I benefit from spending on public safety. But while I am a fiscal conservative, I would be voting for the proposition even if I were not a Deputy D.A. — because, again, a government’s number one job is public safety.)
My experience as a Deputy D.A. does allow me to add some insight that might be valuable to voters, beyond what you’ll read in the various arguments available on the Internet. Specifically, several weeks ago, a reader wrote me asking about the final provision included in the bullet-points above. He wanted to know: “is there a serious problem right now with witnesses refusing to testify because they have been intimidated by criminal suspects?”
The rest of this post is adapted from my answer to him. The answer is a resounding yes. The details are in the extended entry.
Let me start with an analogy. Pretend you are approached by someone who never reads blogs. That person might ask you: “Is there really a big problem with trolls coming by and leaving nasty comments?”
To someone who reads blogs regularly, the question is almost laughable. But if you don’t read blogs, it’s a perfectly reasonable question.
In other words, sometimes, when people are unfamiliar with a particular environment, they ask questions about that environment that can astound people who are familiar with that environment.
And so it is with the criminal justice system. Those of us who work inside it, know that the answer to my reader’s question is screamingly obvious: yes, there is a huge problem with gang intimidation of witnesss — and it goes on every single day.
I work in Compton. It is a commonplace, everyday situation to have a case where one or more of the witnesses is, at a minimum, reluctant to testify. Often it’s far worse: witnesses actively avoid the police when it comes time to testify, and if they do come to court (sometimes in handcuffs) they often lie because they are scared.
For example, I had a case where a gang member shot a teenaged boy over a girl. (The shooting was also motivated by a gang rivalry.) The victim had surgery in which most of his intestine was removed. He wore a backpack with IV lines connected to a hole in his chest to give him nutrients; he will have to wear it for the rest of his life. He can take it off for short periods of time, but if he goes too many hours without it, he will become weak and eventually could die.
He told the police exactly who did it and why, and his story lined up with that of the girl over whom the victim and defendant had been fighting. The victim came to court at a preliminary hearing and testified that the defendant had shot him. So did his companion, who had also been shot at.
Then, before trial, both victims received threats on a MySpace page. You’re about to read some of the threats, quoted verbatim. (Be aware that these threats use the “n-word.” I don’t use that word lightly, but I think you need to see the threats, because they happened and they were real.)
yeah thats all right ma nigga but everybody know you and yo bitch made homie shawn is some snicth ass niggas but ill catch you slipping one day and tell them police to quit watching yall house
yo ma nigga i heard yall niggas was snitching in shit whats up with that ma nigga
yeah right bitch ass nigga you know who you snitched on a real nigga you and shawn
i want you bitch ass niggas to stop going to the court house and stop snitching nigga i thought you niggas was suppossed to be from franklin crabs yeah WHAT YOU HEART BEATING FOE (YOU SCARED)
“Franklin Crabs” is a derogatory reference to the Franklin Square Crips, a rival gang to the Hacienda Village Bloods gang, of which the defendant was a member. “I’ll catch you slipping” means “I’ll catch you off guard.” This phrase had a special resonance for the victim, as it is what the defendant had said just before filling the victim full of holes. My victim took this sort of threat seriously because he knew, from hard experience, that people making such threats could be deadly serious.
When it came time for trial, I went with an investigator to serve the victim with a subpoena at his home. He said he didn’t want to come to court because of the death threats, but he was not interested in our offers of help to be moved. When the time came to go, he ran away from home. He didn’t even go home to get his backpack of nutrients. Let me repeat that: he ran away from home without the backpack that helped keep him alive, just so he wouldn’t have to come to court. His mom was beside herself with worry, and filed a missing person’s report.
When we finally brought him in, all of a sudden he couldn’t remember anything he’d said about the defendant’s guilt.
What’s more, his mom, who had been ultra-cooperative all along, suddenly turned hostile to me. It got to the point where she seemed to hate me worse than she hated the man who had shot her son.
The good news is that we deal with these situations all the time. This case hung 10-2, but I retried it, and the defendant is serving a 70-to-life prison sentence.
But I might not have won the case if it weren’t for the courage of one woman.
This woman was the mother of the other victim. (Because of the gang rivalry, the defendant had shot at a second boy, as well as at the one who had gotten hit. Like the boy who was hit, the other boy also took back his identification at trial.) Everyone but her was scared for their lives. She came in and told the jurors what her son had told her: that the defendant had been the shooter. This was damning evidence that her son, like the victim, had taken back his initial identification of the defendant due to gang threats. But the mom told the jury what her son had initially said, and how he had made up his mind to lie in court, and exculpate the defendant, out of fear for his own life.
When she took the stand, I asked her if she was scared, and she said: “I fear no-one except God, sir.”
It was an inspiring and moving moment.
But what if that mother hadn’t been willing to step forward? What if these victims had taken back their identifications before testifying under oath?
That would have presented a much tougher case; yet we have these tougher cases all the time. Sometimes our office loses them — because witnesses take back their identifications due to gang threats, and the jury isn’t sure what to believe.
Sometimes, after we lose such cases, the defendants go out and kill other people.
This isn’t fiction, folks. It happens.
The story of gang intimidation I tell above is hardly the only such example I have personally encountered. I prosecuted another case where a young man saw his brother executed in cold blood, feet from him. This young man took seven shots in his own body, and watched as a defendant stood straddling his brother, one foot on either side of his body, and emptied a gun into his brother’s head.
When it came time for him to testify against the men who killed his brother, he ran from us. It was time to testify against the people who had killed his brother, right in front of his eyes — and he ran.
Why? Gang-related threats.
Again, these threats meant something to him. He had seen awful violence with his own eyes. He knew it was real. He knew threats could lead to actual harm.
I could tell you several similar stories. It is the norm for witnesses to become intimidated by gang threats. It is absolutely the norm.
I hope that gives you some insight as you go into the voting booth.
Yes on Proposition 6.
UPDATE: I originally had one of the bullet points as reading:
- Authorizes admission of sworn statements by witnesses to gang crimes who die or are unavailable to testify at the time of prosecution because of flight or intimidation.
I have eliminated “sworn” and “gang” from this description. I took it from language from the Yes on 6 site, but having reviewed the proposed language, I think it’s misleading to leave those words in. Thanks to JRM.
In Colorado, we had a murder case whose prosecution was successfully frustrated by the murder of witnesses. The murder prosecution of the witness murder case itself was almost ended by intimidation of the witnesses to the murder of the previous cases’ witnesses. Fortunately, there were people of similar courage.
We must regain control of our cities. Something none of our political leaders have any serious intentions toward.
SPQR (26be8b) — 11/3/2008 @ 9:37 pmThank you Patterico. I hadn’t paid any attention to this proposition.
I don’t know how you do it. I recently served on a jury for a gang-related carjacking.
MayBee (37070f) — 11/3/2008 @ 9:48 pmIt was sad and overwhelming at the same time. Nobody came to watch and support the defendant in our courtroom. One witness/victim was obviously still frightened and furious. No other gang members testified either way. And the lines for the other courtrooms were filled with guys with the same shaved head, similar tattoos, their girlfriends, and their babies.
This is an incredible post and as good as any closing argument I’ve heard.
DRJ (cb68f2) — 11/3/2008 @ 10:07 pmWhen I was in HS I got jumped by a couple of guys on my way home. They’d cut some classes, hung out behind the elementary school next door and were drunk. I got my eye cut from my glasses, but that’s about it, I went back in to clean the blood and the school called the cops. After it got out that I was jumped and called the cops, his friends (not gang just friends and cousins) threatened me to finish the job if I didn’t shut up about it to the cops. I didn’t back down, but the prosecutor was freaking useless. He copped a plea and for everything they did, 100 hour community service cleaning dog crap.
After all that, I’ve decided that if you’re not a protected class, it’s damn near useless to call the cops.
Allen (defdde) — 11/3/2008 @ 10:09 pmGood job getting the big sentence on a bad guy. I don’t handle gang crimes much, but I’ve encountered forgetful witnesses. I had a guy lose his entire, detailed memory in 15 seconds. (We got the bad guy there, too.)
There is a problem with making a rule that if a gang member kills a witness, the witness’ prior statements are automatically admissible. That problem is that the California Supreme Court already ruled on this doctrine in People v. Giles, and many cases before it. The US Supremes overruled in Giles v. California, ruling that forfeiture by wrongdoing only applies if the purpose of the murder was to prevent the testimony.
So: Gang member kills guy because he’s a member of rival gang waving colors: Statement by dead guy not admissible. Gang member kills guy to prevent testimony: Admissible. That’s as of right now, and we cannot fix the first part.
Therefore, the proposed text of Evidence Code 1390 is ineffective as a matter of settled law.
The Prop 6 segment on this simply won’t withstand scrutiny; it starts life as an unconstitutional rule.
If I’m wrong on this, someone share with me how I’m mistaken.
Also, I can’t find anything in the proposed text of the evidence code modfication that references a “sworn statement,” nor gang members. If there’s something else in the text that applies, I’ve missed it. I don’t think I have, but it’s long and I might have; I scanned some sections. If it’s not there, the “sworn statement” part is deceptive; I believe this intends to authorize use of unsworn statements.
My position on Prop 6 is that it has lots of good stuff, but the level of increase to law enforcement funding, and the growth of secondary law enforcement programs, outweighs the overall benefits. I would support Prop 6 if the minimum law enforcement funding were slightly lower and any new programs were clearly shown to be more beneficial than current underfunded crimefighting efforts.
–JRM
JRM (355c21) — 11/3/2008 @ 10:59 pmJRM,
I think that’s a bit overbroad. Hearsay rules are not the same as constitutional provisions on confrontation. I see this as getting around the hearsay rule to the extent permitted by case law.
As a practical matter, it may not be terribly helpful to have the hearsay exception because of the case law. But it’s late and I’m not absolutely convinced that it’s useless.
Most of my post addresses this rather tangential point, but I’m just trying to add value. Plus I already wrote it all out in an e-mail to the reader, so it’s a “use it or lose it” situation as far as that analysis goes.
Patterico (cc3b34) — 11/3/2008 @ 11:19 pmThe other criticisms are valid and I will amend the post, having read the language.
Patterico (cc3b34) — 11/3/2008 @ 11:36 pmThe only real problem is that this addresses NOTHING for the prevention of crimes, gang, gun, knife, drugs, the people you deal with today you will still deal with tomorrow.
The law is a great tool for controlling the law abiding. To those living the criminal life, they could care less!
They will get guns, intimidate witnesses, kill as they see fit. Offering them an additional 10 years of three squares and a roof does not mean one thing to them. Sans the opportunity of really elevating themselves in the Gangland world.
What do I really know about gangs? Daaum little, but I do know that concentrating the members into prisons does NOTHING to prevent them or their activities, and they seemingly think nothing about doing the time or the crime. Discovery channel has a series called Gangland, not saying everything they share is hard core fact, but if only most of it’s true, jailing them is NOT working.
This change only has meaning to those of us that actually do not participate in such activities. Makes us “feel good” that some politico is doing something.
How many gun crimes Pat have you prosecuted where the gun was purchased correctly and registered vs. NOT? Yet LA has had “gun” laws on the books for decades! Hasn’t helped.
Make prisons for gangs a real hell on earth so that they do not desire to be there so much as a second. Might help, who knows.
I view this as having the same effect as throwing money at schools, or gasoline on a fire.
Yes a way exists to alter the status quo, but our society does not have the stomach for such actions any more.
Kinda sad.
TC (0b9ca4) — 11/4/2008 @ 2:56 amYa know, as typical as that proposition would normally sound, it sounds like an absolute disaster if say, everyday normal, law abiding, gun owning citizens were to wake up one day, see guns outlawed via say a Socialistic government that outlawed guns altogether….came around or otherwise requested voluntary weapon turn ins and citizens did not comply.
The accomplices part is delicious, if you don’t give up your firearms then all of those in the household, who we’re “no doubt” aware of the “now” illegal weapons and didn’t point them out to the authorities are now going to jail too….they are after all now legally accomplices.
One candidate is for “Fundamental change of the Country” and this proposition melds perfectly into that change…..I’m voting against it…this time around.
Drider (b79bb1) — 11/4/2008 @ 3:35 amI can see problems with this even in the case where a gang member does kill/intimidate the witness. If the action is born out of some general animus toward the court system and not through specific communication between the defendant and third party gang member I have a hard time seeing such testimony being admissible under recent confrontation clause precident.
Soronel Haetir (644722) — 11/4/2008 @ 7:06 amPatterico:
I know it’s quick and dirty, and I enjoyed the story.
As to the confrontation clause issue, I’ll assure you that the case law is clear. You cannot do this; Antonin Scalia and five of his buddies say so. You cannot have a rule allowing statements of Deadguy when Deadguy is murdered by Badguy for reasons unrelated to his testimony. Scalia said the Confrontation Clause forbids it.
–JRM
JRM (355c21) — 11/4/2008 @ 7:17 amI get it, JRM, but I think you missed my point. It’s a rule allowing certain statements to make it past the hearsay threshold. Some of those that do, get knocked down by the Confrontation Clause. Some don’t.
Patterico (cc3b34) — 11/4/2008 @ 11:19 pmI.e.:
Badguy murders Deadguy for reasons RELATED TO his testimony.
i seek to introduce his statements. The judge looks at me and says: “I don’t see a Crawford issue, counsel . . . but what’s your hearsay exception?”
See what I mean now?
Patterico (cc3b34) — 11/4/2008 @ 11:20 pm