Another Biased New York Times Article — This Time on Gang Enhancements
Reminder: as always, this blog post is written in my capacity as a private citizen. I do not purport to speak for my office.
The New York Times had a long piece recently about gang enhancements in California titled How Do You Define a Gang Member?
Here is a typical passage from the piece:
At the Sebourn trial, Brennan showed the jury and his witness, Robert Gumm, a Modesto Police Department detective, image after image of Sebourn’s extended network of friends, photos of young men and women throwing up signs for the number 13, contorting their fingers into crooked forms of the letters CLS, for Celeste Locos Sureños, Sebourn’s clique from the neighborhood near Celeste Street, on the east side of Modesto. Most of the pictures had been taken from the defendants’ cellphones, as well as from their Facebook pages. The jury saw photos of tattoos, of young men drinking 40-ounce bottles of malt liquor, scowling at the camera. It was a gangbanger’s photo album, or at least that was what this curated selection of images appeared to be. And though Sebourn himself was in only a couple, Brennan argued that he was known to these young people, as they were known to him. It was guilt by association. And it was very convincing. That rainy morning in Modesto, I had two contradictory thoughts at once: This doesn’t seem fair; and These knuckleheads sure look like gang members.
First of all, we don’t get any details about the photos of the defendant. Is he throwing gang signs in his photos? I assume he is, because if he weren’t, the author would tell us. Placing that issue to one side, referring to photos of other people throwing gang signs as “guilt by association” ignores the issue of why the photos were on these defendants’ cell phones to begin with. If you looked at someone’s phone and it had 100 pictures of other people holding Rembrandts, would it be “guilt by association” to conclude the owner of the phone had an interest in Rembrandts?
Not to mention the irony of an article referring to a “curated selection of images” while publishing one and only one photo of the defendant: a portrait of him with his sister:
So innocent looking. And yet:
From where I sat in the courtroom, I had a clear view of the judge, the multiethnic jury and the back of Sebourn’s head. He kept his dark hair cut short enough that I could make out the outline of the letters ES peeking through in Old English font. The prosecution’s gang expert, Detective Robert Gumm, had argued that these letters stood for East Side and were among the indicators of Sebourn’s gang affiliation. As someone who does not have a tattoo on the back of my head, who would never consider getting a tattoo on the back of my head, I found it easy to believe that this was some sort of gang statement. De La Cruz, though, didn’t agree. Sebourn and his co-defendants were pretenders. Poseurs. Like young people anywhere, they could be trying on identities. They might be irresponsible, perhaps unlikable, maybe some were even dangerous, but legally, none of that was relevant.
At least the writer was honest enough to tell us that the defendant had a tattoo of his gang screaming from the back of his head — something he would only have done if he were at one point displaying that tattoo with a shaved head. But the writer also makes it sound plausible that someone could get such a prominent tattoo without earning it — while being a “poseur.” Somehow I don’t think that would go over very well with other members of the gang.
Anyway, “New York Times writes another pro-defense article on the criminal justice system” isn’t much of a shocker, but I did want to draw attention to some dubious discussion of sentencing law in the article. For example:
If Brennan could convince the jury that Gomez had been murdered, as he put it, “for the benefit of, at the direction of, or in association with the Sureño criminal street gang,” then Sebourn and his co-defendants could be facing 50 years to life in prison. According to the penal code, without the gang enhancement, the sentence could be as little as 15 years.
That makes it sound as through the gang enhancement could transform a 15-year case into a 50-to-life case, essentially making the crime a life crime and adding 35 years to life. That is impossible. First of all, look at the caption to the photo above. It says Sebourn was being tried for second-degree murder, which makes sense because he was charged under a “natural and probable consequences” theory. A second-degree murder conviction is punishable by 15 years to life in state prison — not just 15 years. The gang enhancement could have the effect of adding 25 years to life, by making a gun enhancement available even though Sebourn did not personally fire the weapon. Thus, the difference is between 40 to life and 15 to life — not between 50 to life and a mere 15 years with no life “tail.”
The article has several other questionable statements about the nature of the gang enhancement. In murder cases, the gang enhancement generally has no effect on the sentence. In murder cases where the defendant was the shooter, the gang enhancement will not add a single day to the sentence. In attempted murder cases where the defendant was the shooter, it will add 8 years to the minimum parole eligibility date. I’d be willing to bet that the writer does not know these subtleties, and (if I’m right) is inaccurate when he says:
Roughly 7 percent of California’s prison population, around 115,000 people, is serving extra time because of gang enhancements; given that the state has been ordered by the Supreme Court to reduce its prison overcrowding, this is hardly an insignificant figure. According to the California Department of Corrections and Rehabilitation, nearly half of those convicted with gang enhancements are serving an additional 10 years or more.
My guess is that the writer is simply tallying up the number of gang enhancements under Penal Code section 186.22(b)(1)(C), which nominally adds 10 years to a sentence, and assumes that 10 years have been added in every case where that enhancement applies. That is not the case, however, as I just explained.
I’m out of time and room to comment further. It’s just a shame that flawed and biased pieces like this have such a great effect — but this one is very likely to be widely discussed. After all, it’s the New York Times, and it has a great reputation in this area . . . with everyone except the people who actually know what they’re talking about.
After all, it’s the New York Times, and it has a great reputation in this area . . . with everyone except the people who actually know what they’re talking about.
Come on, when’s the last time a news reporter knew anything about the subject that he or she was writing about? Most of them have undergraduate degrees in stuff like Creative Writing or Sociology (and its grievance-mongering offshoots) or the old standby Journalism, and did their best to avoid classes in math & science, economics, and law — you know, the sort of classes where you have to actually learn something and not just express an opinion that happens to reflect the exact same opinion as your professor. Then they get their reporter jobs and have no idea how to analyze a scientific or legal argument, nor do the layers of fact-checkers and editors that are allegedly employed by “real” journalistic outlets.
JVW (8278a3) — 6/1/2015 @ 8:47 amAfter all, it’s the New York Times, and it has a great reputation in this area . . . with everyone except the people who actually know what they’re talking about.
ditto
joe (debac0) — 6/1/2015 @ 8:50 am“But the writer also makes it sound plausible that someone could get such a prominent tattoo without earning it — while being a “poseur.” Somehow I don’t think that would go over very well with other members of the gang.”
The reasoning is persuasive, but I had a friend who was a tattoo artist in New Hope PA, and he once told me that he spent an inordinate amount of time trying to talk people out of getting “cool” tattoos that could land them in a great deal of trouble. There are plenty of young idiots out there who think that getting (for example) a tear tattooed at the corner of their eye would be nifty, and who never think for a second about the implications, and what is likely to happen to them is somebody serious takes that tattoo at face value. Or little airheads who want a tattoo they’ve seen on some skunk on the internet, and don’t understand that it means “Property of (fill in you favorite group of antisocial brutes here)”. Now, my friend refused to do that kind of work, but he was in New Hope, where the supply of young nitwits with dough in their kick is large. What about a tattoo artist who isn’t making ends meet? Or one that just simply doesn’t care? Or thinks that a little blonde airhead who got herself marked “Property of the Latin Kings” being made to pull a train by the Latin Kings is hilarious?
Yes, getting a gang tat if you don’t belong to the gang in question is idiotic. Sadly, there are a lot of idiots.
C. S. P. Schofield (a196fd) — 6/1/2015 @ 9:19 amMy favorite was the one in juvie that decided to “represent” by tattooing “Fresno” on his forehead. But Young Einstein used a mirror, and it came out “onsreF”…
mojo (a3d457) — 6/1/2015 @ 9:21 amYes, getting a gang tat if you don’t belong to the gang in question is idiotic. Sadly, there are a lot of idiots.
You can get a tattoo of the Detroit Lions without ever having played a down for them. It doesn’t mean that you are or once were a Detroit Lion; it means that you support them completely (or, if you are heavily tattooed, it could just mean that you like their logo) or you support some other organization that has appropriated their logo (I’m looking at you, oakland raider fans).
JVW (8278a3) — 6/1/2015 @ 9:23 amYes, that is true. Just as it is true that you can get a tatto of a series of numbers on your forearm, But most people, not all, would know enough to not do that.
felipe (b5e0f4) — 6/1/2015 @ 9:46 amNot to equate one tat with another, but rather illustrate that there is context, and common knowlegde in both.
felipe (b5e0f4) — 6/1/2015 @ 9:47 amlook at those close set eyes… full of light… full of such promise…
Colonel Haiku (519254) — 6/1/2015 @ 10:06 ambut i can’t judge the young man’s appearance too harshly. I, myself, was sporting Topps Baseball Card bubble-gum tattoos well into my pre-teens.
Colonel Haiku (519254) — 6/1/2015 @ 10:11 amI knew wannabes in high school who got killed for too much posing. Didn’t stop the others. They were safe enough where we lived.
Look how many suburban kinds ape prison mannerisms. They get it from movies and TV.
That fact that a gang will kill you for being a poseur does not mean that there aren’t poseurs. Poseurs are unlikely to know that, because they don’t have enough contact with real gangs. I find it fully plausible that this defendant was not in a gang.
I suppose the real test will be what happens to him in prison when he runs into people who really are in gangs.
Gabriel Hanna (64d4e1) — 6/1/2015 @ 10:31 amThe entire prosecution of this guy seems suspect. How is what he did different from drawing a cartoon of Mohammed? If he is guity of murder because it was “the natural and probable consequences” of his vandalism, then how is Pam Geller not guilty for any “natural and probable consequences” of provoking jihadists? The answer seems the same in both cases; to regard violence as “the natural and probable consequences” of provocation is to deny the violent person moral agency, and to endorse the heckler’s veto.
Apart from the petty vandalism (tagging an already-graffitied wall), for which he would mormally get a slap on the wrist, Sebourn’s expression of contempt for the Norteños seems to be 1st-amendment-protected speech, exactly like the Mohammed cartoons, and it seems illogical and unconstitutional to hold him responsible for crimes that other people decided to commit, either in retaliation for his expression or in retaliation for that (which is in fact what he was charged with).
Milhouse (a0cc5c) — 6/1/2015 @ 11:04 amWhat is its face value? WP says that it can either be bragging about a murder, or mourning a death. Either way, what is likely to happen to them as a consequence?
Milhouse (a0cc5c) — 6/1/2015 @ 11:06 amIf I ever reach the point where I lose all my hair, it will be all I can manage to not get a barcode tatted onto the back of my skull. Most of the people behind me will think it’s some sort of anti-corporate statement. The rest will just point and yell, “NERRRRRRRRD.”
PCachu (5376c0) — 6/1/2015 @ 11:28 amthat’s a great dress
happyfeet (a037ad) — 6/1/2015 @ 11:51 am@Milhouse
I knew about the “Bragging about murder” aspect. In particular, I was given to understand that it is an announcement that the wearer has taken a life and is, therefore, a badass. Claiming to be a badass when you are not is a classic way of getting into really deep and rather spicy kimchee.
@Gabriel Hanna
It gets weirder; a fair amount of “Gang Mannerisms” in several gang subcultures stem from gangs watching movies about themselves, and then adopting a behavior that some screenwriter made up out of the whole cloth. I’ve read about this in the Yakuza, the American Mafia, and the 1950’s street gangs of New York.
C. S. P. Schofield (a196fd) — 6/1/2015 @ 12:09 pmYep. Mario Puzo is singlehandedly responsible for a lot of contemporary mafia “culture”.
Milhouse (a0cc5c) — 6/1/2015 @ 12:16 pmI’m sure Jesse James is just as innocent as his little sister Jenna, who is also shown in the photo.
Some families have the worse luck, after Jesse received the beat down, little Jenna was so upset she had to spend the entire afternoon with friends, who by chance just happened to be Sureno gang members. By some strange coincidence, she dropped her friends off in middle of a street which by the strange workings of fate was in Norteno gang territory while Gomez was walking down it, although she had no idea he was there. As she made a U-turn to head to her grandma’s house she happened to notice her friends approaching her car, and by terrible luck Gomez had been shot and one of her friends had been stabbed. As any innocent person would, she took her friend to the hospital and disappeared.
Just coincidence upon coincidence leading to a terrible result for this innocent family.
max (4fdf98) — 6/1/2015 @ 12:51 pmthe badest gang is the government they have never lost a gang fight.
gangsta (6f66c0) — 6/1/2015 @ 1:12 pmthe badest gang is the government they have never lost a gang fight.
I don’t know, their record wasn’t so remarkable between 1919-1933.
JVW (1b93d6) — 6/1/2015 @ 2:27 pmDo you think the NY Times writer was biased, ignorant, and/or intentionally advocating a position? Or, all of the above?
JD (3b5483) — 6/1/2015 @ 2:38 pmDo you think the NY Times writer was biased, ignorant, and/or intentionally advocating a position?
25% biased/75% ignorant. I don’t think she was trying to advocate the idea that a potential gang-banger shouldn’t be treated as such.
JVW (1b93d6) — 6/1/2015 @ 2:49 pmi tend to be a tad old fashioned about some things…
if you dress like a cholo, talk like a cholo, act like a cholo, hang with cholos, get cholo tattoos and in general comport yourself like a cholo, you’re a cholo.
bring on the enhancements.
redc1c4 (269d8e) — 6/1/2015 @ 3:18 pmOld school Patterico! Great stuff. Thank you.
At a minimum, this lad aspired to be an ES. Well, now he gets to actually live the part. That’s a win-win, right?
Ed from SFV (3400a5) — 6/1/2015 @ 3:49 pmYup. In fact, you could make the case that some difference is completely unfair, and in reality the difference doesn’t exist at all. For example:
Karl L (cb2ce3) — 6/1/2015 @ 4:21 pmThe gang enhancement should not be the issue. The issue should be whether the prosecution’s factual allegations even support the murder charges in the first place.
Under U.S. Supreme Court precedent, the standard for incitement is “imminent lawless action”. Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) As such, the only violence, under this Brandenburg standard, which the French boy could possibly be guilty of, again according to the facts alleged by the prosecutor, would be the immediate beatdown he received. There was nothing imminent about the murder a few hours later.
If Mr. Sebourn is convicted of murder, i fail to see how the murder conviction could survive appeal before the California Court of Appeal, due to Brandenburg.
Michael Ejercito (d9a893) — 6/1/2015 @ 6:30 pmBrandenberg applies just to speech, the standard for this type of offense is aiding and abetting a crime and last term’s Rosemond decision is a good one to look at.
max (4fdf98) — 6/1/2015 @ 7:13 pmI deliberately did not opine on the facts of the crime; too many potential pitfalls if I do.
Patterico (3cc0c1) — 6/1/2015 @ 9:37 pmhttps://www.youtube.com/watch?v=scILa5iPBcg
carlitos (c24ed5) — 6/2/2015 @ 6:35 amGreetings:
Or, maybe, just maybe, as “The Offspring” sang in “Pretty Fly (For a White Guy)”
“Now he’s getting a tattoo,
11B40 (0f96be) — 6/2/2015 @ 8:37 amHe’s getting ink done,
He asked for a ’13’,
But they drew a ’31’.”
🙂
carlitos (c24ed5) — 6/2/2015 @ 8:54 am“Most of the pictures had been taken from the defendants’ cellphones“…”It was a gangbanger’s photo album, or at least that was what this curated selection of images appeared to be. And though Sebourn himself was in only a couple“…–NYT’s
LOL…no flipping s–t, sherlock…it was his flipping phone. He was taking the pics, so of course he wasn’t in many of them.
Do reports give any thought to the logical implications inherent in what they write?
Mustang (2dd274) — 6/2/2015 @ 12:20 pmThe common narrative about “Gangs” of all types tends to grant them a degree of organization bordering on the supernatural; something like SPECTRE from the James Bond universe. The truth is likely to be a great deal more mundane, and much closer to the level of, say, a troop of baboons. A definite hierarchy, but poor at long term planning and likely to break down into dominance squabbles at the drop of a hat. Most anti-gang Crusades (if examined closely) have more than a whiff of political ambition about them; the determination of some minor government stooge to make a hero of himself atop a mountain of hype.
I’m not saying that gangs are innocuous. But when I read about special laws put in place to combat them, I suspect bushwa to be the order of the day. Either the authorities have evidence of criminal activity, or they do not. Prosecuting people for association with “bad types” is a power no government can be trusted with, and the threat posed by the vast majority of gangs does not justify the risk associated with passing “We know they’re Bad Hats, so we’ll change the laws until we can get ’em” legislation.
C. S. P. Schofield (a196fd) — 6/2/2015 @ 9:41 pmOK
So kids might get a gang related tat to be cool
Rarely would they do that on their bald head without knowing what was up, and without a pure understanding of what that meant. A kid that does this is eaither in a gang or without friends who have ever been out of the house.
Next, how many kids with this tat on their bald head somehow find themselves in an alley painting over a mural of the gamg who who has a sworn duty to beat the ass of anyone wearing that tatoo, let alone someone wearing that tatoo who is committing a huge disrespect.
Again we are supposed to believe that;
1. Kid is dumb, ges tattoo to be “cool” without knowing what is up
2. Kid doesn’t have friends who do know what is up
3. Kid does have friends but ignores them
4. Happens to have innocent friends who don’t know what is up, but still decide to desecrate others gangs mural
5. Has tattoo without knowing what is up, but has friends that do and innocently joins them
I’m tired of writing, or there could be more, but someone direct me to the city in California where kids get ES or WS tattoed on their bald heads like a football logo without the members of that gang kicking their asses or without (worse) getting jumped by the opposing gang.
steveg (fed1c9) — 6/2/2015 @ 10:10 pmThe author seems to me like a person that opposes gang injunctions less on constitutional grounds than on the fact that the gang held a bake sale and one of the members abuelitos made some really good sweet tamales
steveg (fed1c9) — 6/2/2015 @ 10:22 pmI had an employee (single working father) whose barely 15 yr old son had friends and primos(cousins) who wore WS on their heads. His son was murdered by kids that wore ES on theirs.
I sat through court with my employee to support him. It was his first and only son… and to Mexican people this first son is a big big deal… the murderer (juvenile) was convicted as an adult.
You know where my former employee works now? At the cemetery that holds his sons remains.
I’ve been in the jury pool for gang murders since then, plus I’m not an idiot about hispanic street gang culture to begin with because I grew up with it. This reporter must have really led a sheltered life
steveg (fed1c9) — 6/2/2015 @ 10:39 pmThis wasn’t incitement, it was provocation, which is an even narrower exception to the first amendment, if it still exists at all, which is doubtful.
Really? In what way did his graffiti aid or abet any crime?
Milhouse (a0cc5c) — 6/3/2015 @ 4:26 pmWhere did you get the idea it was his phone? If it was, the article would have said so. And what rock do you live under, where people don’t have many pictures of themselves on their phones?
Milhouse (a0cc5c) — 6/3/2015 @ 4:28 pm