THE ROLE OF A GANG EXPERT-WITNESS IN THE CRIMINAL JUSTICE SYSTEM
THE ROLE OF A GANG EXPERT-WITNESS IN THE CRIMINAL JUSTICE SYSTEM
1. THE EGYPTIAN KING GANG MURDER.
2. A HELLS ANGELíS GANG MURDER.
3. A GANG MURDER IN HOLLYWOOD.
4. THE PROSECUTION OF TWO GANGSTER DEFENDANTS INVOLVED IN THE ATTEMPTED MURDER OF REGINALD DENNEY DURING THE 1992 LA RIOTS.
5. A GANG SHOOTING INVOLVING A VIETNAMESE GANGSTER.
6. GANG REVENGE IN AìWITNESS-PROTECTIONî CASE.
7. A ìGANGSTER-GROUPIEî INVOLVED IN A DRIVE-BY SHOOTING.
8. JOSE: ANOTHER PERIPHERAL ìGANGî CASE.
9. ED: A 1ST DEGREE GANG MURDER CASE INVOLVING THE SENTENCING PHASE OF THE TRIAL. SUMMARY OF MITIGATING FACTORS FOR ED.
SOME RELEVANT ISSUES RELATED
TO TESTIMONY IN GANG CASES.
l. GANG STRUCTURE AND ROLES.
2. GANG CULTURE.
3. ìIMPERFECT SELF-DEFENSEî AND ìVICTIM-PRECIPITATED HOMICIDE.î
BY LEWIS YABLONSKY, Ph.D.,
Emeritus Professor of Criminology, California State University-Northridge
(Approved as a ìGang Expert-Witnessî by the Los Angeles County Courts; Orange County
Courts; New York County Courts; and the Pima (Tucson) County Courts for testimony
in gang cases.)
INTRODUCTION
In general, the role of an expert-witness in the criminal justice system has been
defined as a person who has some special training or experience in a criminal behavioral
area and can help the judge, lawyers and the jury arrive at the truth in the judicial
process. In the past, the role has been limited to such professionals as psychiatrists,
physicians, and engineers. In the last decade, however, there has been a broader
acceptance of professional expert-witnesses in court cases--including criminal gang
cases.
Based on my background and experience as a professor, researcher, and practitioner
in the field of criminology in general, and the area of violent gangs in particular,
I have served in over 20 criminal cases as an expert-witness. The foundation for
my work as an expert-witness in gang cases is based on my professional experience
and research as delineated in several of my books. (Notable among these books, widely
adopted in university crime and delinquency courses around the United States, are:
THE VIOLENT GANG (Macmillan, l962); CRIMINOLOGY (HarperCollins, 1990); THE THERAPEUTIC
COMMUNITY: A SUCCESSFUL METHOD FOR TREATING SUBSTANCE ABUSE, (GARDNER PRESS, 1991);
GANGSTERS: 50 YEARS OF MADNESS, DRUGS, AND DEATH ON THE STREETS OF AMERICA (NEW YORK
UNIVERSITY PRESS, 1998); and JUVENILE DELINQUENCY: INTO THE 21ST CENTURY (In press
with Nelson-Hall Publishers,1999).
The first case, I was called to court on as an expert-witness was related to a trial
in New York City in 1963 involving a lawsuit against the city by the parents of a
youth who was killed by a gang in a New York City Park. Since that time, I have been
hired as an expert-witness, with regard to various criminological issues. Over half
of these cases have involved
behavioral and legal issues related to the criminal activity of violent gangs and
gangsters, and this paper will focus on gang cases.
GANG CASES
The following summary analysis and report on a number of these gang cases is presented
to provide some insight into my practice of developing testimony in each case, and
how my viewpoint and opinions have affected the criminal justice process. I have
been employed by both the prosecution and the defense to present my knowledge and
opinions in a variety of gang cases. My usual process in preparation for testimony
involves the review and analysis of court and police transcripts, and interviews
with the principals in the case including relevant defendants, witnesses and attorneys.
In many cases I have been deposed, and in several cases my deposition has affected
a plea-bargain decision prior to the trial.
In the analysis of the following cases the names of the lawyers and clients in the
case have been changed to maintain confidentiality, with the exception of a few cases
that were heavily reported in the press and are a matter of public record. In these
varied cases, I will attempt to focus on the criminological and sociological theories
and data that led me to reach my opinions related to the criminal event.
1. THE EGYPTIAN KING GANG MURDER.
The Egyptian King gang murder of Michael Farmer in Highbridge Park, New York
City. This was the 17th senseless gang murder in NY during the summer of l957. The
case, became a national news story because Michael Farmer was an innocent non-gang
member who was afflicted with polio. (The case reached national prominence as a result
of a documentary that was produced and narrated by Edward R. Murrow for CBS.)
In l963, the parents of Michael Farmer and Roger McShane, a friend of Farmer who
was wounded in the gang attack sued New York City for inadequate police protection
and responsibility for the violence. I was hired by the defense attorney to testify
in court as an expert witness about the circumstances surrounding the homicide. On
the basis of my extensive research for a book I published on the crime, THE VIOLENT
GANG, I was able to describe the dynamics of the gang attack, and present my opinion
in the preliminary hearing that reasonable police protection would have prevented
the murder. Prior to the trial, attorneys for New York City settled the case with
a substantial monetary award to the parents.
2. A HELLS ANGELíS GANG MURDER.
I was consulted on the subject of the structure and behavior of gangs in l972 by
a San Francisco public defender who had obtained a new trial for a man serving a
life sentence in San Quentin for 1st degree murder. He had been a member of the Hellís
Angels Motorcycle gang, and had been convicted of homicide--essentially on the evidence
of several dead bodies on his property. At his trial he took responsibility for the
murders, was sentenced, and now sought a new trial.
He sought a new trial based on the grounds that he had not murdered anyone. He claimed
his gang compatriots in the Hells Angels had coerced him into pleading guilty and
taking the punishment for the real murderers. He alleged that he was told by his
gang ìfriendsî that if he did not plead guilty they would kill him. He now wanted
and was to receive a new trial. My research into the case revealed that the man was
essentially telling the truth, and that he did not testify against the real murderers
out of fear for his life. Before the new trial was to take place he backed out, and
accepted his prison sentence.
3. A GANG MURDER IN HOLLYWOOD. In
l991 I was engaged as a consultant and expert witness by a lawyer defending a client
who had admitted stabbing another gangster to death in a gang fight in the area of
Hollywood. The defendant admitted that he had stabbed an opposing enemy gangster
to death. The defense theory of the case was related to the law of ìimperfect self-defense,î
and was mounted to reduce the penalty from 1st to 2nd degree murder. I concurred
with this legal theory on the grounds that the youth believed he was as stated in
the statute ìin imminent peril for his life or great bodily injuryî from the individual
he murdered. Based on the clientís viewpoint, the gangster he killed was wearing
the gang colors of an enemy gang and was trespassing on his turf. The effort to reduce
the charge from 1st degree murder to 2nd degree was not effectuated, and the defendant
was convicted of 1st degree murder.
4. THE PROSECUTION OF TWO GANGSTER
DEFENDANTS INVOLVED IN THE ATTEMPTED MURDER OF REGINALD DENNEY DURING THE 1992 LA
RIOTS. In l993 I was engaged by the Los Angeles County Prosecutorís Office as
an expert witness in the high-profile ìReginald Denneyî trial. The trial took place
in the wake of the l992 LA riots. The riots had been fueled by the decision in the
first trial that acquitted several LA police officers who had allegedly beaten Rodney
King.
The trial involved two gang members, who were accused of violence committed on truck
driver, Reginald Denney, at the corner of Florence and Normandie where the 1992 LA
riots began. In one aspect of the case, the defense, through the testimony of a UCLA
professor, as an expert witness, contended that the defendants were not responsible
for their violent actions because they were victims of the ìgroup-contagionî of the
riots. The expert-witness for the defense based his theory of their violent behavior
on a book written by Gustave LeBon in 1899 entitled THE CROWD. The book essentially
posited that people in the heat of a mob action were heavily influenced by the emotional
climate. On this basis the defense attorneys were asserting that their clients were
not responsible for their criminal behavior.
As a rebuttal expert-witness for the prosecution, I testified that even in an emotional
mob situation individuals are responsible for their illegal behavior. On the basis
of my research of the group dynamics of the criminal behavior at the scene of the
crime, it was my opinion that when the violence began: most of the people on the
scene left the area; a few curious people stayed on to watch the violence; and only
a few individuals, including the defendants committed violent acts. I further stated
that these few, given their prior gang socialization were predisposed to be violent
and seized the on the riot situation, as a cloak of immunity, to displace their pre-existent
rage on Reginald Denney who was an innocent victim of their violent proclivities.
I basically testified that the theory of ìgroup contagionî was irrelevant to the
defendants violent behavior. After an extensive trial the defendants were convicted
for their violent crimes.
(Based on my testimony I was pleased to receive the following positive assessment
of my testimony in the case in a letter from one of the attorneys who prosecuted
the case, Los Angeles County District Attorney Larry Morris: "Your scholarly
and articulate commentary from the witness stand helped to communicate to the jury
that people must be held accountable for their violent behavior in the context of
any kind of mob action. Your testimony was significant in the trial, and was very
helpful to the prosecution in obtaining the convictions we did and gaining some measure
of justice from these tragic events. The case resulted in a published decision by
the Court of Appeal, People v.Williams (1996) 46 Cal.App 4th 1767. I look forward
to using your services as an expert witness in this area if the subject arises in
another case.")
5. A GANG SHOOTING INVOLVING A
VIETNAMESE GANGSTER.
In December, l996 I was engaged by a defense attorney, who was hired by an insurance
company on behalf of a mall corporation to participate as a consultant and expert
witness in a case involving a gang shooting. The plaintiff in the case was a 16 year
old gangster who was shot 6 times by a youth from a rival gang in front of a video
arcade located on the Mall. The shooter shot the youth 3 times outside of the arcade--and
shot him 3 more times after he ran into the arcade. The youth who was shot was paralyzed
and confined to a wheel-chair. As indicated, he was the plaintiff in the case charging
the arcade and Mall owner as being responsible for his unfortunate plight because
they had insufficient security.
After a thorough analysis of court and police transcripts and reports, and various
interviews with several gangsters and the the police in the area I wrote a report
for the attorney. Following are some selected excerpts from the report I wrote on
the case that delineate my considered opinion. (The report was shared with the plaintiffís
attorneys in accord with the rules of discovery, and is a matter of public record.)
ìBased on my 45 years of research into the structure and behavior of gangs delineated
in my two books; the investigation of the Little Saigon area and environs as this
general community relates to gang violence; interviews with Mark Nye, Detective Westminster
Police Department Target Gang Unit and various police reports; the analysis of various
depositions; and an analysis of the plaintiffís background and deposition I have
come to the following conclusions about the violent event that took place on the
mall.
l. The Little Saigon area and environs is a high risk area for gang violence. Given
the varied Asian gangs operating in the area, violent gang incidents have occurred
throughout the area, and could occur at any time throughout this geographic area.
This viewpoint is supported by my police drive-along with Detective Nye who pointed
out various gangsters in cars cruising the area.
2. In this context, the gang that the plaintiff belonged to is a significant gang
in this area, and in recent years, according to the police, is responsible for many
violent incidents, including murder. Notable, among the violent incidents perpetrated
by this gang is the case of a home invasion robbery which resulted in the murders
of a family of five people. (This incident was reported in the press.)
3. It is my opinion, that the plaintiff was a member of the gang, and was active
in his gangster role the night of the incident. The fact of the gang tattoo on his
chest is partial proof of his affiliation. In my research with several thousand gangsters,
I have never known a non-gangster who had a specific gang tattoo on their body. This
representation by an outsider would not be tolerated by a gang.
4. The plaintiffís belligerent behavior on the evening of the incident, was observed
by several eye witnesses, reinforces my conclusion that he was acting in the role
of a gangster. His behavior, as a small individual attacking a large enemy gangster
is consistent with an effort to in gang terms ìput in workî to enhance his reputation,
or in gang terms his ìrep.î As one witness stated the plaintiff struck the first
blow by walking up to the accused shooter and punched him in the face. ..In my opinion
the fact that the shooter singled out the plaintiff to receive all of the shots fired
would lend credence to the fact that the plaintiff was the main person who began
the violence that resulted in the gangfight...
SUMMARY: I would conclude from my analysis, that the plaintiff was the initial perpetrator
of the event that backfired into his becoming a victim. He simply was responsible
for his own injuries. This is consistent with the suicidal gangster behavior I have
found to be the case based on my research into the psychodynamics thousands of individuals
who participate in gang activity. In their continuing efforts to achieve a ìrepî
and macho power, they place themselves in the vulnerable position of becoming victims
of violence. Gangster are almost always responsible for the physical harm, and sometimes
death, they bring upon themselves in the context of ìgangbanging...î
In regard to another aspect of this case, I have observed that it is almost impossible
to control the spontaneous gang violence that occurred in this case. Gang violence
in a gang area can and does erupt at the slightest provocation of being ìdissedî
(disrespected), real or imagined conflict, and the motivation of an angry gangster
to ìput in workî to enhance his desired macho reputation.
In brief, it is almost impossible to control the spontaneous outburst of violence,
that is characteristic of violent gang behavior, and in the context of the sociological
concept of ìvictim-precipitated-violenceî it is often difficult to ascertain until
the end of a violent interaction--who is the victim and who is the perpetrator. In
this case, the plaintiff initiated the violent act and is partly responsible for
the violence that produced his physical infirmity.
6. GANG REVENGE IN AìWITNESS-PROTECTIONî
CASE. This case involved the murder of 2 police officers by a drug-dealing gangster,
who was about to be arrested for engaging in a drug deal. The client knew the shooter
who told him that he had committed the crime. He informed the police about what the
shooter had told him, participated in the recovery of the murder weapon, and despite
threats, both verbal and in a threatening note, against him and his family testified
against the shooter. This resulted in the conviction of the ìcop-killerî for first-degree
murder.
Around a week before the witness testified he received a death threat note telling
him to not testify or him and his family would be killed. Prior to his testimony
in the murder case, 12 days later the witnesses mother was killed in a drive-by shooting
at night on a dark street. The witness believed his mother was murdered to prevent
his testimony.
I was hired by the clientís attorney related to a lawsuit against the city and county
for inadequately protecting the witnesses family from retaliation by the shooterís
gang. From my viewpoint, based on the depositions and other data I analyzed, the
police and government officials had promised to protect the informant and his family.
In my opinion the government and its agents were clearly negligent in their responsibility
for protecting the client and his family, and the client had a valid case in his
lawsuit. After a 16 day trial, the jury found the city negligent in the death of
the clientís mother; however, the jurors did not award the son any damages for his
emotional distress.
7. A ìGANGSTER-GROUPIEî INVOLVED
IN A DRIVE-BY SHOOTING. This case involved a drive-by shooting by a gang that
wounded a youth from an alleged enemy gang. Two cars were involved in the incident--one
carried the shooter, and a second car followed as backup. Allegedly, the youths who
carried out the shooting, planned the drive-by in affiliation with an 18th Street
Gang division that operated in Orange County. The youths involved met in the park,
and then drove to the hood of the opposing gang where the shooting took place.
The attorney who hired me was defending a 17 year old youth who was in the drive-by
car. The youth had no prior delinquent record, and fit the model of what I would
term a gang-groupie. The defendant was facing the possibility of a 25 year to life
sentence under the State law related to a gang-enhancement statute, for his participation
in the incident. The youthís attorney with his assent accepted a plea-bargain sentence
that involved his receiving a sentence of 8-10 years in prison.
Because this case, in terms of Californiaís gang-enhancement laws, represented a
pattern of what I considered to be excessive sentencing, I wrote an article entitled
ìThe Dangers of Gang Emulationî on gangster-groupies that was published in the Los Angeles Times on August
8, l998. The article enabled me to present a broader viewpoint on my role as an expert
witness in this case and others like it involving gang-groupies. ìJoeî in the article
is the pseudonym I used for the client in this case. Following are some selected
excerpts from the article that delineate my viewpoint on gang-enhancement laws:
ìMost parents don't worry about their "good kids" joining violent gangs.
But parents would be prudent to worry about their teenagers who are enraptured with
the gang lifestyle. These fringe gang youths, although not full gang members, are
at risk of becoming involved in gang activities that could land them in prison.
ëGangsta rapí music has mesmerized millions of American teenagers who are not involved
with violent gangs. The gangsta groupie phenomenon goes beyond the music and includes
gangster movies, certain modes of dress and an intrigue with real gang behavior.
The police and the courts tend to draw a limited distinction between full-fledged
gangsters and groupies on the scene of a crime. If a groupie is involved in an incident,
he is usually treated by the criminal justice system as a co-conspirator subject
to the same tough penalties accorded a real gang member--penalties that can be combined
with the gang enhancement prison sentences now on the books in many states, including
California.
An example: A youth nicknamed Loco (not his real gang name) had been stabbed two
weeks earlier by an enemy gangster. Loco wanted to carry out a revenge drive-by shooting.
He acquired a gun and the drive-by shooting was carried out, leaving a youth from
the alleged enemy gang wounded. I was hired as an expert witness by the lawyer of
a 17-year-old named Joe, a gangsta groupie, who regrettably was in the shooter's
car.
In the process of gathering information about the case, I interviewed Joe at the
Orange County Jail and later talked with his parents. Joe came from an apparent "good
home" with two nice parents who had been married for more than 20 years. He
was their only child. Joe had never been arrested, did not use drugs and had not
participated in any prior gang or delinquent activity. He had, in fact, been a long-time
Boy Scout, and during my jail interview expressed concern about how his arrest would
impact his Eagle Scout status.
Joe claimed to be totally surprised when the shooter opened fire from the car he
was in. Joe was now forced to face the brutal consequences of participating in this
type of situation. If Joe went to trial, he faced a 25-year-to-life sentence for
his participation as a co-conspirator in a gang shooting. Joe's attorney accepted
a plea bargain that would instead incarcerate Joe for eight to 10 years in an adult
prison. Although the sentence was extreme, no one wanted to roll the legal dice that
might result in life imprisonment.
From my viewpoint, Joe was guilty of naive, stupid and ignorant behavior, but not
premeditated violence. Joe's intrigue with the gangster culture caused him to drift
into this violent incident.There are thousands of youths like Joe now serving time
in America's prisons who should not be there. Parents are well advised to keep a
closer eye on their baggy-pantsed teenagers whose intrigue with the American gangsta
phenomenon could destroy their lives.î
8. JOSE: ANOTHER PERIPHERAL ìGANGî
CASE. Based on a variety of data supplied by his attorney, and my interview with
Jose (not his real name), in the Orange County Jail I was able to comprehend the
incident that led to his arrest--and form an opinion that Jose was on the fringes
of what became a pseudo gang case. In my opinion, the case was driven by prosecutors
intent on utilizing the states gang-enhancement law in an incident that had nothing
to do with gang behavior. (I have sketchy evidence from several defense attorneys
that prosecutors in California develop pseudo-gang cases because the prosecutorís
offices acquire state or federal funds--if a criminal incident is prosecuted as a
gang case. I have no solid evidence on this assertion, however, I plan to carry out
further research on the issue.)
Following is my summary of the incident that led to Joseís arrest and his prosecution
on the basis of gang involvement. On the evening of the crime he was in the company
of four men and four women in two cars heading for a party. The women requested a
ìpit-stopî at a Market convenience store. Two of the men in the group who had gang
affiliations, not the client, approached two youths around 16 who were at a phone
booth. One of the men took a liking to a gold chain worn by one of the young men,
and through fear and verbal threat, no known weapons, commandeered the gold chain.
During the criminal encounter, Jose and another man in their car got out and approached
the scene of the robbery. According to a police report, one of the victims heard
Jose comment: ìJust let them go.î The charge leveled against Jose was that he participated
in the robbery, and that the criminal activity was a ìgang incident.î
My investigation of various data related to the case indicated facts that formed
my following opinions:
1. In his testimony in the preliminary court hearing, a police officer who was characterized
as a gang expert, stated that the two defendants allegedly belonged to a gang that
began in 1990, and there was no known activity of the gang since l994. Based on the
officerís testimony, and my interview with Jose in the county jail--it was my opinion
that the gang was inactive, and if the gang did exist at that time, Jose was not
a member.
2. It was my further opinion, that Jose had limited or no responsibility for the
robbery, since there was no evidence that he actively participated in the event.
In fact, as one of the witnesses stated he made an effort to stop the robbery.
3. Interestingly the police gang expert testified at length about the characteristics
of gangs. The problem with his testimony, in my opinion, was not that his theories
about gangs was wrong, but that the incident being adjudicated had nothing to do
with gang behavior. Given the apparent spontaneous and unpremeditated nature of the
robbery, there was no evidence that this was in any way a gang behavioral phenomenon
as specified in the ìgang enhancementî Penal Code 186.22.
4. In the course of my gang research over the past 45 years I have interviewed thousands
of gangsters, in and out of custody. Based on my knowledge about the case including
my interview with Jose, it was my opinion that (1) he was not a gang member; (2)
there was clear evidence that he did not participate in the robbery; and (3) the
event was not a gang activity.
The case was concluded with the prosecutor agreeing to a plea-bargain that involved
a sentence of one year for Jose. Given the several months he had already served in
the County Jail, he would be released after serving around another 3 months. My opinion
is that this was a correct conclusion to the case, and that justice had been properly
served.
9. ED: A 1ST DEGREE GANG MURDER
CASE INVOLVING THE SENTENCING PHASE OF THE TRIAL. On an evening in l997, Two
opposing factions met in a drug-dealers house to consummate a drug deal. There is
evidence that one faction, comprised of three individuals, had some affiliation with
the LA Crips, and the opposing two individuals were affiliated with the LA Bloods
gang--two enemy gangs. There was apparently a major unanticipated misunderstanding
between the factions. All of the participants had money to buy drugs, and no one
had any drugs to sell.
Apparently, based on murky court testimony, a conflict ensued with guns being pulled,
and used to threaten each other. The evidence is unclear, however, the Bloodís gang
group of two gained control of the situation. In fear of their life, then or at a
later time involving a reprisal, they apparently decided to kill the opposing group.
They bound their three
ìenemiesî with duct-tape, put them in two cars, and drove to a remote area outside
of the city.
They then placed their 3 ìenemiesî face down on the ground and shot them each in
the head. Two of the three, died immediately. The one potential victim who survived
the execution had an Afro haircut. Either because they were poor shots, or they miscalculated
because of the haircut, the bullet grazed the survivorís head and he lived to be
the main witness in the
homicide case against the shooters. The shooters, were convicted of 1st degree murder.
I was hired by the two defense attorneys for one of the defendants in the sentencing
phase of the trial. Only two outcomes were possible--execution by the State or life
imprisonment. After reviewing the evidence, and interviewing the defendant, who I
will call Ed, I came several conclusions about his participation in the homicide--and
several possible factors that would mitigate against his receiving the death penalty
My interview with Ed took place in the County Jail over a 2 hour period. At first
Ed was taciturn. As our interview progressed he became more loquacious and forthcoming
in revealing his life story and his version of the events that placed him in his
current situation.
Ed never knew his biological father. In his early years, up to around the age of
10 he lived mainly with his grandmother and on weekends visited his mother and her
alcoholic/drug addict and abusive husband. During the time he spent with his ìcrazyî
stepfather, he indicated that his stepfather physically abused him and his mother.
After, a number of years of domestic violence, his mother separated from his stepfather;
and there was a period of around 6 months where he lived with his mother in his grandmotherís
house in South Central LA.
The situation with his mother, whom he ìlovedî and the stepfather he hated came to
a violent conclusion when Ed was ten years old, during the time he was living with
his mother in his grandmotherís house. His stepfather, a prototypical abusive husband,
stalked, phoned, and wrote letters to get his wife back, and threatened to kill her
if she didnít return. Finally, Edís mother one day agreed to go to his house to talk
it over.
Ed, in my interview, claimed to have a premonition of what was going to happen. He
was in bed around 10PM at his grandmotherís house when a police officer arrived to
inform them that his stepfather had brutally murdered his mother by stabbing her
17 times. (At this point in our interview, when Ed was recalling the brutal death
of his mother, he began to cry.)
Prior to the death of his mother Ed had avoided participating in the violent gangs
that infested the neighborhood surrounding his grandmotherís house in South Central
LA. He had regularly attended school, and was perceived by his grandmother and others
as a ìgood boy.î According to Ed, shortly after the murder of his mother, feeling
totally depressed and that he was now alone, he began to participate in the gang
world by joining the Bloods.
Youths join gangs for two basic reasons: (1) They are full of rage about their life
usually related to a violent family background, and the gang is, from their viewpoint,
a vehicle for ìlegitimatelyî acting-out what amounts to displaced senseless violence;
and (2) They perceive the gang as a safe harbor of camaraderie, protection, and as
a kind of pseudo-family when they donít have a real family. Of course violent gangs,
in effect, do not provide these desired human goals.
Participants in a gangís violent behavior is not the same for all members. At one
extreme many gangsters revel in the violence. At the other extreme, many youths join
a gang for protection and a feeling of ìfamilyî. Ed appeared to join the gang for
the more ìsocialî reasons.
ìPutting in workî, as defined in gang culture, involves behavior that gives a gangster
status in his gang. Ed told me in our interview that he always tried to avoid, what
gangsters called ìputting in workî of a violent nature. Edís participation in the
non-violent activities of the gang is somewhat supported by the fact, that prior
to this case he was never convicted of any violent activity. In support of his non-violent
proclivities, Ed told me about an incident where he reluctantly went along with his
gang to a gang fight. When the gang returned he was criticized for ìpunking outî
and not ìputting in the violent workî necessary for being a member. He received what
is referred to as a ìstreet court.î This involved his ìhomiesî beating him up for
not being sufficiently violent in the gang fight.
The murder situation that Ed was involved in can be understood in the context of
a widely accepted sociological theory that I have already alluded too known as ìVictim-Precipitated-Homicide.î
Simply stated, in many gang violent interactions it is often difficult to ascertain
who will wind-up as the perpetrator and who will become the victim. The individual
who is the initial victim of a violent act, often in self-defense, winds up as the
assailant. In this case, Ed and his partner, after being initially attacked by the
three opposing individuals apparently acquired the upper hand and gained control
of the situation. Now in charge, and fearing the deadly possibility that if the three
who ultimately became their victims were released from their control, they would
return to kill them. They felt, according to Ed, in the context of gang culture,
that it was incumbent on them to eliminate their perceived enemies.
This opinion is based on my research into gangs over the past 50 years. My research
reveals that very often in a gang conflict, like the one that apparently occurred
between the two warring factions, the situation disintegrates into a ìkill or be
killedî scenario. (The biographical book of a notorious and violent Crip gangster,
Monster Cody, appropriately entitled, ìDO OR DIEî, also supports this assertion of
the inchoate violent behavior of gangsters.)
In addition to gang culture as a possible mitigating factor in the sentencing of
Ed, I would place his response in the situation, in the context of ìImperfect Self-Defenseî
as defined by California Law (CALJIC 5.17.) This law, under the heading ìHONEST BUT
UNREASONABLE BELIEF IN NECESSITY TO DEFEND--MANSLAUGHTERî states, in part: ìA person
who kills another person in the honest but unreasonable belief in the necessity to
defend against imminent peril to life or great bodily injury, kills unlawfully, but
does not harbor malice aforethought and is not guilty of [first degree] murder.î
This would, in my opinion, help to mitigate a possible death sentence.
SUMMARY OF MITIGATING FACTORS.
Although it does not excuse homicide, Edís violent family background and the untimely
death of his mother propelled him into a gang at an early age in search of some semblance
of family. In my opinion, these early life experiences are causal elements that explain
his later behavior and present significant mitigating factors
for his sentencing.
Another mitigating factor against the death sentence is encompassed in my analysis
of the theory of ìVictim-Precipitated-Homicide.î The theory posits the difficulty
of identifying the victim and the perpetrator in a homicidal interaction applies
to this case. Ed, in the context of the law of ìimperfect-self-defenseî reacted to
the violent situation he found himself in based on his past gang experiences. His
fearful reaction, based on his ìdo or dieî gang socialization, is, in my opinion,
another mitigating factor that deserved consideration in his sentencing.
In the sentencing phase of the trial, I was able to present the foregoing opinions
in my testimony. At this time, a decision has not been rendered in the case.
SOME RELEVANT ISSUES RELATED TO TESTIMONY IN
GANG CASES.
In the process of preparing for testimony and testifying several social psychological
issues have emerged in most cases that pertain to the legal aspects of the gang phenomenon.
These include: (1) The structure of gangs and the roles of youths in violent gangs;
(2) The cultural rules and regulations required for participating in a gang; (3)
The utilization of the legal concept of ìimperfect self-defenseî; and the socio-criminological
concept I have termed ìvictim-precipitated violence.î
l. GANG STRUCTURE AND ROLES. Based
on my extensive research of gangs since 1950 for my book GANGSTERS, I have developed
a now widely accepted theory of the violent gang as a ìnear-group.î The theory, simply
stated, posits that gangs vary with regard to their degree of organization. Some
gangs are very cohesive, closely-knit and well organized. In contrast, gangs that
fit the model of a ìnear-groupî are very loosely structured, and membership is unclear.
This factor, of gang organization, is significant in a criminal trial, since a defendant
may be a core member of a gang or on the periphery depending on the degree of cohesiveness
of the relevant gang.
Another factor to be considered in a trial involving a gang is the role that the
participants play in the gang. In this regard, in my book GANGSTERS, I have delineated
4 basic types of gang roles: ìOGís ìor ìVeteranosî who are longtime core gangsters
dedicated to their gang; ìGsî gangsters who comprise the general troops in the gang;
ìWannabeesî who are usually young interns and aspiring gangsters; and ìgangsta-groupiesî
a relatively new category of youths who do not participate in gang activity but gravitate
to and apparently enjoy hanging-out with gangsters out of their own ego needs.
This latter group of less culpable youths, are too often caught in the net of a violent
gang incident, identified as co-conspirators, and become subject to the overkill
punishment of imprisonment that is meted out to the more involved gangsters. As an
expert-witness, after careful analysis of a defendant, I can make these distinctions
in my reports and testimony--and this information is of aid to the judicial process
in rendering a just decision on a defendants guilt or innocence in a gang crime.
In brief, the foregoing categorizations of gang structure and gang roles are significant
in a trial in determining the level of culpability of a youth in a gang incident.
It is apparent that OGs are likely to be leaders more involved in a violent criminal
incident than peripheral Wannabees or groupies who in many cases have limited or
no criminal responsibility.
2. GANG CULTURE. It is useful for all of the
participants in a criminal trial to know and understand various aspects of the gang
culture. A knowledgeable gang expert-witness can bring into play in the criminal
justice system information that can aid in reaching judicious decisions.
Following are a few examples of the gangís culture that are relevant in understanding
a gangsterís motives and behavior.
All gangsters are motivated to present themselves as tough, super-macho Individuals.
In my book gangsters, I refer to this as ìmacho-madness.î In this context, being
ìdissedî or disrespected as a man is often the precipitator of gang violence. Being
ìdissedî, usually occurs with some attack on the gangsterís masculinity by calling
him a ìpussyî or a ìfaggot.î Implying that a gangster has feminine characteristics
is sufficient grounds in the gang culture for a violent--even homicidal retaliation.
The disrespectful epithets used in a violent gang incident are often significant
factors in determining motives in a criminal case.
Another factor of gang culture that is significant in the judicial process is an
awareness that gang violence, including drive-by shootings, are not necessarily premeditated
acts. They are, often, in the context of ìnear
groupî theory, spontaneous, in the moment acts, that do not constitute premeditated
violence. Sometimes an aspiring gangster will commit a bizarre spontaneous violent
act for the purpose of what I have referred to as ìputting in workî -- in order to
acquire his credentials or status in the gang. This behavior is not a premeditated
or rational act of violence, and to some extent mitigate the culpability of an offender.
In cases involving a gang homicide, they are more likely to call for a charge of
2nd degree murder rather than 1st degree murder.
A myth about gang culture is that ìhomies are down for each otherî, ìnever snitch
on a homie,î and are obligated to ìwatch each others backî for protection. Experienced
police officers know that gangsters are not necessarily ìfamilyî and will inform
or ìgive-up a homieî when it serves their self interest. Gangsters are often very
willing to ìsnitchî on their ìbroî in self-defense. This issue can be a significant
factor in acquiring information that can aid the judicial process. It is my experience,
that most gangsters, when interviewed one-on-one will inform and reveal information
vital to the just resolution of a criminal case.
These are only a few of the myths and realities of gang culture that can be helpful
to all of the participants in the criminal justice system. A realistic knowledge
of gang organization and culture is invaluable in the true service of justice in
a criminal gang case.
3. ìIMPERFECT SELF-DEFENSEî AND ìVICTIM-PRECIPITATED
HOMICIDE.î These are two basic legal and sociological concepts, among several,
that I have found most valuable, for various reasons in my testimony in gang cases.
They are concepts that relate to the inchoate nature of gang violence, and help to
explain criminal gang behavior.
ìImperfect Self-Defenseî as defined by California Law (CALJIC 5.17) is a relevant
law that can be utilized in gang cases. It implies that a violent offense committed
by a gangster who believes he is in imminent danger in a gang situation is less culpable
for his behavior. The law, under the heading ìHONEST BUT UNREASONABLE BELIEF IN NECESSITY
TO DEFEND--MANSLAUGHTERî states, in part: ìA person who kills another person in the
honest but unreasonable belief in the necessity to defend against
imminent peril to life or great bodily injury, kills unlawfully, but does not harbor
malice aforethought and is not guilty of [first degree] murder.î In brief, in some
cases this law can be utilized not to exonerate a gang defendant--but to plead a
case to a lower level of responsibility.
Many, if not most gang situations can be better understood in the context of the
widely accepted sociological theory I have alluded to as ìVictim-Precipitated-Homicide.î
Simply stated, this theory pertains to the fact that in a violent gang interaction
it is often difficult to ascertain who will wind-up as the perpetrator and who will
become the victim. The individual who is the initial victim of a violent act, often
in self-defense, winds up as the assailant.
In one of the cases I described earlier, the defendant and his partner in a 1st degree
murder case, after being initially attacked by several enemy gangsters acquired the
upper hand and gained control of the situation. Now in charge, and fearing the deadly
possibility that if the others who ultimately became their victims were released
from their control, they would return to kill them. The two individuals, who were
convicted of first degree murder, in terms of gang rules and regulations, believed
it was incumbent on them to eliminate their perceived enemies. Although this does
not exonerate them from the commission of a homicide--it can reduce their culpability
in the framework of the criminal justice system.
These are only some of the legal and sociological arguments that can be effectively
employed by a gang expert-witness in a criminal trial.
My brief discussion of some of the general issues that pertain to gangs reveals that
there are many myths about gangs that significantly affect the criminal justice process.
Although the foregoing gang concepts do not necessarily produceìslam-dunkî clear
decisions in a criminal case --they are reasonable issues to be presented in the
prosecution or defense of a gangster who has committed a violent act. Testimony on
the realities of the gang phenomenon by an expert-witness, can be helpful in the
rendering of a more equitable decision in a criminal trial involving gang behavior.
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