Spotlight on: Prosecuting Gang Violence
A New Course and a New Monograph from APRI

by Alan Jackson1

The following is an excerpt, written by Alan Jackson,1 from APRI’s forthcoming monograph entitled Prosecuting Gang Cases. This excerpt explores various theories supporting the introduction of gang evidence into trial.

To Prove Criminal Liability

Courts are expanding the scope of legally admissible gang evidence.2 As a result, prosecutors must be willing to change their thinking in terms of liability theories. When properly presented, aiding and abetting and conspiracy evidence can be incredibly sharp arrows to keep in the prosecutor’s quiver.

Prosecutors should approach their trials with a clearly defined plan. Defining a cogent theory of liability enables the prosecutor to choreograph the presentation of evidence in a simple, logical and persuasive manner. Gang evidence can aid in defining tightly reasoned theories on which to build a solid case.

Gang members are, by nature, social creatures. Seldom will a gang member commit an assault, a drive-by shooting or a drug transaction alone. As a result, the prosecutor will likely have to decide whether one gangster, two or twenty are legally liable for the crime. Take, for instance, the back seat passenger in a drive-by shooting. Following the filing of murder charges, his lawyer will almost certainly claim that his client cannot be liable for murder, as he fired no weapon and possessed no gun.

However, gang evidence allows the prosecutor to establish that throwing a gang sign or calling out a gang name from the back seat of the car shows complicity in the crime. A gang expert can testify that a drive-by shooting takes on a special significance when accompanied by the signature of the offending gang. Gang members secure their reputation for violence in the community when, during a violent attack, witnesses hear, “This is Farm Town Crips” through the gunfire. Thus, the back seat passenger who throws a sign or yells a gang name may be prosecuted as aiding and abetting and is liable to the same extent as the driver and the shooter.

The prosecutor may also take another approach. Drive-by shootings and other gang-related crimes are rarely spur-of-the-moment decisions. More often, they are well-thought-out plans dating back to hours or even days before, when the car was stolen or the guns were secured. The players in the conspiracy may range from the O.G. (original gangster) who supplied the weapons or ammunition, to the tagger who warned the victim gang of the impending violence. A close look at the facts of the case, along with in-depth consultation with a gang expert, can, in some instances, form the basis for a conspiracy charge.

To Explain Witnesses’ Conduct

There are only two sorts of gang prosecutors: those who have had witnesses recant their statements during testimony, and those who will have witnesses recant. One defining characteristic of a gang case is the recalcitrant, uncooperative witness. It is hard enough to persuade 12 strangers to agree on anything in a trial courtroom. The obstacles mount exponentially when the prosecutor introduces eyewitnesses to the jury, each of whom denies his or her previous statements to the police. These difficulties are further compounded when the recanting witnesses are law-abiding citizens who appear to have no axe to grind.

While the gang prosecutor’s task is daunting, it is possible to explain to jurors why citizen witnesses lie on the stand. Evidence that the defendant’s gang is a violent, dangerous organization whose modus operandi includes retaliating against cooperative witnesses and their families is admissible to explain witnesses’ conduct. A gang expert can elaborate on the particular type of street intimidation the defendant’s gang employs. Photographs of graffiti in the neighborhood, evidence of known gang hangouts in that territory, and specific incidents of gang retaliation against witnesses are but a few of the seeds the prosecutor can sow in jurors’ minds.

The prosecutor’s job is to ensure that the jury understands that at the end of the day, the witness must go home to the neighborhood claimed by the defendant and his gang. He or she will be forced to walk the streets past members of the very gang against whom the witness testified. Long after the case is over for the litigants, the judge and the jury, the witnesses will still live in the middle of the lion’s den. The gang members know that. The witnesses know that. Through the use of gang evidence, prosecutors must let the jury know that.

Gang evidence is admissible to explain witnesses’ conduct on the other side of the table as well. Seldom do prosecutors receive a full witness list from the defense before trial. More commonly, the prosecutors will be standing at counsel table to “rest their case” when the defense attorney submits a list of new witnesses who will be testifying for the defendant. In a gang case, those witnesses will often be fellow members called to provide an alibi for the defendant. However, courts have provided prosecutors with the tools to rebut this eleventh-hour evidence. Gang evidence is admissible to explain this type of witness’s motivation to testify for the defendant. A gang expert can be used to explain that in the gang culture, loyalty is preeminent. Indeed, when a gang member is accused of a crime, the gang culture dictates that fellow members will come forward to assist him, even if it means providing perjured testimony.

1 Alan Jackson is a Deputy District Attorney with the Hardcore Gang Unit in the Los Angeles County District Attorney’s Office, Los Angeles, CA. Mr. Jackson is scheduled to serve as faculty at the Prosecuting Gang Violence course at the National Advocacy Center.

2 This expansion usually comes as a result of a state’s enactment of gang legislation which leads to expert testimony regarding gang membership, culture, and mores.