Gang Bang

A growing list of "gang-related" exemptions to due process is evidence of courts' willingness to buy into anti-gang hysteria, says attorney Keith Ellison.

A RECENT SUPREME Court ruling has revived debate over Minnesota's approach to gang-related prosecutions. Critics have long contended that, caught up in anti-gang hysteria, courts are making exceptions to due process in cases involving alleged gang activity. The latest ruling, they say, creates a loophole allowing prosecutors to flaunt defendants' constitutional right to confront his accusers.

The ruling in question stems from the 1995 murder of Roy Griffin during a drug-turf dispute. Dwyon Tatum and Samuel Byers, members of Minneapolis's Rolling 60s Crips, each stood trial separately on charges of first-degree murder. Tatum's trial was first, and when he took the stand, he fingered Byers as the shooter. Tatum was acquitted. But when prosecutors asked him to testify against Byers, Tatum refused. In response, Judge Marilyn Rosenbaum took the unprecedented step of allowing Tatum's testimony from his own, earlier trial to be read during Byers's trial. As a result, Byers was convicted of second-degree felony murder.

Byers appealed, arguing that Tatum's testimony was hearsay and violated Byers's constitutional right to confront his accuser. The Sixth Amendment guarantees defendants can confront their accusers in court unless circumstances--specifically, threats of violence or retribution--prevent the witness from appearing. Since Byers never threatened Tatum, Byers's lawyer contended, the judge was wrong to allow Tatum's statement to be read even though Byers couldn't cross-examine Tatum.

The Minnesota Court of Appeals agreed that the judge made a mistake, but nonetheless maintained that allowing Tatum's statement was "harmless" and denied Byers's request for a new trial. Byers appealed his case to the state Supreme Court, where last month the justices upheld Rosenbaum's original decision. Because the case was gang-related, they ruled, it was alright to presume that the witness was intimidated even though there had been no physical threat. Since both men belonged to the same gang, they reasoned, both knew what happened to those who broke the gang's presumed "code of silence."

Prosecutors have long contended that this unwritten rule keeps members from testifying against one another in court. Similar beliefs about gang violence have led to the creation of other legal loopholes in the recent past: in the 1993 trial of A.C. Ford, the judge granted the jury anonymity solely because Ford was a Vice Lord.

"There's a popular misconception that gangs are militaristic about enforcing rules from within," says attorney Joe Margulies, "but that's not how they work." In both Byers's and Ford's cases, courts were willing to believe that gang crimes were masterminded, rather than the act of a handful of individuals who also happened to belong to the same group.

The Legal Rights Center's Keith Ellison agrees, calling the recent ruling a choice example of how the criminal-justice system vilifies certain people. "What [the] ruling said is that because there's an alleged gang connection, we're going to presume that [Tatum's] silence has been procured," he explains. However, he notes, Tatum testified under oath that Byers had never threatened him, nor was there any evidence that he feared retribution from other gang members. "This is a significant departure from the regular rules of evidence," he says. "The Sixth Amendment guarantees the right of a defendant to confront his accuser. But Byers was denied that protection."

And while courts have allowed some defendants' Sixth Amendment rights to be waived, such exceptions are few and far between and are subject to rigorous scrutiny. "Apparently it doesn't hold the same force when it bears on gang hysteria," Margulies notes dryly.

Hennepin County Prosecutor Paul Scoggin, however, objects to the notion that his office trounced on Byers's rights. Tatum's testimony was hearsay, he admits, but it fell into the guidelines for allowable exceptions. "[Byers's] right to object was waived when he signed on with a gang," says Scoggin, who prosecuted the Byers case. Both men, he notes, acknowledged their gang membership as well as the existence of a Crips code of silence. Nonetheless, he says, he understands civil libertarians' fears about future interpretations of the ruling. "In some respects, it fair to say that we're pushing the envelope a bit," he concedes. "But this is how case law is made."

Which is precisely how the problem began, says Ellison. "There are adequate laws on the books already. We don't need special exceptions...Courts are carving out areas of the law special to gangs. And one of the problems with this is that although no one can define what a gang member is, they all claim to know it when they see it."

 
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