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Wednesday, August 8, 2012

Bifurcated Trials Offer an Alternative in Gang Enhancement Cases

Posted By on Wed, Aug 8, 2012 at 3:54 PM

Would more bifurcated trials bring more justuce to the city's justice system? - SHOUT
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  • Would more bifurcated trials bring more justuce to the city's justice system?

This week's feature, "Menace to Society," explores the way police officers and prosecutors label teenagers "gang members" and classify their crimes as "gang related." As a result, these defendants -- such as the story's main subject, Jacori Bender -- face "gang enhancement" charges. Gang enhancements add extra prison time to a conviction if a jury determines that the defendant is an active gang member who committed the crime "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members."

To prove the enhancement, the court admits testimony that otherwise wouldn't be allowed -- hearsay, criminal histories of the defendant's friends, descriptions of crimes for which the defendant was not charged.

Defense attorneys argue that this evidence taints a jury, because jurors will hear hours of testimony solely dedicated to depicting the defendant as a troublemaker who spent time with a lot of other troublemakers. Public Defender Jeff Adachi calls this "a sort of second-class justice."

"Can the jury fairly render a verdict on just the [principal charge] knowing at the same time the charges of the gang enhancement?" says Wes Porter, a professor at Golden Gate University School of Law and former federal prosecutor.

The solution, some argue, is more bifurcated trials.

Bifurcation splits a trial into two parts. When a gang enhancement case is bifurcated, the principal charge and the gang charge are tried separately. The process is useful for cases where the gang-related evidence appears weak.

If this happened in Bender's case, for example, the jury would first only hear evidence directly related to the gun, drugs, and theft charges, such as a police officer's testimony that he saw Bender throw the gun, and DNA tests showing that Bender's DNA was a "major contributor" among the samples found on the weapon.

Should the jury convict Bender based on this evidence, then there would be a second trial for the gang enhancement. In this one, the jury would hear Gang Task Force Inspector Leonard Broberg's expert witness testimony, in which he would lay out the case that Bender was a gang member.

Prosecutors argue that bifurcation often detaches the crime from the motive. From the DA's perspective, there is more to the narrative than just "Jacori Bender had a gun." Assistant DA Mark Guillory argued in trial that Bender is an especially dangerous person when carrying a gun because the gang he's associated with -- Oakdale Mob -- has a history of gun violence. He had the gun, Guillory concluded, in order to protect the gang.

Judges, who have the power to bifurcate the trial, tend to give prosecutors the benefit of the doubt when it comes to gang enhancements. Plus, from a practical sense in today's era of austerity, consolidating the charges is a more efficient use of time and resources. So bifurcated trials are not common (neither the Public Defender's office nor the DA's office have kept statistics on this, though).

Judge Newton Lam, who heard Bender's case, ruled:

In this case, we have Mr. Bender in the company of members who are documented members or associate members of the group. I don't see this as something that the expert is going to overwhelm the jury on in regard to what the scenario is in regard to possession. So I'm not going to bifurcate.

It's no secret that prosecutors often overcharge a defendant in order to induce a guilty plea. Gang enhancements work well for this task. A defendant doesn't just have to consider whether going to trial is worth the risk of extra time -- he must consider whether he will even get a fair trial.

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Albert Samaha


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