Jacori Bender -- the now-21-year-old subject in this week's feature story, "Menace to Society" -- became a validated gang member in spring 2011 when a jury convicted him of gun possession and active participation in a criminal street gang (the "gang enhancement").
The testimony is technically "opinion," and the judge instructs the jury to consider it as such. But because the testimony passes only through the expert witness, its truth cannot be challenged. The witnesses and officers directly involved in the incidents do not take the stand, and so cannot be cross-examined by the defense.
Broberg was not directly involved in the majority of the incidents. His knowledge of them is almost exclusively based on what he's read in the police reports. As the story explained, his role "was to use his knowledge as a Gang Task Force inspector to interpret how police reports, witness statements, and interview transcripts substantiate his expert opinion that Bender is a gang member."
Consequently, the police reports stand on their own, lacking context, which puts the jury in the difficult position of having to judge the credibility of police reports and a Gang Task Force Inspector's opinion. That's what Bender was up against.
"The general public who comprises juries tends to find a police officer's opinion pretty credible," Lew Yablonsky, a criminology professor at California State University, Northridge, and author of Gangs in Court, said in the story. "They'll look over at the defendant and see a gangster."
First, here are the criteria that did not apply to Bender:
Four incidents were noted as "subject has committed gang-related crimes or engaged in gang-related activities" (No. 2). (The gun possession incident for which he stood trial was the fifth incident on the sheet.):
Broberg, conveying the accuser's police statement, said that Bender told the guard, "I'm the real Oakdale boy, you gonna get blasted up here [if] you keep fucking around with me" -- and that Bender mimed a shooting motion with his index finger. Bender had claimed that the guard had been harassing him and following him up the hill. In a recorded conversation between Broberg and Bender, the inspector even disclosed that he'd heard other community members complain about those security guards. Without the guard under oath on the witness stand, though, Bender's defense could not challenge the reliability of his statement.
Bender pleaded guilty to the misdemeanor (gang enhancements can only apply to felonies).
Three incidents showed the malleability of the criteria:
In a conversation recorded in September 2009, an officer asked Bender, "How long have you been claiming Oakdale?" Bender replied, "Since back in, feel me, '02."
"Basically Officer Wells is going, 'How long have you been a member of Oakdale Mob?'" Broberg testified. "With that statement, Mr. Bender is claiming that he's been a member of Oakdale since '02." Deputy Public Defender Michelle Tong countered that Bender was simply referring to his neighborhood.