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Menace to Society: Why Many Young Black Men are Accused of Being in Gangs 

Wednesday, Aug 8 2012
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Bender's gun-possession charge is what attorneys call a "wobbler" — prosecutors can make it a felony or a misdemeanor. Gang enhancements only apply to felonies, though, and that's how Gascón charged him. Gascón offered Bender a deal: The drug and theft charges would be dropped if he pleaded guilty to carrying a loaded firearm and the gang enhancement, which would make him a validated Oakdale Mob gang member. He'd get a one-year jail sentence, almost all of which he'd already completed in the time since his arrest.

Bender refused — a significant risk. Officer Gonzalez would testify that he saw Bender throw the gun; forensics tests concluded that Bender's DNA was a "major contributor" among the samples found on the weapon; the pistol was reported stolen in Fairfield, where Bender lived at the time. Plus, because criminal charges and gang charges are usually consolidated into the same trial, jurors would hear a heavy dose of "gang expert" opinion intended to show that Bender actively participated in gang activities.

"That gang charge — even though it may not carry as much time as the principal charge — often becomes the focus of the case," says Adachi, the public defender.

The DA's gang expert for the case was Leonard Broberg, a veteran Gang Task Force inspector who'd worked hundred of cases in Bayview. During his days patrolling the Double Rock projects, neighborhood youth nicknamed him "the Candyman" because he passed out sweets every Friday. Middle-aged, with blue eyes and a salt-and-pepper stubble, he'd gained a reputation as one of those cops who really seemed to care about the kids, once giving a young woman he'd arrested multiple times a bouquet of roses after she finally kicked her drug habit.

Broberg taught the module on black gangs at the city's police academy. He was a guest lecturer on that subject for a San Francisco City College criminal justice course. He helped compile the Oakdale Mob gang injunction list. He'd testified in more than 80 gang-related trials.

Although he didn't work Bender's gun case, Broberg's testimony spanned four days, longer than any other in the trial. Referring to Bender's "Gang Member Validation" sheet — an aggregation of police report summaries and Field Information Cards, which are essentially notes police officers take while on patrol — the inspector rattled off incidents intended to support the notion that Bender was an Oakdale Mob gang member.

"I need to look at a sustained pattern of behavior," he said. "There has to be a complete evaluation of the totality of circumstances and all of the incidents."

City officials won't label someone a gang member unless he meets at least two of 11 standards, such as displaying hand signs or being identified by a reliable informant. Fourteen of the 20 incidents on Bender's sheet involved "affiliating with documented gang members" or "frequenting gang areas." Which for Bender translates to: hanging out with his friends in his neighborhood.

But Broberg asserted that Bender was hanging out with known criminals: Eric Brewer and Germaine Benjamin each caught an illegal gun possession conviction in December 2009, and also pleaded guilty to a gang enhancement. Keimareea Lake got the same in April 2007. Dimaryea McGhee was convicted of robbery in April 2008. By spending time with these guys, the prosecution argument went, Bender chose the gang lifestyle.

"It's character by association," says Wes Porter, a professor at Golden Gate University School of Law and former federal prosecutor. "How can we ever fairly have a trial on the underlying crime when you put this cloud above that he's affiliated with this way of life, with an organization where they're all bad? It's almost impossible to overcome."

Linking Bender to a criminal way of life was a major theme of Broberg's testimony. The inspector concluded that three entries on the rap sheet met the validation criteria "engaged in gang-related activities." In March 2010, Bender had been shot in the leg, although officers did not determine if he was an intended target. In August 2009, Bender was with six other friends when one was arrested for gun possession. A month later, in the Skyline Community College parking lot, somebody fired at Bender and three of his friends, striking one in the butt. The shooter was never found. But police did arrest two of Bender's friends on gun charges — one allegedly dumped a gun into a garbage can after running from the bullets.

Bender was not charged in these incidents, but to Broberg, Bender's proximity to the trouble was enough. "It showed that he had knowledge of the gun and he chose to stay in the company of those individuals as opposed to distancing himself from them," he said.

At trial Broberg's entire testimony was technically "opinion," and not offered "for truth of the matter." As Judge Newton Lam told the jury, "You must consider the opinion but you are not required to accept them as true or correct."

Broberg's 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. For instance, he claimed that Bender once admitted his gang membership to another police officer: In a September 2009 recorded conversation, the 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.

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Albert Samaha

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