Defendant Michael Muscadine and defense attorney Tricia Hynes wait for the courtroom to open.
They were back at it on Wednesday.
On one side: lawyers from the City Attorney’s office and co-counsel from the Meyers Nave firm, representing what was termed (in a remark ultimately stricken from the record) “the police point of view.”
On the other: a team of civil rights attorneys, defending alleged Norteño gang members from the Fruitvale district – several of whom were present in the courtroom.
The nearly three-hour court session was at times excruciating, frequently meandering and occasionally enthralling. For every question about gang activity, police procedure and legal technicalities answered, it seemed that 10 more unanswered questions were raised.
OPD gang expert cross-examined
Only one witness took the stand Wednesday: OPD detective and Hispanic gang expert Douglass Keely, whose cross-examination was administered by Dennis Cunningham. The veteran attorney’s line of questioning revolved around clarifying what seemed to be gray areas concerning the criteria for determining active gang membership and the objectivity, or lack thereof, of that process. Raising objections at seemingly every turn, Meyers Nave attorney Tricia Hynes repeatedly chided Cunningham for argumentative and compound statements, and at times, Cunningham seemed to have trouble clearly articulating his questions.
On several occasions, Judge Robert Freedman took it upon himself to rephrase Cunningham’s questions in a more direct manner – which prevented Hynes from objecting further. This was interesting in and of itself, as it appears to indicate that the judge was indeed interested in the road Cunningham attempted to go down. Had he simply upheld the objections, it might have implied he didn’t think any gray area existed.
“Does OPD have criteria for determining who is a gang member?” Freedman asked Keely. The detective’s answer was somewhat evasive and didn’t appear to indicate any ironclad rules, but rather a subjective evaluation based on a number of factors.
“You gotta take in the totality,” Keely said at one point.
But what that totality consisted of appears to depend on one’s perspective on gang injunctions in general.
Was the entire Fruitvale district one giant “hotspot” with ever-shifting zones of continual criminal activity, as Keely claimed? Or did it consist of several areas where gang activity is worse than in other places, as Cunningham inferred?
Were defendants Abel Manzo and Javier Quintero lifelong Norteños who continue to associate with known gang members and participate in gang-related crimes? Or were they people with past criminal records, whose lack of recent gang-related convictions - despite increased monitoring by OPD and Alameda County probation officers - indicated they were trying to leave that life behind?
And if they were trying to leave that life behind, does that mean they also have to leave the communities where they lived most of their life and have family?
There are several different routes "for dropping out of a gang, Keely explained. “Some get beaten out, some … can fade away.” However, the cop said, “If they keep coming back to the neighborhood, they’re still respected as gang members.”
Every one of the 40 defendants included in the injunction, he concluded, were "active gang members.” But Cunningham noted that Quintero and Manzo had not been charged with any current crimes.
More testimony is heard on gangs
The court heard other testimony from Keely, which established his credentials as a specialist in street gangs. Norteño membership, he claimed, was signified by the claiming of the number 14, wearing of the color red, and allegiance to the prison-based criminal organization Nuestra Familia, who are opposed by the Mexican Mafia or La Eme. Norteños have common enemies - the Sureños and Border Brothers - and, according to Keely, membership grants the privilege to commit criminal acts, such as drug sales, in Norteño territory such as Cesar Chavez Park and East 15th St. in the Fruitvale.
Shootings, robberies and random violence, he said, were all “part of the turf.” There are apparently several Norteño-affiliated cliques in the neighborhood, Keely said, identifying one such clique as TFC, or “Too Fucking Crazy,” and among these cliques, “meetings have taken place where large groups have gathered.”
Yet Keely offered no direct proof or evidence that any of the people named on the injunction list had ever participated in any such meeting and didn’t identify the source of his information directly.
At one point, Freedman pointed to Cunningham’s red tie and asked Keely if he would consider the lawyer an active gang member, based on its color. Keely said no.
Another interesting moment came when Keely was asked by Cunningham to comment on the effectiveness of gang injunctions. Keely told a story about a Norteño gang member from Fairfield contacted in the Fruitvale who said he had come to Oakland because of the injunctions in his hometown. That seemed to be a golden opportunity for Cunningham to argue that injunctions tended to displace or shift crime from one place to another, rather than reduce or eliminate it altogether, as some criminologists have claimed.
Yet Cunningham chose not to follow that line of questioning; instead, he asked whether Keely was aware of GPS monitoring of the defendants.
As the court session concluded for that day, it was unclear that any substantial progress had been made. Yet another hearing was scheduled, for the following Wednesday, at which time the City Attorney is expected to have the opportunity to redirect Keely’s testimony. Further witnesses will likely be called by the prosecution, yet it remains unclear whether any more defendants will testify for the defense.
Siegel: Keely unconcerned with 'collateral damage'
Outside of the courtroom, media members had plenty of questions as to what had just happened, and what it all meant in the larger scheme of things.
“The City Attorney has said throughout this process, this is a special injunction. It’s akin to a smart bomb, which is only going to get the bad people,” said defense attorney Michael Siegel. “I completely disagree with that characterization. It covers a huge geographical area. It contains named individuals, as well as John Does. It also includes an unincorporated association. So I disagree with the characterization that it’s specifically calibrated.
"And I don’t think that Keely’s in the position of saying what will be the impact of the injunction, because he hasn’t studied that," Siegel continued. "He’s basically prepared files for the purposes of litigation. That’s what he said today … He’s not concerned with the collateral effects of what’s going on.”
Deputy City Attorney Rocio Fierro, meanwhile, told reporters she didn’t know how closely Keely worked with officers from the probation department.
“He’s not the only expert we have,” she said.
John Does could be added to injunction
Clearly in a rush to leave, Fierro was followed to the elevator by reporters clutching digital recorders and notepads. She said she was unaware of a master list of known gang members outside of the named defendants.
“We focus on certain individuals and only them,” she said.
This appeared to contradict the 70 John Does named in the injunction.
Fierro attempted to clarify this point: “There are more defendants we need to add, and we are allowed to do that. We’re not going to do it separate from a court proceeding.”
"Who are these John Does?" she was asked.
“You don’t have to have identifiable persons. We’ve heard there are about 300 to 400 Norteños.” These Norteños to be named later, she said, could be added to the injunction down the line, which seemed ominous.
Yet Fierro assured, if more names are added to the injunction, “We will follow all the protocols on notice and due process.”