Cesar Cruz and members of the Homies Empowerment Program speak with attorney Mike Siegel outside the courtroom
As testimony resumed Tuesday in the Oakland Fruitvale gang injunction case, several witnesses were expected to testify, but only two of them did: OPD officer and Hispanic gang expert Douglass Keely and Alameda County Department of Corrections parole agent Joey Morino.
But before the hearing even started, the tension had begun to mount outside of court.
Over the weekend, Oakland City Attorney John Russo, who has yet to make an appearance in Judge Robert Freedman’s courtroom, offered his rationale for the injunctions and his apparent surprise at spending six days in court on a preliminary hearing in a blog interview with Zennie Abraham. And the San Francisco Chronicle speculated that the unprecedented and unexpected defense of the injunction – the first time such a proceeding has been defended, according to defense lawyer Michael Siegel – is not only taking a financial toll on the City Attorney’s budget, but may change the way cities approach gang injunction cases in the future.
120 witnesses could testify
On Monday, Siegel told members of the media that as many as 120 witnesses could eventually be heard. Tuesday, he put that scenario in context by noting that a gang injunction, which has been in place in Southern California for two decades, was decided in a brief, two-hour hearing.
Throughout the case, Freedman has shown a willingness to grant leeway toward the defense in order to fully explore issues of due process raised by naming 40 defendants as public nuisances in an area covering 450 blocks. This, in turn, has resulted in exasperation and apparent frustration at the slow pace of the proceedings, particularly from Deputy City Attorney Rocio Fierro, who has frequently expressed her preference for a speedy hearing.
During Tuesday’s cross-examination of Keely by Dennis Cunningham, Freedman couldn’t resist throwing in a couple jibes. When Cunningham was asked to estimate the time he’d need to cross-examine the witness, Freedman quipped, “multiply that by three.” And, when Cunningham finally indicated he was done questioning Keely, only to say he had one more question, Freedman ribbed Keely that he was “inches away from a clean escape.”
Much of Keely and Morino’s testimony concerned defendants Abel Manzo and Javier Quintero, the only two of the alleged Nortenos to thus far take the stand in the hearing to determine whether a preliminary injunction should be granted.
OPD gang expert granted wide latitude
Speaking as an expert witness for the prosecution, Keely was granted wide latitude not generally available to other witnesses. Testimony, which would otherwise be considered hearsay, was admissible and permissible. And just as he had in past appearances on the witness stand, Keely again invoked confidentiality to not reveal his sources of information – in particular reference to a question about the FBI’s involvement in Latino gang enforcement practices in Oakland.
When Cunningham complained, Freedman responded by saying “the court understands concerns when privilege is invoked for security reasons.” Fabrication of information, he emphasized, “is not a novel concept.”
Yet Keely was certainly a credible and knowledgeable witness in his area of expertise. Just as he had done last week, he gave the court a primer on Latino street gangs in Oakland.
The officer rattled off detail after detail concerning gang hotspots within the proposed safety zone, such as the “Murder Dubs” and the “Dirty 30s;” Norteno sets including the “Fruitvale Gangster Nortenos,” “Nortenos on the Rise,” “36th Ave. Locos” and “Too F**king Crazy Nortenos;” the symbolism of graffiti, tattoos and colors in gang lore; the retaliatory practices engaged in by gang members against rivals; the history of the Nortenos in Oakland; and their affiliation with the prison-based Nuestra Familia, or “Northern Structure,” the larger organization Oakland’s Nortenos are allegedly connected to.
The Oakland Nortenos, Keely said, “are not having battles” between each other, but at times engage in conflict with other Latino or black gangs. Solidarity between sets, he stated, created problems for the police, other gangs and non-gang members.
“When gang members gather together, they may influence, or be victims of crime,” he said – essentially laying out the rationale for the injunction from a law-enforcement perspective.
To some extent, Keely appeared to contradict the testimony of Quintero, who had earlier denied being a gang member or being aware of gang turf. He recounted several incidents when Quintero was contacted by OPD in the presence of gang members, as recently as April 2010.
Among those was a lengthy retelling of what has been called “the shed incident” – when Quintero was arrested outside a shed he called a clubhouse and hang-out spot – Keely identified four guns seized in the incident, as well as two large plastic bags containing marijuana and a piece of wood clearly marked with “XIV,” “14” and “Untouchables” written in cholo, or Latino-style calligraphic script, with the “s” and “b” crossed out – an indication, he said, of enmity towards the Surenos and Border Brothers.
Much of that information was not new -- it had been covered,
for the most part, by attorney Tricia Hynes, in her cross-examination of
Quintero -- except for the deciphering of the encoded graffiti. But the
photographs of the evidence seized by police shown to the court were clearly
intended to provide shock value, even if OPD's biggest prop -- the sniper rifle
recovered at the shed, which had been brought into the courtroom in a box, and
required special handling by deputies -- was never trotted out.
Quintero, who has thus far been quiet and impassive in court - unlike fellow defendant David Pelayo, whose body language has frequently been expressive - bowed his head as the photographs were displayed for all to see. But he couldn’t help but suppress a laugh when Keely speculated that the reason he was running toward the shed when contacted by OPD was so he could use the guns on the police.
The Huelga bird: Symbol of cultural pride or proof of gang membership?
However, it was difficult for courtroom observers to say when Keely was freely mixing facts, opinion, speculation and ironclad evidence. He insisted, for instance, that Manzo’s crying at a funeral was proof-positive of active gang membership. And, he emphatically stated that the Huelga bird - the famous black eagle symbol associated with the United Farm Workers - was a sign not of Latino pride, but of affiliation in Nuestra Familia.
From a cultural context standpoint, this statement seemed problematic. While it is true that the UFW symbol has been appropriated in some cases by the prison gang and by young Latinos in general, in and of itself, it doesn’t indicate gang membership. Cunningham’s cross-examination pointed out that the Huelga bird is identified with labor movement icons like Cesar Chavez and Dolores Huerta and appears in murals in Cesar Chavez Park in the Fruitvale, among other places.
Outside of the courtroom, Fruitvale activist Cesar Cruz - of the Homies Empowerment Program, who led a group of Latino youth into the courtroom to observe the proceedings - was furious over Keely’s depiction of the Huelga bird, which he wore as a patch on his shirt, as tantamount to gang membership.
The eagle, he said, “clearly represents UFW. It represents nothing else. It’s not a symbol of Norte, it’s a symbol of the poorest people standing up for our rights. That police officer is disrespecting our community and disrespecting our history.”
Probation agent asked about GPS device
Morino’s time on the witness stand was much less colorful. He said he visits with Quintero, whose parole he’s been overseeing since October 2010, twice a month to find out "how things are going.” He testified Quintero never complained to him about mistreatment or police harassment, as both the defendant and his sister had alleged.
Defense attorney Yolanda Huang, however, got Morino to concede “Quintero has not violated parole” since he’s been handling his case. He also acknowledged the elevation of the defendant’s parole status to GPS monitoring was as much the result of his past criminal history as a statewide effort to implement new technology in gang cases - made possible by a federal grant.
On the stand, Morino stated the existence of the gang injunction as a reason he hasn’t taken Quintero off GPS. But he also said he was unaware of the injunction when he was subpoenaed to testify back in February.
Instead of ruling on the inclusion of the defendants who have testified already in the injunction and whether to grant the preliminary injunction at this time, as the judge had indicated he might do, Freedman instead set another evidentiary hearing for the following Tuesday, at which time, probation officer Dalen Randa is expected to take the stand.
Katz: Gang injunctions cost-effective
Asked his opinion on the proceedings, Alex Katz, communications director for the City Attorney’s office, gave a neutral, almost numbed response, which stood in contrast to his fiery, energetic remarks before the hearing got underway and in its beginning stages - a sign, perhaps, that the defense efforts had begun to wear on him and Russo.
“It was a … continuation of this process,” he finally mustered after thinking for a moment.
Apologizing for a “boring” response, he added, “This is the sixth or seventh hearing. Plus, there’s been a lot of outside conferences with the lawyers.”
Asked whether the City Attorney’s office expected the process to be so long and involved, Katz said, “going into this, I don’t think there was an expectation one way or the other. We wanted to do this to safeguard due process, but at the same time, this is an urgency measure, which means it’s an urgent issue.
“The urgency is that, as you know, since we filed this lawsuit, a third of the defendants have been arrested for other crimes. Attempted murder. Robbery. Carrying loaded weapons. Assaulting police officers," he continued.
"Out of the 40 guys, 13 have been rearrested. And one was actually the victim of a drive-by shooting” – a reference to Alejandro “Phatz” Velasquez, who was fired at (but not hit) this past weekend by an unknown assailant.
“The gang and the defendants we named are still out there,” Katz said. “They’re still bringing violence to the community. So that’s the urgency.”
But Katz denied that the financial cost of mounting the injunctions had become a concern for Russo’s team.
“Since we have a cap on the amount of money that we’re paying [co-counsel Meyers Nave], in terms of money, it’s not actually that expensive of a case. It’s taken more time, but that’s fine.”
The City Attorney’s office, Katz said, has spent $110,000 on gang injunctions so far.
“In the North Oakland case and in this case, we have 55 defendants total. So we’re spending $2,000 per defendant," Katz said. "In financial terms, that’s not a lot.”
Cunningham: Keely a ‘nightmare’
For his part, Cunningham said cross-examining Keely wasn’t easy. Calling the OPD gang expert a “very intelligent man” and a “super cop,” the civil rights attorney said, “He does a real good job in making a public face [for gang-suppression tactics]. As witnesses go, he’s so primed and clever, at stuffing his doctrine, his propaganda, into his answers. He’s like a nightmare for a cross-examiner.”
Still, Cunningham thought his team had a good day in court overall.
His favorite moment came “when that parole officer said, ‘that program started last summer and we needed to get some cases to put in the program, so we gathered up these guys [and] gave them GPS’s … it’s indicative of the fact that they need bodies to do this too. Just like they need bodies to send to the prison."