2010-10-21 "Rap Star or Gang Member?" by David Greenwald from "Davis People's Vanguard" and "Yolo Judicial Watch"
Two weeks ago we had an article on the problematic nature of expert testimony by the gang expert in the case of Michael Romero. For the last few weeks we have seen the testimony of the plaintiff's gang experts in the Gang Injunction Trial.
First, Joe Villanueva took the stand as an expert. Detective Villanueva currently works on the City of Fairfield gang unit, but up until the end of 2007 headed the Yolo County Gang Unit.
This week, the current head of the gang unit, Sgt. Jason Winger, has taken the stand in the gang injunction case.
One of the big questions is the nature of expert testimony. Expert witnesses are allowed to render opinions. In this case, both experts have rendered opinions about whether an individual is or is not a gang member. Their expertise is based both on formal training and street experience, but at the same time we have seen some of the limits of their knowledge and, as importantly, the inability to put the information gathered on the streets into proper context.
This latter problem is particularly true for Sgt. Winger, as we have seen this week under direct examination from Deputy DA Jay Linden.
We have already previously discussed Sgt. Winger's testimony on the Ornelas case which is not consistent with the facts that were presented at trial. But there are a few other key points that need to be raised about the nature of Sgt. Winger's expert testimony.
Much of this week, Sgt. Winger has gone through name by name, explaining why each individual listed is a gang member. His assessment is based on a standard of the totality of the circumstances, which is an interesting standard in that it would appear to give more objective consideration to the determination of gang status than a simple on-the-street determination that many jurisdictions use.
Indeed, West Sacramento might appear to have a more rigorous standard as the determination of validation goes up the chain of command within the department for approval, but it still falls well short of any proceeding that might take place in the court room. As we will see shortly, this standard is often based on misreading evidence, and can fall woefully short.
Two points that Sgt. Winger made stand out. First, at one point, he was asked to read from "documents" found on the scene at the home of one purported gang member, Manuel Guzman. He read from this "document" and it became very clear that Sgt. Winger was reading from rap lyrics.
Taken out of context this would be very damning, as it made reference to killing and the gang life, with specific references to West Sacramento, Broderick and the like.
The problem, as one of the defense attorneys objected, is that this appears to be gangster rap lyrics. As such, the lyrics are not shocking but rather quite typical of a genre of music that regularly makes reference to, and even glorifies, the gang life and culture.
Does that make Mr. Guzman a gang member? Only if you believe that all rap stars are gang members. And the "totality of the circumstances" argument could fall well short here, as certainly many established and aspiring rap stars have lyrics like these and items in their home that could be interpreted as gang "indicia." More on that shortly.
The problem is that you have middle-aged individuals, most of them white, trying to make sense out of a culture that they have never been a part of and likely do not understand. Lacking that understanding, one can misinterpret one's clues.
And yet this is an expert witness, but it seems possible that he has never listened to rap music in his life. Certainly , he has little understanding of a popular Hip-Hop culture and subculture that have come to glorify the "gangsta" lifestyle, and have incorporated and even co-opted gang symbols and slogans.
This point comes out again with Carlos Guzman, who purportedly has a tatto across his chest with the writing, "Can't Stop, Won't Stop."
According to the expert Sgt. Winger, that is a gang saying pertaining specifically to the Norteno gang, which stands for can’t stop the gang life and won’t stop the gang life.
Sounds convincing right? Now google the term and you find out something very interesting. First of all, no reference to gangs in the first several pages. Instead you find a number of songs by the name, including one by Lindsey Lohan.
We find a New York Daily News story from May 9, 2010 that reports that "New Lindsay Lohan song, 'Can't Stop, Won't Stop,' leaked online." We can even watch her video .
We also know that title is an influential book on the Hip Hop industry by Jeff Chang .
So is this a gang slogan, or just a pop culture reference? Does Sgt. Winger even know? This gets to the very point, he may know a bit about gang members, but he seems to lack a broader perspective that would enable him to perhaps properly identify what he is seeing and put it into context.
These may seem like small details, but they are very dangerous, potentially, as we saw on Frontline this week in their feature on Cameron Todd Willingham. He was convicted of setting an arson fire that killed his three children in Texas, was executed, and new forensic evidence demonstrates that the fire was not arson.
What we see, in part, is a combination of police and investigators misreading the clues and the totality of the evidence. Investigators argued that Mr. Willingham was a satan worshiper and suggested that the burn patterns in the children's room showed a pentagram. They also found posters that depicted satanic images.
However, later forensic investigators dispute much of that evidence. The pentagram that the investigators thought they saw was actually created by the windows and door in the room and the ventilation patterns. Meanwhile, the posters that were supposedly satanic images were actually posters from the band, Iron Maiden, a heavy metal band that Mr. Willingham was a fan of.
Iron Maiden does in fact use such images, but they were a popular band in the 1980s and early 1990s for heavy metal fans, most of whom were not Satan worshipers. In short, the conclusions that the police investigators reached were flawed, despite looking at the totality of the evidence.
Rap music may be popular among gang members, but it is also popular among non-gang members. Rap lyrics often depict fictionalized accounts that glorify the gang life. Popular rap musicians may rap about killing people, but that does not mean that they have killed people or even desire to kill people.
Unfortunately, we have a group of people who probably have little exposure to or understanding of such culture, and who are in charge of this case. They may know the law, but the key question that the Judge in this case has to look at is the facts of this case, and that is based not just on the law but also the evidence, and it is contingent upon her ability to weigh that evidence.
When you have a gang expert who may lack the perspective to place evidence into proper perspective, that creates a problem.
Unlike Sgt. Winger, Joe Villanueva, at least, is somewhat steeped in the culture. He testified that he had grown up in the Salinas Valley, in an area with many Norteno gang members. Detective Villanueva testified that he learned about Hispanic Gangs when growing up, about the general structure of the Norteno Gang, and he knew many during his formative years.
But as Detective Villanueva testified, we also discovered that there were limits to his knowledge. For instance, he does not appear to understand gang laws. He did not understand the difference between 186.22(a) and 186.22(b)(1), believing that both were gang enhancements.
In fact, 186.22(a) is not an enhancement, but the stand-alone crime. The statute reads, "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."
Whereas in 186.22(b)(1), "Any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted..."
186.22(b)(1) thus requires that the individual commit a felony "for the benefit of" or "at the direction of" a criminal street gang, and imposes an additional sentence, over and above the sentence for the crime.
While Detective Villanueva is not a lawyer, as a gang expert, he should at least know the difference in the sections of the law.
This is not the only problem with Det. Villanueva's testimony. Throughout his testimony, Det. Villanueva has stated that he is an expert based on his contacts with gang members, rival gang members, contact with the community, courses he has taken for his Masters, and training he has received as a police officer and gang detective.
However, his understanding of the Norteno gang and Nuestra Familia has some critical holes in it. For instance, defense attorney David Dratman asked him what the letters in the word, "Norte" represent. Det. Villanueva apparently did not understand the question, responding vaguely that the word means north in context with the gang.
Mr. Dratman asked if Det. Villanueva had ever heard the meaning of the letters as, "Northern Organized Raza Towards Equality?"
Det. Villanueva, the gang expert responded, "I have never heard that before."
Small point? Perhaps. But the broader point here is the criteria for expertise is quite limited and subjective. During trials, a psychiatrist or other professional would have to furnish professional degrees, which certify a proficiency of knowledge. However, while gang experts' testimonies are given similar weight, there is no certification of knowledge, there is little quality control.
The expert witness, here, stipulates to having taken a couple hundred hours of training in a specialized field, and the rest of the expertise is simply knowledge accumulated on the ground. There is nothing wrong with experience, but experience also has its limits and it prevents people, perhaps, from gaining perspective that is needed to actually analyze what it is that they have witnessed. And yet, they are being called up to do exactly that - analyze and offer opinions that supposedly provide the court testimony with greater weight than that from the average witness.