AND JUSTICE FOR SOME
ore than a thousand gang killers are walking the streets of Los
Angeles.
Copyright Los Angeles Times
Thursday, December 5, 1996
Gang Killings Exceed 40% of L.A. Slayings
Intimidation of witnesses allows hundreds of suspects to walk free.
Prosecutors try to break the cycle.
By TED ROHRLICH and FREDRIC N. TULSKY, Times Staff Writers
Witness intimidation helps keep them there.
Witnesses have been killed and many more threatened, as frustrated
police have been unable to protect them.
Many residents of gang-dominated neighborhoods are too terrorized to
come forward, and their reluctance feeds a deadly cycle.
Without reliable witnesses, police and courts are powerless. More and
more gang killers--responsible for about 40% of Los Angeles County's
murders--remain free.
It is no wonder, as a Times study of the county's homicides found,
that gang cases are among the hardest to solve.
As gang killings have soared, police and prosecutors increasingly have
taken steps to break the cycle.
They have set up special units to investigate such cases.
They have taken extraordinary measures to protect witnesses. Hundreds
have been relocated--one Los Angeles Police Department bureau even keeps
its own moving van.
And police and prosecutors have learned to settle for less evidence.
In gang prosecutions, having only one witness is not necessarily a
sign of a weak case. "In my business, that's a great case," said Deputy
Dist. Atty. Jennifer Lentz. "At least we have somebody. . . . God bless
that person."
Lentz's cases have been cursed. In three of her prosecutions, a
witness has been killed. In one of those, two were slain.
Police officials are generally reluctant to discuss witness killings
because doing so could frighten off potential witnesses.
High-level officials say such incidents happen several times each
year--a tiny number compared to the hundreds of gang murders plaguing the
county. Nevertheless, the incidents occur often enough to frighten many
would-be witnesses out of cooperating.
Two years ago, a police administrator in South Los Angeles reported
eight witness slayings and two attempts.
"The results of those blatant executions [have] been a reduction in
witness cooperation and a reluctance on the part of some investigators to
produce witnesses in dangerous cases," the supervisor wrote in a memo to
his superiors.
Police believe one exceptionally violent gang was responsible for
several of these witness executions:
* Gloria Lyons and Georgia Jones witnessed the 1993 slaying of Willie
Bogan by a gang member. Both told police what they saw. Both were killed
in 1994.
* After Albert Sutton saw four gang members shoot his brother, gang
members repeatedly tried to dissuade him from becoming a witness. Despite
the pleas, Sutton testified in September 1992. Three days later, he was
shot to death.
* Four people standing on a street corner were wounded and one man
died in South Los Angeles in 1994 when, police concluded, gang members
tried to retaliate against a teenager who had identified a killer. The
teenager had walked away seconds before the drive-by attack.
The study of Los Angeles County homicides from 1990 through 1994 found
that, other things being equal, gang murders were less likely to be
solved by police than other murders and cases were more likely to fall
apart before trial.
Witness intimidation is not the only problem that makes gang cases so
difficult.
The gang culture prizes vigilantism over legal remedies when gang
members are the victims. And gang members will not talk to police because
they fear being labeled "snitches."
In addition, the slayings of gang members provoke little sympathy from
residents or police. And their murders usually occur on the streets,
leaving police with few physical clues.
Desperate Adjustments
To compensate for the difficulties inherent in gang cases, the entire
system has made a series of accommodations:
* Police often build cases on the word of unreliable gang members whom
they have persuaded to talk against other gang members.
* Prosecutors use police to identify the defendants as gang members
and tell jurors about gang behavior and turf alignments, even when
defense attorneys complain that such evidence sheds no light on the
motive for a murder and is used only to scare jurors.
Prosecutors say judges only allow such testimony when it establishes
motive or other relevant aspects of the case.
* Gang prosecutors are routinely allowed to prove their cases based on
statements that witnesses have disavowed.
In gang cases, witnesses routinely come into court and deny ever
incriminating the defendant--and jurors are told that is par for the
course. Jurors are left to decide whether the witnesses told the truth in
court or in previous interviews with police.
* Increasingly, prosecutors also try to protect witnesses from
retaliation in gang cases by hiding their names. In exceptional cases,
they try to keep the witness anonymous even at trial.
The accommodations are not without cost. Defense attorneys say the
adjustments accentuate an aura of danger and raise the likelihood that a
gang member will be convicted of a murder he did not commit.
"It goes to this whole hysteria that we have about gangs," said
defense attorney Cynthia Barnes, an appellate attorney who frequently is
appointed to represent gang members. "Once you hold up somebody and say
it's a gang case, people assume they're guilty."
Michael Genelin, who supervises gang prosecutions in the district
attorney's office, said the office policy, first set under Ira Reiner, is
to use all available legal measures to protect the community from gang
crimes.
Gangs exist primarily to commit crimes, Reiner wrote in the policy
directive. Therefore, he wrote, "the objective of the policy is basic: to
incarcerate gang members for as long as possible."
Genelin said: "We never attempt to lock up innocent people. It's
anathema to do that."
The Search for Proof
In the early 1990s, the study found, murders involving gang members
accounted for 38% of slayings countywide. Law enforcement officials say
the problem is getting worse, with gang slayings now comprising more than
45% of all killings--more than double the percentage of a decade ago.
In gang cases, police often find themselves with a body in the street,
a few shell casings and no willing witnesses. The easy part is using
intelligence reports about turf rivalries to identify the gang that was
responsible. The hard part is proving which gang members did the killing.
When police found the body of 19-year-old Darryl Modisett lying in a
North Hollywood street in late 1992, they could guess what had happened.
Two gangs--one African American, the other Latino--were feuding. So
police figured that Modisett, who was black and worked as a cook at
Universal Studios, had been mistaken as a rival.
A "confidential reliable informant" gave detectives the names of four
gang members he said he heard bragging about the killing.
The four were arrested but were quickly released because the
informant's story did not hold up. One of the suspects had been in jail
when the killing took place.
Then police got a break. They caught a gang member selling drugs and
linked his gun to bullet casings from the death scene. The suspect
admitted under questioning that he and two other gang members had hunted
down Modisett after mistaking him for a rival.
Prosecutors charged Efrain Perez, but the case was fatally flawed.
Before implicating himself, Perez had asked for a lawyer. Yet police
persisted in their questioning, a tape recording shows.
The prosecutor concluded that the confession was obtained improperly
and could not be used in court. So he offered a deal: Plead guilty to
armed assault and to the drug charge and get 10 years instead of a
possible death sentence for an ambush killing. Perez accepted.
Three years later, Modisett's mother, Joi Singleton, still grieves.
She is stung not only by the death of her son but by the criminal justice
system's failure to punish his killers.
"All I wanted was justice," Singleton said. "I wanted to see those
guys caught."
'Revenge Killing' Unpunished
Six years before he was shot to death by a member of his own gang,
Marco Melgar had testified against another member of their gang in a
murder case.
To police, the shooting of Melgar after a party in Hollywood in 1995
was retaliation against a witness--a case that went right to the heart of
the criminal justice system and one they badly wanted to solve.
There was no mystery about who had killed Melgar. His girlfriend was
wounded in the shooting but survived, and identified the killer for
police.
But the police could not find him. So they did the next best thing:
They arrested other members of the gang, and charged four of them with
murder or conspiracy in Melgar's death. The problem was proving the
charges.
Only one of the four gang members who were charged had been present
when Melgar was shot. And the victim's girlfriend told police that this
man had not participated in the shooting.
In fact, she told police, he appeared shocked when the killer opened
fire.
Defense attorney Henry Hall, representing that suspect, called the
case a travesty. "The police had no credible evidence to tie the
defendants to this murder," he said in an interview. "This was nothing
more than using a prosecution to try to squeeze the defendants into
helping the police."
Prosecutors insist that they had a factual basis to charge and try the
gang members. Deputy Dist. Atty. Craig Hum said Hall's statement "is a
totally inaccurate characterization of what this case was about."
Hum said the heart of the case was evidence that the gang members had
been involved in planning the murder.
That evidence was bolstered before trial by a man who contacted police
from jail to say he had evidence against the defendants. He said that
before he was arrested he had heard the defendants discussing plans to
murder Melgar.
In return for his cooperation, the prosecutors let him walk out of
jail, despite a range of charges from drug dealing to aggravated assault
to threatening a witness.
Jurors were unimpressed with his testimony, however. All four
defendants were acquitted.
A Question of Priorities?
In a county where police make difficult choices about how to use their
time, the deaths of gang members who have tried to kill police officers
may not always top the list of priorities.
Defense attorney Frederick Brennan says that is why the slaying of
"Crazy" Ray Nichols received so little time and attention. "I've had
cases of petty theft that were investigated more," the defense lawyer
said.
LAPD Det. John Berdin and his partner had no trouble identifying
Nichols when they went to the hospital in August 1994. His left inner arm
bore the tattoo "Crazy," his right, "Ray."
Nichols was known as an intimidator, Berdin said. One time, his
homeboys fired shots that whistled past Berdin and another partner as
they questioned Nichols in a park. Another time, Nichols and others were
accused of luring detectives down a street, then opening fire on them.
Police began the investigation of Nichols' death at a disadvantage.
Nichols did not die for two hours after he was shot in the parking lot of
an Avalon Boulevard liquor store, and nobody notified homicide detectives
until the next day. No one had bothered to secure the crime scene either,
so physical evidence may have been lost.
The parking lot was a hangout day and night. Yet detectives had
trouble finding anyone who admitted witnessing the shooting.
They heard that Nichols' brother witnessed the killing. But they did
not go talk to him for a week.
He told detectives he had seen a gang member named Eddie Harris shoot
his brother. He also provided a motive, saying the two had been in a
fight a week earlier.
To Berdin, the brother may not have been the perfect witness but his
description of the murder seemed to fit the physical evidence. "You can't
pick and choose your witnesses, obviously," he said.
Despite hearing the brother's testimony, jurors acquitted Harris last
year.
Defense attorney Brennan had successfully argued that there were
deficiencies in the investigation:
Detectives never talked to the resident on whose porch Nichols
collapsed after staggering from the parking lot.
It took them a week to talk to the victim's brother, and two more
weeks to arrest Harris outside his mother's house. They did not go inside
to look for a murder weapon.
Finally, it took six months for them to submit a bullet extracted from
Nichols' body for ballistics testing.
After the trial, Brennan described his view of the police attitude:
"We have a scumbag killed. It's pest control; let's rustle the bushes.
Somebody tells us a motive and says that they saw it--we're done. The
case is closed."
Berdin said neither he nor his partner gave the case less attention
because of any grudge against Nichols.
The investigation, Berdin said, might appear thin on the surface. "But
the thing is, you can beat that case to death and there's nothing there."
A Successful Skirmish
In the war on gangs, one LAPD officer made a telling observation about
who is winning: "When we're there, we are. When we're not, they are."
For years, Lamar Barnwell was a case in point--a walking advertisement
for lawlessness in his South Los Angeles neighborhood. People had seen
him commit mayhem and murders but were too frightened to come to court
and testify.
Police were powerless to act on their suspicions that Barnwell was an
enforcer for his gang until late one night in 1992, when, by pure luck,
they found themselves in a position to solve their problem.
A patrol car happened to be passing by a closed tire store while,
inside, Barnwell was putting bullets into four people's heads.
The first two bullets drew the attention of a patrol officer, who saw
Barnwell kill the last two victims. If the officer had taken a left turn
instead of a right, the odds are overwhelming that Barnwell, instead of
waiting on death row now, would have been free to kill again.
"There's no question he would have gotten away with it, just like he's
gotten away his entire life," said Deputy Dist. Atty. George Castello,
who prosecuted Barnwell for the tire store murders. "If the police hadn't
confronted him, there would have been absolutely no link to this man. . .
. He had killed every witness."
In July, after Barnwell was convicted of the murders, he faced a
hearing before jurors who would decide whether he should live or die.
Finally, police convinced a parade of people who witnessed his earlier
crimes to come forward.
The mother of one of Barnwell's childhood friends related a 1987
incident, in which she said Barnwell broke her arm and shot at her over a
$5 drug debt. The charges were dropped when she suddenly stopped
cooperating. Only this year did she explain that she had received what
she considered a death threat.
Another woman testified that a gang member she ran into at a
convenience store pointed out Barnwell as someone who was "going to kill
him." The man was murdered the next day. At the time, the woman told
police that she could not identify Barnwell's photograph. Only this year
did she admit that she had been too scared to incriminate him.
An ex-crack user testified that she saw Barnwell shoot a rival drug
dealer to death. She declined to identify him at the time, afraid that if
she did, she would be next.
Even with Barnwell behind bars, some people remained too frightened to
testify. As a result, another murder charge--the 1988 beating and
stomping death of Clarence Gaston Jr.--had to be dropped. Police said
they found a witness in 1995 who heard Barnwell confess to that
murder--but refused to come forward.
Changing the Rules
Because reluctant witnesses make gang cases hard to prove, prosecutors
have tried a different way to solve their problem: Change the law to make
it easier to win cases.
Genelin, the top gang prosecutor, said the office is "trying to carve
out more exceptions" to its duty to disclose information about its
witnesses to the defense.
They have gotten permission in some cases to hide the identities of
witnesses from defense attorneys until the eve of trial and, in
extraordinary cases, have sought such protection at trial.
Defense attorneys say such protections make it difficult to gather
evidence about the witnesses' past that may discredit their testimony.
Gang prosecutors have also come to rely every day on a court ruling
originally fashioned to address an exceptional circumstance--when a
witness disavows at trial an account previously made to police.
Courts strictly limit the circumstances when attorneys can rely on
things witnesses say out of court, because such statements cannot be
cross-examined. But 20 years ago, the U.S. Supreme Court ruled in a Los
Angeles drug case that prosecutors could build their cases around what
witnesses told police before trial, even if the witnesses disavowed the
statements.
Without that court ruling, Genelin said, "we'd be in a dreadful
state."
What made the murder case against Carlos Munoz unusual is that his
conviction was based on nothing but this kind of evidence.
Munoz was accused of participating in the 1992 drive-by slaying of a
rival gang member in Hollywood.
Witnesses said Munoz's gang had committed the drive-by murder, and
that the next morning Munoz was seen with the man who owned the car.
But the only evidence linking Munoz directly to the murder were
statements to police by two rival gang members, who had picked his
photograph from a police display.
By the trial, both had retracted their accounts.
One insisted that he had not seen anything, and had never claimed
otherwise to police.
"I just don't want to get innocent people locked up for no reason if
they don't--probably didn't even do it," he said.
The second gang member, the girlfriend of the victim, insisted that
she had never been certain of her identification. She admitted that she
had not wanted to come to testify because she feared being labeled a
snitch. But she insisted that the man who killed her boyfriend was not in
court.
Both witnesses were contradicted by detectives who said the witnesses
had identified Munoz. A detective said the girlfriend had warned him that
she would not follow through and identify Munoz in court.
Munoz testified and presented his alibi: Eight fellow gang members,
family members and friends testified that he was with them at a party at
the time of the killing.
The prosecutor, Deputy Dist. Atty. Debra Cole-Hall, told the judge at
one point outside the jury's presence: "I don't know what the truth is. I
am just presenting the evidence and the jury decides what the truth is."
But Cole-Hall argued that to find Munoz not guilty "you'd really have
to say . . . that these police officers made up all of this."
After Munoz was convicted of second-degree murder, he appealed because
California law says no one can be convicted on an out-of-court
identification without corroboration.
An appeals court turned him down, concluding that the out-of-court
identifications corroborated each other.