I told you so.

Since 2000, I have been urging defense lawyers to challenge the underlying premise of the gang case - whether the charged group is a "criminal street gang" - at all. In response, many lawyers, no matter how inexperienced, look at me like I'm a crazy person; especially lawyers from LA who have drunk the Kool-Aid, believe LA is the gang capital of the country, and so, if your client says he is a member of the named gang, he or she is screwed. They lawyers think this way because, like law enforcement, they have conflated a term of common usage - "gang" - with the legal term used in the gang statute which requires proof of its very existence - "criminal street gang." These terms do not mean the same and it is the defense lawyer's job to make sure the jury understands the difference, even if the gang cop and prosecutor don't.

In my practice manual, I urge the defense lawyer to get an array of discovery to challenge the gang cop's opinion, based largely on untested anecdotal information, that any charged group is a "criminal street gang." This is because law enforcement generally does not collect, collate or analyze data to determine whether any of the opinions offered by the gang cop in any particular case are supported by admissible evidence.

I enclose something I found today in the LA Times to again make my point.

https://www.latimes.com/california/story/2020-01-06/dozens-of-lapd-officers-accused-of-portrayed-innocent-people-as-gang-members-falsifying-records#null

If the defense lawyer asks for everything the gang cop has read, considered or relied upon in support of his/her opinions, she will be able to shred the gang cop during cross-examination by methodically deconstructing his opinions in a manner that will make the above fact painfully obvious to a jury. Here's are some examples:

E.g. “Officer, you’ve told us that murder is a “primary activity” of Townsend Street. Do you know how many murders were committed by members of Townsend Street at the direction of (for the benefit of; or in association with) Townsend Street in the three-year period prior to the commission of this crime? Do you know how many murders in relationship to graffiti incidents? If there are 50 graffiti incidents and only one murder, how can you say that murder is a primary activity of Townsend Street?”

E.g. “Officer, you’ve told us that a member of CSG craves respect. You’ve also told us that a member of a CSG gains respect by committing violent crimes such as robbery or murder. If that is true, wouldn’t the majority of crimes committed by young men who identify with criminal street gangs be robbery or murder or other violent or serious crimes listed in the Penal Code? Do you have any data or statistics to indicate that this is the case?

E.g. “Officer, would you agree that most young men who commit crimes are between the ages of 13-20 and come from lower socio-economic backgrounds? Are you familiar with any correlative studies that have compared young men between the ages of 13-20 not documented as members of an alleged criminal street gang with young men of the same background and documented as members of an alleged criminal street gang? No? Then how can you conclude that young men from alleged criminal street gangs that commit the majority of violent crimes named in section 186.22?

Again, control & framing of terminology in a gang case is critical because the DA, gang cop and the judge are always playing fast and loose with terms such as “gang,” “gang-related,” “active participation,” et cetera. For example, in Orange County, the gang cop’s definition of a crime that is “gang-related” simply means a crime in which a person, documented as a member, associate or affiliate of a "gang," is a suspect, victim or witness of a crime. No kidding!

There is a big difference between an auto theft committed by a "gang member" and an auto theft by a member of a proven criminal street gang, "for the benefit of ... a criminal street gang." It is up to you, the defense lawyer, to make sure the jury understands these distinctions and your cross-examination of the gang cop should underscore the fact the gang cop doesn’t make these distinctions.