TO PROVOKE AND OFFEND

Should terrorists be treated as enemy combatants, or as common criminals — and given Miranda Warnings?

This is the cover of my latest book.  You can read about it at No Boundaries: Transnational Latino Gangs and America Law Enforcement (University of Michigan Press: 2009).  You can also listen to a podcast about transnational Latino gangs here.  (Transcript is also available at the same location.)

A very nice article about the book, the problem, and the men and women involved written by Charles Donelan for the Santa Barbara Independent is here.

Order the book from University of Michigan Press or from Amazon.com here.

If you prefer, you can read the table of contents and an excerpt from No Boundaries at the Barnes & Noble site here.

Read a Dallas News review here, and an article in La Opinion (Spanish) here.

Before Post-Racial Politics, There Was Racial Politics

Got a Kindle?  You do?  Swell!  You can read my (as Greg Diaz) Washington pot-boiler novel 1980 Something:  A Currency of Anger, published ONLY on Kindle (by me) and available here.  It’s got violent crime, lurid sex, jaded ink-stained wrenches of journalism, wry humor, and racial politics of the nitty-gritty kind that existed before the post-racial political era.  A real bonfire of the inanities.

Why the Los Angeles Gang Tour and the Sicilian Mafia are Bad Ideas

Survivors of Gunshot Wounds Suffer Pain, Indignity, and Often a Life of Daily Horrors

“This isn’t the Boy Scouts. It isn’t the chess club. It’s a world of violence.”

Los Angeles Police Department Detective and gang expert Frank Flores, quoted in article on MS-13 trial in Charlotte, NC, Charlotte Observer, January 14, 2010

Just when you thought Los Angeles couldn’t get any goofier or more self-defeating, an entrepreneurial former gang member turned “anti-gang activist” has started a gangland bus tour.

Alfred Lomas, 45, a former gang member and the creator of the tour ($65, lunch included), said this drive-by was about educating people on city life, while turning any profits into microloans and other initiatives aimed at providing gang members jobs.

“A Gangland Bus Tour, With Lunch and a Waiver,” The New York Times, January 16, 2010

OK.

Like the mudslides and wildfires that remind us the Los Angeles Basin was intended by its Maker for other than human habitation, this idea roared through the arid mind canyons of the Left Coast and swept thoughtful analysis into the Pacific Ocean like so much polluted runoff.

Not on the Tour

First, let’s be clear about one thing.  Lomas’s “tour” is going to skip the fundamental reality of gang life in Los Angeles.  You know, the inconvenient bits – drug and human trafficking, extortion, robbery, theft, armed violence, and most of all the visible toll of the dead (think funerals) and the limping, less visible trail of walking or wheelchair-bound wounded (think spinal injuries and those little plastic waste bag appendages).

This You Tube video fills in that weak point of the enterprise.

Superficial Rationales Sufficient for the Chattering Class

Rationale # 1. “Hey, it’s America, right?”

“What the heck, market what you got,” said Celeste Fremon, who writes the criminal justice blog Witness L.A. and has studied the city’s gangs.

Although she disputed whether several of the sites had a solid gang association, she said, “if it makes money for a good cause, more power to them.”

Rationale # 2. “Hey, his heart’s in the right place!”

Kevin Malone, a former general manager of the Los Angeles Dodgers who came to know Mr. Lomas through the center and is one of the financial backers of the project, said he might accept the criticism “if it was somebody other than” Mr. Lomas.

“But I know the guy’s heart,” he said. “He is not taking anything out. All he is doing is serving and giving. If that is exploitation, I hope somebody does that to me.”

Rationale # 3 (maybe … maybe not … demi-semi quavering).  Gloria in excelsis scelestus ?”

Caregivers in Pediatric Intensive Care Units See Too Much of This from Gang Violence

“Everybody says we are the gang capital of the world, and that is certainly true, no denying that,” said the Rev. Gregory Boyle, who has spent decades trying to steer people out of gangs into legitimate work. “It’s hard to gloss over that. But there are two extremes we always need to avoid. One is demonizing the gang member, and the other extreme is romanticizing the gang.”

Snarky Rebuttals

With all due respect to Boyle, Malone, Lomas and Fremon, this is a bad idea on so many levels it makes LA’s most densely stacked freeway interchange look like a rural crossroads.

Snarky rebuttal # 1. Making money for a good cause?  That’s the test?

Deep.

Let’s see, every whacked out terrorist in the universe – especially the ones who strap bombs into their underwear – thinks his or her cause is not only good, but also superior to every other cause on the planet.

Fund-raising for these “good causes” is intimately entwined in the depredations of global organized crime – included human trafficking, sex trafficking, drug trafficking, cigarette trafficking, traffic in phony products from lethal baby formula to fake designer jeans, and the bloody mayhem that accompanies all of the above.   In fact, there is a school of serious thought that the war in Afghanistan is at least as much about the drug trade as the Taliban’s odd socio-religious tyranny.

Street Gangs are the Retail Outlets for Drugs in America

And by the way, the point of this spear of criminality comes right down to L.A.’s ubiquitous marijuana “clinics,” which are a wonderful system of retail outlets for the illegal production and trafficking in weed by the Mexican drug cartels and their affiliates, the Gangs of Los Angeles.

Bad idea, good cause.

Check.

Snarky rebuttal #2. “If it were anybody else …”

Say, what he say?  This logic twists my mind like a pretzel.

Hmmm.

Okay, pick a hero in your life.  Any hero.  You know, like … um … Brangelina … Barack Obama … Mother Teresa … Alex Sanchez … Lindsay Lohan … Pat Robertson … Glenn Close … whoever you look up to in your personal universe.

Just imagine – stick with me here, this is just a “mind exercise” – that your hero decided that running 13-year old child prostitutes up from Pueblo Pobre, Qualquiera, and vending them out in slam pads was a damned good way to raise funds for … well, a good cause, no profit here.

Pick a Hero ... Any Hero

See, if it were anybody else …  love the sinner, love the sin?  Certainly, no one, definitely not Fairly Civil, suggests that there is anything unlawful about the gang tour.  But the logic is the same.

Bad idea, good-hearted personal hero.

Check.

Snarky rebuttal # 3.  The demi-semi quaver.

In fairness to Father Boyle, it is at least possible that he told The New York Times reporter that this gang tour was definitely a bad idea because it glorifies gang life.  Reporters and editors sometimes cut out the sharp points in a “reader.”  But the quote attributed to him came across as an “on the one hand, on the other hand” equivocation.  What the modern news media call “even-handed.”

Well, be that as it may, here is a more pungent comment from another source:

Is there a danger of romanticizing or even glorifying the culture that has cost so many lives and caused so much heartache and tragedy to go along with the poverty that pervades the area? You think? There are a number of tours of past gangster lairs and stomping grounds from those occupied and traveled by Jesse James to John Dillinger to name only a couple. But those who made these locations infamous or famous are long gone and the thrill is far more benign than what one might expect where there still is ongoing horror.

“L.A. gangland tour is a bad idea,” Dan K. Thomasson, Scripps Howard News Service.

Human tragedy is human tragedy.

Check.

The Sicilian Connection

Cosa Nostra Assassinated Mafia Busting Sicilian Magistrates Giovanni Falcone (left) and Paolo Borsellino

Finally, it is instructive to look at this tour in the context of another gang-infested culture:  Sicily, home of the original mafia, Cosa Nostra (not “La Cosa Nostra,” as the U.S. federal government mistakenly and irreversibly misnamed the American variant.)

It’s well worth reading the history and sociopolitical culture of this scourge.  So much that is fundamentally bad about the Sicilian Mafia and its relation to civil life can be seen in the L.A. gang culture.

• Self-marginalizing ethnic mythology and denial. “There is no mafia, it’s just a cultural thing we Sicilians have.”  For nearly a century and a half Sicilian and other Italian chatterers – politicians, writers, academics – promoted the idea that there was no such thing as the mafia, in the sense of an organized criminal enterprise in Sicily.  No, they said, “mafia” just means a prideful violence ingrained in the “character” of Sicilians.  You know, like that Latino carnal and barrios stuff.  We just can’t help ourselves.  The gangsters, of course, loved this idea, and promoted it through the transmission belt of their “useful idiots”  — even in the face of sell-documented informants from as far back as the late 19^th and early 20^th centuries!  The mob’s suckers included “intellectuals,” corrupted and gullible politicians, nitwit clerics, and the usual gaggle of do-gooders.
• Corrupted members of church and state. To the shame of the Italian government and the Catholic Church, many politicians and priests were co-opted by Cosa Nostra.  Some remain so to this day.  Interestingly, a characteristic posture of the corrupted has been to publicly criticize the mafia and propose grandiose plans to attack it, while secretly undermining law enforcement efforts against the mobsters.
• Attacking law enforcement and judicial authorities. One of Cosa Nostra’s classic tactics has been to attack – both physically and rhetorically – specific gangbusters in Italian law enforcement and in the Italian judiciary.  In many cases, this was assassination intended to send a message that the mafia was above the law, in fact, was the law.  In other cases, it was a smear campaign; a whispering, snickering current of innuendo designed and intended to undermine public confidence in law enforcement generally and in specific persons whose principled activities became a thorn in the side of the mob.
• Culture of Criminality. The goal of socialization is to inculcate a “culture of lawfulness.”  No matter what else one thinks of cops, there clearly are not enough of them to prevent every crime and stop every criminal enterprise.  This is the job of that broader mass we call “culture” or “society.”  In Sicily, the culture of lawfulness became a culture of unlawfulness.  The vast mass of ordinary people came to accept the depredations of the mafia, because the very culture taught them there was nothing they could do about it.  Many heroes of modern Sicily paid with their blood to reverse this perverse culture inversion.

Sound familiar?

You can read some of the best books about Cosa Nostra, the Sicilian mafia, and decide for yourself.  My recommendations:

• John Dickie, Cosa Nostra:  A History of the Sicilian Mafia.
• Alexander Stille, Excellent Cadavers:  The Mafia and the Death of the First Italian Republic.
• Leoluca Orlando, Fighting the Mafia and Renewing Sicilian Culture.

Salvo Lima, One of the Sicilian Mafia's Politician Friends, Was Brutally Whacked When He Outlived His Usefulness

WAIT A MINUTE COACH! IS THAT PLAYER ELIGIBLE? MS-13 MOUTHPIECES GO AFTER KEY LAPD EXPERT WITNESS FRANK FLORES IN MARA SALVATRUCHA RICO CASE IN LOS ANGELES

Daubert Hearing Could Knock Expert Out of the Game

Los Angeles Police Detective and gang expert Frank Flores has been tossed on the griddle in the ongoing MS-13 racketeering (RICO) prosecution in Los Angeles.

But first, a big shout-out to Celeste Fremon and her WitnessLA blog, which was named “LA’s Best Police Blog” by LA Weekly. Although Fairly Civil and WitnessLA have different perspectives, Fremon and WitnessLA have done a great job of filling a vast vacuum — journalistic dark hole — left by the indifferent Los Angeles Times on this and other pivotal gang cases and programs.

Back to the subject at hand, the famous (or infamous) Alex Sanchez case.

According to the federal district court’s official minutes of a January 13, 2010 hearing – not (yet) sealed – Det. Flores will be grilled at a so-called “Daubert Hearing” in March:

The Court sets a Daubert Hearing on Detective Frank Flores’s expertise to testify for the government at trial as an expert witness on March 8, 2010 at 1:30 p.m., to be held in Courtroom 890 of the Roybal Courthouse.

“Criminal Minutes – General,” United States v. Jose Alfaro, United States District Court for the Central District of California, CR-09-466-R, filed January 13, 2010.

This could be huge, folks.

Just the Expert Facts, Please

Det. Flores has been in the defense lawyers’ sights from the beginning because it is his expertise that “connects the dots” among much of the cryptic gang talk on key wiretap tapes.  He also can provide the “big picture” and overall perspective on MS-13 as a criminal enterprise – the core of a RICO conspiracy case.

Big gorilla of a question:  Can the federal prosecution team keep Flores out from under the bus?

One may assume that the prosecution has other experts on its bench, but if Flores gets tossed, the defense will win a huge “moral” victory.

One may be assured, therefore, that this will be as rough and tumble a legal gang bang as Judge Manuel L. Real will tolerate in his courtroom.  Let’s hope Judge Real keeps this one open to the public.

What the Heck is a “Daubert Hearing” and Why Care?

Fairly Civil is no expert on Daubert Hearings, but pulled together the following notes from a few websites devoted to the subject. (Links to sites are in the titles.)

What is a Daubert Hearing?

What is a Daubert hearing?  It is, in effect, a mini-trial within a trial, conducted before the judge only, not the jury, over the validity and admissibility of expert opinion testimony.

…

Actually, of the trilogy of cases, Daubert, Joiner, and Kumho Tire, discussed at this symposium, Kumho Tire is perhaps even more important than Daubert because of two central points in that decision.

-  It clearly states that a Daubert determination of reliability must be made in all cases where expert evidence is offered, whether we call it scientific evidence or technical knowledge or skilled profession.

- The Daubert inquiry is to be a flexible one. All of the factors identified in Daubert that guarantee the kind of reliability the Supreme Court said was needed for admissibility of opinions based upon scientific knowledge, such as replicability, established error rates, peer review, and so on, do not necessarily apply to all forms of expert testimony with the same rigor. They apply with full force only to those disciplines to which such factors can be applied. Conventional wisdom holds that these factors cannot be applied, in the manner spelled out in Daubert, to handwriting identification or to many other forensic sciences where cases deal with problems that are unique and where the accuracy of a specific finding cannot be stated with a measurable statistical degree of confidence.

Overview of the Relevant Law

Prior to the adoption of the Federal Rules of Evidence, all federal and most state courts followed the “Frye” test to determine the admissibility of scientific evidence. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that the Federal Rules of Evidence, and in particular Fed. R. Evid. 702, superseded Frye’s “general acceptance” test.

Fed. R. Evid. 702 contains two requirements. First, the evidence must be reliable, or in other words, trustworthy. Trustworthiness guarantees that the information is supported by scientific methods and procedures. Second, the evidence must be relevant. The criterion of relevance has been appropriately described as one of “fit.” To satisfy this requirement, the proffered testimony or evidence must be sufficiently tied to the facts of the case that it will help the jury in resolving a factual dispute. “Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”

Faced with a proffer of expert scientific evidence, the trial court is charged with the role of “gatekeeper” and must initially determine, pursuant to Fed. R. Evid. 104(a), whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This decision demands an evaluation of whether the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue.

In Daubert the Supreme Court provided four nondefinitive factors that trial courts should consider in making this determination. First, the court should evaluate whether the theory or technique can be and has been tested. Second, the court must determine whether the theory or technique has been subjected to peer review and publication. Third, the court should consider the known or potential rate of error. Finally, the court should evaluate the general acceptance of the theory in the scientific community. The Seventh Circuit has added an additional consideration: whether the proffered testimony is based upon the expert’s special skills.

In addition to these four Daubert factors, other safeguards exist to protect against the admission of unreliable or irrelevant scientific evidence. Federal Rules of Evidence 703, 706 and 403 each provide an independent check. Procedures familiar to every trial attorney, such as vigorous cross examination, the presentation of contrary evidence, and careful instruction of the jury on the burden of proof, also help guard against the acceptance of suspect scientific evidence. Finally, the Federal Rules of Civil Procedure prevent cases from going to trial where the evidence is unreliable.

Potential Abuses and Misuses of Daubert Hearings

Abuses and Misuses of Daubert Hearings

In the following discussion one caveat is called for: We do not suggest that hearings on reliability and relevance are inherently inappropriate. Daubert challenges may, in fact, reflect attorneys’ confidence in their own experts’ views and justified suspicion of the experts’ opinions on the other side. Thus, in a best-case scenario, the challenge leads to achievement of a just and favorable outcome, obviating the expense and uncertainty inherent in a trial. Moreover, when an opposing expert is proffering innovative testimony, the ethics of practice, concerns about legal malpractice, and concerns about claims of ineffective assistance of counsel may require such a challenge.

In contrast to these valid concerns, when the attorney feels that a case is weak or that the client is unattractive to potential jurors, the attorney may want to see if the opposing expert can be “knocked out of the box” from the start by a Daubert challenge. While this ploy poses uncertainties of its own, the effort may be economically justifiable to the retaining attorney.

Delay

The Daubert hearing is not unique in being subject to abuse. Many other valuable safeguards of the fundamental fairness of the legal system exist, such as insuring that a defendant is competent to stand trial before facing the rigors of the adversary system. Yet, in our experience in Massachusetts courts, a motion to invoke this useful safeguard can be and has been used as a delaying tactic to permit the attorneys to prepare the case more thoroughly, to set the stage for a later insanity plea, or even to foster the hope that witnesses will become less sure about recalled testimony.

Similarly, a Daubert hearing may be requested by one side or the other—even when the relevant science is basic, established, and non-controversial—as a comparable delaying tactic designed to secure some advantage by the delay, although, as the law evolves, such challenges to established science may become less common. In our experience, challenging the use of even absolutely standard psychological testing is a common ploy in this category.

The Dry Run

By providing a picture of the expert in action under cross-examination, expert depositions commonly serve as “dry runs” for trial preparation. However, Daubert hearings have the advantage of providing a second opportunity to probe the expert, as well as to obtain an otherwise unavailable assessment of the trial judge’s attitudes toward the case. In those jurisdictions where depositions do not occur or are not allowed in civil or criminal cases, thus depriving attorneys of the opportunity to perform a dry run of the cross-examination of the opposing expert, a Daubert hearing may serve the purpose of obtaining an equally valuable advance look at the opposing experts’ opinions, bases, methodology, and courtroom demeanor. The resultant data can be put to very good use by the attorney in case preparation, mastery of the relevant literature, and the like.

Impeachment: Laying a Foundation

Just as moving for an unnecessary examination for competence to stand trial may aid the attorney in laying a foundation (if only in the public’s mind) for a later insanity plea, moving for an unnecessary Daubert hearing may lay the foundation for later efforts to impeach the expert’s reasoning on scientific grounds. Even if the expert’s opinion is ultimately not excluded, the knowledge gained in the process (the dry run suggested in the prior section) may be helpful to the attorney in designing more effective cross-examination for trial.

Rattling the Expert

The motion for a Daubert hearing may constitute no more than an attempt at simple harassment of the experts, designed to shake their confidence in their own testimony by a threshold challenge to their approach, methodology, reasoning, and professional acceptance of the experts’ theory of the case.

Fatigue Factors

In a related manner, a mid-testimony hearing may be attempted on a specious issue, to overextend the expert’s time on the witness stand, perhaps interrupting the flow of case-related testimony that the jury hears. This approach may generate sufficient distraction and breach of concentration in the jury to obscure the gist and impact of the expert’s testimony.

Economic War

Because a Daubert hearing involves costs for the time and participation of the parties and assistants (e.g., stenographers), the hearing may be requested by a large, rich firm, to drive up the costs for an opposing small, poor firm and thus to discourage or render more difficult the latter’s participation in the suit.

Similarly, because of cost restrictions from the client or insurers, a law firm unable or unwilling to hire its own reputable expert may be forced to put its efforts into attempting to disqualify the other side’s expert through Daubert challenges. Theoretically, such an approach may also serve to create a record designed to refute a later claim for legal malpractice in this situation. An attorney’s specious introduction of standards for reliability and relevance (that no expert could meet) in this setting may also constitute an attempt to excuse his or her failure to retain an appropriate expert.

Shooting the Messenger

A highly unusual twist in the Daubert question has occurred with one of us (H.B.) when an attorney hired several experts, but one of them did not present a favorable opinion after review. The attorney presented that expert’s opinion to the other side in a distorted way that invited a Daubert challenge, which was feebly and ineffectively resisted by that attorney. The attorney then used the successful challenge to rationalize not paying the expert for work already done, based on the alleged failure of the opinion to meet the standard.

Fairly Civil reports.  You — or someone in authority — will decide.

Los Angeles Times Has Been No Watch Dog in Sanchez Case