Tag Archive for gangs

Mistaken Identity

The use of DNA in criminal cases has become as ubiquitous as fingerprints and photo lineups, sometimes to the detriment of the prosecution.
The “CSI Effect,” named for the terribly popular television show that plays fast and loose with the work that real criminalists do, is a recognized phenomenon that has had an impact on some trials where juries have disregarded other evidence and complained about the lack of scientific forensic evidence.
There was a time when the average juror knew next to nothing about DNA evidence and courts were forced to decide whether or not to allow this advanced crime-fighting tool that combines statistical methodology and complex organic chemistry.
Scientific evidence is not simply admitted willy-nilly in criminal cases. Until 1993, when the United States Supreme Court decided the case of Daubert v. Merrill Dow, courts used a method called the “Frye Test.” Named for the case Frye v. United States (1923), the Frye Test required a “general acceptance” in the scientific community of any theory before it could be used in court. Daubert changed that when the U.S. Supreme Court put an end to the dueling experts by giving judges more authority to decide whether or not a scientific claim had validity. Simply put, Daubert requires a judge to look at whether a scientific test has been subjected to a rigorous review by the scientific community.
But enough legal mumbo-jumbo. Let’s get to the facts of the case that led the Sixth Circuit Court of Appeals to apply the Daubert test to DNA evidence for the first time. Oddly, the case isn’t a sexual homicide — perhaps the most common type of case involving a defendant’s DNA. Instead it involves a couple of rival motorcycle gangs and a sad case of mistaken identity.
There has never been much love lost between the Hell’s Angels Motorcycle Club and the Outlaws Motorcycle Club, two of the four largest motorcycle clubs (the others are the Pagans and the Bandidos) in the world. For much of their existence the Hell’s Angels (along with their allies, the Warlocks) and the Outlaws have been engaged in a guerrilla war with various attacks over territories occurring sporadically across the United States over the years.
The two clubs play for keeps. These are not people who simply ride big Harleys and wear leather. The Hell’s Angels, formed in the 1940s in California, and the Outlaws, a Chicago-based association, are organized, generally criminal groups that engage in drug trafficking, murder, and other types of mayhem. They consider themselves to be the 1 percent of the population that cannot or will not live by society’s rules, and because of this much of the violence they are involved in is internecine warfare among various clubs.
Occasionally, as the family and friends of David Hartlaub, a Sandusky, Ohio, record store employee, found out, their violence spills over into the other 99 percent’s world.
The mistake happened in 1988, but the event that precipitated Hartlaub’s tragic death occurred six months earlier when the Outlaws allegedly shot and wounded Hell’s Angel Cleveland Chapter President Kenneth Yates and stole his patched jacket, which, short of murder, is one of the most serious insults one gang can inflict on the other.
That incident occurred outside Joliet, Ill., Reportedly, Yates and another Hell’s Angel had planned an attack against the Outlaws using automatic weapons and other heavy artillery. The attack either never came off or was thwarted and blew back in Yates’s face. As a result, the Outlaws counterattacked and Yates was shot in the foot.
Bikers do not simply show up at the clubhouse and ask to join. Like fraternities, there is a certain amount of pledging involved. Fraternities, generally, do not require pledges to plant bombs or kill people to get a patch. The Hell’s Angels and the Outlaws require their probates and associates to prove their worth before they attain full membership, and that’s why Steven Yee, John Ray Bonds and Mark Verdi were in Sandusky on February 27, 1988.
Yee, an Ohio native, was a full-fledged member of the Hell’s Angels, and Bonds and Verdi were associates who were working their way through the probationary period. They had come to Sandusky to avenge the attack on Yates and had targeted a yellow van that they believed belonged to a member of the Outlaws MC. Bonds had been present at Yates’s shooting.
In fact, the van belonged to Hartlaub, who had absolutely no connection with the Outlaws or any other motorcycle club.
Hartlaub closed down the record store where he was employed in Sandusky in February 1988 and headed to a nearby bank to place the day’s deposit into a night drop box. Little did he know that the Hell’s Angels hit squad had been watching his van and followed him to the bank.
No one actually saw the hit, but a co-worker who followed Hartlaub to the bank came upon the scene moments later and saw Hartlaub lying on the ground. As he tried to exit the vehicle to investigate, a man described as having a “Hispanic appearance” came up to his car, pointed a handgun at his head and told him to stay put.
A second late-arriving witness was able to get a description of the shooter’s car — which she described to the police as a cream or tan color Buick, four door, dirty but in good condition.
The Hispanic man ran off in the direction of a nearby hotel. At the same time, someone in Hartlaub’s van roared away in the same direction.
Police later found the van abandoned behind the hotel with its engine running and lights on. The gun used in the shooting, a MAC-11 9-mm semi-automatic pistol fitted with a homemade silencer and a multi-round clip with a plastic garbage bag taped on to catch the spent cartridges, lay on the floor between the seats. The gun’s serial number had been obliterated; however, the FBI was later able to “raise” the serial number. The gun turned out to have been owned by a former roommate of Yee, who had owned two such guns and testified that they had been stolen from his car when it was parked outside their apartment.
Police found that the gun and the van’s carpet were splattered with blood. However, tests eliminated Hartlaub as the source of the blood. That’s where the DNA testing would eventually come into play because an analysis using DNA tests linked the blood to Bonds.
When the Buick containing Yee, Bonds, and Verdi was several blocks away from the crime scene, Verdi, who was driving, made an illegal turn and was stopped by Sandusky police. The probate, who did not have his driver’s license with him at the time, was placed in the back of the cruiser while officers determined if, in fact, he was a licensed driver. The Buick belonged to Yee.
The trio was allowed to continue on after the cops determined that Verdi was licensed. They did not talk to Bonds, who was in the back seat of the car.
Had they done so, they might have noticed that Bonds was bleeding heavily from a wound caused by a bullet that ricocheted off the van and struck him in the arm.
Thanks to an informant, federal officials learned that the Hell’s Angels were planning a retaliatory strike for Yates’s shooting. They knew Yee was a member of the biker club and that Bonds and Verdi were probates.
Putting together that tip with the traffic stop of Yee and Verdi near the scene of the crime, authorities targeted Yee and Verdi. They eventually came to believe that Bonds was the third man.
On March 9, 1988, local police, along with agents from the federal Bureau of Alcohol Tobacco and Firearms executed a search warrant on Verdi’s house in connection with an unrelated crime. During the search, officers found evidence of a “hit kit” linking Verdi to the shooting of Hartlaub.
The agents subsequently conducted a second search of Verdi’s home. They seized the items they had seen there before, as well as a MAC-11 of the same type as the murder weapon, with its serial number obliterated, a switchblade, a .45 caliber pistol, and a shirt matching the description of one worn at the crime scene by one of the gunmen.
In Yee’s car, which the agents tracked down a few days later, the agents found, among other things, spent shell casings which experts later determined came from the murder weapon, and blood in the back seat which the FBI eventually matched with John Bonds’s blood sample by DNA identification.
Agents prepared an affidavit seeking to obtain a search warrant for blood and hair samples from Bonds. These samples were the basis for evidence introduced at trial, including evidence that the DNA in Bonds’s blood matched the DNA from the blood found in the back seat of Yee’s car. Bonds was subsequently indicted, but fled before he could be brought to trial; he was a fugitive for several months before being discovered in Kentucky.
The men were eventually convicted of federal weapons charges, using the DNA evidence. They appealed the conviction and the Sixth Circuit U.S. Court of Appeals in Cincinnati upheld the use of DNA evidence in the case, marking the first appeals court decision to allow the use of such evidence in federal courts.
All three men later pleaded guilty in state court to Hartlaub’s murder and received lengthy prison terms.

Redoubled Jeopardy

The zeal with which Tracy L. Batts and Terrance McCrea sought to prevent Benczeon Jones from testifying against them for the murder of his brother, Brian, was matched by the State of California, which tried numerous times to ensure that the two Atlantic Drive Crips paid for their crimes.
Batts was tried three times for Brian’s murder, and McCrea twice, with the state finally succeeding in 2000, after which an appeals court overturned the convictions on Double Jeopardy grounds. The California Supreme Court, however, reinstated their convictions, finding that the last trial did not violate their Constitutional rights. The state high court’s decision is complex and far outside the scope of this article. To see what I mean, chew on this nugget from the majority’s opinion:

(We) agree with the basic conclusion of these courts that instances in which a prosecutor commits misconduct with the intent to provoke a mistrial do not exhaust the circumstances in which a prosecutor’s intentional misconduct improperly may defeat the interest that the double jeopardy clause is intended to safeguard.

Double jeopardy, of course, is the clause in the Fifth Amendment to the federal Bill of Rights that prevents a defendant from being tried over and over again for the same crime until the government is satisfied with the result. The prohibition on retrial is not absolute, as demonstrated in the case of Batts and McCrea. Nor does it prevent a person from facing civil and criminal trial based on a single incident, or a defendant from being charged with unrelated state and federal charges (e.g., state murder charges and federal civil rights violations).
This case began its convoluted trip through the criminal justice system on September 12, 1997 when Benczeon, a younger memberof the Atlantic Drive Crips, was washing his car. Batts and McCrea, a couple of OGs, and a third man approached him and ordered him to leave the area and threatened him over a dispute over drug turf. Benczeon was joined by Brian who began arguing with the three OGs.
Batts and his friends left but returned shortly after, heavily armed. Batts had a gun in each hand and McCrea had a single automatic.
Gunshots followed. Brian was killed and Benczeon was hit in the leg.
Brian’s girlfriend saw Batts and his crew return the second time, but did not see the shooting. However, she ran outside after hearing the shots and was told by Benczeon that Batts shot them. As she called police, two other friends arrived to drag Benczeon off the street. He told them Batts and McCrea did the shooting.
Apparently, although Benczeon denied it at the time, he or his brother returned fire, because shortly after Batts showed up in an emergency room with a bullet wound to the shoulder. He was evasive about where his injury had occurred, finally telling authorities he had been shot in Long Beach.
Although Benczeon was initially cooperative with police by identifying Batts in a photo lineup, he ultimately expressed concern for his life and the safety of his family.
He had good reason to be afraid. While he was recovering in the hospital, Batts’s brother showed up to “pay his respects” and left Benczeon crying after his visit. The upset victim told authorities he had been warned through implied threats against his life to cease cooperating.
While he was recuperating in the hospital, Benczeon was approaced by a detective who discussed the possibility of his entering the Los Angeles County witness relocation program. Benczeon was non-committal to the offer at that time.
Two weeks later, a 10-year-old brother of Brian and Benczeon received a phone call threatening his older brother. However, Benczeon later viewed another photo lineup and this time identified Batts and McCrea as his brother’s killers.
In January 1998 Benczeon was shot and wounded, and told authorities that he thought the shooting was related to his cooperation.
Thanks in part to his testimony, and that of Batts’s girlfriend, who claimed Batts told her he killed “a cousin in Compton,” Batts was convicted of Brian’s murder. McCrea was a fugitive at the time and was not tried.
In October 1998, Benczeon received $1,500 from the LA County Witness Relocation Program to be used for moving and rent. Shortly afterward, Batts won a retrial after another Atlantic Avenue OG who was housed with Batts in LA’s central jail and was awaiting sentencing for another gang murder confessed to the killings.
However, in March 1999, while Batts was awaiting retrial, Benczeon was gunned down after being chased and shot in a drive-by. In typical drive-by shooting fashion, it wasn’t the bullets that killed him, but instead he died after being wounded and fleeing into traffic to escape the gunmen.
Police were unable to establish a link between Benczeon’s testimony and his assassination.
Meanwhile, McCrea was arrested and the State went ahead with the retrial of Batts and the first trial of McCrea for Brian’s murder. During that trial, Benczeon’s first trial testimony was read into the record, because it was not considered hearsay as the witness was obviously not available to retestify.
His testimony was not admissable against McCrea, who was not a defendant in the first trial and thus, was not able to cross-examine Benczeon.
During Batts’s second trial, the detective who paid Benczeon the money was subjected to withering cross-examination by Batts’s attorney. The defense alleged that there was no evidence the money was ever used for relocation expenses and that it was simply a “payoff” for Benczeon’s testimony.
The defense attorney also questioned why Benczeon “never showed up” at preliminary hearings in the case. In fact, Benczeon had no reason to “show up” at any of those hearings, which the defense attorney knew.
“Benczeon’s hearsay statements made to Detective Branscomb were admissible through the detective, and hence he was not required to testify at those preliminary hearings,” the California Supreme Court ruled “And in any event, as to one of those hearings, it was impossible for Benczeon to attend, because he had been murdered–a fact that, pursuant to the trial court’s earlier ruling, was to be kept from the jury.”
This tactic placed the prosecution in an extremely precarious position. They feared that the jury was left with the impression that the absent witness had been paid off and made to be unavailable to the defense. However, they were specifically ordered by the court not to reveal why Benczeon was not available to testify.
Faced with this conundrum, the prosecutors gambled that bringing up Benczeon’s situation would prompt a defense objection, which would allow them to argue that the defense had opened the door by implying the payoff.
During a recess, prosecutors told the detective that on redirect examination, he would be asked why Benczeon failed to participate in one of the preliminary exams and advised the cop to answer truthfully. They advised him to answer slowly to give the defense time to object.
“Did Benczeon testify at the May 10, 1999 preliminary hearing?” the prosecutor asked.
“No,” came the response.
“Why not?”
“He was murdered,” the detective answered.
After a juror burst into tears, the court ordered a recess. The defense did not object to the questions and during a hearing on the defendants’ motion for mistrial, the prosecution argued that the defense specifically provoked the issue by misleading the jury about the reason for Benczeon’s absence.
“How do we respond to that?” the lead prosecutor argued before the judge. “Do we sit there and allow our credibility, our reputation to be attacked, the witness’ credibility to be destroyed when it is a lie? I can ‘t imagine what else we’re supposed to do and what else any lawyer would expect us to do after that kind of attack.”
The defense, however, argued there was no reason to object because the trial court had already ruled the question was inadmissible and that the proper step was a motion for mistrial.
The judge ruled that he was “shocked” and “stunned” by both the prosecutor’s question and the answer. He further ruled that under the circumstances there was no reasonable opportunity for defense counsel to object, and that the prosecutors had acted in “reckless disregard of the rights of the defendants in posing this question under the circumstances without it being screened.” The court concluded that the prosecution “committed misconduct in presenting the question at issue. And knowing what its response would be, the error caused by such conduct is too serious to be corrected.”
He granted a mistrial and dismissed the jury.
The case was slated for yet another trial, but before it could begin, the defense for Batts and McCrea argued their Double Jeopardy claims, which the trial court rejected.
The trial went forward and both men were convicted. On appeal, the California Court of Appeals overturned the convictions, accepting the Double Jeopardy arguments that the prosecutors could not deliberately cause a mistrial and then seek to retry the defendants.
The California Supreme Court overruled that decision and reinstated the two convictions, finding that the prosecutors did not deliberately set out to cause a mistrial and thus Double Jeopardy did not apply.