Jacori Bender's Gang Validation Sheet
The testimony is technically "opinion," and the judge instructs the jury to consider it as such. But because the testimony passes only through the expert witness, its truth cannot be challenged. The witnesses and officers directly involved in the incidents do not take the stand, and so cannot be cross-examined by the defense.
Broberg was not directly involved in the majority of the incidents. His knowledge of them is almost exclusively based on what he's read in the police reports. As the story explained, his role "was to use his knowledge as a Gang Task Force inspector to interpret how police reports, witness statements, and interview transcripts substantiate his expert opinion that Bender is a gang member."
Consequently, the police reports stand on their own, lacking context, which puts the jury in the difficult position of having to judge the credibility of police reports and a Gang Task Force Inspector's opinion. That's what Bender was up against.
"The general public who comprises juries tends to find a police officer's opinion pretty credible," Lew Yablonsky, a criminology professor at California State University, Northridge, and author of Gangs in Court, said in the story. "They'll look over at the defendant and see a gangster."
First, here are the criteria that did not apply to Bender:
- Subject has been identified as a gang member by a reliable informant/source (No. 3).
- Subject has been identified as a gang member by an untested informant or source with corroborative evidence (No. 4).
- Subject has been seen displaying symbols and/or hand signs (No. 6).
- Subject has identifiable gang tattoos (No. 9)
- Subject is a registered gang member under Penal Code section 186.30 (No. 10).
- Subject admits being a gang member in a custodial classification interview (No. 11).
Of the 20 incidents on the sheet, 14 involved involved "affiliating with documented gang members" (No. 5) and/or "frequenting gang areas" (No. 7). These incidents occurred whenever a police officer saw Bender in his childhood neighborhood interacting with his childhood friends, many of whom (including Bender) police classified as "documented" (aka "suspected") or "validated" gang members. Police often patrol the 1000 block of Oakdale, as it is classified as the Oakdale Mob gang injunction zone.
Four incidents were noted as "subject has committed gang-related crimes or engaged in gang-related activities" (No. 2). (The gun possession incident for which he stood trial was the fifth incident on the sheet.):
- Aug. 19, 2009: Bender was hanging out with six people off Griffith Street around midnight. Officers on foot patrol found a .9mm handgun on the ground nearby. They detained the group and found a round inside one of the guys' jacket pocket. That guy admitted the pistol was his and he was arrested.
- Sept. 2, 2009: After class, in the Skyline Community College parking lot, somebody fired at Bender and three of his friends, striking one in the butt. The shooter was never found. But police did arrest two of Bender's friends on gun charges -- one allegedly dumped a gun into a garbage can after running from the bullets. In an interview with police a few months later, according to police documents, Bender said that the trouble started after, "one of the females in class possibly 'phone pimped' him and the others."
- Sept. 25, 2009: This was the incident where Bender was arrested for making criminal threats against a housing project security guard. As explained in the story:
- March 17, 2010: After a shooting around Baldwin Court, police officers pulled over a car leaving the area. Bender, in the front passenger's seat, had a gunshot wound in his thigh. He went to the hospital. Officers reported that Bender did not cooperate with the investigation. Police did not determine whether he was an intended target.
- Subject has admitted to being a gang member (to any peace officer, school official, or juvenile hall employee) (No. 1):
In a conversation recorded in September 2009, an officer asked Bender, "How long have you been claiming Oakdale?" Bender replied, "Since back in, feel me, '02."
"Basically Officer Wells is going, 'How long have you been a member of Oakdale Mob?'" Broberg testified. "With that statement, Mr. Bender is claiming that he's been a member of Oakdale since '02." Deputy Public Defender Michelle Tong countered that Bender was simply referring to his neighborhood.
- Subject has been seen wearing gang clothing (No. 8): When Bender was arrested for criminal threats, he was wearing red boxers under his jeans and he had a red Mohawk. Police associate red with Oakdale Mob. That was the only documented incident where police saw Bender wearing red.
Broberg, conveying the accuser's police statement, said that Bender told the guard, "I'm the real Oakdale boy, you gonna get blasted up here [if] you keep fucking around with me" -- and that Bender mimed a shooting motion with his index finger. Bender had claimed that the guard had been harassing him and following him up the hill. In a recorded conversation between Broberg and Bender, the inspector even disclosed that he'd heard other community members complain about those security guards. Without the guard under oath on the witness stand, though, Bender's defense could not challenge the reliability of his statement.
Bender pleaded guilty to the misdemeanor (gang enhancements can only apply to felonies).
Three incidents showed the malleability of the criteria:
The gang enhancement conviction doubled Bender's sentence from two to four years. It also brought him a separate strike from the gun possession one, under California's Three Strikes law. One trial, two strikes.Follow us on Twitter at @TheSnitchSF and @SFWeekly