Wednesday, August 8, 2012 · by Tamara Aparton
By Albert Samaha
Shots fired at Oakdale Avenue and Baldwin Court.
It was Nov. 8, 2008, nearly four o’clock on a Saturday afternoon. The two plainclothes police officers reporting to the scene saw a public housing security guard following four black teens along the 1000 block of Oakdale, a corridor of project buildings halfway up a hill overlooking Candlestick Park and the Hunters Point shipyard. The officers pulled up in an unmarked car and detained the teens.
One of the kids was Jacori Bender, then a lean 17-year-old with thick eyebrows on a round face. He’d just moved back to the neighborhood after living in group homes since he was 10, when his mother — who now lived in Texas — decided she could no longer take care of him. As he looked for a job, he crashed at his grandmother’s, his auntie’s, and his godmother’s.
The officers released the boys after a few minutes, then searched the area for evidence of a shooting. All they found was an empty gun magazine hidden in a crawl space some 200 yards away from where they stopped the teens.
At the Bayview precinct a few hours later, Officer Reginald Scott typed up an 11-sentence report. “It should also be noted that these above mentioned suspects are up and coming future (OAKDALE MOB GANG MEMBERS),” he wrote (caps and parenthesis his). “All of these suspects have similar tattoos, loiter together, and flash gang signs.”
Bender’s only tattoo was of his mother’s name. But to the San Francisco Police Department, Bender was Oakdale Mob now. The tag would stick to him, over the next years, as prosecutors and policemen interpreted his every action to fit their conclusion: that he was guilty of being a gang member, just like the miscreants behind the “explosion of gang violence” — as the San Francisco Chronicle put it — that hit the city’s southeastern quadrant this summer. He didn’t have to sell drugs or rob a liquor store. Spending time in his childhood neighborhood with his childhood friends was enough to get him in the system. Bender went into the day just a teenager on the streets, and came out on the fast track to High Desert State Prison.
For Bender and his friends, the basketball court on Oakdale’s 1000 block was a go-to kick-it spot. Enclosed within a 9-foot-high green fence and partially hidden behind a row of skinny evergreens, the blacktop offered a sense of privacy missing from the Hunters Point courtyards and street corners. At least five youths were hanging out by the court on May 28, 2010, the night Bender caught his first felony charge.
By that time, Bender had reached a degree of stability in life. The summer before, he’d gotten a job at City of Dreams, a local nonprofit focused on counseling at-risk youth, housed in a building adjacent to that Oakdale basketball court. He did janitorial work, some administrative tasks, and a bit of tutoring. He’d also started taking classes at San Bruno‘s Skyline Community College.
He’d moved into his godmother Kim Justin‘s house eight months back, then relocated with her to Fairfield. She commuted each day to the city, where she worked in Wells Fargo‘s files department. Bender often tagged along, getting dropped off in his old neighborhood to see his grandmother and friends.
He hadn’t completely kept out of trouble, though. In the year and a half since the police first labeled him an “up and coming future” Oakdale Mob member, Bender had been shot at twice, catching one bullet in the leg. And he now had a rap sheet: After a verbal altercation with a housing project security guard in September 2009, Bender pleaded guilty to making criminal threats. Seven months later, he spent five days in jail for venturing within 50 feet of the guard’s post on Oakdale’s 1000 block, breaking the stay-away order that came with his misdemeanor.
That’s not too shocking a ledger for an 18-year-old who grew up in group homes and hung out around housing projects in one of California’s most violent neighborhoods.
Things got worse for him on the blacktop that May night.
About a hundred yards away, Officer Luis Gonzalez, Sgt. John Hart, and three other officers patrolled the housing project, a complex of rectangular two-story buildings connected by paved walkways. These police walk-throughs were common to the block, which Gonzalez later described in his police report as “home turf of the Oakdale Mob criminal street gang” and “well-known to us for its high volume of gang-related violence.”
From 2007 to 2009, 52 percent of San Francisco homicide victims were black, despite the fact that black people only make up 6 percent of the city’s population. The SFPD attributes this to gang activity in the Bayview, Western Addition, and Visitacion Valley neighborhoods, not necessarily the most rampant in California by their assessment — just the most disproportionately black. According to the CalGang database — a statewide compilation of local law enforcement stats that the Attorney General’s office calls “the best source of information currently available” — as of 2010, 59 percent of San Francisco’s gang members were black. By comparison, less than 20 percent of all gang members in California were black. No other county had a proportion higher than 29 percent.
The policemen were on high alert as they marched through the housing trails, informally known as “the cuts.” Quickly approaching the basketball courts, they still couldn’t see Bender and his friends. It was 10:15 p.m.
“Police in the cuts!” somebody shouted.
Sneakers pitter-pattered. Bender and two friends ran, weaving around trees and slicing into an alley. They popped out onto Palou Avenue and cut south toward Griffith Street.
A flashlight beam landed on Bender. Gonzalez later reported that he saw Bender throw a pistol into the street. Gonzalez drew his own gun and arrested the teens. In Bender’s pocket, he found “a small amount” of weed and an ecstasy pill. They clearly never read their guide on the only legal way a person can consume weed, which is for medical purposes.
“Bender is a known Oakdale mob criminal street gang member,” Gonzalez’s report stated. “He does not live or work in the area. There is no reason for him to be in this area other than to hang out with other known Oakdale Mob criminal street gang members and to conspire with them to possess handguns, drugs, and commit violent crimes.”
The District Attorney’s office charged Bender with illegally carrying a loaded firearm, drug possession, and receiving stolen property (the gun). Prosecutors tacked on what is known as a “gang enhancement,” which adds extra prison time to a conviction if the perp is — according to the state penal code — “an active participant in a criminal street gang” who committed a felony “for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.”
Bender says he wasn’t a gang member. So do youth counselors and community members who knew him. He’d never been convicted of a gang-related crime before, he has no gang tattoos, and no police officer had seen him flash a gang sign. Nor is there any evidence he’d ever sold drugs, committed a robbery, or fired a gun.
A common tool for city prosecutors, these gang enhancements open the door to testimony typically not admitted into criminal trials — hearsay, criminal histories of the defendant’s friends, descriptions of crimes for which the defendant was not charged — all channelled through an “expert witness” police officer. In addition to hearing evidence on the principal charges, juries contemplate the defendant’s social life, his wardrobe, his past misdeeds, and anything else a prosecutor thinks will show that the defendant could have been an extra in an N.W.A. music video.
“It’s like being charged with being the devil,” says Public Defender Jeff Adachi.
City prosecutors apply laws originally established to target organized criminal enterprises — like MS-13 or the Norteños — against groups that, community activists and defense lawyers argue, shouldn’t even be considered gangs.
The DA’s office counters that gang enhancement charges are naturally vetted — the accusation must pass through the police department, then the DA’s office, then a judge, then, ultimately, a San Francisco jury.
“We look at each case individually and support efforts to get young people out of the gang life,” District Attorney George Gascón said in a statement to SF Weekly. “If someone chooses to engage in violent gang activity, however, we will prosecute those gang members aggressively in order to prevent them from victimizing the community.”
To be sure, there is institutional incentive to maintain the status quo. By calling kids like Bender gang members and their crimes gang-related, the police department gets more money and the DA’s office racks up easier convictions.
So when Jacori Bender took his seat in court, he was charged not as a first-time felony offender, but as a menace to society.
On Sept. 4, 1977, a pack of Joe Boys gangsters stormed into Chinatown‘s Golden Dragon restaurant and opened fire, seeking to assassinate rival gang Wah Ching‘s shot-caller. The Joe Boys didn’t hit their enemies, instead killing five bystanders, two of them tourists. In response, the San Francisco Police Department created the Gang Task Force, a team of inspectors and officers dedicated to investigating gang-related crimes.
Throughout the next decade, gang violence, fueled by the crack epidemic, spread across California, led by the Crips, Bloods, Mexican Mafia, and others. Jolted into action, the state Legislature passed in 1988 the Street Terrorism Enforcement and Prevention Act (STEP), which noted that “California is in a state of crisis.”
STEP introduced gang enhancements, which can add two to four years of extra prison time for less serious felonies and up to 15 extra years for violent felonies. The state recognized that a gang’s power stems from its structure, so the new policy focused “upon patterns of criminal gang activity and upon the organized nature of street gangs, which together are the chief source of terror created by street gangs.” Twelve years later, California voters passed Proposition 21, strengthening the penalties for juveniles who commit gang felonies and requiring that gang offenders register in a database. “Gang-related crimes pose a unique threat to the public because of gang members’ organization and solidarity,” the legislation explained
In the years since, San Francisco authorities have sharpened their anti-gang strategy. Starting in 2007, City Attorney Dennis Herrera leveled gang injunctions against seven groups — three in Western Addition (Eddy Rock, Chopper City, Knock Out Posse), two in Visitacion Valley (Towerside, Down Below Gangsters), one in Bayview (Oakdale Mob), and one in the Mission (Norteños). With help from the Gang Task Force, Herrera identified nearly a hundred “validated gang members” and barred them from publicly congregating in their respective gangs’ territories, which were marked as “injunction zones.”
San Francisco’s war on gangs has been bolstered by grant money. Since 2006, the city has received around $1.7 million in state and federal funding specifically for anti-gang initiatives. About a quarter of that money came from federal programs focused on educating youth (Gang Resistance Education and Training) and offering recreational activities (Project Safe Neighborhoods). More than half of the total, however, came from the state’s California Gang Reduction, Intervention, and Prevention program (CalGRIP).
Competing for the grant against many other agencies, the SFPD explained in recent applications that “approximately half of the city’s homicides are over gang turf and drug sales.” The department’s 2009 CalGRIP application declared that “In San Francisco there are roughly 41 identified gangs, estimated to have approximately 1,660 key members.” Apparently membership is quickly rising, because according to the 2011 application San Francisco gangs are “estimated to have approximately 2,500 key members.” Neither of these calculations resembles the data local law enforcement officials entered into the CalGang database, which states that San Francisco had 465 gang members in 2010.
Jacori Bender was 17 years old when police first affiliated him with Oakdale Mob. He was in state prison by the time he turned 20.
“If you’re charged with a gang-related offense,” says Public Defender Jeff Adachi, “you’re gonna get more time, you’re gonna be treated differently, and most importantly you’re gonna be subject to this second-class justice.”
Identifying gang membership can be a subjective task, and it’s easy to guess why the department’s application would lean on the criteria that netted higher numbers: The bigger the gang problem, the likelier the grant request will be approved, the more money pours into the police budget. In 2009 and 2011 combined, the CalGRIP initiative brought the SFPD more than $1.2 million, half from the state and half from the city’s mandatory match. From that total, 82 percent — around $1 million — covered police overtime pay.
Bender’s gun-possession charge is what attorneys call a “wobbler” — prosecutors can make it a felony or a misdemeanor. Gang enhancements only apply to felonies, though, and that’s how Gascón charged him. Gascón offered Bender a deal: The drug and theft charges would be dropped if he pleaded guilty to carrying a loaded firearm and the gang enhancement, which would make him a validated Oakdale Mob gang member. He’d get a one-year jail sentence, almost all of which he’d already completed in the time since his arrest.
Bender refused — a significant risk. Officer Gonzalez would testify that he saw Bender throw the gun; forensics tests concluded that Bender’s DNA was a “major contributor” among the samples found on the weapon; the pistol was reported stolen in Fairfield, where Bender lived at the time. Plus, because criminal charges and gang charges are usually consolidated into the same trial, jurors would hear a heavy dose of “gang expert” opinion intended to show that Bender actively participated in gang activities.
“That gang charge — even though it may not carry as much time as the principal charge — often becomes the focus of the case,” says Adachi, the public defender.
The DA’s gang expert for the case was Leonard Broberg, a veteran Gang Task Force inspector who’d worked hundred of cases in Bayview. During his days patrolling the Double Rock projects, neighborhood youth nicknamed him “the Candyman” because he passed out sweets every Friday. Middle-aged, with blue eyes and a salt-and-pepper stubble, he’d gained a reputation as one of those cops who really seemed to care about the kids, once giving a young woman he’d arrested multiple times a bouquet of roses after she finally kicked her drug habit.
Broberg taught the module on black gangs at the city’s police academy. He was a guest lecturer on that subject for a San Francisco City College criminal justice course. He helped compile the Oakdale Mob gang injunction list. He’d testified in more than 80 gang-related trials.
Although he didn’t work Bender’s gun case, Broberg’s testimony spanned four days, longer than any other in the trial. Referring to Bender’s “Gang Member Validation” sheet — an aggregation of police report summaries and Field Information Cards, which are essentially notes police officers take while on patrol — the inspector rattled off incidents intended to support the notion that Bender was an Oakdale Mob gang member.
“I need to look at a sustained pattern of behavior,” he said. “There has to be a complete evaluation of the totality of circumstances and all of the incidents.”
City officials won’t label someone a gang member unless he meets at least two of 11 standards, such as displaying hand signs or being identified by a reliable informant. Fourteen of the 20 incidents on Bender’s sheet involved “affiliating with documented gang members” or “frequenting gang areas.” Which for Bender translates to: hanging out with his friends in his neighborhood.
But Broberg asserted that Bender was hanging out with known criminals: Eric Brewer and Germaine Benjamin each caught an illegal gun possession conviction in December 2009, and also pleaded guilty to a gang enhancement. Keimareea Lake got the same in April 2007. Dimaryea McGhee was convicted of robbery in April 2008. By spending time with these guys, the prosecution argument went, Bender chose the gang lifestyle.
“It’s character by association,” says Wes Porter, a professor at Golden Gate University School of Law and former federal prosecutor. “How can we ever fairly have a trial on the underlying crime when you put this cloud above that he’s affiliated with this way of life, with an organization where they’re all bad? It’s almost impossible to overcome.”
Linking Bender to a criminal way of life was a major theme of Broberg’s testimony. The inspector concluded that three entries on the rap sheet met the validation criteria “engaged in gang-related activities.” In March 2010, Bender had been shot in the leg, although officers did not determine if he was an intended target. In August 2009, Bender was with six other friends when one was arrested for gun possession. A month later, 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.
Bender was not charged in these incidents, but to Broberg, Bender’s proximity to the trouble was enough. “It showed that he had knowledge of the gun and he chose to stay in the company of those individuals as opposed to distancing himself from them,” he said.
At trial Broberg’s entire testimony was technically “opinion,” and not offered “for truth of the matter.” As Judge Newton Lam told the jury, “You must consider the opinion but you are not required to accept them as true or correct.”
Broberg’s 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. For instance, he claimed that Bender once admitted his gang membership to another police officer: In a September 2009 recorded conversation, the 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.
Testimony like Broberg’s, defense lawyers who have worked gang cases argue, inevitably taints a jury. “The general public who comprises juries tends to find a police officer’s opinion pretty credible,” says Lew Yablonsky, a criminology professor at California State University Northridge and author of Gangs in Court. “They’ll look over at the defendant and see a gangster.”
The background information from gang-expert testimony was necessary, says Assistant District Attorney Alex Bastian, because in order to prove that Bender was carrying the gun “for the benefit of” the gang, “you have to prove that the gang exists.”
Even if the gang evidence is shaky, it fits the narrative. In a 2009 attempted murder trial, for example, Officer Damon Jackson‘s testimony about Phillip Pitney‘s alleged Eddy Rock membership included Pitney’s presence at a memorial service for a another alleged Eddy Rock member, Pitney’s T-shirt printed with the dead friend’s face and “R.I.P.”, and statements Jackson heard from a confidential informant.
Much of this information is hearsay. Yet because the testimony is “not offered for truth,” explains Martin Sabelli, an attorney who authored a paper challenging the constitutionality of gang-expert testimony, the defense team cannot question the people who originally made the “out-of-court statements vulnerable to cross-examination.”
The April 2010 police report cited by Broberg stated that officers pulled over a speeding Buick after witnesses reported seeing somebody waving a gun out of a passing car’s window. As the officers approached the vehicle, guns drawn, it took off. Still, the officers reported that they were able to “positively identify” Bender in the passenger’s seat. But those officers did not testify in Bender’s trial or face questions about how sure they were.
Neither did the security guard whom Bender threatened in September 2009. 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.
Instead, the police reports stand alone, without much context. And jurors must contemplate the evidence of the gun charge alongside hours and hours of testimony alleging that Bender is a hoodlum who hangs out with other hoodlums.
“Our justice system is based on the principle that a person is only tried for crimes that they committed,” says Adachi. “And what the gang evidence does is, it opens up a Pandora’s box of a person’s background, which becomes fodder for arguing that the accused is a bad person and therefore should be convicted.”
Broberg himself acknowledged that San Francisco’s documented black gangs are different from more widespread, organized gangs like MS-13 or the Crips. “With [this city’s] African-American gangs, it’s a little harder to make determinations [of whether an offense is gang-motivated],” he testified. “Their actions are not as overt or apparent as maybe some other gang crimes.”
Like the city’s other documented black gangs, Oakdale Mob has no initiation process, no hierarchy, no cohesive plans, no prison ties. Community members, as well as Adachi, assert that these groups should not be legally classified as gangs.
“They’re not gangs at all,” says Rudy Corpuz, a former gang member with the long-defunct Down Town Boys gang who now runs the local youth center United Playaz. “Gangs are when you get jumped in, you’re organized, you’re structured.” Instead, Corpuz argues, for these kids the “gang” is just the neighborhood. Most black gangs in the city are exclusively associated with a block — Eddy Rock, Kirkwood, 25th Street — or a housing project — Towerside, Down Below Gangstas, Knock Out Posse.
“It’s about reppin’ where you’re from,” says a 21-year-old on one of the Visitacion Valley injunction lists. “We ain’t got much to be proud of. Our schools suck, some people’s mom’s on drugs. All we got is our block, our building or whatever. It ain’t the nicest in the world, but might as well be proud of it.”
There is certainly much violence in the neighborhoods the police have classified as “gang territory.” There are kids with guns in their waistbands and anger in their hearts. Some turn to stick-ups and slangin’. Some get caught up in personal beefs that escalate, with friends getting friends’ backs, from fistfights to shootouts to retaliations. “But it ain’t got shit to do with colors or sets,” says the Visitacion Valley gang member.
The media help perpetuate the connection of this violence to gang activity. SFPD Chief Greg Suhr recently explained that a string of homicides in Visitacion Valley this summer was not caused by rival gangs: “They were all friends not long ago — now they have turned on each other,” Suhr told the press. Even Chronicle columnist C.W. Nevius mused, “It isn’t really even gang violence.” Police did tell reporters that the people involved were either documented gang members or on the injunction list, which was enough to set the headlines. “Gang Dispute Fueling Violence in the City,” proclaimed the San Francisco Examiner. “It’s gang warfare, and the enemies were once allies,” read the Chronicle‘s front page.
Because the groups are geographically based and because there is no structure or initiation process, membership is vague, subjective, and in flux. Broberg testified that the difference between a gang member and a kid in the neighborhood is that a gang member consistently participates in the group’s criminal activities — itself a subjective definition, given that he considered Bender, who had never been charged with drug dealing, robbery, or assault, a gang member.
The City Attorney’s office maintains that the city’s methods for identifying gang members are based precisely on the language of the STEP Act. “If activists and lawyers object to the classifications, they should go to the legislature,” says City Attorney spokesman Matt Dorsey.
In a sense, whether Oakdale Mob is a “gang” comes down to semantics: Is the group’s “primary activity” committing crimes? But the distinction is important, considering semantics determine the testimony allowed into a criminal trial and the length of a prison sentence, establishing an official label that follows a defendant out of jail and back into the community.
“Once you say they’re a gang member, it’s over for them,” says Floyd Andrews, a defense attorney who used to work in the DA’s office. “They’re never gonna get a shot at a real life. You’ve created a gangsta.”
Broberg thinks the reverse is true. The debate over gang enhancements, he says, misses the point.
“I find it ironic that people fight for a 14-year-old kid’s right to be hanging around the street corners,” he says. “They always want to find excuses for the bad behavior. And then if he gets shot and killed, everybody starts wringing their arms.”
He doesn’t think Bender is necessarily a bad kid. But, he is quick to add, any teenager who idles around guns is headed for a tragic ending. A felony conviction, a gang validation, and a prison stay, he reasons, might be the last chance to knock a kid into a more positive lifestyle, by forcing him off the streets and away from his old friends.
“I’m never happy when anyone goes to prison,” he says. “Because everybody loses. But at what point do you have to stop making excuses for him and say, ‘Jacori, what are you doing?'”
The informal, block-based nature of groups like Oakdale Mob makes it difficult for someone like Bender to prove he is definitively not a gang member. Even though the city has a removal process for gang injunctions, nobody has ever been taken off the list. The courts have ruled Oakdale Mob a gang, and when it comes to enhancement charges, the standard seems to be: gang member until proven otherwise.
City law enforcement’s decision that Jacori Bender was a gang member colored the way police and prosecutors viewed his actions and associations. This mindset was most apparent during three stretches of gang expert testimony, when Broberg used evidence that appeared to suggest Bender is not a gang member to reach the opposite conclusion.
When questioned about Bender not having any gang tattoos, Broberg explained that “the fact that he made a conscious decision not to get one — he understands what tattoos mean. So the lack of the tattoo actually, with that knowledge, strengthens” the case against him.
In other words, a lack of evidence is evidence. And there’s more: Citing a Field Information Card showing that Bender was walking on Oakdale Avenue by himself at 4:30 p.m. on a Monday afternoon, Broberg said, “If he’s by himself, the safest place for him to be would be in the Oakdale Mob territory, which is where he is at, and he is by himself.”
On the day Bender was arrested for criminal threats, the inspector also testified, he was wearing red, the color associated with the Oakdale Mob: red boxers under his blue jeans and a red mohawk. It was the only time he was documented “wearing gang clothing.” Bender shaved the mohawk soon after the arrest, though, telling an officer that he was concerned the hair color would link him to the gang. “When we are talking about him removing the red mohawk,” Broberg stated, “he’s saying others are trying to classify him or identify him as Oakdale.”
For prosecutors, proving a crime was “for the benefit of” a gang is a small hop from proving gang membership. Many crimes can be tied to gang motives. In a 2010 murder trial against alleged Central Divis Playas member Charles Heard, Assistant District Attorney Michael Swart argued that Heard killed a man to keep from “losing face” with the gang after the victim resisted Heard’s robbery attempt. In a pending murder case against William Jones, prosecutors are claiming that Jones’ robbery of his victim benefitted the 2Rock gang because he split his profits with several coconspirators who were also suspected gang members.
In his closing arguments, Mark Guillory, the assistant district attorney who tried the case, told the jury that Bender had a gun “for the benefit of” the gang because “when a gang member has a gun, not only is he individually carrying that gun, but he’s carrying the gun for the gang. Meaning if one gang member is with five and rivals come about to do a drive-by, someone like Jacori Bender can fire back and protect not only himself, but can protect the territory and the gang.”
The jury agreed, convicting Bender on the gun possession and enhancement charges (he was acquitted of the theft charge). That’s two strikes. The judge sentenced him to four years in state pen, two for the weapon, plus two more for the gang. When Bender leaves prison, anyone seen with him will be seen associating with a validated Oakdale Mob gang member.