This article orginally appeared on The Nation on May 21, 2010.
The war on gangs, now globalized, runs roughshod over the ordinary checks on the criminal justice system.
Federal judge Manuel Real last week accepted a Los Angeles police officer, Frank Flores, as an expert witness on gangs in the trial of Alex Sanchez and twenty-three others on conspiracy charges, a decision that eventually may expose the underground labyrinth of the global war on gangs.
The judge tried and failed to resolve a central question in the case: how can officer Flores of the LAPD be (a) an objective expert witness, (b) a case officer assigned to the prosecution and (c) an alleged victim of a gang conspiracy to murder him?
The prosecutors, led by Elizabeth Carpenter, were giving high fives when the judge ruled that Flores could be an expert witness, but moments later were objecting strenuously when the judge ruled that Flores could not wear so many hats. In essence, Real tried to resolve the conflict by saying Flores could be called as an expert only if the conspiracy-to-murder-him charges are stricken from the indictment. If the prosecutors choose not to call Flores as an expert, the backbone of their overall case is weakened, but Flores could then testify as an alleged victim.
According to Flores's May 13 testimony, he has spent eleven years as an LAPD officer in gang-heavy neighborhoods of Los Angeles. During those years, he said he interacted with members of the Mara Salvarucha (MS) gang on 2,000 occasions, from having street conversations to arresting them. Flores has testified in eighty local and state cases involving MS gang members.
Never in those years was he ever threatened, much less targeted for murder, by a gang member. It is not common for gang members to attack police officers, an act which brings down enormous street heat against them. Yet the indictment states that four MS members, not including Sanchez, conspired to kill Flores in December 2006. Nothing came of the alleged plot, though the prosecution has headlined its case with the allegation.
Sanchez, the founder of Homies Unidos, a gang intervention group with global reach, was released on bail February 5 after a secret hearing where the prosecution was unable to provide evidence that he is either a social threat or a flight risk. Now free, Sanchez faces two conspiracy charges: first, a racketeering indictment that assumes he was a "shot caller" in MS and has lived a "double life" while posing as a gang intervention worker; and second, being on a wiretapped phone call in 2006 when he allegedly conspired to kill a rival MS member over an internal feud.
The case rests in large part on the credibility of the LAPD's Flores. Critics assert that Sanchez is being targeted as revenge for his role in the Rampart scandal, which destroyed the LAPD's reputation a decade ago and led to federal intervention. According to an officially funded 2007 report on the Rampart scandal by attorney Connie Rice, "Retaliation is so integral to LAPD culture that judicial notice of its role is in order."
Claiming expertise in the coded language of gangs, Flores asserts that a green light for murder is meant by phrases such as "face the consequences," on the wiretapped phone call. In an affadavit for the defense, the well-known East LA priest Fr. Gregory Boyle dismisses Flores's interpretations as fabrications in the absence of any other concrete evidence.
Flores's testimony last week also revealed a strangely barren dimension of the government's war on gangs. Both in law and common sense, the concept of an "expert witness" implies a certain integrity and objectivity. In Flores's sworn testimony, however, he omits a portion of the wiretapped phone calls that shows Sanchez no longer to be an active gang member, which would refute the charge that he was a shot-caller:
Camaron: Listen man! Listen! And—and—and I don't know why... you get involved in things, when you are no longer active, man! You see! Better yet, what you should do is to be careful with the "United Homies" and not get involved in our things, see? Because you are no longer active, see what I mean?
Sanchez: If you told him—if you told Boxer that I'm working with the FBI, then you know what, you are getting me involved!
His ignoring this passage on the tapes raises common-sense questions about Flores's ability to be an expert. Federal law warns that an expert witness can gain "unmerited credibility" in the minds of a jury. When that expert also is an alleged victim, the conflict of interest is transparent. When the expert consciously omits referring to evidence that would bolster a defendant's case, the expertise is contaminated.
But the war on gangs, now globalized, is breaking many such boundaries. On May 13, Flores testified that in thousands of gang cases over the years, he has never kept notes or videotapes, never written out lectures or educational handouts, never done research with peer review—in short, never kept a single record that could be subpoenaed by a lawyer or a journalist. There is no list of the scores of cases in which he has testified, he added. All the information qualifying him as an expert, in his view, has been based on "the totality of experience" as recorded in his head. In this antigang template, Flores is a perfect prosecution witness, there being no notes to destroy because there are no notes at all.
Consistent with this undocumented approach to law enforcement, the government acknowledges that it never sought a search warrant for its arrest of Sanchez at home last June 25. Obtaining a warrant, after all, might have required showing judge at least minimum evidence to justify the arrest.
Most worrisome to the prosecution, nonetheless, is the probability that their techniques based on near-zero documentation have resulted in a case of mistaken identity. The prosecution says that Sanchez, speaking in code, gave the order to kill to a gang member nicknamed "Zombie" in El Salvador. The real name of this Zombie, the prosecutors assert, is MS member Juan Bonilla, who they say carried out the order by killing an MS member, Walter Lacinos (Cameron), in El Salvador on May 15, 2006.
"The government has the wrong Zombie," replies the defense. The Zombie on the wiretapped phone calls with Sanchez was a Salvadoran gang member name Ricardo Tremino Hernandez, now living somewhere in El Salvador. The defense has submitted an affidavit by Tremino-Hernandez's sister claiming that the voice on the tapes is that of her brother, and containing other evidence substantiating his existence. When asked on the stand whether he ever investigated this other Zombie, Flores admitted he had not. He could hardly have answered yes without being asked for notes on the interview, which according to his habit did not exist.
In a surprising development last week, the Salvadoran paper El Mundo published a series of unflattering articles on the prosecution's Zombie, Juan Bonilla, the MS member they say killed Cameron. This Zombie—let's call him the Bad Zombie—has pretended to be a government witness against MS, secretly restructured the gang, gone on a robbery spree and, as of last week, still was on the loose. Along the way, he mastered the art of disguise, even posing as a humble Catholic priest.
The Bad Zombie can hardly be a credible witness for the prosecution. Having lied to the police, escaped from prison, double-crossed his gang, and adopted numerous disguises, how would taking the stand to say that he killed Cameron in 2006 on the orders of Alex Sanchez? How will the prosecutors explain the fact that this unbelievable gang shot-caller was never arrested and held for the murder (to anyone's knowledge) they attribute to him?
A Subculture of Zombies
This is what happens when government officials carry out secret operations, including wiretapping, in the global underworld of Zombies, where secret and dirty wars are multiplying, corruption is boundless, and the rule of law at best a work in progress. The public shrugs, the media fails to investigate deeply and the wars on gangs and drugs roll on as massive costs in lives and tax dollars.
For these reasons, the Sanchez case is being followed closely in Latino and immigrant Spanish-speaking communities, especially among juvenile justice advocates who are fearful of police or political undermining of gang intervention programs such as Homies Unidos.
The Alex Sanchez case may unravel the darkest secrets of the global war on gangs. According to a 2005 Foreign Affairs article titled "How the Street Gangs Took Central America," the roots of gang violence in Central America began after the Los Angeles riots, when law enforcement began deporting thousands of Salvadorans back to their homeland, including MS members who founded the organization as war refugees in Pico Union. This was the same period as the Rampart scandal, when the LAPD and FBI were collaborating in the deportation sweeps, including their joint effort against Alex Sanchez, who was later granted political asylum by an immigration judge.
From those days came a law enforcement legend that an Al Qaeda operative was organizing meetings between jihadists and the MS in Central America, just as tales were circulating about secret Baghdad meetings between Al Qaeda and operatives of Saddam Hussein. As evidence, the Foreign Affairs article cites rumors and quotes an American immigration official as arguing, "If they can smuggle people looking for a job [into the United States], they can smuggle people interested in terror." This was the same "one percent doctrine"—a one percent possibility of a terrorist threat justifies heated overdrive by law enforcement—that drove the entire "Global War on Terror," according to the history by Ron Suskind.
In January 2005, according to Foreign Affairs, the Justice Department "quietly" created a task force to target MS, including federal, state and local units. New regulations were implemented for information-sharing among the LAPD, the FBI and Salvadoran counterparts. An International Criminal Investigative Training Assistance Program (ICITAP) was launched as a cross-border training collaborative. In El Salvador and Honduras, politicians were elected on "mano dura" (strong hand) platforms similar in rhetoric to the law-and-order politics here. The problems of violence only continued because of multiple vigilante squads, police corruption, lack of space in already-brutal prisons and the absence of any safety net for tens of thousands of homeless youth. The violence worsened. More moderate governments have been elected in Central America since those years, but the police and prisons remain mostly in the hands of a right wing hardened by previous decades of civil war, and the official war on gangs is far from over in America.
It was in this context, according to Foreign Affairs, that federal prosecutors in Los Angeles became the first to launch a federal racketeering case against a street gang, 18th Street. That prosecution was followed by conspiracy/racketeering cases against MS, like the one currently unfolding in Los Angeles. The Foreign Affairs article goes so far as to credit these prosecutions with dismantling the so-called Mexican Mafia, news that surprises most police officers in LA.
LAPD gang officers and LA sheriffs now routinely circulate on the dark side of undercover units in Central America, usually in the role of advisers and trainers, along with their FBI counterparts. The alphabet soup of this antigang counterinsurgency, besides ICITAP, includes the Transnational Anti-Gang Center and its associated Transnational Anti-Gang Unit, the FBI's MS-13 Hispanic Gang Task Force and the Officer Exchange Program. Also included are the federal immigration agency and state and federal bureaus of prisons. Over the decade, these police networks have turned up seventeen cooperating witnesses—snitches—in the current LA case, along with four secret witnesses whose identities are sealed. There is virtually no oversight of these rampant operations on the dark side.
Officer Flores has acknowledged working among these networks in his investigation of Juan Bonilla (the Bad Zombie). Requests by the Sanchez defense for access to documents related to his investigation have been stonewalled. Defense requests say there is much more to be uncovered in El Salvador—"volumes more." So far the prosecution has released little specific documentation about Alex Sanchez—only four phone calls—among its disclosure of 19,000 pages of materials, 604 CDs of electronic discovery and 130 DVDs of audio and video files.
The law enforcement principals in the pursuit of Alex Sanchez, besides Flores, include the FBI's Robert Clark, who serves on the multiple task forces targeting the Mexican Mafia, Mara Salvatrucha and 18th Street; and the LAPD's Justin Eisenberg, a former Rampart cop and commanding officer of the gangs and narcotics division. They were among the experts tapped by Judge Real for the January 13 sealed hearing to explore whether Sanchez was a danger. Whatever they said in that secret hearing, it was based on their vast experience in the war on gangs, and apparently included not a shred of persuasive evidence about Sanchez.
So Sanchez was freed, to await charges on the conspiracy case this October. His defense remains one of the few opportunities to disgorge information about this largely secret war.
The United States is first in the world in incarcerations, a trend that began with the wars on youth gangs and drugs three decades ago. We have 2.3 million inmates behind bars, the largest number of them on drug and/or gang allegations, compared to second-place China at 1.6 million, with four times the population. As a percentage of population, the United States locks up 751 for every 100,000, compared to second-place Russia with 627—and the English with 151, the Germans with 88 and Japan with 63. Despite all the suppression, the murder rate here is four times most European nations, and the gang homicide rate ranks near the very top.
The Zombies, apparently, are everywhere.