This article appeared in the The Nation on October 28, 2009.
I never expected to write anything like this, but the federal judge in the Alex Sanchez case, Manuel Real, is even worse than Judge Julius Hoffman, who presided over the 1969 Chicago conspiracy trial in which I was a defendant.
Such a judgment, I realize, disqualifies me from being taken seriously as a reporter in some circles, but somebody has to say it. Alex Sanchez simply has zero chance of either bail or a fair trial as long as his case is before Judge Real. The evidence follows.
The comparisons between the two cases are instructive. Judge Hoffman was known as Chicago's "hanging judge" among trial lawyers who feared his wrath if they dared to complain. Hoffman was protected by the silence of the bar until the Chicago conspiracy trial, when East Coast lawyers like William Kunstler and Leonard Weinglass, came to town. The conspiracy defendants and their lawyers stood up, incurring 159 contempt citations from the irascible judge during an eleven-month trial. In the end, however, the Court of Appeals for the Seventh Circuit found the judge and prosecutors guilty of prejudicial misconduct, and rejected the verdicts.
There are enormous differences between the Chicago defendants and Alex Sanchez, the 37-year-old former gang member and founder of Homies Unidos, indicted in a federal racketeering conspiracy in Los Angeles. Sanchez is a Salvadoran immigrant with a gang background. The Chicago defendants included one Black Panther and seven antiwar activists with a mass following around the country. The Sanchez trial has attracted little press coverage. The Chicago trial made the nightly television news with regularity. Alex Sanchez is an indigent defendant with a court-appointed lawyer, while the Chicago lawyers and defendants became rock stars.
The background of the two cases is equally significant. In Chicago, the government wanted to curtail freedom of militant dissent against the Vietnam War, racism and repression; the Los Angeles case is about the federal government's global war on gangs which, despite its failures, has left America with a gulag of more inmates than any country in the world.
Enter Judge Manuel Real, the contemporary Judge Hoffman. Both judges are of similar age (Real is 85; Hoffman was 74 in 1969), but their advanced years are irrelevant. It is the insulated tenure that ossifies with the passage of decades. Real has overseen at least 35,000 cases during a forty-year period. Virtually every lawyer in the Los Angeles federal courts is aware of his often bizarre and imperious behavior, but few if any ever speak out.
Researchers calculate that that Real's reversal rate on appeal is often ten times the average among his federal counterparts.
On at least ten occasions, the Court of Appeals for the Ninth Circuit has reinstated jury verdicts against Real and ordered different judges to take over the proceedings, an unprecedented record. The judicial council of the Ninth Circuit last year examined eighty-nine cases in which Real's conduct was protested, concluding that his behavior was problematic but not "willful" enough to be sanctioned. The panel instead warned Real to be "especially vigilant" in the future, a warning that many defendants would appreciate.
In 2006 a US Supreme Court committee cited several of Real's cases as examples of the federal judiciary's failure to discipline its own.
Real's threats to hold lawyers in contempt causes "a generalized pattern of cowering by attorneys who appear in this district court," according to Los Angeles attorney Ronald Richards. Harland Braun, a well-known defense attorney, has petitioned the Ninth Circuit to stop Real from further perverting justice. In an interview, Braun blamed the federal judiciary system for protecting its ranks.
"Off the bench, I hear he's delightful," Braun says. "But in the courtroom, he destroys a lawyer's ability to present a case. He tells the jury you've done something wrong. He makes faces. I'm sorry, but he acts like a 5-year-old--with power."
Braun noted tiny but crucial moves by Real that can cripple any semblance of a fair judicial process, such as prohibiting jurors from taking notes or asking that courtroom testimony be read back to them while debating a verdict.
Those orders alone will render a fair jury trial impossible in the Alex Sanchez case, which consists of 24 defendants charged with a conspiracy to commit 153 over acts, including eight killings, over an eight-year period, on behalf of the Salvadoran Mara Salvatrucha gang, reputed to be bloodthirsty animals lacking any redeeming virtues. As far as is known, Alex is the only former gang member working to prevent gang violence, but he will be tried with twenty-three allegedly active MS members, some of whom are likely to turn informant in exchange for leniency.
As in the 1969 Chicago trial, the nebulous conspiracy charge makes a defendant guilty of any crime committed by anyone "associated" with the gang. Top conspirators are described as "shot callers," a term which has no specific definition. Alex is charged with being an MS shot caller and therefore guilty of all 154 crimes, a majority of which involve the FBI paying informants to purchase drugs from MS members on the streets. The one serious charge is conspiracy to kill a gang member in El Salvador in 2006. The state's evidence on the murder charge is drawn from four wiretapped phone calls out of 70,000 overheard by the FBI and LAPD during a three year period leading up to 2006.
The evidence against Alex is quite refutable, but that assumes a fair trial, which is not possible in Real's courtroom.
For example, on October 19, Real listened to an appeal for bail from Alex's court-appointed attorney, Kerry Bensinger. As Alex sat watching, his wrists and torso shackled in gleaming silver chains, the judge interrupted Bensinger on at least ten occasions, accusing him of introducing "irrelevant" testimony and declaring that "if it's going to be like this, it's not going anywhere." Then he read from a prepared statement that bail would be denied.
The denial of bail will be appealed to the Ninth Circuit on Wednesday, but Alex will spend months behind bars before the federal judges decide on the question. His trial, also before Jude Real, may be a year away. Unless a single juror decides to defy the judge, Alex will be appealing his conviction for years ahead.
For the record, if anyone is paying attention, what Judge Real tried to suppress and ignore in the courtroom on October 19 was evidence strongly supporting the defendant's right to immediate bail. The judge may have committed reversible error as well.
Judge Real, for example, refused to allow Fr. Gregory Boyle to take the stand as a rebuttal witness to LAPD officer Frank Flores, who had filed an expert declaration of factual allegations against Alex in July. Real called Boyle's affadavit and testimony "irrelevant," apparently confusing it with a different personal letter from Boyle on behalf of bail for Alex. In the judge's mind, Boyle was a character witness for Alex's innocence, which made his nineteen-page declaration irrelevant. In fact, Boyle's long statement was a direct response to the earlier demand by Real for a response to the content of the wiretapped phone calls.
Fr. Boyle may be the best known gang prevention authority in the United States, and it would hardly have been in the prosecution's interest to see the white-haired, pink-cheeked Jesuit, suffering from a cancer condition, on the witness stand. Boyle founded Jobs for a Future in 1992, and a network of "homeboy" enterprises including silkscreening, a bakery and maintenance services. He gives 200 talks per year, and was a featured speaker at Laura Bush's White House conference on youth in 2005. He has a civic medal of honor from the Los Angeles Chamber of Commerce.
Having listened to the four wiretapped phone calls at the center of the prosecution's case, Boyle's affadavit declared that the LAPD officer's interpretations were not only factually in error but omitted, probably intentionally, the "clear and unequivocal statements by participants in the calls that Mr. Sanchez is not an active MS-13 gang member." According to Boyle, the omissions raised questions about the "balance and fairness" of the government's overall presentation.
As Boyle noted, on one of the 2006 wiretapped calls, an MS gang member in El Salvador says to Alex:
Listen man! Listen! And-and-and-and I don't know why you [stutters] come...you know, and you get involved in things, when you are no longer active, man! You see?... you are no long active, you see what I mean?
Alex was invited to join the MS phone call as an inactive member because there was a plot to have him and several others killed. On the wiretap, he answers the question of why he is getting involved as follows:
If you told him--if you told Boxer that I'm working with the FBI, then you know what, you are getting me involved!
The plot thickens here, because the other voice on the tapped calls is that of Walter Lacinos--a k a Cameron--an MS member deported to El Salvador from a California prison, and who was then killed the following week in El Salvador in the murder that the FBI claimed Alex "conspired" to carry out.
But there is no evidence on the wiretaps of any plan by anyone to murder Cameron. As Boyle's affadavit interprets the tapes, Alex is attempting isolate Cameron, a common gang practice, not inflict violence on anyone. To isolate him, Alex is attempting to circulate court documents which he believes were altered by Cameron in order to prove that someone in Los Angeles--named Zombie--was a snitch who sent Cameron to prison. According to Boyle, Alex is on the calls trying to "clear his own name [from the FBI charge], is trying to save Zombie's life [from Cameron], and is seeking to bring a peaceful resolution to a highly inflamed situation."
Further, Boyle's declaration rebuts officer Flores's claims that the phone call participants are speaking in gang code. For example, Boyle says a phrase like "facing the consequences" means just that, not a secret execution order. When Alex says, in defense of Zombie, that "we can defend you, and we have said it, we can go to war" if assassins are sent to Los Angeles, he means it as self-defense if there is an actual attack.
At the October 19 hearing, officer Flores took the stand despite the judge's exclusion of Fr. Boyle. When asked by defense attorney Bensinger to explain his omission of the tapes showing that Alex was no longer an active gang member, Flores waved it off saying it was only a "tongue-in-cheek, slap-back" comment, not worthy of being included in his expert declaration. But the omitted words are the key to the defense. If Alex is inactive, he cannot possibly be a shot caller by any definition. If he is not a shot caller, he is not guilty of any charges falling under the conspiracy definition.
A second major argument by the defense is that the government misidentified the "Zombie" on the fourth of the wiretapped calls, which would throw the government's entire case into shambles. The prosecution claims that the Zombie on the phone calls is the same Zombie who allegedly killed Cameron in El Salvador one week later. The defense argues that the Zombie on the fourth call is actually someone named Ricardo Tremino Hernandez, who also goes by the moniker Zombie. As the defense claimed,
"The government has the wrong Zombie.... Detective Flores and the government have their facts wrong. Not just a little wrong. Wrong--as in--entirely wrong."
In other words, Alex Sanchez cannot be charged with conspiring with Zombie/Juan Bonilla to kill Cameron, although no such language is overheard, because Alex is talking with the second Zombie, who has never been charged with any crime.
At the October 19 hearing, Flores stuck to his testimony that the Zombie voice on the tapes was that of Juan Bonilla, though admitting that "some things are uncertain" and that he had never investigated a possible connection to the other Zombie. After permitting a brief cross-examination, Judge Real interrupted Bensinger to pronounce that "the Zombie issue is totally irrelevant. It makes no difference."
Flores now has testified on two occasions as an "expert witness," not as a longtime LAPD officer in the gang units which were exposed and dismantled in the Rampart scandal a decade ago. Alex Sanchez was the key figure in that scandal, in which the FBI, INS and LAPD tried unsuccessfully to have him deported. He became the first ex-gang member to win political asylum, even doing so in the fear-filled era immediately after September 11, 2001. Many believe this case is the LAPD's Rampart revenge.
On May 6, just eight days before Cameron's murder, Santos, an MS leader in a Salvadoran prison is overheard saying,
"This dude [Cameron], came here, homie. The day he arrived, we had a meeting here, homie. What he had in mind was to have some sort of program...for us to be like a Mafia Salvatrucha, see what I mean?
On another tape on the same day, Cameron himself is heard in this exchange:
Cameron: Listen! I'm gonna tell you something.
Salado: Uh- huh.
Cameron: I'm going to tell you something. We are a mafia here. You understand? We don't take orders from any fucking Mexican, man!
While not probative, anyone with the slightest knowledge of the gang world would realize that such words would be likely to bring immediate retaliation and death to anyone uttering them. So dangerous are the words that Alex Sanchez cannot use them in his own defense, because that would be accusing Le Eme of murder. There are implications for anyone writing them down. But the words are there in the transcript for anyone to read.
Whoever planted the rumor that Alex was collaborating with the FBI might have wanted him dead by that route, because informing for the FBI brings a penalty of death on the streets.
As the October 19 hearing drew to a close, there was one more insult from the judge, one weighted with irony. When Alex's attorney cited hundreds of letters supporting bail for Alex, including $2.5 million in properties and cash, the prosecution responded that all that support made Alex "uniquely able to flee" if bailed out. The judge then chipped in that none of the support letters mentioned whether Alex was a flight risk, that is, whether he would show up for his court appearances. "All the letters speak to his innocence, which is a trial issue, not a bail issue," he lectured.
The mostly Salvadoran family and community members in the courtroom gasped, realizing that the judge had no awareness that virtually all of the letters spoke to the very issue of flight risk.
One of those letters, ironically, was from Thomas Parker, a former director of the FBI's own Los Angeles office and a strong Alex supporter. Parker's letter, which the judge apparently never read, or worse, couldn't recall, actually pledged to help Alex meet all the requirements of bail, even personally bringing him to his court appearances. If this was "collaboration with the FBI," it was collaboration in reverse.
If there ever was reasonable doubt favoring a defendant, it would be extended to Alex Sanchez in this case. And yet he doesn't stand a chance in Judge Real's courtroom.
Who is responsible for this toppling of the scales of justice? The list starts with Attorney General Eric Holder, whose Justice Department brought the indictment based on a war model which carried over from the Bush years. It includes the FBI and LAPD gang units who are still resentful over the Rampart scandal and the role of Alex Sanchez. It comes down to a federal judiciary that fails to preserve checks and balances against one of its own. It would include the propagandists for the wars on gangs and drugs, which have claimed thousands of lives and placed millions behind bars with little result beyond stoking public fear to fortify the budgets of their secret units.
The case of Alex Sanchez is also about the very idea of gang intervention, which has been gaining public acceptance despite serious opposition from law enforcement. What Alex Sanchez was doing on those tapes was the essence of gang intervention, trying to defuse and redirect a lethal situation towards a safer outcome. If that is not permissible, if the prosecutors cannot tell the difference between a peacemaker and a shot caller, if an abusive and irrational federal judge has impunity while a defendant is denied the right to call a priest as a witness, the street wars will only continue.