In a development few imagined possible, US Attorney Andre Birotte, on December 17, recommended the dismissal of all charges against Salvadoran gang peace leader Alex Sanchez, admitting that the prosecution’s case was “flawed.” Sanchez, his wife and two young children were rousted by police and federal agents at dawn on June 24, 2009, when Sanchez was handcuffed and accused of gang conspiracy to murder and sell drugs.
Those charges were dropped quietly this week, with none of the ceremony and fanfare that occured when Chief William Bratton, Mayor Antonio Villaraigosa and the FBI held a nationally broadcast press conference to announce the indictments three-and-one-half years ago. It was widely assumed, even among leading local civil liberties figures, that Sanchez was either guilty or had zero chance of overcoming the odds. Some feared his indictment would harm the fragile reputation of the gang prevention and intervention program then being launched at City Hall.
The record now shows that the prosecutors knowingly fed false evidence to the grand jury, and failed to admit for three years that their case was wrong on the facts.
Even in admitting its “flaw,” the prosecution vowed its “express intention of re-filing” certain of the dismissed charges against Sanchez. The government has a six-month window to make the decision. Meanwhile, federal judge Dale Fischer has until January 16 to accept or amend the terms of the government’s request.
If the prosecutors do re-file, their action is sure to stir angry opposition and a renewed legal fight from Sanchez defenders. “The feds don’t friggin' stop. When they get you, they don’t stop,” says one longtime fixture in the federal court building.
Sanchez’ Public Defender Amy Jacks says there is a compelling case for the judge to dismiss all charges “with prejudice.” The prosecutors are asking for a dismissal order “without prejudice,” which would allow them to re-file charges in the future. Under a formal request to dismiss, known as a Rule 48[a] procedure, a court denial can only be based on a judicial finding that the prosecutors have behaved in bad faith. And since the prosecution is dropping all charges, it is difficult to accuse them, in the current proceeding, of bad faith.
But the government cannot sanitize its flawed case, bring new charges and avoid a courtroom clash over what Jacks calls its “unconstitutional behavior during the course of the last three years.” If that is the state’s intention, the prosecutors could be found in bad faith. If the stains on the record can be whitewashed, prosecutors in effect would be entitled to make up new charges every time their previous fabrications are discredited.
It may be that new prosecutors assigned to the case this year have realized previous prosecutors were guilty of professional misconduct in withholding evidence of Sanchez' innocence. The original accusation was that Sanchez participated in a long-distance phone call, wiretapped by federal agents, in which a killing (or “green light”) was planned and later carried out. But an investigation showed that the alleged killer, a gang member called Zombie, was not on the phone call at all. LAPD gang expert Frank Flores was simply mistaken. Depositions taken in El Salvador proved it, and both the prosecution and FBI knew as much. But they failed to admit they had the “wrong Zombie” because their case would be undermined – or, in the words of the US attorney this week, “flawed fatally.”
Further misconduct may have occurred if the prosecutors failed to fully disclose any other "exculpatory" matters to the judge or grand jury that could have been helpful to the Sanchez defense or its pursuit of important evidence.
Community supporters of Sanchez are considering an effort to thank the US Attorney and at the same time express opposition to any further indictment. Many say the government should open an investigation of ethical and professional misconduct. Birotte’s letter dropping the indictments, however, “disputes defendants’ allegations of misconduct and grand jury abuse,” throwing a protection blanket around his own.
Chief Bratton, who led the initial charge, has left for the private consulting world. The original US Attorney on the case, Thomas P. O’Brien, is retired. Judge Real was removed from the case last January by the 9th Circuit. Key prosecutors, like Elizabeth Carpenter, have been replaced. Officer Flores is no longer the government’s “expert witness.” Sanchez’ original public defender, Kerry Bensinger, was appointed Superior Court judge. His new public defender, Amy Jacks, came on board February 24, 2012.
This reporter is growing old, having covered the story for The Nation, since June 22, 2000. Since then, The Nation has published 20 stories on the saga.
Alex Sanchez: The Peacemaker
Alex Sanchez is still standing, like a persecuted hero in a Kafka novel. He became the first ex-gang member to be granted political asylum in a federal immigration case on July 10, 2002. Now he may be among the very first accused of conspiracy-murder to have the charges against him dropped. His children have grown up worrying that the police will come banging on the door again, but also are aware that their father is a most unusual man. This year, a play based on his life, Placas, was written by Paul Flores, and performed at the San Francisco International Cultural Festival.
The ironies abound. Sanchez recently was invited to a US Homeland Security meeting where discussions revolved around what to do about gangs like MS-13. He has been at the table in meetings with LAPD chief Charlie Beck. It is not entirely clear if the authorities knew who they were talking to.
But the biggest milagro is this year’s truce in El Salvador called between MS and 18th Street gang members at the end of March. This is where the Alex Sanchez story began, among traumatized Salvadoran children in flight, often without families, to the streets of LA from the bloody interventions and wars in Central America. Gangs like MS were created in Los Angeles’ Pico-Union and other refugee barrios, not the other way around. They even rapped about themselves as “las frutas de las guerra.”
Prior to the truce, gang homicide rates in El Salvador were 15 per day – one of the highest in the world. Since the truce was inacted, the rate is down to less than five homicides per day; projected over the past nine months of gang truce, some 2,700 lives have been spared from the madness. Much more will have to be done – reconciliations, rehabilitation, jobs and education, addressing privatization and underdevelopment – by the Salvadoran government, and particularly by the American government, which has spent millions on secretive gang suppression involving collaboration between the Los Angeles police and sheriffs through the “Transnational Anti-Gang Center” (while still bungling the case of the two Zombies). Congress or the courts should review these classified operations for their transparency, accountability, costs and results. The pertinent documents are among those being sought by the Sanchez legal defense team.
The present prison truce in El Salvador has saved more lives than all the expensive transnational counterterrorism units there combined. The fragile truce is modeled in part on the very Homies Unidos organization that drew Alex into a new life some 15 years ago. When the cease-fire began, Alex even received long-distance calls from the incarcerate
d gang members seeking advice. He told them that he was restricted from conversations with any MS members except in the presence of his lawyers, but that he was permitted to talk by phone with 18th Street members. He did so, giving them names of civil rights, religious and community leaders in Los Angeles, who promptly organized the Transnational Advisory Group in Support of the Peace Process in El Salvador.
With charges dropped, Alex Sanchez may yet be able to realize “las frutas de la paz” through the resumption of his gang intervention work in Los Angeles. After a generation of green lights for war, this would be a green light for peace.