Menace to Society: Why Many Young Black Men are Accused of Being in Gangs

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.

Courtesy of SF Police Department

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.”

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More About

• Jacori Bender
• Leonard Broberg
• Oakdale
• Trials
• New York Crime

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 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."