[Pnews] How Prosecutors Use Conspiracy and Questionable Testimony in "Gang" Cases

[Prisoner News]

truthout.org 
<https://truthout.org/articles/how-prosecutors-use-conspiracy-and-questionable-testimony-in-gang-cases/> 



  How Prosecutors Use Conspiracy and Questionable Testimony in "Gang" Cases

Josmar Trujillo - October 22, 2021
------------------------------------------------------------------------

In the United States, it is estimated that about two people are 
wrongfully convicted every day. In 2014, the Innocence Project estimated 
<https://www.vice.com/en/article/9kvj3d/why-are-there-up-to-120000-innocent-people-in-us-prisons> 
that around 120,000 people incarcerated in state prisons were wrongfully 
convicted. More than half of wrongful convictions, one study 
<https://www.washingtonpost.com/crime-law/2020/09/16/more-than-half-all-wrongful-criminal-convictions-caused-by-government-misconduct-study-finds/> 
found, were the result of official misconduct by police officers, 
prosecutors — or both.

New York City, which was at the epicenter of perhaps the most notorious 
wrongful conviction saga, the case of the Central Park Five (now known 
as the “Exonerated 5”), has seen dozens of people freed from prison. 
Often, the actions of police officers were at the heart of these 
wrongful convictions. But what happens when someone is accused of being 
in a gang — and how might that make a wrongful conviction easier to fly 
under the radar?


    Donnell Murray and the Consequences of Police Harassment

After officers walked Donnell Murray into federal court, he waved to his 
mother, sat next to his attorney and combed through the day’s notes. 
Getting to trial was a journey in itself. After more than two years in 
custody, Murray wanted to put the federal government’s case against him 
to the test.

Murray was raised in the Bronx. Like other young Black men, the 
entrepreneur worked with friends that he’d grown up with to make music 
and the street fashion that went along with it. Those friendships, the 
federal government would eventually argue, were part of a violent 
criminal conspiracy.

By 2017, Murray was living in Delaware. His mother had moved them out of 
the Bronx partly due to constant police harassment. The New York City 
Police Department (NYPD), they learned, was looking for him. In order to 
avoid more trouble, he turned himself in, unaware of the wild case the 
feds had built against him.

He hasn’t been home since, charged with a shooting and narcotics 
distribution in a federal gang conspiracy case.

Murray’s road to federal court might have begun in the NYPD’s 47th 
Precinct in the Bronx. For years, according to his mother, his fiancée 
and his legal team, the precinct’s officers harassed Murray. A pattern 
of targeted stops seemed to stem from a late-night altercation years 
earlier with a high-ranking 47th Precinct cop.

Murray’s former lawyer, Frank Iannucci, helped him fight some of the 
harassment. Iannucci, who died in 2015, was a former assistant district 
attorney from the Bronx District Attorney’s Office. By his own 
admission, he was a pro-police, pro-law enforcement guy. Iannucci became 
a private criminal defense attorney and represented Murray.

In 2010, Iannucci went to NYPD Internal Affairs to lodge a complaint 
against the 47th Precinct on behalf of his client. According to 
transcripts of Iannucci’s meeting with Internal Affairs Bureau 
investigators, early one Sunday morning in 2007, Murray and some friends 
were eating at a popular after-hours Bronx diner. As they began to 
leave, they encountered a 47th Precinct sergeant, Patrick McGill, who 
was there for an unrelated complaint. An argument between McGill and 
Donnell’s group ensued.

Next, according to Iannucci, McGill slammed Murray on a table and cops 
swarmed in to arrest him. Sergeant McGill claimed Murray had assaulted 
him. But according to Iannucci, security video showed the sergeant put 
his hands on Murray first, leading to a skirmish.

The assault case ended in an acquittal, but Murray’s problems with the 
47th Precinct were just beginning. A string of questionable arrests and 
car stops followed. One arrest in 2008, Iannucci described to 
investigators, was for an assault where Murray had actually come to the 
aid of someone who had just been jumped by cops. According to Murray, 
the officers who arrived at the scene screamed, “That’s him, that’s 
him!” as they approached.

In 2009, plainclothes police officers stopped Murray in his car outside 
of a friend’s barbecue. They checked his license and let him go. The 
next day, those same cops drove into his friend’s private driveway to 
confront Murray and insist he come down to the precinct for a more 
thorough check of his license, according to Iannucci. They also insisted 
he bring his car.

At the 47th Precinct, cops claimed he had an invalid license and were 
going to release him but insisted in searching the car. They claimed to 
find a gun in his car. Murray was charged with gun possession, but, 
after many months, Iannucci had those charges dropped. Murray’s family 
believes the arresting officers, including Officer Abraham Villavizar, 
planted the gun.

Murray’s fiancée, Destinee Ferguson, was with him during many of these 
encounters. She remembers cops in marked and unmarked cars would nod 
their heads when they saw him. During one stop, she says, cops 
threatened Murray by saying, “Oh, Mr. Murray, if you would’ve run, we 
would’ve shot you.”

Donnell Murray's fiancé, Destinee Ferguson, speaking at a protest 
outside the U.S. Attorney's Southern District Offices, October 
2020.Donnell Murray’s fiancé, Destinee Ferguson, speaking at a protest 
outside the U.S. Attorney’s Southern District offices in October 
2020.Josmar Trujillo

In 2012, cops pulled over and arrested Murray in his mom’s car at 
gunpoint with his infant son in the back. When his mother, Darlene 
Murray, went to the precinct to get her car, she saw one plainclothes 
officer rummaging through her glove compartment, which she filmed in a 
widely seen video 
<https://www.worldstarhiphop.com/videos/video.php?v=wshh2jeXAgz3JT6esn57>. 
At that time, Donnell Murray bought and resold cars and had cash in the 
glove compartment. That money disappeared, according to Murray’s mom.

A few months later, Ferguson says, Murray was waiting for her in his car 
outside her home when cops pulled up and claimed they had a warrant for 
him. The officers handcuffed Murray and insisted on taking the car with 
them. “Donnell is not someone who’s gonna let them search his car. He 
knows his rights. They hate that. That adds fuel to the fire,” Ferguson 
told /Truthout/.

The couple insisted to police that Ferguson take the car and Murray’s 
property. Cops refused. At that point, Ferguson started to record them 
with her phone. “They got very upset,” she recalls. Cops took Murray. 
One of the officers climbed into Murray’s car and sped off.

The incidents happened during the height of stop-and-frisk policing 
under former Mayor Michael Bloomberg, who for years rationalized 
<https://www.thedailybeast.com/mike-bloomberg-cant-hide-how-he-helped-terrorize-black-people-with-stop-and-frisk-policing> 
mass stops in the city’s Black neighborhoods. The repeated stops, 
Ferguson says, were frightening. “I was pregnant. It made me really 
scared for [Murray’s] life. I felt like he was gonna end up like Sean 
Bell <https://www.theguardian.com/world/2006/nov/27/usa.julianborger> or 
something.”

“I feel like Donnell was set up by the NYPD, the 47th Precinct,” his 
mother Darlene told /Truthout/. “After that incident at the diner, they 
had it in for him.” She also believes that because her son had sued for 
wrongful arrest on multiple occasions and filed numerous complaints, 
this put a target on his back. She says his inclusion in the federal 
gang conspiracy case was the culmination of a campaign of intimidation.

It is not clear if the Internal Affairs investigations into Murray’s 
allegations went anywhere. Investigators interviewed both Officer 
Villavizar and Sergeant McGill, both represented by their union lawyers, 
for 16 and seven minutes, respectively. The police department did not 
respond to requests for comment for this story.

Donnell Murray's family and supporters at a protest outside the NYPD's 
47th Precinct, May 2020.Donnell Murray’s family and supporters at a 
protest outside the NYPD’s 47th Precinct in May 2020.Josmar Trujillo


    Cops Repeatedly Accused of Misconduct

Officer Villavizar from the 47th Precinct was what you could describe as 
an active cop. Numerous lawsuits that alleged misconduct by Villavizar 
paint a picture of an officer who doled out aggressive arrests where 
charges were often dropped. Lawsuits against Villavizar and others went 
on over the course of a decade.

In 2008, Villavizar and his partner were alleged to have violently 
arrested a man in the Bronx, according to court documents 
<https://www.documentcloud.org/documents/5379000-Mann-et-al-v-The-City-of-New-York-et-al>. 
The District Attorney’s Office declined to prosecute that man, who then 
sued for wrongful arrest and settled with the city. Later that year, 
Villavizar and an unnamed partner forcibly arrested a man and woman in 
the Bronx, subjecting one to a strip and cavity search, according to a 
court complaint 
<https://www.documentcloud.org/documents/5379002-Moore-et-al-v-The-City-of-New-York-et-al>. 
Charges were dismissed. A lawsuit and a settlement followed.

In 2012, Villavizar was part of a group of plainclothes cops that 
allegedly approached people moving furniture, accusing someone of 
smelling like marijuana. After consenting to a search which turned up 
nothing, the lawsuit complaint 
<https://www.documentcloud.org/documents/4923063-McPherson-v-The-City-of-New-York-et-al> 
said, a man was violently arrested anyway and thrown from the hood of a 
police car onto the concrete. That case was dropped.

Later that year, Villavizar and another officer arrested someone at 
gunpoint who told investigators that cops demanded he show them his 
hands as he walked to a family member’s house. After showing them his 
empty hands, court documents 
<https://www.documentcloud.org/documents/5379007-Royer-v-The-City-of-New-York-et-al> 
say, the cops arrested him for marijuana possession anyway. Charges 
against that person were dismissed.

In 2013, Villavizar and an unnamed cop were named in a troubling 
lawsuit. Dressed in SWAT gear, the duo forcibly entered an apartment in 
the Bronx without a warrant. They arrested a woman and an unnamed 
“infant-plaintiff” (most likely a minor), placing both in handcuffs, 
according to a lawsuit 
<https://www.documentcloud.org/documents/5378997-Cheatham-et-al-v-City-of-New-York-et-al>. 
The woman was charged with marijuana possession. Those charges were 
dropped and the woman’s lawsuit against the city was settled for an 
undisclosed amount.

The CAPstat <https://www.capstat.nyc/officer/p105273/> police misconduct 
database shows at least eight lawsuits filed against Villavizar, 
amounting to at least $240,000 in settlements. Half of Villavizar’s 
known lawsuits were either settled for undisclosed amounts or the 
outcome was unknown, which suggests the total amount settlements could 
be much higher.

And yet it was Villavizar whose testimony in the conspiracy case would 
be used to connect Murray — who never had a gun conviction in his life — 
to a gun.

In fact, one of the lawsuits 
<https://www.documentcloud.org/documents/5379005-Murray-v-The-City-of-New-York-et-al> 
against Villavizar was filed by Murray after the 2010 gun-possession 
arrest in the precinct. Not only was Villavizar’s gun charge dismissed, 
the city settled Murray’s lawsuit for an undisclosed amount. Still, 
Villavizar would be called upon by prosecutors to testify about that 
arrest to a federal jury as prosecutors painted Murray as a gang banger 
with a gun charge.

When the judge in the trial ordered prosecutors to provide information 
about past lawsuits of police witnesses, federal prosecutors wrote 
<https://www.docketbird.com/court-documents/USA-v-Johnson/LETTER-MOTION-addressed-to-Judge-Paul-G-Gardephe-from-USA-dated-February-17-2019-re-Court-s-Order-dated-February-16-2019-to-Provide-Additional-Information-Regarding-Certain-Civil-Lawsuits-Document-filed-by-USA-as-to-Latique-Johnson-Brandon-Green-Donn/nysd-1:2016-cr-00281-456390-00520> 
that doing so “would be unfairly prejudicial and would waste time and 
cause juror confusion.” They downplayed Villavizar’s past, writing that, 
“from conversations with Officer Villavizar and a review of publicly 
available documents, the Government is aware of one unrelated lawsuit, 
which was dismissed.”

The judge agreed with prosecutors. The jury didn’t hear about 
Villavizar’s pattern of questionable arrests or the lawsuits filed 
against him.

In an emailed response to /Truthout/, a spokesperson for the U.S. 
Attorney’s Office wrote: “Allegations in civil lawsuits are just that — 
allegations. They are often irrelevant to criminal cases. In Donnell 
Murray’s case, we agreed with defense counsel and the judge that one 
lawsuit related to … Villavizar was relevant to the case and defense 
counsel was permitted to cross examine him about it. We also informed 
the Court of multiple unrelated lawsuits, which defense counsel first 
identified, and the judge found were not useful for cross examination.”

Donnell Murray’s mother, Darlene Murray, speaks out for her son at a 
rally in New York City.Donnell Murray’s mother, Darlene Murray, speaks 
out for her son at a rally in New York City.The Legal Aid Society


    Courts Permit Testimony From Cops Lacking Credibility

Testimony by cops with shady histories is a long-running problem in New 
York City. Police credibility has been an open issue in Brooklyn 
<http://www.villagevoice.com/news/the-incredibles-judges-said-these-cops-cant-be-trusted-so-why-does-the-da-rely-on-them-9292168>, 
where the district attorney continued prosecuting arrests by officers 
accused of perjury and evidence tampering. Manhattan prosecutors have 
been forced to publicize lists 
<https://gothamist.com/news/manhattan-da-police-cops-list> of “bad cops” 
whose testimony is suspect. A /WNYC/Gothamist/ investigation 
<https://gothamist.com/news/when-prosecutors-bury-nypd-officers-lies> 
into the Bronx district attorney’s use of “bad cops” included a gun case 
where an officer’s testimony was contradicted by video but was 
prosecuted anyway.

The problems continue at the federal level as well. Assistant U.S. 
Attorney Jessica K. Feinstein, who in Murray’s trial claimed the 
government knew of only one lawsuit against Villavizar, had previously 
argued against officer misconduct being entered into evidence for other 
gang cases.

As reported 
<https://theappeal.org/nypd-detective-with-a-shady-past-helped-lock-up-a-pot-dealer-for-federal-conspiracy/> 
in /The Appeal/, Feinstein argued that the credibility of NYPD Detective 
Jeremiah Williams, whose prior gun arrest of Carletto Allen in 2015 was 
key in Allen’s federal gang trial, was not sullied by the fact that 
Williams had been sued numerous times. Allen was indicted in the 2016 
Bronx 120 gang sweep <https://bronx120.report/>, the largest gang 
takedown in city history. Allegations against Williams ranged from 
needless anal searches to smashing someone’s head against a police car.

While Allen’s lawyers suspected foul play, specifically that Williams 
may have planted a gun on their client, he was nonetheless convicted in 
large part due to the testimony of the detective, the only person who 
could tie him to a gun — like Villavizar in Murray’s case. And, like 
Villavizar, Williams was the subject of at least eight lawsuits (perhaps 
more <https://www.capstat.nyc/officer/p108508/>), resulting in a total 
of a quarter-million dollars in settlements, according to /The Appeal/.

But because all of those lawsuits were settled, Feinstein could (and 
did) argue that there was no admission of guilt; hence, Williams’s 
testimony was credible.

Feinstein’s penchant for relying on testimonies of cops with murky 
histories even included a case where one may have been a flat-out 
racist. Her prosecution 
<https://www.leagle.com/decision/infco20210104052> of Donque Tyrell, 
also a defendant in the Bronx 120, relied partly on testimony from 
police officer David Sammarco. Sammarco has had at least 35 allegations 
<https://projects.propublica.org/nypd-ccrb/officer/5299-david-sammarco> 
of misconduct, has been named in at least six federal lawsuits 
<https://www.capstat.nyc/officer/p90460/> and was accused by one of 
Donnell’s co-defendants of stopping and spitting on him.

Officer Sammarco, according to evidence presented at trial, also appears 
to have had an active social media presence through the (since deleted) 
Twitter account @ObamaHater55, which posted racist memes about Colin 
Kaepernick and Muslims. Though Tyrell’s attorney tried to bring up the 
cop’s social media posts, they were excluded from the trial as 
irrelevant (the cruel irony being that social media posts are often used 
as evidence against defendants in gang cases). As in other cases, 
Sammarco’s testimony helped Feinstein connect Tyrell to a gun.

Screenshots of NYPD Officer David Sammarco's since deleted Twitter 
account, "Obamahater55."Screenshots of NYPD Officer David Sammarco’s 
since-deleted Twitter account, “Obamahater55.”

If you note a pattern of cops with questionable histories being used to 
provide testimony in gang cases, consider that Williams, Sammarco and 
Villavizar also all worked out of the 47th Precinct. But testimony from 
“bad cops” is just one piece of the puzzle prosecutors use to score 
convictions against those who are gang-accused. The feds have a whole 
overarching legal framework to do that.


    How Prosecutors Use Conspiracy and Hearsay in Gang Cases

Former Southern District Judge Billings Learned Hand wrote almost 100 
years ago that conspiracy laws were the “darling of the modern 
prosecutor’s nursery.” Decades later, federal prosecutors turned 
racketeering laws, made possible by the 1970 Racketeer Influenced and 
Corrupt Organizations Act 
<https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2463&context=flr> 
(RICO), into the new darling.

While conspiracy laws liberalized standards of proof and allowed 
prosecutors to connect multiple defendants to a crime, RICO enabled the 
lumping together of people as an “enterprise.” RICO was created to peel 
away the power of organized crime. Prosecutors, like former U.S. 
Attorney Rudy Giuliani, used it against Mafia leaders who ordered crimes 
but didn’t necessarily commit them themselves.

While RICO may have turned the tide against the Mafia, it didn’t end 
there. RICO’s reach targeted labor unions, pharmaceutical executives 
<https://www.nytimes.com/2019/05/23/business/dealbook/rico-insys-opioid-executives.html> 
and even the alleged conspirators 
<https://www.wsj.com/articles/in-college-admissions-case-lawyers-for-coaches-others-move-to-dismiss-charges-11571181023> 
of a celebrity college admissions scandal. RICO’s footprint in 
communities of color, however, has arguably been the most devastating.

In the 1980s, prosecutors began to use RICO against street gangs even as 
critics argued 
<https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1025&context=mjrl> 
this was an overapplication. Most street gangs didn’t affect interstate 
commerce, required under RICO, and were unlikely to be able mount the 
costly legal defenses that mobsters could. How, one might ask, could 
police be trusted to identify who was in a gang, what crimes were 
“gang-related,” or even what a gang was?

There were also political and cultural undertones. RICO was used against 
groups formed from Chicago’s Almighty Black P Stone Nation 
<https://www.chicagoreviewpress.com/almighty-black-p-stone-nation--the-products-9781569768464.php>, 
the Black nationalist group, as well as the Latin Kings 
<https://www.nytimes.com/1998/05/15/nyregion/94-in-latin-kings-are-arrested-citywide.html>, 
who were becoming involved in police brutality protests against New York 
City Mayor Rudy Giuliani, the former prosecutor, in the 1990s. Bias 
<https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2463&context=flr>, 
some noted, could also lead to a conflation of hip-hop music groups and 
gangs. The Giuliani administration villainized 
<https://www.nytimes.com/1995/10/04/nyregion/hip-hop-club-gang-is-banned-in-the-bronx-cultural-questions-about-zulu-nation.html> 
the legendary hip-hop collective Zulu Nation, calling it a “gang,” and 
the FBI once tried to build a RICO case against the Wu-Tang Clan 
<https://www.thedailybeast.com/how-the-fbi-and-james-comey-hunted-the-wu-tang-clan>.

Beginning in 2012, the NYPD increased its anti-gang efforts and worked 
closer with federal authorities. The trial of Murray and his 
co-defendants, charged like Mafia leaders, is perhaps a textbook example 
of what happens when police and prosecutors use their most powerful 
tools against young Black men.

Some days, the rear doors of Judge Paul Gardephe’s court would swing 
open to reveal Murray’s fiancée and their 7-year-old son, Adon. They sat 
in the courtroom as Feinstein painted Murray’s life as one of violence 
and drugs. Murray and his co-defendants, Brandon Green and Latique 
Johnson, had all risked decades in prison by going to trial. Most don’t. 
By one count 
<https://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html>, 
97 percent of federal cases end in a plea deal.

The odds against them were extraordinarily steep. Conspiracy and RICO 
lower the burden of proof for prosecutors, who essentially only have to 
convince a jury of a crime that benefitted an “enterprise.” Another 
crucial advantage for prosecutors is allowing normally inadmissible 
evidence, hearsay (someone testifying about what someone else said), 
into court. RICO also allows prosecutors to prove the existence of an 
enterprise by discussing bad acts of people who aren’t even on trial.

The linchpins to hearsay are cooperating witnesses, or “snitches.” With 
the Mafia, the threat of RICO and mandatory minimums turned some 
low-level soldiers, sworn to never snitch, into snitches. However, the 
use of snitches has been spotlighted 
<https://www.youtube.com/watch?v=NbylQAQz8VI> as tremendously unreliable 
and coercive, even the basis for dozens of false convictions. The 
practice has been so ripe for abuse that desperate prisoners have often 
offered testimony against people they didn’t even know — sometimes 
testifying in cases they’d only read about.

By leaning on snitches, prosecutors can weave a web of guilt. In 
Murray’s trial, cooperators testified about the alleged gang, the 
Bloodhound Brims. However, all were facing serious federal sentences but 
receiving “5k1” letters <https://fastlawpc.com/what-is-a-5k1-letter/> 
from the government to recommend lighter sentences in exchange for their 
testimony. Some who faced life in prison could now hope to be released 
with time served. Pat Daly, an ex-cop who’d become addicted to crack and 
indicted in the case 
<https://www.leagle.com/decision/infdco20180809c74>, testified that the 
gang ran a drug operation from his upstate home. He got a 5k1 letter.

At the trial, several cooperators struggled on the witness stand. Two 
key cooperators were serial snitches. One complained about being 
re-indicted under RICO for a crime for which he’d already served a state 
sentence. Others offered conflicting versions of the gang’s structure. 
While one cooperator testified Murray was a gang leader, another 
testified that he had no standing in the gang. At least two didn’t know 
who Murray was. They all got 5k1 letters.

Prosecutors alleged Murray had been part of a 2012 shooting. To prove 
Murray’s culpability, they brought a jailed cooperator to the witness 
stand who claimed he overheard Murray brag about it in prison. Another 
witness prosecutors used to connect Murray to that shooting was so bad 
that the judge later called him 
<http://innercitypress.com/sdny1cooperatorjones091219.html>the worst 
cooperator he’d ever seen. The cooperators’ testimonies were the only 
sources of evidence connecting Murray to a violent act.


    Presumption of Guilt

After weeks of trial, all three co-defendants were convicted on most 
charges, though not all. While Murray was found guilty of the 
racketeering conspiracy, the the jury found the government did not prove 
he attempted murder as part of the conspiracy. Ultimately, Murray was 
convicted of racketeering, narcotics conspiracy and gun possession, 
which could mean a sentence up to and including life.

Murray’s mother, devastated by the conviction, remained hopeful because 
he wasn’t facing a mandatory minimum. His attorney argued for five 
years. Judge Gardephe sentenced Murray to 19 years, a sentence that 
would make him almost 60 by the time he is released.

Throughout the trial, the presumption of innocence seemed purely 
theoretical — to be in a gang was a sign of guilt, with the details to 
be sorted out later. There are, of course, gangs in the Bronx, and 
during the trial, there had been acknowledgement that the gang in 
question was, in fact, real. Murray and Latique Johnson were childhood 
friends who had mutual aspirations in clothing and music. The jury was 
persuaded to believe that they were a criminal enterprise.

For the defendants and their families, their hopes now rest on an 
appeals process that could take years. The trial, fueled by decades-old 
tactics designed for the Mafia and testimony from cops with a record of 
alleged abuse, leaves a bitter taste in their mouths.
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