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The Judge Gets Real, But Why? | The Nation

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The Judge Gets Real, But Why?

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The Judge Gets Real, But Why? Tom Hayden The federal judge's order means that LA's top gang reduction officials will be subpoenaed to state what they know of Alex Sanchez.

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Tom Hayden
Senator Tom Hayden, the Nation Institute's Carey McWilliams Fellow, has played an active role in American politics and...

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With Senator Foreign Relations chairman and Cuba hawk Robert Menendez mired in scandal, the embargo could finally be lifted.

The same mentality that promotes secret schemes aimed at regime change abroad will be applied at home.

In an unexpected turn, federal Judge Manuel Real today ordered prosecutors and defense attorneys in the Alex Sanchez case to request that top LA city and police officials advise the court about the gang peacemaker's public activity over the past decade in a special hearing on January 13. Real repeatedly questioned the prosecution's evidence for the first time in the proceeding's six-month history.

Lawyers and advocates scrambled to make sense of the judge's order, which must be met in six days. Professor Beatriz Cortez, coordinator of the nation's first Central American Studies program at Cal State Northridge, was among the skeptics. "How will this hearing be conducted, will it be secret, will the community be left out?" she asked. Others claimed the judge was going through the motions in response to the Ninth Circuit Court of Appeals' recent admonishing. The Sanchez family and official defense team expressed guarded optimism about the development.

Taken literally, the judge's order means that the city's top gang reduction official, Guillermo Cespedes, and a top LAPD gang expert appointed by the new Chief Charles Beck would be asked, or even subpoenaed, to state what they know about Alex Sanchez from the past decade. Since city and police officials have often collaborated with Sanchez in the past, the public record might place them at odds with former CRASH officer Frank Flores, the prosecution's expert witness.

While no one expects that to happen, no one is making predictions.

The day at the federal court house began on a new note. Rather than the iron chains and prison garb previously worn by the defendant, Sanchez was wearing a casual green shirt and slacks. An artist from Univision was sketching the defendant for the evening news as some 45 supporters and family entered the courtroom. At first they were ordered by armed security to sit at the far side of the chamber where eye contact with the defendant (described as forbidden "communications") was virtually impossible. As those seats overflowed, however, the large Sanchez family arrived and sat as a bloc closer to the defendant without being impeded.

The point of the new bail hearing was to respond to the order of a Ninth Circuit panel last week admonishing Judge Real to more carefully consider the evidence presented claiming that the 37-year old Sanchez would be a danger to the community and a flight risk if released on bail. Sanchez is a former member of the Mara Salvatrucha gang, who dropped out of active membership to become a founder of Homies Unidos a decade ago. The work of Homies Unidos includes peace-seeking intervention and mediation in the dangerous world of street gangs. Sanchez was targeted by LAPD gang units a decade ago, but won unprecedented political asylum at a federal immigration hearing. The controversy over illegal police tactics, known as the Rampart scandal, resulted in costly reforms of the LAPD supervised by a federal judge until just weeks ago.

For critics, the Sanchez case smells like revenge by elements of the LAPD and the FBI for the Ramparts scandal that tarnished LA law enforcement's reputation globally. For the prosecution and their lead police witness, officer Frank Flores, it is a case of Alex Sanchez leading a "double life" for ten years, enriching himself on drug deals, and actively participating in MS conspiracies to kill gang rivals.

At stake is the public image of so-called gang prevention and intervention programs, in which former gang members often are employed as peacemakers to lessen violence and channel young people to constructive alternatives. The program is touted as a national model by Mayor Antonio Villaraigosa and relies in part on the street work carried out by advocates like Sanchez. Up to 125 street-based peacemakers are being hired by the city this year. The LAPD has gradually come to endorse the program for reducing violence and reaching the unreachable, but some officers and city officials are made nervous over the role of former gang members.

The indigent Sanchez is represented by a court-appointed attorney, Kerry Bensinger of Pasadena, who began the morning by responding to the Ninth Circuit's list of factors to be considered in determining bail. Bensinger agreed that the nature of the offense is serious, but argued that the weight of evidence bearing upon the strength of the government's case is weak.

The wiretap transcripts from May 2006, for example, a gang member in El Salvador questioning why Sanchez is on the line since he was no longer active in the gang, a piece of evidence which contradicts the claim that Sanchez was a shotcaller and therefore responsible for any and all crimes committed by gang members. This evidence was omitted in the analysis of the wiretaps by Officer Flores and submitted by the prosecution.

Second, the fact that Sanchez was on the phone calls is offered as proof of gang membership by the prosecutors. The defense contends he was on six of many thousand intercepted conversations because, according to an affidavit, he was invited to join the phone calls because they concerned threats to his life and accusations that he was an FBI collaborator.

Third, the defense has submitted evidence that the voice of one "Zombie" on the phone calls is a different individual altogether than the "Zombie" that the prosecutors claim carried out a Sanchez order kill another gang member in El Salvador. No evidence whatever has been introduced that such an order was given by anyone during the calls, which is why Officer Flores claims that lengthy multi-party conversations are carried on in secret code.

Fourth, the judge refused to hear the 20-page testimony of Fr. Gregory Boyle, who heads one of the nations most well-known gang intervention programs, and who attempted to refute Officer Flores point by point.

Fifth, against the government claim that Sanchez has a secret tattoo on his chest, the defense produced an affidavit by a tattoo removal specialist, Rosemarie Ashamalla, that tattoo removal programs like that which treated Sanchez only eliminate tattoos on the face, neck, and hands that can be barriers to re-entry programs.

Sixth, the defense simply dismissed as irrelevent ten-year old photos of Sanchez smiling and throwing a gang sign, and a poem by Sanchez found during a search of a gang members drawer.

Finally, Bensinger pointed to more than one hundred letters attesting to Sanchez's good work and character, leading the judge to intervene for the first time, saying such letters are merely hearsay, not given under oath. When Bensinger offered to put the authors of the letters on the stand, the judge was silent.

This was a judge who had interrupted Bensinger at least 20 times when the attorney tried to present the same information at the original bail hearing, often caustically, deriding the testimony of Fr. Boyle as "irrelevent." This was the same judge whose behavior has been described as "problematic" by a Ninth Circuit panel, and as "surreal" by this Nation correspondent.

The judge apparently was stung by criticism appearing in The Nation, since he several times referred to a person "who knows absolutely nothing about the law." For whatever reason-the Ninth Circuit's admonishment, The Nation's criticisms, or his own reflections and consultations--the new Judge Real bore down on the prosecution with key questions.

As in previous sessions, the prosecution made little effort to buffer its arguments, perhaps assuming the judge would simply rubber-stamp their proposed order and send it back to the Ninth Circuit. The prosecution claimed, for example, that other wiretaps from 2000, 2001 and 2008 have been proffered, while ignoring the fact that the proffers have never been accepted and the evidence never submitted. As the prosecution rested its brief case, the judge began his questioning.

Where would the defendant go if he fled the country? the judge asked. El Salvador, replied the prosecutor. But wasn't he granted political asylum by another court precisely because he would be at great risk of torture or death in El Salvador? That was a decade ago, but we have him on phone calls to El Salvador more recently, was the reply. Were the calls inviting them to El Salvador? (The judge didn't mention that the parties in El Salvador were in prison or on the run.) No, the calls show that the defendant has "networks" there able to receive him. But wouldn't the INS hearing have considered this information?

Bensinger reminded the bench that Sanchez's wife, three children, parents and family all live in Los Angeles, that $2.5 million has been pledged in sureties against his leaving.

But, the prosecutor claimed, Sanchez does not believe he will get a fair trial, and therefore will flee the country before his sentencing. Thats being said by "someone who knows absolutely nothing about the law," answered the judge. It's reasonable that the defendant shares that view, your honor. Has the defendant or his lawyer made any such statements, asked the judge? Stepping back, the prosecutor admitted they had not.

Assuming El Salvador is out of the question, the judge resumed, where else would he go? To Latin American countries that have no extradition treaties with the US, came an improvised reply, with no explanation of how Sanchez would escape the tight restrictions that inevitably would come with bail.

A further element requiring scrutiny by the Ninth Circuit panel was Sanchez's previous criminal record. Bensinger noted that Sanchez had one previous felony conviction, dated 15 years previous, and nothing since. The prosecutor leaped in to cite a May 2009 "encounter" with the LAPD. The judge wanted to know whether there was any result of the encounter, such as an arrest. No, your honor, came the admission, the defendant was questioned by the LAPD officer when he was found talking and drinking on a streetcorner with four other individuals, one of whom was a known MS member.

Seemingly exasperated, the judge then proposed his unusual next procedure. According to this analyst's extemporaneous notes: "You and Mr. Bensinger should get together, with the head of the gangs program for the City and let us ask him what he knows about Alex Sanchez and this gang. Get the person in charge at the LAPD and ask if there have been any recent gang activities of a public nature involving this defendant. Get them here to perhaps a closed hearing, to talk to them," about the bail-related questions of being a danger to the community or a flight risk.

With no further discussion, the "hearing" was set for 10am Tuesday, January 13, to be followed by the resumption of the bail hearing which was remanded to Judge Real by the Ninth Circuit. There is no predicting whether this represents an unprecedented approach to conflict resolution, or merely a step by the judge to prove to the critics that he is holding an exhaustive hearing, and armor-plating himself against a future appeal, before denying Sanchez bail once again.

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