Procedure raising questions of legal overreach
Most of the 54 people charged in last month’s racketeering indictment against a Chattanooga street gang don’t know what they’re specifically accused of doing, but legal experts say it’s designed that way to pressure them into testifying.
Without a full picture, criminal defense attorneys who’ve previously represented many of the accused are seeking as much information as possible before April 27, when all 54 defendants are set to appear in Hamilton County Criminal
Court to plead guilty or not guilty.
But many attorneys already believe they cannot take any of these cases. If they represented one of these defendants in a previous case and learned something in confidence about the gang, they can’t use that information to help represent a new defendant, they say. The assigned judge, Tom Greenholtz, likely will have to search for attorneys in other cities or civil firms who aren’t conflicted.
Proponents say this isn’t a slight to defense attorneys but just the way racketeering indictments work: The law Hamilton County District Attorney General Neal Pinkston
used to indict 54 people at once busts up street gangs by encouraging low-ranking members to take plea deals in exchange for their testimony against the worst actors.
“It could be a very good technique for the prosecutor to take a complicated criminal enterprise where loyalty and silence are the hallmarks and crack that,” said Chattanooga defense attorney Lee Davis. “But the danger and the flip side is, in order to get the big fish, you could be bringing in a lot of the minnows that have nothing to do with them.”
Critics say these cases are a legal overreach that creates a lot of collateral damage among mostly underprivileged black men and women who don’t commit the serious crimes yet are punished for their previous affiliation with violent gang members.
Babe Howell, a professor at the City University of New York’s law school who studies these types of cases, said it’s misuse to apply these racketeering indictments to criminal street gangs. She said it destabilizes already traumatized neighborhoods, contributes to broken families with lengthy incarceration and puts targets on people’s backs for testifying against friends.
“It’s kind of like fishing with dynamite,” Howell said. “It kills the environment and it kills some fish that aren’t your targets as well as the fish that are.”
Prosecutors declined to comment on this case, so it’s impossible to know the extent of their evidence.
But their 22-page presentment says all 54 people are members or associates of the Athens Park Bloods, a criminal street gang that participates in homicides, robberies, drug deals and witness intimidation.
As a result of their indictment, seven alleged members face murder charges, and possibly the death penalty, in four previously unsolved homicides. One of those homicides is that of Bianca Horton, 26, who prosecutors say was killed in May 2016 for testifying against the man accused of shooting her daughter a year earlier.
The presentment also accuses the gang of dealing illegal drugs, committing robberies and arson, lying to authorities about their crimes, using the proceeds of illegal activities to bail other members out of jail and pay legal fees, and coordinating illegal activities over three-way calls with incarcerated members.
By and large, though, the presentment doesn’t delineate 40-or-so people’s roles in these activities. Instead, they face a Class B felony that carries 12 to 20 years in prison for conspiring to further the gang’s objectives through fraudulent business dealings.
“There’s no way anyone can determine, other than the guys charged with murder, what they’re alleged to have done,” said Chattanooga defense attorney Lloyd Levitt, whose former client is now included in the action.
Authorities questioned Levitt’s client a few times before the indictment about whether she rented cars to gang members, Levitt said. Like some of the defendants, she has little criminal history in Hamilton County aside from a disorderly conduct charge and a handful of driving on a revoked license charges.
“But she hasn’t been in the gang for probably at least five years,” Levitt said. “Here’s someone who’s actually working, has a good job, two kids and is trying to better themselves. So why would you want to cost that person their life?”
The state can prosecute gangs like this because of federal legislation developed in the 1970s to take down organized crime groups.
Since mob leaders kept evading prosecution by ordering someone else to do a hit, the federal government essentially made it a crime to be a contributing member of a criminal enterprise.
Known as the Racketeering Influenced and Corrupt Organizations Act, or RICO, the legislation allowed prosecutors to indict multiple members at once and then convince them to testify against each other because of the severe punishments they faced.
“One of the advantages and disadvantages is that if you’re in for a penny, you’re in for a pound,” said G. Robert Blakey, an attorney and professor at Notre Dame University who helped draft RICO. “The guy who’s least responsible is in for the same degree as the guy who’s most involved.”
In the 1990s, California used that logic to bring the first racketeering case against a street gang, and many states followed suit. In 2012, Tennessee’s Legislature amended its RICO law to include criminal street gangs.
There is no doubt street gangs are violent.
Gang members accounted for 56 percent of Chattanooga’s 158 shooting incidents in 2016, including a months-long feud in which pregnant women and children were targeted, according to police. In 2017, even as shootings dropped, gang members were involved about 43 percent of the time and remain a priority among law enforcement.
“Using focused deterrence and intelligence-led policing, we’ve been able to address the numbers that we’ve been asked as an organization to work on,” Chattanooga police Chief David Roddy said in January.
But some critics think racketeering charges don’t apply well to street gangs; these aren’t organized business enterprises where everybody’s benefiting from the spoils, they argue.
“There are young adults who don’t have two nickels to rub together, for the most part,” said Alex Vitale, a sociology professor at Brooklyn College who writes about policing. “These are really poor kids struggling through involvement with black markets who are trying to navigate a dangerous world.”
Some defense attorneys believe they have two attack points moving forward in the racketeering case.
First, they say, Tennessee’s RICO law is narrowly focused. It calls on prosecutors to show members are participating in the enterprise for financial gain. And that may be challenging to prove with a street group that doesn’t keep receipts of handto-hand drug deals.
“A lot of other states just require association with the enterprise, not the association for profit,” said Chattanooga defense attorney Jonathan Turner, who likely can’t participate in the case because he’s previously represented some of the accused. “That’s the more narrow part of Tennessee’s law: It requires the profit sharing among members of the enterprise.”
Tennessee legislators tried to address that limitation with a pair of bills in 2013 and 2014 that would remove the “financial gain” language from the state’s RICO law. One of those bills also tried to give prosecutors the ability to go back five years in time for criminal incidents as opposed to two.
But both bills predicted high expenses to the state for incarceration, and neither made it out of the Senate, said Hamilton County Criminal Court Clerk Vince Dean, who co-sponsored the legislation at the time as the state representative from East Ridge.
“Anytime a bill has a huge [projected cost] you can pretty much bet it’s going to be dead in the water unless the governor adds it to his budget,” Dean said. “Or unless you can find a funding mechanism.”
Despite these limitations in the law, other defense attorneys aren’t holding their breath: RICO is still a powerful tool, they say, and some of the 54 defendants have been on law enforcement’s radar for years.
Authorities could have an enormous amount of circumstantial evidence in the form of confidential informants, social media posts, recorded jailhouse phone calls or federal wiretaps that tie people to the gang. And some say that’s all prosecutors will need to convict.
Furthermore, the state’s RICO law has withstood challenges from defense attorneys in other jurisdictions who’ve called it unconstitutional.
In September 2017, Knox County Criminal Court Judge Steven Sword said the state’s assertion a defendant had engaged in a “pattern of racketeering activity” wasn’t too vague because the average citizen should know what’s illegal and what’s not.
“The defendants [here] are charged with multiple counts of selling and distributing controlled substances,” Sword wrote in an order. “There is no doubt that a person of ordinary intelligence would know that such behavior is prohibited by law.”
The second challenge for the state could be a 2016 Criminal Court of Appeals ruling that says a person can’t face an increased sentence solely because they’re a gang member.
“The issue is, is the state prosecuting a criminal agreement about specific crimes?” attorney Davis said. “Or are they prosecuting for the status of allegedly being part of a gang? Because you can’t prosecute somebody for alleged status. You have to prosecute them for some act in the conspiracy.”
A group of defense attorneys is using a similar argument right now to fight a separate “safety zone” that would punish targeted gang members for associating with each other in the East Lake housing project. A trial to determine whether that zone becomes permanent is scheduled for April 17 in Hamilton County Criminal Court.
Whether defendants challenge their alleged roles in the racketeering conspiracy or not, they’re still facing prison time and likely will begin to flip on each other if prosecutors offer plea deals to smaller players.
“There are going to be people rushing to be the first to flip,” said defense attorney Rich Heinsman. “And that’s normal in a case where they’re afraid that if they don’t flip first, then somebody else will flip.
“It’s like musical chairs,” he said. “You don’t want to be the last one left without a seat.”