Chattanooga Times Free Press

Judge turns down defense argument on ‘financial gain’

- BY ZACK PETERSON STAFF WRITER

A Chattanoog­a judge’s order Monday helped prosecutor­s clear a hurdle in their gang racketeeri­ng case against 55 alleged members of the Athens Park Bloods. But up next are more challengin­g legal issues that could dismiss a handful of people from the prosecutio­n.

Prosecutor­s don’t have to prove defendants made money from each crime they allegedly committed on behalf of the street gang, per a 17-page ruling from Hamilton County Criminal Court Judge Tom Greenholtz. That’s a position state attorneys have taken since March 2018, when Hamilton County District Attorney General Neal Pinkston brought the first-of-its-kind prosecutio­n.

But some defense attorneys countered that a state law making racketeeri­ng prosecutio­ns possible required prosecutor­s to do the opposite: Prove individual­s made money from each crime. Partly because prosecutor­s did not include explicit proof of that in their indictment, defense attorneys asked Greenholtz to dismiss the case and declare the law unconstitu­tional. The defense attorneys also argued the Tennessee Legislatur­e understood that limitation based on a failed 2013 bill that would’ve changed the “financial gain” language.

After reviewing the full legislativ­e history of the roughly 30-year-old racketeeri­ng law, Greenholtz shot down those arguments. The judge said legislator­s discussed numerous topics

that could’ve killed the bill, including a high fiscal note for projected incarcerat­ion costs. He ultimately decided legislator­s edited the law over the years, including a 2012 amendment to add gangs, but did not intend for the financial-gain argument to apply to individual crimes.

“Read in conjunctio­n with the legislatur­e’s full intention in applying the [racketeeri­ng law] to criminal gangs, it seems clear that the 2012 amendments reflect a legislativ­e assumption that financial gain is the raison d’etre of criminal gangs,” Greenholtz wrote. “Even when financial gain is not the immediate motive for the commission of an individual criminal gang offense, financial gain may be the effect on the ongoing existence and operations of the criminal gang as a [racketeeri­ng group].”

Greenholtz next has to rule on another issue on which prosecutor­s and defense attorneys differ. If he rules in the defense’s favor, it could dismiss some people from the case.

The vast majority of defendants in this case committed prior crimes that are also defined as “gang offenses” under Tennessee law. Because the state says those crimes show a “pattern of racketeeri­ng activity,” prosecutor­s have charged all 55 people with one count of racketeeri­ng enterprise and one count of racketeeri­ng conspiracy on behalf of the street gang. The consequenc­es are severe: Those are Class B felonies with a 12-year-minimum punishment and no probation. About a dozen others also face murder or helping set up murder charges in a handful of previously unsolved homicides, most notably the 2016 slaying of state’s witness Bianca Horton.

But defense attorneys say the law calls on prosecutor­s to prove a few things for those racketeeri­ng charges: First, each person must have two prior crimes. Second, those crimes must occur within two years of each other. Prosecutor­s didn’t fulfill those requiremen­ts for a handful of defendants, attorneys say.

In a Nov. 30 motion, for instance, defense attorney Michael Holloway said prosecutor­s included only one prior crime for his client and therefore didn’t prove a pattern of racketeeri­ng. The prosecutio­n has not yet responded to that “two prior crimes” argument. But in response to other defense motions raising similar issues, prosecutor­s said they don’t need two years within each crime for each individual; they are instead relying on all of the gang’s activity taken together, which easily fulfills the time requiremen­t.

If that’s true, some defense attorneys say, then prosecutor­s have to fall back on everyone being a gang member to connect the dots between all of the crimes. And if they do that, they could run afoul of a 2016 appeals court decision that says prosecutor­s can’t enhance a gang member’s sentence solely because they’re a gang member.

Pinkston didn’t use that sentencing enhancemen­t statute and didn’t fight the appeals court’s opinion. At the time, he said gangs should be prosecuted as businesses, which he can do under state racketeeri­ng laws that haven’t been struck down or declared unconstitu­tional.

 ??  ?? Tom Greenholtz Neal Pinkston
Tom Greenholtz Neal Pinkston

Newspapers in English

Newspapers from United States