Tension between attorneys rises as Fruitvale gang injunction hearing drags on

As the hearing over the proposed Fruitvale gang injunction grinds on, tension is rising between the two sides over how long the process is taking. On the prosecution’s side, the Oakland City Attorney’s Office wants the court to approve the proposed injunction as quickly as possible while the defense, which represents 27 of the 40 alleged gang members named in the injunction, wants to prevent its enforcement.

Initially, a ruling was expected after a one or two-day-hearing in mid-February. But after four days of witness testimony that have stretched out over four weeks, including over four hours this Wednesday spent questioning Oakland police officer Douglass Keely, staffers from the City Attorney’s office are complaining that the defense may be intentionally dragging its feet.

“I think it has been their strategy for maybe the entire case, to run the clock and delay as much as possible,” said Alex Katz, spokesperson for City Attorney John Russo. Katz charges that the defense team turns their witness lists in late, constantly changes those lists, and continues to file new motions–all of which, he said, have drawn out the hearing process. “We filed this case in October. The fact that they still don’t have a final list of witnesses is really telling,” he said.

But defense attorney Jeff Wozniak, one of the five volunteer lawyers representing the defendants, said his team isn’t intentionally delaying a decision, but rather wants to make sure the judge understands every implication of the proposed injunction and wants to ensure that each of their witnesses is given adequate time to speak. “Our goal is to prevent an injunction from going into place,” Wozniak said. “Justice is slow, there is a process this goes through. These hearings are long and the stakes are high. We are interested in a just and fair resolution.”

In addition to the five witnesses the defense has already been allotted, the defense has asked the judge if they can have seven additional alleged gang members take the stand to tell their stories.

Once the hearing is complete, Alameda County Superior Court Judge Robert Freedman will decide whether to impose the injunction, which is intended to curb crime perpetrated by the Norteño gang in the Fruitvale neighborhood.  If enforced, the proposed gang injunction would create a “safety zone” of two square miles in which the 40 alleged gang members named in the injunction would have to abide by a 10 pm curfew, could not associate with one another or wear clothing with gang colors, among other restrictions.

Defense attorneys representing the alleged gang members have argued that the injunction would violate their civil liberties and lead to racial profiling and police harassment of Fruitvale residents. Over the course of the ongoing hearing, defense attorneys have attempted to show that some of the people named in the injunction are not gang members and should not be included on the list. They have also tried to show continued police harassment of the alleged gang members and their families.

During the hearing on March 2, much of the testimony was focused on Oakland police officer Douglass Keely, who is a police detective specializing in Hispanic gang crime and was involved in the arrests of many of the 40 alleged gang members named in the injunction. He worked with about 20 other police officers to delineate the borders of the proposed safety zone, target crime hot spots and put together the list of alleged gang members.

On Wednesday, Judge Freedman continued to hear defense attorneys question Keely about his work in the Fruitvale neighborhood. The first half of the day was spent listening to Keely’s testimony; the second half was spent ironing out procedural details for the remainder of the hearing.

Defense attorney Dennis Cunningham led the questioning of Keely, asking the officer how he recognized gang members, how he collected information about alleged gang members and the location of the crime hot spots inside the safety zone.  Throughout the course of the testimony, which took approximately two and a half hours, Cunningham often repeated his questions, despite the judge sustaining each of the prosecution’s repeated objections. In some instances, the judge stopped him and questioned the witness himself, rephrasing the question. Keely will be called back for questioning next week.

During the procedural half of the hearing, which followed, the two parties and the judge discussed additional witnesses, hearing dates and complaints from both sides, including the prosecution’s complaint about how long the process was taking. “It’s taking a bit longer than initially anticipated… but I don’t consider it time wasted,” said Freedman.

Oakland deputy city attorney Rocio Fierro stood up and said to the judge, “You’ve been very gracious in allowing the defense [to show their case]. But we believe there have been some delay tactics.” She pointed out that the defense wanted to delay the hearing until they received specific documents from the Oakland Police Department, and said the city believes this was an attempt to delay the proceedings.

As the procedural portion of the hearing ended, Cunningham asked Freedman what his clients who say they are not active gang members need to do to free themselves of the title “gang member.”

“The court is open to the notion of drawing the line and issuing an interim partial order on some defendants and proceeding later on others,” the judge replied. But, he said that he is unable to make a decision yet. “Let’s get through the process as efficiently and effectively as we can,” he said.

Oakland City Attorney’s Office staff would like the hearing to wrap up as quickly as possible because they believe that enforcing the injunction will deter crime. Katz points out that 14 of the 40 alleged gang members named in the injunction have been arrested since the City Attorney filed the proposal last fall. These arrests range from attempted murder to robbery to carrying loaded guns to parole violations. “Our goal is to get an injunction to hopefully deter this gang from committing more crimes,” Katz said. “There’s an ongoing threat and an ongoing nuisance, so this is an urgent matter.”

They’re also mindful of mounting costs. The City Attorney’s Office is using outside lawyers from the Meyers Nave law firm to argue its case for the gang injunction. The firm agreed to take the case for a lump sum of $60,000, so the prolonged proceedings aren’t necessarily spending extra taxpayer dollars on attorney’s fees. However, Katz said, “the longer it takes, the more work and more manpower and possibly more money it will take,” due to additional work being required from the City Attorney’s Office and the court system.

But people who oppose the injunction believe that going slow is a benefit, not only because they feel it gives the defendants a fairer hearing, but because it gives the community more time to consider the proposed injunction. “The North Oakland hearing was just rammed through. This was really brutalizing,” said Isaac Ontiveros, communications director for Critical Resistance, one of the organizations leading the protest movement against the gang injunctions. “Now, [the City Attorney] wants to ram this one through.”

The hearing will resume with testimony from Keely on Monday, March 14, 9:30 am and may continue on Tuesday and into April if necessary.

This story was corrected at 7 pm, Thursday, March 10, 2011.