Nine criminal defendants are not the only ones who are on trial, here, in a San Diego, California courtroom. This trial, it turns-out, is more about the American legal system. Today, this court’s irrational decisions, as attested to by the raised eye brows, sideways glances and sharp words of each of the nine defense attorneys present, proved, beyond a reasonable doubt, that the criminal sat, not in front of, but behind the bench.
American justice, as evidenced in the courtroom of Judge, David M. Gill this past Friday, Jan. 23, 2015, cares not any longer about the emasculated US Constitution. As the trial of innocent Rap musician, Brandon, “Tiny Doo,” Duncan began at 1:30 PM, it would be a matter of minutes before this supposed trial became a surreal, Kafka-esque scene of first-time, twisted legal logic; turning two-hundred-plus years of legal precedent into farce.
Moments before, outside the courtroom Duncan’s friends and supporters began to gather before the doors opened, while three news crews fumbled with their gear. Rumors were high that the judge might drop the charges. So was caution, since the judge, who was the same one-of-two-judges involved in the Preliminary Hearing in July, had provided the same false-hope just before lunchtime, only to pull-the-rug-out, after filling his belly, and stealing everyone’s freedom for many more months instead.
Then, Brandon Duncan surprised many of the well-wishers and reporters: he walked up, quietly, dressed in street clothes; smiling politely. Forty-eight hours before, after more than seven months in jail, his bail had suddenly been reduced from $500K to $50K. It was originally $1Million. So, Duncan had every reason to smile. Optimism was high that this might be the last time he would see the inside of a courtroom. None of the facts had changed so why had Judge Gill suddenly allowed Brandon Duncan’s freedom? Was that not supposed to be a matter for a jury of his peers, not a single judge, to decide?
From May through July 2013 several drive by shootings took place, allegedly perpetrated by the Lincoln Park Bloods street gang. When San Diego police, apparently without witnesses, evidence or a victim, arrested fifteen African-Americans men in July of 2014, Judge Gill, due to the large number of co-defendants made the decision to split them into two groups for the purpose of the required Preliminary Hearing that decides if the defendants will actually go to trial or be released. As reported in last week’s pre- trial article, several of the nine were charged with multiple felonies, but all had one criminal charge in common: Conspiracy; via California Penal Code Sect. 182.5. When it came to charges against Brandon Duncan, his only alleged connection to this alleged conspiracy was his music. Thanks to the unconstitutional, anti-gang agenda of San Diego Gangs Unit Special Prosecutor, Dana Greisen, a new interpretation of an old law allowed him to go fishing for “gangstas.” Sect.182.5 is the net. However, only due to Judge Gill’s seeming ignorance of fundamental law, Sect.182.5, today, makes temporarily guilty the unfortunate who fall prey to a court system’s political or personal agenda; constitution be damned.
This problem became peculiar to judge Gill’s court months ago, when Judge Jeffrey F. Fraser, who presided over the Preliminary Hearing of Group Two, let all six of his defendants walk free. There is only one reason a defendant is set free at the Preliminary Hearing: the presiding judge does not think the prosecution has any chance of obtaining a conviction at trial.
So, what of Judge Gill?
Each of the nine remaining defendants in Group One had an attorney present, seven of whom sat or stood near their clients in the prisoner’s section to the left of the judge’s bench. Brandon Duncan and his attorney, Brian E. Watkins, sat huddled together on the far right-hand-side of the long dark-wood table in front of the judge, along with a co-defendant, Aaron Harvey and his attorney, Ed Kinsey. To the far left of the table, Deputy District Attorney, Anthony Campagna and his assistant. All shuffled papers, or muttered quietly while they commiserated at close quarters, readying themselves and their clients. An unusually large contingent of six very large uniformed Marshalls kept a vigil on what was a smaller crowd of supporters than expected. The venue had been changed from Judge Gill’s Dept. 28 to a bigger one on the floor below at the last minute. A Bailiff stayed busy getting the courtroom, the attorneys, the reporters and the court clerks ready to start.
Almost on time, the Bailiff ordered everyone to stand as the eighty year old judge entered from the left and was seated. Calling the court “in session,” everyone sat as the judge first addressed the prosecution. Balding, with thinning grey hair combed back along the sides, a lined face, pointy nose beneath small wire reading spectacles, the demur frail looking judge began addressing his court at a volume that could barely be heard despite the microphone in front of him.
Using Sect.182.5 to entrap an innocent Rap musician is a unique legal application and open to much interpretation. Hence, the nine attorneys who all, individually, had pretty much the same thing to say to the judge. Strangely, it was the prosecution that was unsure of their legal footing, and despite incarcerating Brandon Duncan and the eight co-defendants for the past seven-or-so months, had recently asked Judge Gill for “clarifications.” He would be using these to render his decisions during trial. The judge then began to orate four answers from a prepared document regarding four distinct questions from the prosecution.
To be guilty under Sect.182.5 of Conspiracy or, to, “…willfully promote, further, or assist felonious conduct…”
1- Must the defendant(s) be guilty of one, specific felony charge? Answer: YES.
2-Must the defendant(s) have knowledge of the specific felony charge? Answer: YES.
3- To “willfully benefit” from the specific felony charge, must the defendant(s) have had knowledge of the crime before and after the specific felony charge?
Answer: Yes. “To either,” added the judge.
4- To “willfully benefit” from the specific felony charge, must the defendant(s) have had knowledge of the intended benefits of the crime before and after the specific felony charge? Answer: YES.
This elicited quick glances amongst the attorneys and a flurry of hushed whispers. As expanded on in last week’s article, the foundation of the criminal case against “Tiny Doo” Duncan rests exclusively on proving these four clarifications. With no facts to prove otherwise, the real question was one of evidence, to which the answer to all questions was, “none.” So, as the judge elaborated it indeed appeared that this would be Duncan’s last day in court and that the judge would, for these four reasons, throw out the charges. Attorney Watkins correctly summed up the entire prosecution’s case as, “all legal theory and argument,” i.e. no evidence, no facts. Such is the divisive legal beauty of Sect. 182.5.
However, as soon as the first attorney began to speak on behalf of his client, something was obvious: the fix was in.
In various degrees of detail, all nine attorneys took turns arguing the same point to the judge; that the prosecution’s use of, and the judge’s application of Sect. 182.5 at the Preliminary Hearing was constitutionally flawed; that the judge had the power to, upon their previously noticed Motion to Reconsider, review his errors made at the Preliminary Hearing and, hence, he had the power, using the clarifications he had just provided to the prosecution minutes before, to rule on said motions: all nine of them. For several defendants this would have likely meant walking out today; free.
However, despite being San Diego county’s longest sitting judge and forty-one years behind the bench, much less the protestations of all the attorneys, Judge Gill did what he did at the Preliminary Hearing: nothing. This of course meant that any hope of justice today for the nine were dashed upon Judge Gill’s new clarifications of justice, and were going back to jail.
Some attorneys assured the judge of the correct legal precedent as if talking to a child of nine. Some asserted a tone of defiance. One rose with a set of prepared legal citations in hand. Calling attention to People v. Castillo, which shows that a senior Appellate Court already agrees with all nine, this well-prepared attorney was cut off by the judge once he began to read to him the law of the land. All nine motions, collectively, said the same thing: the judge was required to rule on their motions to Reconsider before the start of the today’s arraignment, it was within his jurisdiction to do so, and he was violating several due process rights of the defendants by punting his duties to a senior court. Nine times the judge said that he, “was not persuaded.”
Au contraire, according to Judge Gill, who continued to maintain to all that he did not have jurisdiction merely because the Preliminary Hearing, upon his ruling, had been split in two. So decisions related to justice, law and the freedom were not his problem today. He repeatedly told the gallery that he was correct but, no matter, the gang of attorneys were all free to file a 995 Motion and appeal to the Supervising Criminal Judge of the Court, so what was the problem? The answer of course; that their clients were, all, not free. “If I’m right, that’s the way it is,” stated the judge with finality.”If I’m wrong, you’ll work it out at the hearing.”
As the Judge repetitively ignored each attorney and due process right he kept referring to, “Mr. Watkin’s situation” and,” …a further matter with Mr. Watkins.” Indeed. As attorney for Brandon Duncan, he was the only attorney present not going along with his peers on a further lengthy delay before trial. Since Duncan is innocent and the prosecutor, as discussed in a previous article, has only the flimsiest of fabricated reasons to support his claims, Watkins had filed a 1051.1 Motion, demanding that the court separate Brandon Duncan’s case from the other defendants so he could have a trial without further delay. Accordingly, Watkins had expected that the court and the judge would provide him his Constitutional, Due Process guarantee of a speedy trial. Starting today.
Despite Watkins filing the 1051.1 Motion with the court, Judge Gill was having none of this constitutional stuff getting in the way of his version of justice. So, the judge denied the motion, sending Watkins to scurry off with his cohorts to file their 995 petition with a better judge and, hopefully, a rational, i.e., legal decision.
Now that he had kept nine more black guys in jail for a while longer, the judge’s demeanor sweetened. Turning to the scheduling of the trial, Judge Gill magnificently entertained any and all of the excuses that the attorneys each, other than Watkins, offered up, all of whom were doing their best to delay the inevitable trial date into summertime. It was a nice try at best, since the judge, again, ignored their pleas and decided, at the request of the prosecution, that April 20, 2015 would suit him just fine.
Well. With that Judge Gill gaveled today’s episode of American justice to a close. Immediately the attorneys advised their clients about what, for some of them, had gone wrong just before the jailors commanded them back to their cells. With that all moved away to smaller groups to plot their next move; ostensibly the 995 Motion.
Collared for a quick question in the back of the court room Brian Watkins was visibly irritated with the judge’s decisions, or lack thereof. “We’ve got some real procedural difficulties here,” said Watkins in a tone that highlighted his displeasure. “These are innocent defendants being held to answer due to a procedural technicality.”
In the very long narrow, white-tiled-floor hallway outside the courtroom, the cacophony of echoes mixing with a multitude of voices made it hard to hear. Ed Kinsey, attorney for defendant Aaron Harvey, was also shocked by the judge’s decisions. ” He’s [the judge] painted himself into a corner and he’s asking the Appellate Court to bail him out,” assessed Kinsey. Asked if the judge, in doing so, had ignored his own clarifications for trial , he replied emphatically, ” Exactly!”
The silver lining, probably golden to Tiny Doo Duncan, was that for the moment he was back with his wife and family: free. This was of course reason enough to celebrate.
Brandon Duncan politely entertained questions from the few reporters present. He’s quiet when speaking and very glad to be out of jail. ” I feel great,” he says. There’s nothing in his personality that has the brash edginess of the gangs. If you believe in first impressions, then this is a man who has been framed.
Asked about the judge’s four clarifications, he replied, “I think he’s right! How can you benefit from something you didn’t know about. That’s ridiculous! “Regarding the judge extending the trial date, he added, “You have the right to a speedy trial. Why not me?”
As shown in a previous article, the use of Sect. 182.5 may be unique, but the malicious incarceration of innocents by corrupt prosecutors and their accomplice judges is not. Worse, these courthouse conspiracies are virtually immune for their criminally political prosecutions. This encourages the problem to the point that it is becoming endemic. Sect.182.5 is just another tool. Who will be next to fall prey to a prosecutor using his other tools of fraudulent criminal charges and deliberately unobtainable bail requirements in order to put away innocents of their choosing? For what reason?
“I have a constitutional right to rap about what I want to rap about,” said Tiny Doo Duncan. “They don’t even listen to my songs, so how do they know what I’m sayin’.” Indeed. Justice is not only blind. In the court of judge David M. Gill, today, justice was obviously deaf.
Without checks or balances on prosecutors and judges, the once vaunted “Constitution of the United States,” so proudly displayed on the wall in every judge’s chamber’s across the land is, in reality, just a dusty antique to be placed in a box —in a dark and silent closet.
Right next to the scales of justice.