Photo by Robert Burroughs
Lomas homeboy, wearing Campo hat - status symbol among gang members.
On May 26, 1989,18-year-old Edgar Hernandez, a.k.a. “Huero,” was acquitted of the charge of murdering a rival gang member, Rudolpho Rios, a.k.a. “Nene.”
Judge Elizabeth Zumwalt Kutzner presided over the trial.
After the jury returned its verdict, San Diego Superior Court Judge Elizabeth Zumwalt Kutzner, who presided over the trial, indicated that she could have understood either a guilty or not guilty verdict, although in 90 percent of all criminal cases decided by a jury, the defendant is convicted, often without any more evidence than was presented at Huero’s trial. What follows is a summary of the background to the case, the evidence introduced at trial, and the comments of six jury members, presented in an attempt to understand the reasons for Huero’s acquittal and the difficulty in prosecuting gang-related cases. In some instances, the nicknames of gang members have been changed.
Bam-Bam, Cookie, and Joker, demonstrating hand signals "Lomas," "26," "Chicas #1." Joker testifies that she learned about the shooting from the homeboys hanging out at Dave’s Market at 26th and Broadway.
On July 2, 1988, at 2:30 a.m., Rudolpho “Nene” Rios was shot twice in the head while he was in the 2000 block of National Avenue, at Chicano Park. He died two days later. At the time of his death, he was 20 years old and a member of the Logan Red Steps gang, a splinter group of Logan, the largest and oldest Hispanic youth gang in San Diego. The shooting occurred in Red Steps territory. In gang slang, the Red Steps “claim” Chicano Park, and members of most other gangs can’t go there without causing an incident.
The Red Steps “claim” Chicano Park, and members of most other gangs can’t go there without causing an incident.
Since Logan is the largest Hispanic gang, it is frequently challenged by smaller gangs that want to prove themselves and establish a reputation. According to the testimony of a Red Steps homeboy (gang member), the gang is currently fighting with at least six other local Hispanic street gangs. However, the rivalry between Lomas (Spanish for “hills” and short for Golden Hill), the defendant’s gang, and Red Steps, the victim’s gang, has escalated into what police believe is a gang war, after four violent incidents since April of 1988.
They parked the car and hung out with their friends, both in the park and across National Avenue at the phones in front of La Central Market, between Crosby and Evans streets.
In the first, a Red Steps member was stabbed in the neck, with evidence pointing to the assailant being a Lomas member protecting himself during a beating by Red Steps. The second incident, in May, involved two Red Steps members who were shot in a drive-by assault; a Lomas homeboy was charged in the case. In June a Lomas homegirl was shot; and the fourth incident, in July, was the drive-by killing of Nene. The following October, Lomas member Edgar Hernandez was arrested and charged with Nene’s murder after Red Steps gang member Dopey told the police that "Huero from Lomas did it.”
Patricia Robinson asks Dopey, “You lied to us yesterday when you told us your sister brought you to court, didn’t you?”
The Case For Prosecution
May 11, 1989: Following a day and a half of jury selection, six men and six women have been chosen, eleven of them white, one black. A fairly young jury, with one exception, their ages range from mid-20s to mid-40s. After the opposing attorneys’ opening statements. Deputy District Attorney Garland Peed IV, a member of the city’s gang unit, calls his first witness.
Dopey shuffles to the stand in baggy blue pants, a royal-blue sweater, and soft, black cotton shoes that resemble slippers. In a voice barely audible, he tells the jury that on the night Nene was shot, he was at a Mission Bay beach party with his friend Doc and others, until the cops came and busted it up. They left in Doc’s station wagon and went to Chicano Park, arriving about 1:00 a.m. to find 15 or 20 people already there. They parked the car and hung out with their friends, both in the park and across National Avenue at the phones in front of La Central Market, between Crosby and Evans streets.
The gang unit has documented 65 members of Logan Red Steps and 30 members of Lomas.
About 2:30 a.m., they decided to split up and go home. Dopey was saying goodnight to his friends on the sidewalk in front of the park’s sandbox when he noticed a white car coming east down National Avenue. Someone in the car was throwing Lomas hand signs at them. Dopey testifies that he recognized the person in the front passenger seat; it was the defendant, Huero, wearing a white shirt and a Campo hat. (Rancho del Campo is an honor camp where juvenile offenders are housed. Kids often return from there with a blue engineer’s hat, or “Campo hat,” which has become a status symbol among gang members.)
Lomas homeboys. Lomas - Spanish for “hills” and short for Golden Hill.
Dopey and his friends flashed Red Steps hand signs back at the occupants of the white car as it headed toward Crosby Street. Dopey goes on to tell the jury that one of his homeboys crossed the street, leaving him and Nene on the sidewalk in front of the park’s sandbox. Dopey shook hands with Nene and was about to leave when he saw the white car coming back west on National Avenue. The driver turned off the headlights and pulled over in front of them. Someone stuck a gun out of the car, Dopey says, from where Huero was sitting in the front passenger seat. He dropped to the ground, and while he was down, he heard a shot. When he got up, Nene was lying face down on the ground, breathing hard but still conscious. “You could see he was dying,” he tells the jury, pointing to the left side of his head near the hair line, the entry point of the fatal bullet. Doc got his station wagon out of the parking lot and brought it around, and they loaded Nene into the car.
Garland Peed: “What happened on July 2, 1988, in Chicano Park?”
“When, if ever, did you tell anyone who did it?” Peed asks Dopey.
“At the hospital.” They had taken Nene to the Physicians and Surgeons Hospital; and while they were in the waiting room, Dopey told his friends that Huero from Lomas had done it. Although he was interviewed by the police later that night, Dopey did not tell them who had done it until three months later, in October. “Why didn’t you tell the police before?”
“I didn’t want to get into problems.”
“What do you mean?”
“Like with Lomas. For them to go looking for me. ’Cause they’ll think I snitched.” One of the unwritten rules of the gang subculture is that one doesn’t tell what one knows to the police. It makes you a rata, and you risk your own safety and that of your family.
Someone in the car was throwing Lomas hand signs at them.
“Why did you later tell the police what you knew?” Peed continues.
“To help Nene’s family.” He talked to Nene’s brother about his nervousness over snitching. “Have you ever seen the defendant before?” “At Muirlands Junior High School in La Jolla. We took the same bus together from 28th and Broadway.”
“When was the last time you saw the defendant before the shooting?”
“In May.” Dopey had been in Chicano Park when Huero yelled at him, “Your ass is grass!” from the back of an Impala.
May 12: Dopey is back in the witness box waiting for his second day of testimony to begin. Occasionally, he glances over at Huero out of the corner of his eye. As the jury files into the courtroom, Huero watches them. His expression, one of curiosity, suggests that he does not think of them as his peers. Probably the only
brother about his nervousness over snitching. “Have you ever seen the defendant before?” “At Muirlands Junior High School in La Jolla. We took the same bus together from 28th and Broadway.”
“When was the last time you saw the defendant before the shooting?”
“In May.” Dopey had been in Chicano Park when Huero yelled at him, “Your ass is grass!” from the back of an Impala.
May 12: Dopey is back in the witness box waiting for his second day of testimony to begin. Occasionally, he glances over at Huero out of the corner of his eye. As the jury files into the courtroom, Huero watches them. His expression, one of curiosity, suggests that he does not think of them as his peers. Probably the only person in the room that he would feel comfortable with is Dopey.
“Good morning, sir.” Peed greets his witness formally, hoping this will help the jury see Dopey as an upstanding citizen, while, at the same time, questioning him about his gang affiliation. “How long have you been a Red Step?” “Three years, since I was 14.”
Dopey tells the jury that there are more than 100 Red Steps between the ages of 13 and 28 who live, for the most part, in the area around Chicano Park. They wear shirts with "LHRS” on them, standing for Logan Heights Red Steps, or “18 19,” which stands for the 18th and 19th letters of the alphabet, R and S.
Peed picks up a Campo hat from the table in front of him and hands it to Dopey. He asks him to place it on his head the way he saw the defendant wearing it the first time the car went by on the night of the shooting. Dopey puts the hat on his head so the brim is less than an inch from his eyebrows, casting a shadow over the top half of his face. Peed then asks him to show how it was worn when the car went by the second time. Dopey pulls the hat down a half an inch so that the brim almost covers his eyes. “No further questions.” Peed sits down. Patricia Robinson, Huero's attorney, gathers up a large pile of papers and heads for the podium to cross-examine her client’s accuser. Once settled in, she looks up at Dopey. Leaning against the railing that separates the spectators from the attorneys, she asks him about the beach party he and his friends went to before the shooting. Had they been drinking? No, neither he nor his friends were drinking. She shows him the transcript of his preliminary hearing testimony, where he said that his friends had been drinking at the beach party. He admits his friends may have been drinking that night but denies that he was using drugs or drinking alcohol.
Taking him through his testimony about the shooting, she asks him what type of gun it was that he saw extended out the car window. “Was it a revolver or an automatic?” Peed objects; lack of foundation. “You know the difference between revolvers and automatics, don’t you?” she asks. Dopey laughs slightly. Yes, he knows the difference, but he didn't hang around long enough to see what type of gun it was. He got down.
Robinson asks him who brought him to court that day. His sister did, was Dopey’s surprising reply. It’s unusual for a prosecutor to leave it up to the discretion of a key witness to get to court on time. Normally, an officer is sent to bring the witness to ensure he’ll be there, even if he gets cold feet, as often happens.
May 15: The jury members have resumed their places in the box. Robinson rises to continue her cross-examination of Dopey.
“You lied to us yesterday when you told us your sister brought you to court, didn’t you?” she asks him, leaning against the railing and staring hard at him.
“Yes, I....” Dopey tries to explain why he lied, but she cuts him off.
“You’ve answered the question,” she says, sharply.
Dopey falls silent and waits for her next question. He is on the defensive. Isn’t it true, Robinson asks him, that he had heard that “Lomas did it” before he told anyone that Huero from Lomas did it? She suggests that he has identified Huero as the shooter not because Dopey saw him that night but because he heard others say that Lomas had done it, and he decided to finger Huero from Lomas, the guy he used to ride to school with, in order to increase Dopey’s status in the gang.
“I did know who it was, but I didn’t want to say anything,” Dopey tells her and looks at the clock for third time in five minutes, as if wondering whether the questioning will ever end.
The prosecution’s next witness. Sleepy, a teen-aged relative of the victim, is called to the stand. He is a big, thick, short kid wearing a black jacket,' a white T-shirt, jeans, and tennis shoes.
His hair is short, except at the nape of his neck, where a few long strands trail down his back.
At the time of the shooting, he tells the jury, he was over by the telephones outside La Central Market. He says Dopey told him that night that Huero did it. After the shooting, Sleepy went to Nene’s house to tell his mother what happened. He didn’t go to the hospital with the others.
The next witness is another Red Steps gang member, Puppet. He is wearing a black jacket, navy-blue shirt, baggy pants, and the same soft, black cotton shoes worn by Dopey. He is a thin kid, with high cheekbones and a certain James Dean look to him. He tells the jury he has been in Red Steps since he was 12. He is now 15.
Puppet tells the jury that the first time he saw the car on the night of the shooting, it was heading west on National Avenue, toward Evans Street. Puppet says he crossed the street a little while after that and was standing in front of the phones at La Central Market. A few seconds later the car came back, heading east on National Avenue, towards Crosby, and then the shooting occurred.
Two more prosecution witnesses, both with connections to members of Red Steps, are called to the stand. They testify that, on the night of the shooting, everyone was saying that “Huero from Lomas did it.”
May 16: The jury sees a videotape recording of the testimony of the coroner. It shows that the decedent suffered two gunshot wounds to the head. Using a photograph depicting the shaved top of Nene’s head, the coroner shows the graze wound the decedent received on the right side, just above his forehead. That missile skimmed along the surface of the skull but didn’t enter it. The coroner believes it was fired from in front of the victim, but he can’t be sure. There is a large hole on the left side of the decedent’s head, the place where the second bullet entered. The missile then fragmented, with a small portion of the bullet, or possibly a piece of the skull, exiting through the smaller hole immediately behind the larger entry wound. The rest of the bullet went through the decedent’s brain and emerged at the back of his skull, stopping just short of breaking through the skin. This was the cause of death.
Next, Doc is called to testify. He is 21 years old, large, with a mustache, greased-back hair, and wearing a bulky black jacket over a light purple T-shirt. “What happened on July 2, 1988, in Chicano Park?” Peed asks him.
“I hear some shootings,” he says with a smile, enjoying the limelight of the witness stand.
“What did you do?”
“I get myself down.” He’s still smiling, this time at the attractive court reporter sitting in front of him. He testifies that Dopey told him at the hospital that Huero from Lomas did the shooting. He is not a gang member, he tells the jury, but he has friends who are Red Steps.
On cross-examination, Robinson asks him if, when he was interviewed by the police on the night of the shooting, he told them that Dopey told him that Huero from Lomas did it.
“Yeah.” Robinson looks up from her search through her papers. Although she’s read all the police reports of the incident, this appears to be news to her.
“Which officer did you tell?” she asks.
Doc looks through the jury box and around the room. Unable to locate the person he’s looking for, he asks Peed, “What’s the name of that dark guy?”
“Sanchez,” Peed replies, barely audible.
“Is your nickname Doc?” Robinson asks him, referring to the name that the other witnesses had used when speaking about him.
“No,” he answers. Defense counsel smiles slightly at Doc’s evasion.
“Did an officer come to your house and talk to you there?” continues Robinson.
“The one who brought me to court today.” Turning to Peed, Doc asks, “Was that your helper, huh?” Peed sinks a little lower in his seat. The judge admonishes Doc that the prosecutor can’t testify.
“Did you tell the officer that Huero from Lomas did it?”
“No,” he says. Doc says the reason he didn’t tell the officers what Dopey said was because he didn’t believe him, he thought Dopey was “guessing.” Defense counsel writes this down for closing argument.
May 17: Police Detective Jorge Sanchez is called to the stand. He’s dressed conservatively in a suit and tie. He testifies that he is an expert on street gangs because of his 12 years as a detective, his 3'/2 years with the street-gang unit, and because he used to be a gang member himself when he was a kid. He’s been called to provide the jury with some background on local gangs.
Peed asks him how gangs get their names. “Thomas Brothers,” he tells the jury, referring to the books of local street maps. Sanchez explains that gangs adopt names from the various neighborhoods of San Diego, and the turfs they claim are the areas delineated for those neighborhoods.
He testifies that there is no structure in the Hispanic youth gangs. What usually happens is someone says let’s go gang-banging, and they just go do it. Gang-banging he defines as a criminal act in a rival gang’s territory. Gang members are involved in gang activities to different degrees. Some are only peripherally involved; they live in the area and feel they have to join the gang, otherwise they’ll be harassed. Some are associates of the gang, willing to commit crimes and “claim” (indicate they are a gang member). Finally, there are the hard-core members who commit serious offenses, have been to prison, and tell others what to do.
The gangs use graffiti to mark off their territory. A member of one gang will cross off a rival gang member’s name, often using profanity, and put down their own street names. Most of them know each other only by their street names.
There are two ways to become a gang member. You can be born into it, that is, accepted by the gang because your relatives are gang members. Or you can be “jumped in,” a ritual where a person is beaten by gang members to see how much pain he can take. Kids usually join the gang by hanging out with them during their pre-teens. Somewhere between the ages of 13 and 15, they are given the opportunity to go out and commit a drive-by shooting. If they perform well, they become full-fledged members of the gang.
Ninety-five percent of the juvenile population in these neighborhoods would claim to be a gang member if you asked them because it is the “in thing.” For that reason, the gang unit attempts to determine who are gang members by documenting them based on evidence of tattoos, regular association with gang members, claiming, and involvement with criminal activity on a regular basis. The unit has documented 65 members of Logan Red Steps and 30 members of Lomas.
James Stam, a firearms expert, is the next witness called to the stand in the prosecution’s case. Looking at Peed only long enough to hear the questions, Stam turns sideways in his seat and responds facing the jury. He testifies that after examining the three metal fragments that have been received into evidence — two from the decedent’s body and one found near the sandbox the day after the shooting — he could not reach a conclusion as to the caliber of gun. He believes it was somewhere between a .22-caliber long rifle and a .45-caliber, based on the size of the metal fragment that was recovered from the decedent’s head.
May 18: On Robinson’s cross-examination, Stam admits that he can’t conclude that the two metal fragments found in the decedent were fired from the same gun or were even part of the same bullet. Following the testimony by Stam, the prosecution rests its case.
The Case for the Defense
Defense attorney Robinson calls as a witness Snoopy, who is dressed in jail clothes. He is 31 years old and a former member of Logan. He testifies that on the night of the shooting he was high on PCP. He remembers seeing a four-door white car make two passes by him, Nene, and some others as they stood on the National Avenue sidewalk next to the sandbox at Chicano Park. Dopey, he says, was a few feet away from them.
The judge asks him to speak up so the court reporter can take down his testimony. “I wondered what she was doing,” Snoopy says, laughing nervously — something he did throughout his testimony, even when speaking of his friend Nene’s death.
Snoopy testifies that the car went west down National Avenue, toward Evans, and made “a yo-yo. You guys call it a U-turn,” he added. Then the car came back the second time, going east toward Crosby. It slowed down, “like they were going to buy some PCP.”
“Did anyone move when the car slowed down?” Robinson asks him.
“Dopey and Nene moved closer to the car.” He didn’t move; he was too stoned on PCP; and he stood there, even after barrel of the gun emerged from the car window. It looked like a .45 to him.
“What did you do when you saw the gun?”
“I asked Jesus to take care of me."»
After the shooting. Snoopy helped put Nene in the station wagon and went to the hospital with the others. Robinson asks him about the two photo lineups he was shown the next day, and Snoopy testifies that he was unable to identify anyone.
The defense then calls Detective Bordin to the stand. He testifies that when he interviewed Snoopy the day after the shooting. Snoopy said he had followed the white car up 25th Street until it turned down E Street and later saw it enter one of the three garages on the east side of Glendale Avenue. Snoopy had also said he was “packing” (carrying a weapon) that night. The detective says that when he searched the three garages identified by Snoopy, he found no white car.
Bordin continues his testimony, saying that he showed Snoopy two photographic lineups that day. Snoopy claimed he didn’t recognize anyone from the first lineup, which contained a picture of the defendant, Huero. When Snoopy was shown the second lineup, he picked out a “filler” photograph (a photo of some person unrelated to the case and who is not a suspect) and said it looked “like the one in front, shotgun.” Snoopy then pointed to another photo and said this person “might be the driver.” Bordin testifies that the second photo pointed out by Snoopy was a picture of Carlos Rodriguez, who, like the defendant, was affiliated with the Lomas gang and known by the nickname Huero.
May 22: Robinson calls Detective Sanchez to the stand once again to impeach the testimony of Doc, who had earlier claimed that he told the police he had heard the “Huero from Lomas did it.” At this appearance. Detective Sanchez is looking very “Miami Vice,” with his shirt hanging out over his jeans and his dark glasses suspended on a cord around his neck. He testifies that Doc did not tell him on July 2 that Dopey told him that Huero from Lomas did it.
Robinson then calls Mrs. Hernandez, the defendant’s mother. She looks very young as she walks toward the witness stand, with her red hair swinging back and forth in a ponytail and her youthful figure apparent in a turquoise top and khaki pants. Speaking through a translator, Mrs. Hernandez testifies that on the night of the shooting, she went to bed at 10:45 p.m. At that time, her son (Huero) was in the living room with a girl, Bam-Bam. She saw both of them the next morning when she left the house at 6:30 a.m. to go to the nursing home where she works as a cook.
Asked to explain the sleeping arrangements in her house, she testifies that Huero and a 16-year-old female relative sleep in the living room — she on the couch and Edgar on the bed. Her other son and his girlfriend sleep in the dining room, and she sleeps in the apartment’s one bedroom. On cross-examination. Peed gets her to admit that Huero’s room, the living room, has a door that opens to the outside; Robinson, on redirect, establishes that Mrs. Hernandez can hear the front door open from her bedroom.
Huero’s expression is softer as he watches his mother testify. When she finishes, she leaves the courtroom without looking at him.
Defense counsel next calls Edgar Cervantes, the district attorney's investigator assigned to this case. He is wearing grey jeans and a grey striped shirt with several buttons unbuttoned, revealing a gold chain against his bronze chest. Cervantes testifies that he interviewed the victim’s relative. Sleepy, for the first time on April 2, 1989, nearly six months after the arrest of Huero. According to Cervantes, Sleepy said that Dopey had told him, on the night of the shooting, that “Huero did it.” But Cervantes didn’t prepare a report containing this information until May 12, after the trial had already started. He also admitted that he was in contact with Huero’s mother and sister many times after the shooting, and they never mentioned that Sleepy had said that “Huero did it,” even though they were trying to assist him in his investigation.
The next witness is Bam-Bam, who got her nickname from the character in the Flintstones cartoon. Many gang names are taken from cartoons, movies, or television. She is a short 16-year-old, with long dark hair. She’s wearing a blue-and-purple sweater with blue pants. In a calm, deliberate manner, she testifies that she went shopping with Huero on July 1 and returned with him to his house at about 10:30 p.m., where they watched a movie. She stayed until the next morning, and she took the bus back home. Huero was with her the entire night.
On cross-examination by Peed, she freely admits she is a Lomas homegirl and that she frequents the stairs at the end of Glendale Avenue, a favorite Lomas hangout. He asks her if Joanna, a girl with “Huero” tattooed on her hand, was Huero’s girlfriend in July 1988. She doesn’t know. Wasn’t she afraid that Joanna would come over to Huero’s house the night she was there with him? “She wasn’t on my mind,” Bam-Bam tells him, with a deadpan face. “I wasn’t thinking about her.”
She testifies that she found out about the shooting from her mother, shortly after the incident. But the first time she realized that she had been with Huero on the night he was charged with shooting Nene was in October, after Huero was arrested. She remembered that she spent that particular night with Huero because she had written it on her calendar, which she had since thrown out.
The defense’s next witness is 16-year-old Joker, a relative of Huero’s. Wearing a pink sweater, blue Levis, and white tennis shoes, she is a slender, small girl, with tightly curled black hair that extends three inches vertically above her forehead and then slopes off at a steep angle toward the left side of her face and down to her shoulders.
Joker testifies that she was at the Hernandez house and did not leave there on the night of the shooting; she was there with Huero and Bam-Bam, watching Superman on the VCR. When the video finished, she went to bed; Bam-Bam and Huero were still there. When she got up at three o’clock in the morning to go to the bathroom, Huero was asleep on the bed, she tells the jury.
On cross-examination, she tells Peed that Bam-Bam had never been over to the house before, and she doesn’t know whether or not she was Huero’s girlfriend at the time. As for Joanna, that was an on-again, off-again relationship, and she was not sure whether or not Joanna was Huero’s girlfriend at the time of the shooting.
Joker testifies that she learned about the shooting about a week later, from the homeboys who were hanging out at Dave’s Market at the comer of 26th and Broadway.
“Which homeboys?” Peed asks her, pen poised to jot down names. She didn’t remember exactly which homeboys told her.
“Name one of them,” Peed suggests. She can’t. She isn’t sure which particular ones were there that time.
The next witness, Cookie, is a big girl, in a bright purple shirt and jeans. She has long orange hair, part of which is pulled into a ponytail at the top of her head; the remainder trails down her back. Cookie is six and a half months pregnant and walks slowly to the witness stand. She looks at Garland Peed, who, in the past, has prosecuted her brother, her boyfriend, and some of her homeboys and sent some of them to prison. She finally turns her attention to defense counsel.
Late on the night of July 1, she tells the jury, after she had already gone to bed, Joanna called her to tell her she was pissed with Huero. The next morning when she got up, she wrote about the conversation in her diary. She opens up her purse and takes out a small, thick blue book and recites her entry for July 1: “Joanna pissed, I think, because Huero with Bam-Bam.” When Cookie’s testimony is complete, the defense rests its case.
May 23: Prosecuting attorney Peed calls to the stand Carlos Rodriguez, the second “Huero” and the man whose photograph was identified by Sleepy as being the driver of the white car. The jury watches while this 31-year-old, physically handicapped man walks with great difficulty to the witness stand. This was perhaps one of the reasons he was called to testify — to dispel any doubts about whether this was the “Huero from Lomas” who was involved in the shooting.
Rodriguez testifies that he was a member of Lomas some U or 12 years ago. He tells the jury that he was injured in an accident in 1979, and since that time, he does nothing but drink beer all day, leaving his house only to go to Dave’s store about a block from his house. He admits that he still associates with members of Lomas, both young and old, and that he was convicted of the felony of possession of drugs for sale in 1986.
Peed next recalls his investigator, Edgar Cervantes. He testifies that he interviewed Sleepy on May 17 and was told that, although Sleepy had seen the photo of the shooter in the lineup, he hadn’t told the cops because he was in jail and didn’t want to be known as a snitch. When Cervantes asked him about the Huero in the lineup, Sleepy had responded, “Yeah, the young Huero, Edgar; you only have to put two and two together to figure it out.” Cervantes then asked him if he would testify to that in court, and Sleepy had said no. Cervantes testifies that when he asked Sleepy whether the police had the right Huero, Sleepy said yes.
May 24: Both sides having presented their evidence, the attorneys now summarize their arguments for the jury. The prosecutor begins by putting up a large piece of paper listing the key elements of his case.
Peed reminds the jurors of the Lomas-Red Step rivalry; that the defendant, Huero, claims Lomas; and that Nene and Dopey were Red Steps, the gang that hangs out in Chicano Park. Peed describes how the white car drove by the park and hand signals were thrown up; how the car came back a second time with its lights turned off; and then the defendant fired two shots, killing Nene. The night of the shooting, Dopey told everyone who did it, and the police were not told sooner because of the code of silence.
Peed puts up a second piece of paper titled “Reasons Why Dopey’s Testimony Is Believable.” First, Dopey saw the defendant twice, once on each pass the car made by the park. Second, he was only 10 to 15 feet away from the car. Third, the area was well lit by lights from the Coronado Bridge and La Central Market. Fourth, Dopey knew the defendant from riding to school with him on the bus. Fifth, Dopey has consistently told the same story to detectives, at the preliminary hearing, and at trial.
Peed sits down, and defense attorney Robinson approaches the podium with her ubiquitous pile of yellow papers. She tells the jury that the prosecutor’s case is full of reasonable doubts. First, she says, the whole case is based on Dopey’s testimony. No gun, no Campo hat, no white car was found when they arrested Huero. Second, immediately after the shooting, Dopey described the car for the police but didn’t say that Huero from Lomas did it, even though he had every incentive to help the police find the person who shot his friend.
Third, Sleepy was shown photo lineups and he identified Carlos Rodriguez as the person who looked like the driver, and a filler photograph as the person in the passenger’s seat. Fourth, this is not a gang case, Robinson suggests, but a dope deal, with Dopey and Nene approaching the car when it returned the second time. Sleepy was armed that night and could very well have fired the fatal bullet in a drug deal gone bad. Fifth, Bam-Bam wrote on her calendar that she spent the night with Huero, and Cookie wrote in her diary that Joanna told her she was pissed because Huero was with Bam-Bam. Sixth, when the police interviewed him at his house. Doc didn’t tell them that Huero from Lomas did it because he thought Dopey was guessing. And finally, Dopey had lied to them in his testimony about who brought him into court.
Peed takes his final opportunity to address the jury members and reminds them that we take gang cases as we find them. The witnesses to these cases are gang members themselves. Witnesses are often wrong, memories fade; and the jurors have to remember, in this case, that we are dealing with a Hispanic gang subculture that is reluctant to help police. Dopey had nothing to gain, especially from Lomas gang members, by snitching to the police. The jurors, Peed states, have to look under the surface of this case, beneath the discrepancies.
If the jurors are going to believe Sleepy, Peed continues, then they should believe him when he told Investigator Cervantes that they had the right Huero, the young one. The homegirls perjured themselves to give their homeboy an alibi; and, Peed concludes, gang members do not keep the hat, the gun, or the car they use in a drive-by shooting.
The attorneys’ arguments complete, the judge then instructs the jury on the options for their verdict, aside from a finding of not guilty. These are first-degree murder, killing with premeditation with malice aforethought; second-degree murder, killing with malice aforethought but without premeditation; and voluntary manslaughter, killing a human being upon a sudden quarrel or in the heat of passion. The first afternoon of deliberations, the jury picks a foreman. The second day, they discuss the contradictions in the testimony. The third day, on the first ballot, they vote unanimously for acquittal.
Comments from the Jury
For many of the jurors interviewed here, this was not the first case they had heard during their period of jury duty. Those who had been jurors in trials just before this one had voted to convict the defendants. In Huero’s case, however, they felt there was not enough evidence for a conviction. Several of the jurors even have family members who are law-enforcement personnel; this is one type of person defense attorneys traditionally try to keep off a jury.
Surprisingly, the reason most jurors gave for their verdict was the discrepancy in the testimony about the direction of the car on its first trip by the park. This point had not been emphasized by the defense, but several jurors had made a note of it and other jurors became convinced of it after the court reporter read back some of the testimony to them. The jurors noted that Dopey testified that on the car’s first pass by the park, it was going east, toward Crosby. Other witnesses testified that it went west, toward Evans. Jurors found credible Sleepy’s testimony that the car made a U-turn, since it seemed to them that he wouldn’t have mentioned that if he hadn’t seen the car do it.
The jurors interviewed believed that Dopey lied about the direction of the car on the first trip in order to bolster his testimony. If the car had been going east as he testified, it would have passed directly in front of him, giving him an opportunity to see the front-seat passenger. If it had been going west, as the others testified, he would have seen only the driver. The feet that he lied on the stand about who brought him to court added to their suspicions that he was trying to bolster his testimony.
They also believed there was insufficient light in Chicano Park at 2:30 a.m. for him to get a good look at the person in the front passenger seat. The light from La Central Market was coming from behind the car and would not have been shining on the shooter’s face. They also discounted the light on the Coronado Bridge since those face inward toward the bridge, not outward toward the park. During deliberations, they requested to visit the crime scene so they could confirm their suspicions about the lighting but were turned down.
Most of the jurors agreed with Peed that the defense witnesses were not credible and that the alibi had been manufactured. “It was too pat,” one juror explained. However, on almost all other points, the jurors sided with Robinson. They agreed with her that the shooting may well have grown out of a drug deal since, if the occupants of the car had really intended to shoot anyone, they would not have gone by twice but would have done it on the first trip. The jurors interviewed didn’t believe Dopey when he testified that he hadn’t had any alcohol or drugs that night, and they found Sleepy more credible because he admitted he was high on PCP. They also believed that Nene may have been caught in a cross-fire, since Sleepy was armed that night. They thought that Sleepy told Investigator Cervantes, on May 17, that it was the younger Huero to get the prosecutor off his back. One juror was surprised that some of the investigative work was not done until ten months after the incident and, in some cases, after the trial had started.
Most of the jury members interviewed did not sympathize with Huero and were not convinced that he didn’t at least know who did the shooting. However, they felt strongly that the prosecution had not proved his case beyond a reasonable doubt; in fact, “it wasn’t even close,” one person commented. At least one juror was outraged that Huero had been incarcerated for nine months and made to stand trial based on the testimony of one witness who hadn’t come forward for three months.
Because of the paucity of evidence against Huero, some jurors tried to figure out why the case had gone to trial. In the end, they speculated that it may have been political pressure on the district attorney’s office to do something about the local gang situation. Some jurors came away from the trial with the feeling that there is not much the criminal justice system can do in gang cases because of the reluctance of witnesses to come forward and cooperate with police.
Prosecuting attorney Garland Peed responds that he believed the story told by Dopey. And although the case was a weak one, depending as it did on one witness, he felt that a jury had to be given the opportunity to decide that witness’s credibility.
Huero comments about the trial, “I thought it was a waste of time. I was depressed because my mom and dad were getting a divorce, and I was locked up. My mom needed money, but I couldn’t help. I was grateful to Robinson and the defense investigator because they really believed in me. Not like the others that just do their job no matter if they win or lose their case.”
(Rory Perry is an attorney in private practice in San Diego who frequently represents gang members in court.)