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All in the Gang? Maybe So, But the Sixth Amendment Still Matters

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                In the just decided gang case of The State vs. Jefferson et al., the Georgia Supreme Court unanimously reaffirmed the Sixth Amendment and overturned state statutory law. It did so by finding the convictions of people not involved in the actual crime being tried could not be used against the defendants standing trial for the crime in question. In other words, a defendant has the right to confront the witnesses against him (or her). That’s the Sixth Amendment.

                A simple case illustrating the Sixth Amendment is where John accuses Bill of punching him. Rather than produce John at the trial of Bill for battery (i.e., punching), the prosecutor has John write down on a piece of paper the sentence, “At a New Year’s Eve party on December 31, 2016, Bill punched me in the nose.” But, Bill can’t cross examine John. Questions like:

                “Did you see me throw the punch?”

                “Wasn’t it dark in the room where you were punched?”

                “Don’t you recall the lights were turned off because the party’s host, Mary, forgot to pay her power bill?”

                “Had you not had a couple of drinks before someone allegedly hit you?”

                “After those drinks, didn’t you throw a punch at Greg who you thought had just made a pass at your girlfriend?”

                “Didn’t you tell Mary that you and Greg had been in a fight and that’s when you were punched?”

and so on and so forth, can’t be asked of a piece of paper.

                Now, there may be good reasons John can’t take the stand and testify. For instance, we don’t let alleged murderers shield themselves with the Sixth Amendment by claiming they can’t cross examine a dead body. The alleged statements of the deceased will generally be admissible at a murder trial. Also, keeping child victims away from their alleged abusers is of major concern to the effective, compassionate administration of justice. But generally, a defendant has a right to confront their accuser.

                But Georgia law OCGA §16-5-9 tried to provide a legislative carve-out allowing prosecutors to introduce evidence of convictions of ANY member or associate of a criminal street gang in a trial or other prosecutorial proceeding - even of another person not involved in the crime for which the conviction was obtained. Why would the State need to enter such third-party convictions? Because to prove someone is guilty of gang activity, the State must prove there is, in fact, a gang. So, it may be much easier and efficient if the State, rather than produce Bill in court, just produce Bill’s convictions for being involved in gang related criminal activity.

                Perhaps Bill, who never did like John, would come to court and point at John in front of a jury and say, “Yeah, John is in a gang. I was at his initiation and saw him swear to be a loyal member. After that, John was at all our gang meetings. He never missed a meeting, knew all the words to our fight song, and always paid his dues.” But that may be problematic for the State. For one thing, Bill is a known sleazeball, has a mile-long criminal history, and may have made a deal with the prosecutor for a lighter sentence on a felony shoplifting charge in exchange for ratting on John. Bill is shifty-eyed and a jury won't like him. So, since Bill has already been convicted for gang related activity, the very gang the State maintains John is part of, and since the State has photographs showing John and Bill together shoplifting, and oh, yeah, because Bill is incarcerated in California presently awaiting trial on unrelated charges, wouldn’t it be easier to just produce a copy of Bill’s gang convictions? You're darn right it would. But, easier and constitutional often don’t go together. And they didn't go together in Jefferson.

                The State tried an interesting argument by labeling the excluded convictions business or public records, thereby getting a hearsay exception and running an end-run around the Sixth Amendment. But the Georgia Supreme Court didn’t buy the argument, reasoning that the creation of the piece of paper upon which the conviction was memorialized was not so trivial. Rather, behind that record was the entire process of a trial upon which evidence was produced and analyzed, witnesses testified and were cross-examined, and arguments and deliberations were held. Even a plea represents that which would have gone into a trial had the defendant insisted on one, and therefore cannot be used against another defendant without more. A conviction, be it the result of a trial or a plea, is not the same as a log of phone calls, or a book of debits and credits for a store. It is, per the legal lingo, testimonial. It points a finger and accuses. Therefore, it must be backed up by the presence of the person actually convicted.

                Thus, to the extent OCGA §16-5-9 runs afoul of the Sixth Amendment, the law is void. The Supreme Court of Georgia was careful to reiterate that prior convictions of a person used against that same person in a different trial may well be perfectly admissible. Furthermore, the Court clarified that what is impermissible is the use of the prior third-party, non-testifying witness testimony to prove essential elements of the crime being charged. There might be other purposes for which such introduction of the convictions are acceptable.

                You can read the case in its entirety here.