In a case that highlights the dubious role of “expert” testimony on “gang behavior,” the Michigan Supreme Court has let stand the reversal of a murder conviction secured largely on the basis of such evidence. Calhoun County Prosecutor David Gilbert wanted the high court to overturn an appellate ruling that found a police investigator’s “expert” testimony at trial had erased the line between the general description of gangs and the attribution of guilt to a particular defendant, and thus irreparably tainted the verdict.
That decision, in the case of 23 year-old Kaleb Hampton, is a study in a prosecutor’s use of what amounts to behavioral profiling as proof of guilt.
Hampton was one of three men in a car that police stopped after Ledell Anderson was shot in Battle Creek on the night of April 1, 2010. Though no weapons were found in the car, two handguns were subsequently discovered nearby. One bore the fingerprints of the driver of the car, Darellee Gordon, who was later convicted of second-degree murder. The third occupant, Romell Bolden, testified against Hampton, and “was not tried on any charges in connection with th[e] incident.”
The prosecution also put on a jailhouse informant who claimed Hampton had confessed to most all of the particulars of the shooting while in pretrial detention. But this, apparently, was not enough.
The Policeman as Expert
As the appellate court puts it, “the linchpin of the prosecution’s case” turned out to be the testimony of Tyler Sutherland, an investigator in the Battle Creek Police Department’s Gang Suppression Unit. “Based on his training and experience, the trial court qualified him as an expert.”
He wasted no time in putting his “expertise” to use, telling the jury:
Well, gang members . . . view people as objects not human beings. They’re very manipulative. They have a very short fuse.. . . [T]hey need instant gratification. They’re not going to work their problems out. They live in the moment and that’s why they never consider the consequences if I do this, if I hold this gun out this window, if I pull this trigger, they don’t think ten years down the road. They don’t think about the innocent people that are going to get hurt by their actions.
This, despite its eery echo of the talk of “super-predators” in the ’80s and ’90s, is permissible testimony in a gang prosecution, as part of the effort to convict on specific criminal charges that use gang membership as one of their elements.
But neither the prosecutor nor Sutherland stopped at this general level of edification. Asked by the prosecutor if “gang membership provide[d] the defendant an opportunity to commit this crime,” Sutherland testified:
Yes…They were just intending to shoot at that entire neighborhood that was full of rival gang members to prove a point. They didn’t care who they hit, but they were there to care to prove a point of we should be feared and respected…this incident is a perfect example of Kaleb, and Darellee, and Romell didn’t know who specifically they should be mad at, but they knew they should be mad at all of the rival Northside gang members that were up there including Park Hill. So they’re just going to shoot out all sides of the car whoever they hit, they hit, but they prove their point by showing that they [are] very violent.
According to the appellate court, Sutherland’s testimony, which “covers well over 100 pages of transcript, and is by far the longest and most detailed testimony of any witness in the trial,” was rife with such characterizations. “Sutherland declared that defendant’s gang membership provided him the motive, means, and opportunity to commit the charged offenses.” He “further expressed that defendant had actively and intentionally participated in the shooting that led to the death of Ledell Anderson.”
Elsewhere, Sutherland “labeled defendant an aider and abettor of uncharged (and utterly unproven) violent acts perpetrated by known” gang members. In total, then, he “not only impermissibly crossed the line by connecting general character with specific conduct, he repeatedly told the jury that the facts demonstrated defendant’s guilt of the crimes with which he stood charged.” Contrary to the prosecution’s assertion on appeal that these characterizations were “a minor blip” in his otherwise acceptable testimony, “the record instead reflects that Sutherland’s pronouncements of defendant’s guilt permeated his expert presentation.”
A Repeat Offender
As it turns out, this should have surprised no one, least of all the Calhoun County prosecutor’s office. That’s because, remarkably, the state supreme court precedent that establishes the “parameters of expert testimony concerning gang-related violence” arises from a case in which Sutherland himself was the expert.
In People vs. Bynum, the state supreme court wrote that Sutherland had “veered into objectionable territory when he opined that Bynum had acted in conformity with his gang membership with regard to the specific crimes in question,” and held that “such testimony would attempt to prove a defendant’s conduct simply because he or she is a gang member.”
The decision to overturn Hampton’s conviction and remand the case for a new trial does not, however, rest on the conduct of the prosecutor in carefully and deliberately, over the course of hundreds of pages of the record, soliciting such evidence. Rather, it finds that the trial court failed in its duty as gatekeeper to keep the impermissible testimony from the jury. The latter certainly seems to be the case, and was apparently sufficient to reach a conclusion of plain error.
But given Sutherland’s practically mirrored testimony in a prior case that established new law, in a gang prosecution in the very same city of Battle Creek, it’s worth noting what appears to be the Calhoun County prosecutors office’s disregard for their state’s own laws of evidence.