How Prosecutors Use Conspiracy and Questionable Testimony in “Gang” Cases

In the United States, it is estimated that about two people are wrongfully convicted every day. In 2014, the Innocence Project estimated that around 120,000 people incarcerated in state prisons were wrongfully convicted. More than half of wrongful convictions, one study found, were the result of official misconduct by police officers, prosecutors — or both.

New York City, which was at the epicenter of perhaps the most notorious wrongful conviction saga, the case of the Central Park Five (now known as the “Exonerated 5”), has seen dozens of people freed from prison. Often, the actions of police officers were at the heart of these wrongful convictions. But what happens when someone is accused of being in a gang — and how might that make a wrongful conviction easier to fly under the radar?

Donnell Murray and the Consequences of Police Harassment

After officers walked Donnell Murray into federal court, he waved to his mother, sat next to his attorney and combed through the day’s notes. Getting to trial was a journey in itself. After more than two years in custody, Murray wanted to put the federal government’s case against him to the test.

Murray was raised in the Bronx. Like other young Black men, the entrepreneur worked with friends that he’d grown up with to make music and the street fashion that went along with it. Those friendships, the federal government would eventually argue, were part of a violent criminal conspiracy.

By 2017, Murray was living in Delaware. His mother had moved them out of the Bronx partly due to constant police harassment. The New York City Police Department (NYPD), they learned, was looking for him. In order to avoid more trouble, he turned himself in, unaware of the wild case the feds had built against him.

He hasn’t been home since, charged with a shooting and narcotics distribution in a federal gang conspiracy case.

Murray’s road to federal court might have begun in the NYPD’s 47th Precinct in the Bronx. For years, according to his mother, his fiancée and his legal team, the precinct’s officers harassed Murray. A pattern of targeted stops seemed to stem from a late-night altercation years earlier with a high-ranking 47th Precinct cop.

Murray’s former lawyer, Frank Iannucci, helped him fight some of the harassment. Iannucci, who died in 2015, was a former assistant district attorney from the Bronx District Attorney’s Office. By his own admission, he was a pro-police, pro-law enforcement guy. Iannucci became a private criminal defense attorney and represented Murray.

In 2010, Iannucci went to NYPD Internal Affairs to lodge a complaint against the 47th Precinct on behalf of his client. According to transcripts of Iannucci’s meeting with Internal Affairs Bureau investigators, early one Sunday morning in 2007, Murray and some friends were eating at a popular after-hours Bronx diner. As they began to leave, they encountered a 47th Precinct sergeant, Patrick McGill, who was there for an unrelated complaint. An argument between McGill and Donnell’s group ensued.

Next, according to Iannucci, McGill slammed Murray on a table and cops swarmed in to arrest him. Sergeant McGill claimed Murray had assaulted him. But according to Iannucci, security video showed the sergeant put his hands on Murray first, leading to a skirmish.

The assault case ended in an acquittal, but Murray’s problems with the 47th Precinct were just beginning. A string of questionable arrests and car stops followed. One arrest in 2008, Iannucci described to investigators, was for an assault where Murray had actually come to the aid of someone who had just been jumped by cops. According to Murray, the officers who arrived at the scene screamed, “That’s him, that’s him!” as they approached.

In 2009, plainclothes police officers stopped Murray in his car outside of a friend’s barbecue. They checked his license and let him go. The next day, those same cops drove into his friend’s private driveway to confront Murray and insist he come down to the precinct for a more thorough check of his license, according to Iannucci. They also insisted he bring his car.

At the 47th Precinct, cops claimed he had an invalid license and were going to release him but insisted in searching the car. They claimed to find a gun in his car. Murray was charged with gun possession, but, after many months, Iannucci had those charges dropped. Murray’s family believes the arresting officers, including Officer Abraham Villavizar, planted the gun.

Murray’s fiancée, Destinee Ferguson, was with him during many of these encounters. She remembers cops in marked and unmarked cars would nod their heads when they saw him. During one stop, she says, cops threatened Murray by saying, “Oh, Mr. Murray, if you would’ve run, we would’ve shot you.”

In 2012, cops pulled over and arrested Murray in his mom’s car at gunpoint with his infant son in the back. When his mother, Darlene Murray, went to the precinct to get her car, she saw one plainclothes officer rummaging through her glove compartment, which she filmed in a widely seen video. At that time, Donnell Murray bought and resold cars and had cash in the glove compartment. That money disappeared, according to Murray’s mom.

A few months later, Ferguson says, Murray was waiting for her in his car outside her home when cops pulled up and claimed they had a warrant for him. The officers handcuffed Murray and insisted on taking the car with them. “Donnell is not someone who’s gonna let them search his car. He knows his rights. They hate that. That adds fuel to the fire,” Ferguson told Truthout.

The couple insisted to police that Ferguson take the car and Murray’s property. Cops refused. At that point, Ferguson started to record them with her phone. “They got very upset,” she recalls. Cops took Murray. One of the officers climbed into Murray’s car and sped off.

The incidents happened during the height of stop-and-frisk policing under former Mayor Michael Bloomberg, who for years rationalized mass stops in the city’s Black neighborhoods. The repeated stops, Ferguson says, were frightening. “I was pregnant. It made me really scared for [Murray’s] life. I felt like he was gonna end up like Sean Bell or something.”

“I feel like Donnell was set up by the NYPD, the 47th Precinct,” his mother Darlene told Truthout. “After that incident at the diner, they had it in for him.” She also believes that because her son had sued for wrongful arrest on multiple occasions and filed numerous complaints, this put a target on his back. She says his inclusion in the federal gang conspiracy case was the culmination of a campaign of intimidation.

It is not clear if the Internal Affairs investigations into Murray’s allegations went anywhere. Investigators interviewed both Officer Villavizar and Sergeant McGill, both represented by their union lawyers, for 16 and seven minutes, respectively. The police department did not respond to requests for comment for this story.

Cops Repeatedly Accused of Misconduct

Officer Villavizar from the 47th Precinct was what you could describe as an active cop. Numerous lawsuits that alleged misconduct by Villavizar paint a picture of an officer who doled out aggressive arrests where charges were often dropped. Lawsuits against Villavizar and others went on over the course of a decade.

In 2008, Villavizar and his partner were alleged to have violently arrested a man in the Bronx, according to court documents. The District Attorney’s Office declined to prosecute that man, who then sued for wrongful arrest and settled with the city. Later that year, Villavizar and an unnamed partner forcibly arrested a man and woman in the Bronx, subjecting one to a strip and cavity search, according to a court complaint. Charges were dismissed. A lawsuit and a settlement followed.

In 2012, Villavizar was part of a group of plainclothes cops that allegedly approached people moving furniture, accusing someone of smelling like marijuana. After consenting to a search which turned up nothing, the lawsuit complaint said, a man was violently arrested anyway and thrown from the hood of a police car onto the concrete. That case was dropped.

Later that year, Villavizar and another officer arrested someone at gunpoint who told investigators that cops demanded he show them his hands as he walked to a family member’s house. After showing them his empty hands, court documents say, the cops arrested him for marijuana possession anyway. Charges against that person were dismissed.

In 2013, Villavizar and an unnamed cop were named in a troubling lawsuit. Dressed in SWAT gear, the duo forcibly entered an apartment in the Bronx without a warrant. They arrested a woman and an unnamed “infant-plaintiff” (most likely a minor), placing both in handcuffs, according to a lawsuit. The woman was charged with marijuana possession. Those charges were dropped and the woman’s lawsuit against the city was settled for an undisclosed amount.

The CAPstat police misconduct database shows at least eight lawsuits filed against Villavizar, amounting to at least $240,000 in settlements. Half of Villavizar’s known lawsuits were either settled for undisclosed amounts or the outcome was unknown, which suggests the total amount settlements could be much higher.

And yet it was Villavizar whose testimony in the conspiracy case would be used to connect Murray — who never had a gun conviction in his life — to a gun.

In fact, one of the lawsuits against Villavizar was filed by Murray after the 2010 gun-possession arrest in the precinct. Not only was Villavizar’s gun charge dismissed, the city settled Murray’s lawsuit for an undisclosed amount. Still, Villavizar would be called upon by prosecutors to testify about that arrest to a federal jury as prosecutors painted Murray as a gang banger with a gun charge.

When the judge in the trial ordered prosecutors to provide information about past lawsuits of police witnesses, federal prosecutors wrote that doing so “would be unfairly prejudicial and would waste time and cause juror confusion.” They downplayed Villavizar’s past, writing that, “from conversations with Officer Villavizar and a review of publicly available documents, the Government is aware of one unrelated lawsuit, which was dismissed.”

The judge agreed with prosecutors. The jury didn’t hear about Villavizar’s pattern of questionable arrests or the lawsuits filed against him.

In an emailed response to Truthout, a spokesperson for the U.S. Attorney’s Office wrote: “Allegations in civil lawsuits are just that — allegations. They are often irrelevant to criminal cases. In Donnell Murray’s case, we agreed with defense counsel and the judge that one lawsuit related to … Villavizar was relevant to the case and defense counsel was permitted to cross examine him about it. We also informed the Court of multiple unrelated lawsuits, which defense counsel first identified, and the judge found were not useful for cross examination.”

Courts Permit Testimony From Cops Lacking Credibility

Testimony by cops with shady histories is a long-running problem in New York City. Police credibility has been an open issue in Brooklyn, where the district attorney continued prosecuting arrests by officers accused of perjury and evidence tampering. Manhattan prosecutors have been forced to publicize lists of “bad cops” whose testimony is suspect. A WNYC/Gothamist investigation into the Bronx district attorney’s use of “bad cops” included a gun case where an officer’s testimony was contradicted by video but was prosecuted anyway.

The problems continue at the federal level as well. Assistant U.S. Attorney Jessica K. Feinstein, who in Murray’s trial claimed the government knew of only one lawsuit against Villavizar, had previously argued against officer misconduct being entered into evidence for other gang cases.

As reported in The Appeal, Feinstein argued that the credibility of NYPD Detective Jeremiah Williams, whose prior gun arrest of Carletto Allen in 2015 was key in Allen’s federal gang trial, was not sullied by the fact that Williams had been sued numerous times. Allen was indicted in the 2016 Bronx 120 gang sweep, the largest gang takedown in city history. Allegations against Williams ranged from needless anal searches to smashing someone’s head against a police car.

While Allen’s lawyers suspected foul play, specifically that Williams may have planted a gun on their client, he was nonetheless convicted in large part due to the testimony of the detective, the only person who could tie him to a gun — like Villavizar in Murray’s case. And, like Villavizar, Williams was the subject of at least eight lawsuits (perhaps more), resulting in a total of a quarter-million dollars in settlements, according to The Appeal.

But because all of those lawsuits were settled, Feinstein could (and did) argue that there was no admission of guilt; hence, Williams’s testimony was credible.

Feinstein’s penchant for relying on testimonies of cops with murky histories even included a case where one may have been a flat-out racist. Her prosecution of Donque Tyrell, also a defendant in the Bronx 120, relied partly on testimony from police officer David Sammarco. Sammarco has had at least 35 allegations of misconduct, has been named in at least six federal lawsuits and was accused by one of Donnell’s co-defendants of stopping and spitting on him.

Officer Sammarco, according to evidence presented at trial, also appears to have had an active social media presence through the (since deleted) Twitter account @ObamaHater55, which posted racist memes about Colin Kaepernick and Muslims. Though Tyrell’s attorney tried to bring up the cop’s social media posts, they were excluded from the trial as irrelevant (the cruel irony being that social media posts are often used as evidence against defendants in gang cases). As in other cases, Sammarco’s testimony helped Feinstein connect Tyrell to a gun.

If you note a pattern of cops with questionable histories being used to provide testimony in gang cases, consider that Williams, Sammarco and Villavizar also all worked out of the 47th Precinct. But testimony from “bad cops” is just one piece of the puzzle prosecutors use to score convictions against those who are gang-accused. The feds have a whole overarching legal framework to do that.

How Prosecutors Use Conspiracy and Hearsay in Gang Cases

Former Southern District Judge Billings Learned Hand wrote almost 100 years ago that conspiracy laws were the “darling of the modern prosecutor’s nursery.” Decades later, federal prosecutors turned racketeering laws, made possible by the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO), into the new darling.

While conspiracy laws liberalized standards of proof and allowed prosecutors to connect multiple defendants to a crime, RICO enabled the lumping together of people as an “enterprise.” RICO was created to peel away the power of organized crime. Prosecutors, like former U.S. Attorney Rudy Giuliani, used it against Mafia leaders who ordered crimes but didn’t necessarily commit them themselves.

While RICO may have turned the tide against the Mafia, it didn’t end there. RICO’s reach targeted labor unions, pharmaceutical executives and even the alleged conspirators of a celebrity college admissions scandal. RICO’s footprint in communities of color, however, has arguably been the most devastating.

In the 1980s, prosecutors began to use RICO against street gangs even as critics argued this was an overapplication. Most street gangs didn’t affect interstate commerce, required under RICO, and were unlikely to be able mount the costly legal defenses that mobsters could. How, one might ask, could police be trusted to identify who was in a gang, what crimes were “gang-related,” or even what a gang was?

There were also political and cultural undertones. RICO was used against groups formed from Chicago’s Almighty Black P Stone Nation, the Black nationalist group, as well as the Latin Kings, who were becoming involved in police brutality protests against New York City Mayor Rudy Giuliani, the former prosecutor, in the 1990s. Bias, some noted, could also lead to a conflation of hip-hop music groups and gangs. The Giuliani administration villainized the legendary hip-hop collective Zulu Nation, calling it a “gang,” and the FBI once tried to build a RICO case against the Wu-Tang Clan.

Beginning in 2012, the NYPD increased its anti-gang efforts and worked closer with federal authorities. The trial of Murray and his co-defendants, charged like Mafia leaders, is perhaps a textbook example of what happens when police and prosecutors use their most powerful tools against young Black men.

Some days, the rear doors of Judge Paul Gardephe’s court would swing open to reveal Murray’s fiancée and their 7-year-old son, Adon. They sat in the courtroom as Feinstein painted Murray’s life as one of violence and drugs. Murray and his co-defendants, Brandon Green and Latique Johnson, had all risked decades in prison by going to trial. Most don’t. By one count, 97 percent of federal cases end in a plea deal.

The odds against them were extraordinarily steep. Conspiracy and RICO lower the burden of proof for prosecutors, who essentially only have to convince a jury of a crime that benefitted an “enterprise.” Another crucial advantage for prosecutors is allowing normally inadmissible evidence, hearsay (someone testifying about what someone else said), into court. RICO also allows prosecutors to prove the existence of an enterprise by discussing bad acts of people who aren’t even on trial.

The linchpins to hearsay are cooperating witnesses, or “snitches.” With the Mafia, the threat of RICO and mandatory minimums turned some low-level soldiers, sworn to never snitch, into snitches. However, the use of snitches has been spotlighted as tremendously unreliable and coercive, even the basis for dozens of false convictions. The practice has been so ripe for abuse that desperate prisoners have often offered testimony against people they didn’t even know — sometimes testifying in cases they’d only read about.

By leaning on snitches, prosecutors can weave a web of guilt. In Murray’s trial, cooperators testified about the alleged gang, the Bloodhound Brims. However, all were facing serious federal sentences but receiving “5k1” letters from the government to recommend lighter sentences in exchange for their testimony. Some who faced life in prison could now hope to be released with time served. Pat Daly, an ex-cop who’d become addicted to crack and indicted in the case, testified that the gang ran a drug operation from his upstate home. He got a 5k1 letter.

At the trial, several cooperators struggled on the witness stand. Two key cooperators were serial snitches. One complained about being re-indicted under RICO for a crime for which he’d already served a state sentence. Others offered conflicting versions of the gang’s structure. While one cooperator testified Murray was a gang leader, another testified that he had no standing in the gang. At least two didn’t know who Murray was. They all got 5k1 letters.

Prosecutors alleged Murray had been part of a 2012 shooting. To prove Murray’s culpability, they brought a jailed cooperator to the witness stand who claimed he overheard Murray brag about it in prison. Another witness prosecutors used to connect Murray to that shooting was so bad that the judge later called him the worst cooperator he’d ever seen. The cooperators’ testimonies were the only sources of evidence connecting Murray to a violent act.

Presumption of Guilt

After weeks of trial, all three co-defendants were convicted on most charges, though not all. While Murray was found guilty of the racketeering conspiracy, the the jury found the government did not prove he attempted murder as part of the conspiracy. Ultimately, Murray was convicted of racketeering, narcotics conspiracy and gun possession, which could mean a sentence up to and including life.

Murray’s mother, devastated by the conviction, remained hopeful because he wasn’t facing a mandatory minimum. His attorney argued for five years. Judge Gardephe sentenced Murray to 19 years, a sentence that would make him almost 60 by the time he is released.

Throughout the trial, the presumption of innocence seemed purely theoretical — to be in a gang was a sign of guilt, with the details to be sorted out later. There are, of course, gangs in the Bronx, and during the trial, there had been acknowledgement that the gang in question was, in fact, real. Murray and Latique Johnson were childhood friends who had mutual aspirations in clothing and music. The jury was persuaded to believe that they were a criminal enterprise.

For the defendants and their families, their hopes now rest on an appeals process that could take years. The trial, fueled by decades-old tactics designed for the Mafia and testimony from cops with a record of alleged abuse, leaves a bitter taste in their mouths.