Terror Charges Tainted Gang Member’s Trial

     ALBANY, N.Y. (CN) – A Bronx gang member was improperly tried as a terrorist for killing a 10-year-old girl and paralyzing a rival in a street shooting, New York’s highest court ruled.
     The St. James Boys, or SJB, had allegedly confronted rival gang members after a 2002 christening party in the Bronx. Edgar Morales, one of the St. James Boys, allegedly fired five bullets from a handgun, three of which hit a rival and one of which hit the 10-year-old girl in the head. The girl died and the rival gang member was paralyzed.
     The Bronx District Attorney’s Office subsequently secured a 70-count indictment that charged Morales and other SJB members with crimes of terrorism predicated on five felonies: intentional murder in the second degree; manslaughter in the first degree; attempted murder in the second degree; gang assault in the first degree; and criminal possession of a weapon in the second degree.
     They also were charged separately with the five felonies without the terrorism designations, as well as conspiracy in the second degree based on various assaults and homicides that occurred between 2001 and 2004.
     In the wake of the Sept. 11, 2001, terrorist attacks, New York lawmakers allowed the addition of the “crime of terrorism” to certain felonies when they were committed to “intimidate or coerce” a civilian population or government. Codified as Article 490 of the New York penal law, the Anti-Terrorism Act of 2001 also upped the penalties for conviction.
     Morales was among the first to be prosecuted under the statute. The state argued that the St. James Boys had tried to intimidate or coerce all Mexican-Americans in a geographic area around St. James Park in the Bronx – running roughly from Webster Avenue to University Avenue and from 204th Street to 170th Street.
     Testimony at trial established that the gang developed in an attempt to stand up to other gangs, and that the SJB hoped to be the most feared Mexican gang in the Bronx. Gang members allegedly engaged in robbery, assault and extortion.
     Morales was convicted in 2007 of three crimes of terrorism premised on first-degree manslaughter, attempted second-degree murder and second-degree weapon possession. He also was convicted of second-degree conspiracy for agreeing to commit first-degree gang assault as a crime of terrorism.
     Morales faced 40 years to life in prison, but the Manhattan-based First Department of the New York Supreme Court’s Appellate Division intervened last year.
     It found that there was insufficient evidence to prove that Morales intended to coerce a civilian population, as required under Article 490. As such, the court reduced his terrorism convictions to the three underlying offenses, and it reduced the conspiracy conviction from second-degree to fourth-degree.
     Finding that use of the terrorism statute had not prejudiced the entire trial, however, the Appellate Division refused to order a new trial.
     The Court of Appeals, which caught the case on further appeal, went another step last week by ordering a new trial for Morales.
     “There is no indication that the Legislature enacted Article 490 of the Penal Law with the intention of elevating gang-on-gang street violence to the status of terrorism as that concept is commonly understood,” Judge Victoria Graffeo wrote for a six-member panel.
     “The concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act,” she added.
     In crafting Article 490, lawmakers never defined the “civilian population” that might be targeted for intimidation, according to the 13-page opinion. While a precise meaning might be unnecessary, the judges reasoned that “the statutory language cannot be interpreted so broadly so as to cover individuals or groups who are not normally viewed as ‘terrorists'” – such as gangs.
     The opinion notes that the Anti-Terrorism Act passed by the Legislature cited seven well-known examples of terrorism – including the Sept. 11 attacks, the Oklahoma City bombing in 1995 and the downing of Pan Am Flight 103 over Lockerbie, Scotland, in 1988 – that could act as “guideposts” in evaluating whether actions are sufficiently nefarious to be crimes of terrorism.
     “If we were to apply a broad definition to ‘intent to intimidate or coerce a civilian population,’ the People could invoke the specter of ‘terrorism’ every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate’s soldier,” Graffeo wrote.
     The evidence against Morales was insufficient to establish guilt beyond a reasonable doubt under the statute, according to the ruling.
     “Defendant’s violent, criminal acts as a member of the SJB gang unquestionably resulted in tragic consequences – the needless death of a little girl and the paralysis of a young man – but they were not acts of terrorism within the meaning of Penal Law Article 490,” Graffeo added.
     Morales deserves a new trial on the underlying offenses specified in the terrorism counts “because the theory of terrorism should not have been charged,” the ruling states.
     The initial terrorism prosecution allowed the DA’s office “to introduce otherwise inadmissible evidence that unduly prejudiced the jury’s ability to fairly adjudicate his guilt or innocence,” Graffeo wrote.
     “Based on the record, it is apparent that the volume of proof regarding unrelated assaults, murders and other offenses created a reasonable possibility that the jury’s findings were prejudicially influenced,” she added.
     “Hence, the spillover effect requires reversal and a new trial on the underlying offenses.”
     Catherine Amirfar of Debevoise & Plimpton in New York argued for Morales. Peter Coddington represented the state. The Center on the Administration of Criminal Law at New York University submitted an amicus curiae brief.

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