Monday, September 26, 2011

GangTrak and Threats to the Community

This post examines a recent opinion from the New Jersey Superior Court Appellate Division that addressed a man’s “application . . . for participation in the Hudson County Drug Court.” State v. Woodward, 2011 WL 4407565 (2011). As this news story explains, the Hudson County Drug Court is “an alternative to incarceration, only available to drug dependent non-violent offenders.”

According to the opinion, this is how the Drug Court issue arose:

[O]n December 19, 2009, officers were interviewing individuals in a public hallway at a housing complex concerning a homicide which occurred the night before, when [Lamar Woodward] entered the hallway with his right hand under the front of his jacket.

Officer Theodoroleas ordered [Woodward] to show his hands, but [he] did not comply, prompting other officers to stop [him] and search him for weapons. While he was being searched, [Lamar] stated, `I ain't got no gun, I just got a couple of bottles[,]’ which the officers understood to be slang for small glass vials used to hold drugs. At that point, [Lamar] opened his hand, in which he held money and glass vials containing suspected cocaine and suspected heroin.

Subsequently, a grand jury returned Indictment No. 10–03–0592, charging [Woodward] with two counts of possession of controlled dangerous substances (CDS) New Jersey Statutes § 2C:35-10(a)(1) (counts one and five); two counts of possession of CDS with intent to distribute, New Jersey Statutes § 2C:35-5(a)(1) and New Jersey Statutes § 2C:35-5(b)(3) (counts two and six); two counts of possession of CDS with intent to distribute within 1000 feet of school property, New Jersey Statutes § 2C:35-7 (counts three and seven); and two counts of possession of CDS with intent to distribute within 500 feet of real property comprising a public housing facility, a public park, or a public building, New Jersey Statutes § 2C:39-5(d) (counts four and eight).

State v. Woodward, supra.

On March 18, 2010, Woodward filed an

application to participate in the Hudson County Drug Court program. The Hudson County prosecutor rejected that application. The prosecutor's office indicated its denial was predicated upon [Woodward’s] two prior convictions of possession of CDS with intent to distribute within 1000 feet of school property and the significant threat he poses to the community as a member of the Sex, Money, Murder sect of the Bloods' gang.

State v. Woodward, supra.

After “considering the respective positions advanced,” the Drug Court judge found “that the prosecutor's rejection of [Woodward’s] application for Drug Court constituted a patent and gross abuse of discretion.” State v. Woodward, supra. In so ruling, the judge said

[t]he Court is going to find that based on the statements that I've just made before, in addition to the fact that minus the gang part that the Court finds that there is a patent gross abuse of discretion regarding this individual not being admitted into Drug Court where others have been admitted into Drug Court with a similar[,] if not worse record. Other than the gang affiliation proposition.

So therefore, the Court is going to find that in track one that there was a patent gross abuse of discretion. And also because of the danger part is, danger to the community is a part of track two, that's why I'm going to deal with, I'm dealing with both tracks.

However, for track two there is not enough information to show that there is a significant threat to the community.

State v. Woodward, supra.

The judge stayed the decision, though, and scheduled “a continuation of the hearing” on Woodward’s application for Drug Court. State v. Woodward, supra. In the interim, he was “evaluated by a substance abuse evaluator and determined to be clinically suitable for the Drug Court program.” State v. Woodward, supra. The evaluator recommended “long-term inpatient care.” State v. Woodward, supra.

When the hearing resumed, the prosecutor offered to present evidence

in camera concerning the State's position that defendant is a gang member; however, the State's proffer, which defense counsel characterized as an improper enlargement of the reasons previously given for rejecting [Woodward] from the program, was so vague the court declined to conduct an in-camera inquiry.

In that regard, the court inquired of the assistant prosecutor if the proffered information to be produced in camera would be the same as that which was included in the State's brief. The assistant prosecutor responded, `It could be, Your Honor, I don't know. I don't know how much information was given to me from [the] gang intelligence unit or how much information could be given to me. There might be additional questions that could be asked in camera, by Your Honor to our detective.’

At another point, the court asked, `But for the gang, alleged gang membership, would the State be, [its] position be that Mr. Woodward would be a[n] eligible candidate?’ To that inquiry, the assistant prosecutor replied, `Respectfully, Your Honor, the State chooses not to answer that question based on the fact that it is part of the formula that we use to assess the files.’

State v. Woodward, supra.

The Drug Court judge responded by (i) not holding an in camera hearing and (ii) and, instead, found that the prosecutor’s rejecting Woodward for the Drug Court program,

based on an alleged gang affiliation [he] denies, was unsubstantiated. More specifically, the court found there were no records indicating [Woodward] had self-identified as a Blood, and no report of what gang paraphernalia may have been observed or seized from him. The court also noted that a nickname or `street name’ does not demonstrate gang membership.

Citing further the State's unwillingness to divulge certain factors used to deny [Woodward’s] application, the court found `there was a clear abuse of discretion under track one,’ and accordingly, ordered that [Woodward] be admitted to the Drug Court program. The court determined that [his] admission to the Drug Court program was also appropriate under track two.

State v. Woodward, supra.

As I noted earlier, the prosecution appealed the judge’s decision to the New Jersey Superior Court Appellate Division, which issued the opinion we’re concerned with. State v. Woodward, supra. In reviewing that decision, the Superior Court first summarized the standards for admitting someone to the program; since we’re not specifically focusing on that issue, I’m not going to review them here. State v. Woodward, supra. The court also noted that “our review of the trial court's decision inquires whether there was sufficient evidence to support the court's finding that the prosecutor's decision was arbitrary, irrational or otherwise an abuse of discretion, a gross and patent abuse of discretion.” State v. Woodward, supra.

The prosecution argued that Woodward was properly rejected from the Drug Court

program pursuant to New Jersey Statutes § 2C:35-`4(a)(9) to which requires the court to find `no danger to the community will result from the person being placed on special probation.’ The State maintains defendant is a self-admitted gang member and gang members are a significant threat to the community.

The State asserts it determined [Woodward] to be a gang member by GangTrak, computer software used by the Prosecutor's Office to form a database of gang affiliation, and it explains the information on gang affiliation is gleaned from the admissions of prisoners during their time of incarceration and physical observations, such as tattoos.

The State also relied on an e-mail from Detective Miguel Matos of the Hudson County Police Gang Task Force, which stated [Woodward] `self-admitted that he is a member of the street gang known as the Bloods' set Sex, Money, Murder in February of 2009.’ The e-mail also stated, without detail, that [Woodward] `possessed gang paraphernalia during his prior incarceration.’

State v. Woodward, supra.

As may be evident from the earlier description of the Drug Court judge’s ruling, that court found the prosecution’s “claim of gang affiliation was unsubstantiated and therefore an inappropriate factor for its consideration.” State v. Woodward, supra. That judge also found (i) that “[a]bsent independent verification, . . . the claimed gang affiliation was unreliable” and (ii) since Woodward “did not have access to the information contained on GangTrak, the information was not consistent with due process”. State v. Woodward, supra.

The prosecution

sought to justify the nondisclosure of information on GangTrak by asserting it is work-product and not subject to discovery. Notably, `[i]n order for the [work-product] doctrine to apply, the materials must have been prepared in anticipation of litigation and not in the ordinary course of business.’ Payton v. N.J. Tpk. Auth., 148 N.J. 524 (1997). . . .

Here, the information is put into the computer by the gang divisions of the Department of Corrections and the Prosecutor's Office. The information included on the software is the individual's name, SBI number, gang affiliation, aliases and distinctive markings. Based on the State's description, this information does not appear to have been prepared in anticipation of litigation.

Rather, it appears only to track known or asserted gang members and their affiliation. Without further validation or elaboration on the accuracy of the information, it was within the exercise of sound discretion by the Drug Court to refuse to accept the conclusory information on GangTrak or to find that it falls within the protected work-product exception.

State v. Woodward, supra.

The Superior Court therefore explained that it was

satisfied the Drug Court judge did not abuse her discretion when she declined the belated and seemingly empty proffer from the State and accepted [Woodward’s] unequivocal denial of gang membership. Without support [his] gang affiliation, the State had no basis to contend that [he] posed a threat to the community.

State v. Woodward, supra.

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