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N.Y. Using Terrorism Law To Prosecute Street Gang


N.Y. Using Terrorism Law To Prosecute Street Gang
Critics Say Post-9/11 Legislation Is Being Applied Too Broadly

By Michelle Garcia Special to The Washington Post
Tuesday, February 1, 2005; Page A03

http://www.washingtonpost.com/wp-dyn/articles/A52504-2005Jan31.html?sub=AR

NEW YORK

The newest face of an alleged terrorist wears a goatee,
stands about five feet tall, dresses in baggy clothes
and resides in the Bronx. Gang member Edgar Morales,
aka "Puebla," has the distinction of becoming one of
the first people ever charged under New York's state
terrorism laws.

The Bronx district attorney has accused members of the
St. James Boys street gang of shootings "committed with
the intent to intimidate or coerce a civilian
population." The other charges include murder,
attempted murder, various weapons charges and assault.
But prosecutors have not alleged that the gang is
connected to any terrorist network.

"The terror perpetrated by gangs, which all too often
occurs on the streets of New York, also fits squarely
within the scope of this statute," said District
Attorney Robert T. Johnson.

When members were arrested, Police Commissioner Raymond
W. Kelly said the gang "terrorized" the community
surrounding St. James Park, the neighborhood park from
which the gang takes its name.

But civil libertarians and some terrorism experts say
the case -- now underway in New York State Supreme
Court -- is a misuse of state laws and should raise
concern about what they consider is an ever-expanding
definition of the term "terrorism."

Jameel Jaffer, a staff attorney with the American Civil
Liberties Union, said that prosecuting the St. James
Boys was not what most Americans envisioned when state
legislators passed anti-terrorism bills.

"They didn't think of gang members in inner cities,
drug crimes, non-security" crimes, Jaffer said. "It's
not what people had in mind."

After the Sept. 11, 2001, terrorist attacks, 36 states
added terrorism-related laws to their criminal codes,
using them to enhance sentences that, in some cases,
will now include the death penalty, according to the
National Conference of State Legislatures.

Most of the new laws focus on heinous crimes such as
murder and kidnapping.

"Probably most of the crimes could have been prosecuted
before," said Blake Harrison, a lawyer with the
legislatures group. "Enacting these laws makes it a
little easier to effect the same goal."

But the new laws also provide prosecutors with new
opportunities. Once on the books, the laws can be
applied to various crimes if prosecutors believe they
can make them stick. It has happened before.

Anti-racketeering laws, for example, were created to
combat mobsters but are now frequently used in drug and
corporate-corruption cases.

"Language is plastic," said Gregory Mark, a former
prosecutor who is now a legal historian at Rutgers
University. "As new situations arise and the
imagination of prosecutors is stimulated, the statutes
which were clearly intended for one purpose are
expanded."

In Virginia, state prosecutors brought terrorism
charges against the now-convicted Washington area
snipers Lee Boyd Malvo and John Allen Muhammad, in part
because investigators could not pinpoint which man
pulled the trigger. Virginia's Supreme Court is
expected to rule soon on the constitutionality of the
state's terrorism laws.

The case against the St. James Boys began in 2002 with
the shooting of 10-year-old Malenny Mendez. Shortly
after midnight, Malenny and family friends left a
christening party. A street fight broke out between the
St. James Boys and another group of men. Shots rang
out; the men ran. Malenny fell to the ground, a bullet
lodged in her brain. She died several hours later.

At the time, police said the alleged shooter had fled
to Mexico. Prosecutors accused Morales of hiding the
gun. But he was convicted only of criminal trespass and
was sentenced to time served and probation.

Bronx prosecutors have relaunched the murder case as
part of a broader 70-count indictment against the gang
that was unsealed last May. It named 19 defendants,
charging all of them with terrorism for gang-related
activity.

Earlier this month, Morales's attorney, Lewis Alperin,
argued in a Bronx courtroom that the definition of
terrorism was too expansive. "You put the key in the
door and you know what happens: Any protester who takes
a position [against the government] will be prosecuted
under the terrorism law."

The judge is scheduled to listen to further arguments
March 9 before deciding whether to permit the terrorism
charges in the case.

New York's anti-terrorism law was born as a response to
the 2001 attacks and a public clamor for action. Within
a week of the attacks, the state legislature and Gov.
George E. Pataki (R) approved terrorism legislation
that they hailed as the toughest in the country.
Assembly Speaker Sheldon Silver (D-Manhattan)
characterized the bill as "overkill," even as he voted
for it.

Silver predicted at the time that the law would be a
purely symbolic gesture. "Will there be a prosecution
under the state terrorist act?" he asked. "I don't
think so."

But terrorism expert Jessica Stern said New York and
other states adopted terrorism laws that contained
vague and open-ended language that allows the term to
easily slip from its original meaning.

"Now we are seeing the possibility that it can be used
by the government to go after people we wouldn't think
of as terrorists," said Stern, a lecturer at Harvard
University. "It's so often an epithet for the person we
want to incarcerate [or] extradite."

Outside the Bronx courtroom, Morales's parents said
prosecutors overreached with the terrorism charges in a
desperate attempt to win a conviction in the little
girl's shooting.

The couple says that if prosecutors simply brought
criminal charges against Edgar they would accept the
fate, but the terrorism label horrifies them. They
worry about the stigma the family might suffer if Edgar
is convicted for terrorism, and the effect on their
jobs and future.

"Sometimes I wonder when people see us walking down the
street," said Morales's stepfather, Inocencio
Hernandez. "Do they say, ' There goes the parents of
Edgar' or 'the parents of a terrorist' ?"

2005 The Washington Post Company