By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
“The cops started cruising by my work about a week after the protest. I saw that they were harassing my clients, and I thought, ‘Man, they’re going to do something with me,’” she says. “If they don’t get to me, they’ll go after my sons.” She decided to send them to live in other parts of the county while she fought the injunction.
* * *
Days before the rescheduled preliminary-injunction hearing, Elizondo was fretting: She and the committee had still not managed to secure legal representation for the 62 defendants who had been granted extensions. (Those who had either not filed petitions or had been rejected were placed on the preliminary injunction; the handful of defendants already serving time in prison were taken off the injunction after the committee filed petitions on their behalf.)
Then four days before the hearing, Elizondo was told that the ACLU would be taking on the injunction case—the first time it had done so in Orange County—but for only five clients because of the complex nature of the suit and the office’s limited resources. It was a bittersweet victory, but nevertheless significant.
“We’ve never had anyone come to us directly in the time period that is adequate for us to respond,” says Belinda Helzer, one of two staff attorneys who took on the case. Usually, she says, the tiny ACLU office in Orange County only finds out about local cases after the preliminary or permanent injunctions have been issued, when contesting and fighting the injunction at trial is virtually impossible. “This is the first time that you’ve seen a groundswell in the community where they’re saying, ‘We don’t want this in our community, and individuals served are not gang members.’” Although they were only taking five clients, they planned on making arguments that would set a precedent for everyone wrongly named to the injunction, Helzer said.
But that still left 57 other defendants with no real representation. Elizondo kept pleading and making phone calls, and found out the night before the hearing that prominent civil-rights attorney David Haas would be taking on four more cases, including Emmanuel Gomez’s.
* * *
Superior Court Judge Kazuharo Makino’s second-floor courtroom was packed on April 10. At least a dozen armed sheriff’s deputies loomed over mostly young, nervous-looking kids in pressed shirts, dress shoes and the occasional tie. Makino was the new, no-nonsense, slightly impatient judge who had been assigned to the case. DA Mike Hernandez, who oversaw the case of the first injunction issued in Orange, seemed irked and a little perplexed. Makino had just peppered the prosecution with a series of questions involving minors that could undermine the DA’s attempt to include in the injunction kids who didn’t have access to legal representation. The minors, if not represented formally by a guardian (which involves an application process through the court), cannot obtain an attorney. And without an attorney and legally appointed guardian, the injunction is voidable.
“A judgment against a minor is voidable by the minor at any time,” Makino told prosecutors. “So why should I issue a preliminary injunction that is immediately voidable?”
Hernandez and another prosecutor were stumped and attempted to make logical arguments against Makino’s declaration, but they ultimately agreed to allow more time to review the legal code and have the juvenile cases heard on May 7.
Makino also decided that five defendants should be completely dismissed from the lawsuit based on the lack of evidence presented in the DA’s claim. When Makino asked prosecutors if they had any objections to the dismissals, they said no.
“I think the release of those five people with absolutely no opposition from the DA is telling,” Belinda Helzer said after the hearing. “Clearly, the DA’s office and the police department aren’t very good at determining if they’re active gang members. They filed a complaint that said they were active members, and the judge said no. . . . If these individuals hadn’t taken it upon themselves to file the opposition, and if other attorneys hadn’t gotten involved,” they might have easily been included in the injunction, she notes.
* * *
By the time the May 7 hearing rolled around, Elizondo and the committee had staged another protest (this time with a barbecue, Danza Azteca and a vigil), appeared on Spanish- and English-language TV news, and on a widely broadcast evening radio news program.
Anderson sat in the juror section of Makino’s courtroom that morning with pursed lips. He listened closely to what Makino had to say—and how he would rule—with regard to the preliminary gang injunction set to be imposed on some 20 defendants.
By hearing’s end, Makino had dealt another significant blow to the DA’s case: He essentially found that the evidence submitted by prosecutors against 15 of the 20 defendants was not sufficient to consider them active gang members and would not be placing them on the preliminary injunction. Regarding the minors, Makino refused to impose a preliminary injunction that would be “immediately voidable.”
After that, Helzer didn’t think much of a routine hearing scheduled for May 14 to file the paperwork for Louis De Herrera’s case. But that morning, Helzer received news from the DA’s office that they were filing to dismiss the ACLU’s five cases and wanted to cancel that day’s hearing. Not sure what was going on, Helzer went down to the courthouse anyway and was stunned to discover that the DA was filing to dismiss 57 other cases—essentially all those who had submitted denial petitions and had been set to go to trial July 6.