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
After an April 22, 2008, beach trip, Keith Bird and Jason Alexander Mahoney drank beer and partied with a group of friends at Fitzgerald's Pub in Huntington Beach. According to surveillance video, they also secretly removed $442 worth of chicken wings, carne asada and beer from the bar. But Bird and Mahoney weren't typical, common thieves. They both had direct ties to Public Enemy Number One (PEN1) Death Squad, the murderous, methamphetamine-drenched, white-supremacist criminal street gang based in Orange County.
For Bird, the punishment from a 2010 plea deal amounted to three years in prison. He's already out of custody. However, for Mahoney, who'd collected two prior felony strikes, the consequences stemming from the nonviolent theft proved severe: 35 years to life.
Now locked inside Corcoran State Prison, he is asking federal judges to overturn his convictions, calling them a travesty of justice. His writings show decent knowledge of legal concepts and an intense passion about his plight. One of his complaints is that Lance Jensen, his superior court judge, and Edward Eisler, his public defender, allowed Senior Deputy District Attorney Jim Mendelson to win the case by shifting the second-degree commercial-burglary case into a trial about PEN1 and its pro-Adolf Hitler ideology.
Mendelson—a no-nonsense former Marine, veteran prosecutor and arguably the living embodiment of Clint Eastwood's gruff character in the Dirty Harry flicks—showed jurors photographs of Mahoney making a PEN1 hand sign, proudly embracing the theories of Mein Kampf and giving a Heil Hitler salute. He introduced evidence the defendant used the moniker "Knuckles" because of his fondness for brass knuckles. The prosecutor also displayed pictures of the defendant's tattoos, a living billboard of offensive imagery. The initials "PDS" (PEN1 Death Squad) adorn Mahoney's stomach; a swastika interlaced with "PEN1" graces his left, upper chest; a demonic infant with a "P" in its eye decorates his right calf; and from his right shoulder to his right wrist, there's another swastika and PEN1 tattoo. Simply put, his right and left arms are black-inked temples to Hitler and Nazi lore.
But what do racist antics and tattoos have to do with the burglary?
"Since there were no elements of racial hatred involved in the charged crimes, [Mahoney's] belief system was irrelevant to any other issue at trial, including motive or intent," the inmate's July 15 petition for a writ of habeas corpus states. "In short, evidence of racist ideology did little to illuminate the nature of petitioner's gang affiliation and served only to depict him as a bad person in the face of the jury."
The petition goes on to further allege that inflaming jurors with pro-Hitler images "evinces a substantial likelihood of distracting a jury from a dispassionate evaluation of [the defendant's] guilt" and robbing him of his right to impartial jurors.
When it was clear at trial that Mendelson, who had already introduced more than 30 incendiary photographs, planned to use at least 15 more, Eisler objected outside the presence of the jury. "With all due respect, there has to be a limit to this, and [the DA] has crossed it a long time ago," the public defender asserted. Mendelson fought to continue admitting photos into evidence, and Eisler fired back, "Your honor, these photos are as bad as could be. I think, at this point, we're beating a dead horse." Jensen concurred, calling the DA's tactic "overkill."
Mahoney, who, unlike Bird, was found near a backpack with a loaded .357 Magnum at the time of his arrest, is also arguing in his petition that those items belonged to someone else. When the defense summoned Bird to the witness stand to ask him who owned the weapon, Mendelson effectively blocked the testimony by telling him he would be prosecuted if he admitted the gun belonged to him. Bird then invoked his 5th Amendment privilege.
Eisler asked Bird a final set of questions, though. "Did anybody in law enforcement threaten you not to testify?" he asked.
"Yes, sir," replied Bird, who declined to answer more inquiries. The prosecutor made it clear on the record that the thought of a law-enforcement officer making an unethical threat was ridiculous.
The appeal raises another question: If a hoodlum quits his gang, when will government officials stop tying him to his past affiliation? For Mahoney, the apparent answer is never. He claims that at the time of the burglary, he had quit PEN1 six years earlier and relinquished the racist ideology following a prison stint and the birth of his son. He moved from Riverside to Tracy, a town near Stockton. He says he wanted to remove his tattoos, but he could not afford the services. During more than half a decade, law-enforcement agencies in his hometown accumulated no gang-related charges against him.
According to Mahoney, his lawyer rendered "ineffective counsel" by allowing Mendelson to inaccurately paint him as an active gangster. "[Eisler] did not investigate or put one witness on the stand in petitioner's defense to prove he retired from PEN1 in 2002 other than petitioner, not one," the appeal states. "The facts reflect that the prosecution's case was so heavily weighted with alleged gang evidence against petitioner that when the defense provided none, in all effects, this sunk his ship. [Mendelson's] case was a simple approach. After connecting petitioner to the burglary, the prosecutor put the PEN1 gang on trial."
To place the gang-membership label on Mahoney for jurors, Mendelson used Mike Riley, a law-enforcement gang expert. The DA asked him a loaded, circular-logic, hypothetical question: If an active PEN1 member burglarized a bar, would that prove the burglar was an active gangster committing the crime for the benefit of a gang? Eisler objected. Jensen overruled him, and Riley stated the obvious.
When it was Eisler's turn to cross-examine Riley, he asked if it were possible for individuals tied to a gang—one an associate, the other a former member—to have stolen booze and food one night not for the benefit of a gang. The detective seemed befuddled and testified, "I have a feeling that this scenario is pretty much impossible to put together."
But Mendelson wasn't without his own powerful evidence. He chronicled numerous times the defendant visited the homes of a PEN1 "shot caller" and active members long after he claims he quit the gang. On other occasions, undercover cops saw the defendant in vehicles with active members. The DA, who was honored in 2012 by the Anti-Defamation League (ADL) for combating white-supremacist criminals, also said jail deputies recovered from a PEN1 inmate a 2008 roster of active gang members that included Mahoney.
The defendant dismisses Mendelson's evidence.
"[The record] reflects no gang activity whatsoever on petitioner's part [after 2002], only visiting with people in society who may have been active gang members," the appeal states. "There was nothing criminal here. . . . In sum, the totality of the circumstances in this case cries out for justice."
In late July, Mahoney's appeal landed in the Los Angeles courtroom of U.S. District Court Judge George H. Wu, a former prosecutor and state court judge appointed to the federal bench in 2007 by President George W. Bush. In coming months, the state Attorney General's office will critique the appeal, and a magistrate judge will make recommendations for Wu's consideration.