Richards argues gang injunction violates constitution

On June 14, 2012 the weeklong trial on the gang injunction ended with closing arugments by Randy Richards. The following is the article from the Standard Examiner. Final arguments heard Gang injunction characterized alternately as protection, attack on liberty BY TIM GURRISTER STANDARD-EXAMINER STAFF TGURRISTER@STANDARD.NET OGDEN — The Ogden Trece injunction either preserves the American way of life or eats away at its foundations, lawyers said as the trial of the experimental crimefighting tool closed Thursday. “There is no First Amendment protection provided for groups whose sole purpose is criminal activity,” Weber County Attorney Dee Smith said in closing arguments. An approach in common use in California but not in other states, the injunction is the first attempted in Utah. It bans Ogden Trece gang members from associating with each other in public, being in the vicinity of guns, drugs and alcohol, and from being out past 11 p.m. Smith pointed to statistics showing dramatic crime decreases among the 37 antigang injunctions in use in Los Angeles County. In his closing remarks, defense attorney Randy Richards, ironically Smith’s former law partner, said, “Our task is to carry the torch of liberty, which is barely flickering in Weber County.” The injunction violates constitutional protections provided by the First, Second, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth amendments, Richards argued. Smith quoted a California appellate court decision upholding gang injunctions there: “It is for the protection of the community from the predations of the idle, the contentious, and the brutal that government was invented.” Richards, in his closing arguments, compared the injunction to the internment of U.S. citizens of Japanese descent during World War II. Prosecutors are given the chance to respond to the defense’s closing argument be- cause they bear the burden of proof at trial, and Smith immediately assailed that characterization. “I find that offensive,” Smith said. “The Treces were not targeted because of race, religion or anything else but their criminal activity.” He noted that presiding 2nd District Judge Ernie Jones has been provided with the criminal records of 81 active Trece members in Ogden with more than 300 criminal convictions among them for crimes ranging from murder to graffiti. That was only a quarter, he said, of the gang’s estimated 300-plus members, as well as more than 90 now incarcerated at Utah State Prison. “Economic harm flows from all these activities,” Smith said. Jones took the case under advisement, indicating a decision will be issued in coming weeks. The trial is to determine whether what is now a preliminary injunction becomes permanent. “Which means forever,” attorney David Reymann, associate counsel with the Utah Chapter of the American Civil Liberties Union, said as he and defense attorneys huddled after Thursday’s session. “As it stands, they (Treces) are under a curfew for the rest of their lives.” They talked of the planned appeal to the Utah Supreme Court, fully expecting Jones to decide in favor of the injunction. It was Jones who approved the preliminary injunction in September 2010. “Because of that, and given his rulings in the past, we didn’t expect a win,” said Reymann, who has attended the trial all week as an observer. He said he and John Mejia, Utah ACLU legal director, would be filing the appeal along with Richards and the other two Trece trial lawyers, Mike Boyle and Mike Studebaker.

Attorney Allen gets felony DUI dismissed

Hair test backs up man's story in Box Elder

By Tim Gurrister

Standard-Examiner staff

Tuesday, February 15, 2011 - 10:41pm

BRIGHAM CITY -- A 57-year-old Ogden man charged in a three-county high-speed chase got something of a break in his plea bargain thanks to hair-follicle testing.

His hair apparently backed his story that he was not drunk or on drugs, just suffering from mental health issues, when he fled from police at speeds of up to 100 mph on July 20.

So the driving under the influence charge against Chris Macfarlane was reduced from a third-degree felony to a class B misdemeanor Monday in 1st District Court.

He pleaded guilty to the reduced charge as well as one count of third-degree felony evading in return for dismissal of several related misdemeanors. Judge Ben Hadfield set sentencing for March 29.

The testing proved negative as to impairment at the time of the chase, said Bernie Allen, Macfarlane's public defender. While there was some question if the test actually covered the time period of the incident, Allen said "prosecutors gave him the benefit of the doubt."

Macfarlane refused to take a Breathalyzer test at the time of his arrest so has automatically lost his driver's license under Utah law for a year. Allen said he couldn't discuss his client's mental problems, except that his thought processes at the time were "off the rails."

The advantage of hair testing is that the trace of the drugs never leaves the hair strand, unlike the blood stream, which eventually filters out controlled substances, according to officials and those involved in the testing process.

But hair testing for drugs is still fairly rare in the criminal justice system, used largely in probation situations with offenders in drug court, or in juvenile court to determine if children have been exposed to their parents' drug use.

Police say events July 20 began just before 1 p.m. as Macfarlane was driving above the speed limit northbound past Mantua Police Chief Jim Jones as Jones was clocking traffic with a radar gun.

The chase proceeded north to Wellsville in Cache County before Macfarlane turned around and headed south. The chase reached 100 mph and covered about 50 miles before he was finally stopped on Ogden's 12th Street.

Macfarlane, police said, allegedly drove southbound in the northbound lanes of I-15 for nine miles between Willard and Pleasant View at 90 mph.

Macfarlane has been held in Box Elder County Jail without bail since his arrest.

In addition to Jones, the Utah Highway Patrol, Brigham City Police Department, Perry Police Department, Weber County Sheriff's Office and Willard Police Department were involved in the chase.

Attorney Richards Fights for Constitutional Rights

Attorneys fighting for rights of Trece members

By Tim Gurrister

Standard-Examiner staff

Tuesday, February 8, 2011 - 10:57pm

OGDEN -- Attorneys have been back in court for another round of debating the constitutionality of Ogden's injunction against the Trece street gang.
Tuesday's was the first such session since the Utah Supreme Court declined Nov. 1 to weigh in on the issues, although those on both sides of the injunction fully expect it to eventually return to the high court.
The injunction, ordered into law Sept. 27 by 2nd District Judge Ernie Jones, bans Trece gang members from associating with each other in public, being in the vicinity of guns, drugs or alcohol, and staying out past an 11 p.m. curfew.
Common in California and used in a few other states, the injunction is a first in Utah.
Among Tuesday's arguments before Jones were limits allowed on First Amendment rights and the question of curtailing behavior of individuals before they commit a crime.
Weber County Attorney Dee Smith, co-author along with the Ogden Metro Gang Unit of the 331-page injunction, said the U.S. Supreme Court has allowed First Amendment limits on groups via injunction.
"There is a difference between an injunction and an ordinance, or statute," noted Smith, in that the latter applies to everyone, but the former only to a specific group.
The high court, he said, has limited where anti-abortion groups may protest, as well as union members, when "violence enmeshed contemporaneously with peaceful protest."
"The county attorney says, 'We think you're going to commit a crime, so we're going to enjoin you from doing anything,' " said Mike Studebaker, attorney for two alleged Treces.
One of his clients runs a recording studio that is suffering financially because Treces can no longer frequent it, he said.
"The injunction is putting him out of business for something that may happen," Studebaker said. "There's no precedent for what the county is trying to do here."
Attorney Randy Richards, representing another alleged Trece, argued, "The state is stripping my client of his sacred constitutional rights that have been in place for more than 200 years."
In addition to taking away his client's First Amendment rights of free association, Richards claims Fourth, Fifth, Ninth and 14th Amendment violations by the injunction.
For the police to be able to pull over his client's car if he has a documented Trece member in the vehicle steps on Fourth Amendment protections against illegal search and seizure and Ninth Amendment privacy rights, he said.
Fifth and 14th Amendment due process rights are also violated in that scenario, he said.
Richards said his client is not a Trece, but the process for proving that under the injunction includes holding a job for a year, which his client is unable to do because of a disability.
Jones took the cases under advisement. He said he will issue a decision within 30 days on several defense motions seeking to dismiss the injunction against some of those alleged to be gang members.
After that, scheduling could be discussed on other hearings leading up to an eventual trial on the question of making the injunction permanent.
Essentially, the injunction is currently labeled preliminary, with no expiration date, officials have explained, until the outcome of the trial.
Ogden police, as of the end of January, count several dozen arrests of Treces for violations of the injunction, a misdemeanor typically filed in Ogden Justice Court.
But several arrests incident to the injunction have led to felony charges filed in district court after drugs or weapons were found on Treces when taken into custody for injunction violations.
So far, about 150 members of the gang, estimated to include more than 300 members, have been served personally with a copy of the injunction.

Second defendant in Juggalo battle-ax case goes to trial

By melinda Rogers

The Salt Lake Tribune

Published Feb 01 2011 04:34PM

Updated Feb 1, 2011 11:17PM

Defense attorneys for a man accused of stabbing a 17-year-old boy while his friend assaulted the same boy with a medieval battle ax 2 1/2 years ago told a jury on Tuesday the pair never intended to kill their victim.

During opening arguments at the trial of Cody Jesse Augustine in Salt Lake City’s 3rd District Court, attorney Brittany Brown said her client only intended to scare Justin Ennis when he stabbed him approximately five times outside Ennis’ Kearns home.

Augustine believed Ennis had passed on a sexually transmitted disease to a girl that Augustine later slept with.

Prosecutors waived an opening statement but will counter Augustine had told friends he planned to kill whoever gave him the STD. Augustine, 23, is charged with first-degree felony attempted murder with injury and faces three years to life in prison if convicted.

Augustine went to Ennis’ house on July 29, 2008, after a night of drinking with his friend Scott Stapley, where the two men and their girlfriends discussed the possibility that Augustine had contracted an STD from his girlfriend, Stacy Kennedy, Brown said.

Kennedy told Augustine that the only person she could have received a disease from was Ennis, Brown said. Following an episode of painful urination, Augustine became angry and he and Stapley hatched a plan to go over to Ennis’ house to yell at him about the STD.

That’s when things got out of control, Brown said, and Stapley wielded a four-bladed warrior ax with a spiky ball attached as Ennis fought to escape. Augustine then stabbed Ennis several times with a knife — but only because he possibly believed blood at the scene belonged to Stapley, and he sought to defend his friend, she said. Brown suggested Augustine is guilty of assault but not attempted murder.

"He’s mad. He’s frustrated he contracted an STD. His mind starts to reel — what if I have to deal with this for the rest of my life? What if I’m sterile?" Brown told the jury.

"The plan was for Cody to give (Ennis) harsh words and a black eye. At no time did he intend to kill him."

Prosecutors waived an opening statement on Tuesday and proceeded to call witnesses, including Ennis, now 20. Ennis removed his shirt in the courtroom to show jurors the scars that remain from the battle ax and knife attack. He spent five days in the hospital and suffered an 8-inch cut to his neck, a 10 1/2 -inch cut in his left pectoral muscle and smaller cuts on his shoulder and hands, he said.

Ennis testified he was lured from his house by a series of text messages from his attackers, who posed as Kennedy, his ex-girlfriend. Ennis said he went outside about 4:30 a.m. believing he was meeting Stacy for "a booty call" after she wrote him a message stating, "Where are you fool? Let’s bang."

Slightly leery of the message since Kennedy usually didn’t speak in those terms, Ennis still decided to go outside, he said, despite thinking Kennedy was "being weird" with her text messages.

Ennis said Augustine then charged at him, screaming, and the two scuffled near Ennis’ house. Stapley then joined the attack, and Ennis was stabbed with the battle ax and knife moments later.

He managed to return to his parents’ house, where his dad put him in a bathtub until paramedics could arrive. A trail of blood marked Ennis’ path through the house, and he held a T-shirt to his neck wound to try to stop the bleeding, he testified.

Augustine’s case has taken more than two years to reach trial after becoming tangled up in appeals courts over an argument about whether a judge should have declared him indigent after he was charged, therefore entitling him to a public defender. He lost that appeal and is being represented by private counsel.

Stapley, now 24, was convicted by a 3rd District Court jury in January 2009 of first-degree felony attempted murder for his part in attacking Ennis and ordered to serve three years to life in prison. He is scheduled for a parole hearing in February 2012, according to the Utah Board of Pardons and Parole.

 

Augustine’s defense attorneys claimed on Tuesday that Stapley concocted the plan to assault Ennis. But during Stapley’s trial two years ago, his attorneys said the assault was Augustine’s idea.

Stapley took the stand at his own trial and testified he bought the ax for about $25 from Pipe Dream Gifts, a store in Salt Lake City, and that the two meant to "hurt" Ennis but not kill him.

Police have said Stapley and Augustine are members of the Juggalos, fans of the Insane Clown Posse rap group. Juggalos and their female counterparts, Juggalettes, are classified as a gang by Utah law enforcement.

A "hatchet man" necklace belonging to Stapley that was found at the crime scene and an emblem on his vehicle are linked to the Juggalos, police said.

Treces injunction causing members to move out of Ogden?

By Tim Gurrister

Standard-Examiner staff

Last updated

Saturday, December 25, 2010 - 7:41pm

 

OGDEN -- Christmas marked 90 days since the Ogden Trece Injunction went into effect. The numbers aren't huge yet for enforcement of the state's first gang injunction -- about 20 arrests for failure to abate a public nuisance, including two of members found with drugs or weapons that led to felony charges.
That's with 150, fewer than half the estimated Ogden Trece members, served their copy of the injunction.
But the anecdotal evidence is accumulating of its effects.
Prison officials have advised that some Trece parolees are asking not to be sent to Ogden. Locally, Treces are not wearing their colors as much and are not "representing" or announcing their affiliation like they used to.
"We're finding newspaper clippings on the Ogden Trece injunction in Trece houses," said Lt. Scott Conley, who heads the Ogden-Weber Metro Gang Unit, authors, with the Weber County Attorney's Office, of the injunction that went into effect Sept. 27.
The 331-page injunction documents several Trece murders in recent years, plus drug-dealing, gunplay, assaults, thefts, burglaries and robberies, all by members of the gang.
The injunction, based on similar tactics in common use in California and tried sparingly in a few other states, but new for Utah, bans members of Ogden's oldest street gang from associating publicly, being in the vicinity of guns, drugs and alcohol, and staying out past an 11 p.m. curfew.
Conley only recently heard the rumors about parolees asking to avoid Ogden.
"It's some of the prison guys involved in setting release dates," he said. "I don't know who they're talking to, but that's what they're telling us."
The Ogden Police Department's school resource officers, who keep offices in high schools and junior highs, have been hearing from students that Treces there are not openly telling others they are members of the gang any more, Conley said.
"There's definitely a cautionary mindset being created because of the injunction," he said, noting officers are seeing less of the Trece signatures: O-13 bedecked clothing, the gang's blue colors, bandannas and other gang accessories.
Weber County Attorney Dee Smith said eventually statistical studies of crime counts, pre- and post-injunction, will be conducted, but for now, "All I have to go on is what I'm hearing from the officers on the street.
"And they tell me they are beginning to have a hard time finding Treces to serve them the injunction these days."
Trece members must be served personally with a copy of the injunction before they can be found in violation.
"It's really reduced the visibility of this gang out on the street," Smith said. "They are no longer all over the place like they once were."
He also said he's been advised "another gang I'm not going to name has become awfully quiet lately as well."
"Maybe it's because they are not having their usual back and forth with their rival Treces. Or they don't want to be the next target of an injunction."
Meanwhile, the legal dance over the injunction has been bumped to February. On Dec. 8, the Utah Supreme Court opted not to take up appeals by anti-injunction lawyers, returning the constitutional debate to 2nd District Judge Ernie Jones, who signed the injunction into law Sept. 27.
Three Ogden defense lawyers hired by accused Treces, joined by the ACLU of Utah and its cooperating attorneys from the Salt Lake law firm of Parr, Brown, Gee and Loveless, have challenged the injunction on constitutional grounds.
Arguments are slated to resume before Jones in February.
Three of the five members of the Utah Supreme Court once worked at Parr Brown: Justices Jill Parrish, Matt Durrant and Tom Lee.
Chief Justice Christine Durham has recused herself from the Trece deliberations because she has a relative currently working at Parr Brown.
Injunction critics remain skeptical.
"You've had 20 people arrested for a crime that wasn't a crime 90 days ago," said Ogden defense lawyer Randy Richards, retained by an individual who maintains he's not a Trece. "So the crime rate has gone up.
"We've already got plenty of laws on the books. Why add another with no consequence?" he said, referring to the fact violation of the ordinance is only a class B misdemeanor. "A $500 fine won't stop gang shootouts."
Ogden City Prosecutor Mike Junk, who files the misdemeanor charges in Justice Court in Ogden, has been the prosecutor filing those 20 failure to abate counts. He's an injunction fan.
"Quite honestly, I think it's having an effect, I think it's working," he said. "I think at first Treces were kind of cavalier, didn't take the injunction seriously.
"But once they saw charges were getting filed, people were getting pulled over and going to jail and getting fined, I think they are actually abiding by the injunction.
"It's part of their thought process. I don't know that they've put a tone on their cell phones that goes off when it hits curfew, but I think they're saying, 'Look we can't hang out together, we have to be careful where we're at.' "

Capital Charges Reduced and Etheridge Sent to Prison with Possibility of Parole

Man who killed two women in Ogden ordered to prison

Salt Lake Tribune

Ogden ­• A judge on Monday ordered prison time for a Roy man who confessed to shooting two women to death in 2008, but not before a doctor and psychologist testified in court that the defendant might have carried out the crimes because he was in withdrawal from abruptly stopping anti-depressants.

Defense attorneys for Jacob D. Ethridge, 33, called the two witnesses prior to Ethridge’s sentencing in 2nd District Court, as evidence for the judge to consider before imposing Ethridge’s punishment. The two witnesses spoke about how six anti-depressant/anti-anxiety medications Ethridge had been taking could have influenced his behavior in the early-morning hours of July 13, 2008, when he shot 42-year-old Teresa ‘Wyoming" Tingey and 25-year-old RosaAnna Maria Cruz within 30 minutes of each other in Ogden.

Douglas Rollins, an expert in pharmacology, and Ronald Houston, a neuropsychologist, both testified that Ethridge could have been experiencing "hallucinations, delirium and general hostility" when he killed his victims as a result of stopping medication, in particular the anti-depressant Effexor, a month before the murders.

Houston said studies have shown that Effexor can cause people to display "depersonalization" or "where you feel unconnected to the world around you." Other side effects of the drug in some people include thinking abnormalities and abnormal judgment, he testified.

Prosecutors rebuked the witnesses’ testimony, arguing that Ethridge has a history of aggression that has led to several problems, including his discharge from the Marines.

Defense experts’ testimony — as well as a tearful apology and pleas for forgiveness from Ethridge — didn’t sway Judge W. Brent West from handing down a minimum 40-year prison term to Ethridge.

West ordered Ethridge to serve consecutive terms of 20 years to life in prison on each aggravated murder count. Ethridge also received a year in jail for assaulting a guard in a separate case filed after his arrest.

Before West handed down the sentence, forensic psychologist Stephen Golding — a rebuttal witness called by prosecutors — testified there is not sufficient scientific data to make a link between the drugs and Ethridge’s behavior. He said Ethridge likely has a borderline personality disorder, which could have influenced his emotions the day he killed the women. He also testified that Ethridge’s history of alcohol abuse could also have played a role in his decisions the night of the murder.

Ethridge told police during his confession that "alcohol gave me the courage" to kill the women, Golding said, citing a police report.

Prosecutors pointed out that Ethridge confessed to the murders and told Ogden police that he had fantasized about killing someone at random for a year prior to the attacks. When an Ogden police detective asked Ethridge if shooting the women fulfilled his fantasy, he replied, "It wasn’t what I expected. I didn’t expect to feel remorse and I do," Ethridge said, according to police reports.

Ogden police officer John Thomas, who sat with Ethridge at the police station after his confession, said that Ethridge appeared calm and matter-of-fact — not agitated from medication. Ethridge only became tearful when speaking about how committing the slayings would mean he can’t see his three children anymore.

Family members of Tingey spoke at Monday’s hearing about how the woman’s violent death has shaken their family. Two of Tingey’s brothers talked about the ups and downs the woman experienced before she landed on the streets working as a prostitute, Deputy Weber County Attorney Gary Heward said.

One of the brother’s told Ethridge, "I hope there is some good in you," Heward said. "He was not vengeful. He wanted to look Ethridge in the eye."

Family members of Cruz did not attend Monday’s hearing, but the judge read aloud a letter written describing their grief.

Ethridge in October pleaded guilty to two counts of first-degree felony aggravated murder.

He confessed to Ogden police that he killed Tingey and Cruz.

Trece injunction remains in force as courts hear case

Tuesday November 2, 2010 in Standard Examiner

OGDEN -- The Utah Supreme Court's refusal to block an injunction labeling Ogden's oldest street gang a public nuisance is only the first of many hearings still expected to challenge it.
The high court heard arguments Oct. 25 on Ogden Trece's motion to lift the injunction pending arguments on its constitutionality.
The injunction ordered into law Sept. 27 by 2nd District Judge Ernie Jones bans gang members from associating with each other in public, being in the vicinity of guns, drugs or alcohol and staying out past an 11 p.m. curfew.
Common in California and used in a few other states, the injunction approach is a first for the state of Utah.
In a one-paragraph, three-sentence order signed Monday by Associate Justice Matthew Durrant and released Tuesday by state courts spokeswoman Nancy Volmer, the justices simply said a request for a stay of the injunction was denied.
They did not rule on any of the arguments about the injunction's constitutionality filed by the Weber County Attorney's Office or lawyers for Trece, including the ACLU of Utah.
As County Attorney Dee Smith explained, the justices are still mulling whether they will hear the appeals of the ACLU and others representing alleged Trece members.
The case now returns to 2nd District Court and oral arguments scheduled Nov. 9 before Jones on the constitutional questions raised about the injunction. Many of the defense concerns also are pending before the state Supreme Court, Smith said.
"A lot of the issues are before both courts," he said. "But neither court is likely to wait on the other." Smith said he also "fully expects" the injunction to be aired in a full-blown trial setting before Jones at some point.
The opposition, led by the ACLU and the Salt Lake law firm of Parr, Brown, Gee and Loveless, depicts the injunction as unconstitutional in that it "criminalizes legal behavior" in banning gang members' First Amendment rights of peaceable assembly. The injunction also has been called "over-broad" for making illegal the possession of felt-tip pens as graffiti tools.
Randy Richards, a veteran Ogden attorney who specializes in appeals law, recently joined the opposition, which includes local lawyers Michael Boyle and Michael Studebaker representing accused Trece members.
Richards was also Smith's law partner before Smith was named county attorney to replace Mark DeCaria, now a judge.
"He's got a client, and I represent the county," Smith said. "It's as simple as that."
The injunction has so far brought only a handful of arrests as police work first to individually serve the injunction personally on gang members, estimated to number between 330 and 485.
Trece was formed in 1974 under the name Ogden Knights, according to the 331-page injunction that includes more than 100 pages of photographs of gang tattoos, graffiti, hand signs and clothing, and accuses Trece of everything from graffiti and loud parties to running a car-theft ring and several murders.
The Knights moniker lasted about a year, dropped in favor of the tag "Centro City Locos," read the court papers, and Ogden Trece was adopted as the gang name in 1988.

Centro City Locos is making something of a comeback, CCL turning up in gang tattoos and graffiti, as well as the usual derivations of O13, Trece being Spanish for the number 13.

Trece is the home-grown gang of Ogden residents. Their chief rival gang includes many illegal aliens from Mexico and Los Angeles and often challenges the Ogden gang's "unauthorized" use of the word Trece, officials have said.

The number 13 has significance for the latter gang, referring to the 13th letter in the alphabet, M, tied to the Los Angeles-based Mexican Mafia.