Music on defendant's cellphone is not evidence of gang ties, state high court rules
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You can’t use music on someone’s cellphone as evidence that he has a gang affiliation, the Washington Supreme Court ruled Thursday.
Octavio Robledo and two brothers, Ricardo and Anthony DeLeon, were charged and convicted of first-degree assault, Ars Technica’s Law & Disorder blog reports. After their 2009 Yakima County arrest, they told jail officials that they could not be placed in a cell with rival gang members, and the government used those statements at trial to prove gang affiliation. The men appealed, seeking to throw out the evidence based on their Fifth Amendment right to not incriminate themselves. The briefings included government evidence that Anthony DeLeon had songs on his cellphone by Los Tigres del Norte, whose work includes ballads about drug trafficking.
“This evidence was cited by the court of appeals as ‘untainted’ evidence of gang membership. We find this conclusion troublesome,” the Washington Supreme Court wrote in its opinion (PDF), going on mention the band’s commercial success. “There is no support in the record for the contention that enjoying their music is evidence of gang involvement. While this may not be the primary issue in this case, we felt that it was nonetheless important to take this opportunity to remind courts to exercise far more caution when drawing conclusions from a defendant’s musical preferences.”
The opinion also reversed the appellate court finding that admitting their holding cell requests as evidence was a harmless error made by the trial court, since there was other evidence, including the cellphone music, about their alleged gang affiliation.
“In this case, the defendants made self-incriminating statements to avoid a credible risk of physical violence,” the top court wrote. “By their very nature, such statements cannot be considered voluntary, and they should not have been admitted.”
The men were accused of participating in a drive-by shooting that left one man shot in the stomach. Joseph Brusic, Yakima County’s prosecutor, told the Associated Press that there was other evidence proving the three men were in a gang, including their clothing and tattoos.
The shooting included a high-speed police chase. According to the three defendant,s they weren’t involved in the shooting, and police stopped the wrong vehicle. Police did not find a gun or shell casings in the vehicle, according to the opinion. Officers did say they observed something being thrown from the car, but they didn’t find anything.
Because of the alleged gang affiliation, Robledo and Richardo DeLeon received enhanced sentences of 53 years, while DeLeon, the driver, got an 83-year sentence.
