How Prosecutors Use Conspiracy and Questionable Testimony in “Gang” Cases

On average, two people are wrongfully sentenced every day in the United States. The Innocence Project was established in 2014. estimatedAround 120,000 people were wrongfully convicted while in state prisons. One in five wrongful convictions is a result of being wrongfully convicted. study found, were the result of official misconduct by police officers, prosecutors — or both.

New York City, which was at the epicenter of perhaps the most notorious wrongful conviction saga, the case of the Central Park Five (now known as the “Exonerated 5”), has seen dozens of people freed from prison. Many wrongful convictions were often caused by the actions and inactions of police officers. But what happens when someone is accused of being in a gang — and how might that make a wrongful conviction easier to fly under the radar?

Donnell Murray, the Consequences Police Harassment

After officers walked Donnell Murray into federal court, he waved to his mother, sat next to his attorney and combed through the day’s notes. The journey to trial was not easy. After more than two years in custody, Murray wanted to put the federal government’s case against him to the test.

Murray was born and raised in the Bronx. Like other young Black men, the entrepreneur worked with friends that he’d grown up with to make music and the street fashion that went along with it. The federal government would eventually claim that these friendships were part of a criminal conspiracy to murder Black men.

Murray was living and working in Delaware as of 2017. Because of constant police harassment, Murray’s mother had forced them to leave the Bronx. They found out that the New York City Police Department was searching for him. To avoid further trouble, he surrendered, not knowing the wild case that the feds had made against him.

He hasn’t been home since, charged with a shooting and narcotics distribution in a federal gang conspiracy case.

Murray’s road to federal court might have begun in the NYPD’s 47th Precinct in the Bronx. For years, according to his mother, his fiancée and his legal team, the precinct’s officers harassed Murray. A pattern of targeted stop seems to be the result of a late-night fight years ago with a high-ranking 47th Policect cop.

Murray’s former lawyer, Frank Iannucci, helped him fight some of the harassment. Iannucci, who died in 2015, was a former assistant district attorney from the Bronx District Attorney’s Office. According to his own admission, he was pro-law enforcement and police. Iannucci was a private criminal defense lawyer and represented Murray.

Iannucci filed a complaint against NYPD Internal Affairs in 2010 on behalf of his client. According to transcripts of Iannucci’s meeting with Internal Affairs Bureau investigators, early one Sunday morning in 2007, Murray and some friends were eating at a popular after-hours Bronx diner. As they were about to leave, they met Patrick McGill, a 47th Precinct Sergeant who was there for a different complaint. An argument between McGill and Donnell’s group ensued.

Iannucci says that McGill next slammed Murray against a table. The cops then rushed to arrest him. Sergeant McGill claimed Murray had attacked him. Iannucci claims that Murray assaulted Sergeant McGill. However, security video shows that Murray was first touched by the sergeant, prompting a skirm.

The assault case ended in an acquittal, but Murray’s problems with the 47th Precinct were just beginning. There were a number of other questionable arrests and car stop investigations that followed. Iannucci told investigators that one 2008 arrest was for an assault in which Murray had actually rushed to help someone who had been jumped by police. According to Murray, the officers who arrived at the scene screamed, “That’s him, that’s him!” as they approached.

In 2009, plainclothes police officers stopped Murray in his car outside of a friend’s barbecue. They checked Murray’s driver’s license and released him. The next day, those same cops drove into his friend’s private driveway to confront Murray and insist he come down to the precinct for a more thorough check of his license, according to Iannucci. They also demanded that he bring his vehicle.

The 47th Precinct cops claimed that he was without a valid license and were going release him, but insisted on searching his car. They claimed they found a gun in Murray’s car. After many months, Murray was acquitted of gun possession. Murray’s family believes the arresting officers, including Officer Abraham Villavizar, planted the gun.

Murray’s fiancée, Destinee Ferguson, was with him during many of these encounters. She recalls seeing cops in marked and non-marked cars nod their heads when they spotted Murray. During one stop, she says, cops threatened Murray by saying, “Oh, Mr. Murray, if you would’ve run, we would’ve shot you.”

Donnell Murray's fiancé, Destinee Ferguson, speaking at a protest outside the U.S. Attorney's Southern District Offices, October 2020.
Donnell Murray’s fiancé, Destinee Ferguson, speaking at a protest outside the U.S. Attorney’s Southern District Offices, October 2020.

In 2012, cops pulled over and arrested Murray in his mom’s car at gunpoint with his infant son in the back. Darlene Murray, Murray’s mother, was going to the precinct for her car. She saw one plainclothes officer looking through her glove box. This she filmed in a widely viewed manner. video. Donnell Murray was a car dealer who also bought and resold vehicles. He also had cash in his glove box. That money disappeared, according to Murray’s mom.

Ferguson says that Murray was still waiting for her outside her home a few months later when cops pulled up to her house and claimed that they had a warrant. Murray was handcuffed by the officers and demanded that they take the car with them. “Donnell is not someone who’s gonna let them search his car. He is aware of his rights. They hate that. That adds fuel to the fire,” Ferguson told Truthout.

The couple insisted to police that Ferguson take the car and Murray’s property. Cops refused. Ferguson began to record the cops with her phone. “They got very upset,” she recalls. Murray was taken into custody by the police. One of the officers climbed into Murray’s car and sped off.

These incidents occurred during the height of stop and frisk policing under former Mayor Michael Bloomberg. Bloomberg for many years was known as “The Mayor.” rationalized mass stops in the city’s Black neighborhoods. Ferguson claims that Ferguson was afraid of the repeated stops. “I was pregnant. It made me really afraid. [Murray’s]Life. I felt like he was going down the same path as me. Sean Bell or something.”

“I feel like Donnell was set up by the NYPD, the 47th Precinct,” his mother Darlene told Truthout. “After that incident at the diner, they had it in for him.” She also believes that because her son had sued for wrongful arrest on multiple occasions and filed numerous complaints, this put a target on his back. She believes that he was included in the federal gang conspiracy trial as a result of intimidation.

It is not clear if the Internal Affairs investigations into Murray’s allegations went anywhere. Both Sergeant McGill and Officer Villavizar were interviewed by investigators. They were both represented by union lawyers for 16 minutes and seven minutes, respectively. The police department did no respond to requests for comment.

Donnell Murray's family and supporters at a protest outside the NYPD's 47th Precinct, May 2020.
Donnell Murray’s family and supporters at a protest outside the NYPD’s 47th Precinct, May 2020.

Cops are repeatedly accused in misconduct

Officer Villavizar, 47th Precinct, was what you would call an active cop. Numerous lawsuits alleging misconduct against Villavizar paint a picture about an officer who made aggressive arrests, but the charges were often dropped. Villavizar was one of many people who were sued over the course a decade.

According to the Associated Press, Villavizar was allegedly with his partner in 2008 when they allegedly violently arrested a Bronx resident. court documents. The District Attorney’s Office declined to prosecute that man, who then sued for wrongful arrest and settled with the city. Villavizar and another unnamed partner later that year forcibly arrested a Bronx man and woman, and subjected one to a strip-and-cavity search. court complaintAll charges were dropped. The charges were dismissed. Following the dismissal of the charges, a lawsuit was filed and a settlement reached.

Villavizar was one of a number of plainclothes police officers who allegedly approached furniture-moving people in 2012 to accuse them of using marijuana smell. After consenting for a search that did not turn up anything, Villavizar was released. lawsuit complaintHowever, the man was violently taken into custody and thrown from a police car onto concrete. This case was dropped.

Later that year, Villavizar and another officer arrested someone at gunpoint who told investigators that cops demanded he show them his hands as he walked to a family member’s house. After showing them his empty hand, court documentsSay that he was still arrested by the police for marijuana possession. The charges against him were dropped.

Villavizar, along with an unnamed officer, were named in a troubling suit in 2013. The two men, dressed in SWAT gear entered an apartment in Bronx without a warrant. They arrested a woman and an unnamed “infant-plaintiff” (most likely a minor), placing both in handcuffs, according to a lawsuit. The woman was accused of marijuana possession. Those charges were dropped and the woman’s lawsuit against the city was settled for an undisclosed amount.

The CAPstatAccording to the police misconduct database, Villavizar has been the subject of at least eight lawsuits. These lawsuits amount to at least $240,000 in settlements. Half of Villavizar’s known lawsuits were either settled for undisclosed amounts or the outcome was unknown, which suggests the total amount settlements could be much higher.

And yet it was Villavizar whose testimony in the conspiracy case would be used to connect Murray — who never had a gun conviction in his life — to a gun.

One of the most important aspects of this article is actually lawsuitsMurray filed suit against Villavizar following the 2010 gun possession arrest in the precinct. Not only was Villavizar’s gun charge dismissed, the city settled Murray’s lawsuit for an undisclosed amount. Prosecutors would still call Villavizar to testify to the federal jury about that arrest, as Murray was portrayed by them as a gang member with a gun charge.

Federal prosecutors were ordered by the trial judge to provide information regarding past lawsuits against police witnesses. wrote that doing so “would be unfairly prejudicial and would waste time and cause juror confusion.” They downplayed Villavizar’s past, writing that, “from conversations with Officer Villavizar and a review of publicly available documents, the Government is aware of one unrelated lawsuit, which was dismissed.”

The judge agreed to the prosecution. The jury didn’t hear about Villavizar’s pattern of questionable arrests or the lawsuits filed against him.

In an emailed reply to Truthout, a spokesperson for the U.S. Attorney’s Office wrote: “Allegations in civil lawsuits are just that — allegations. They are often irrelevant to criminal cases. In Donnell Murray’s case, we agreed with defense counsel and the judge that one lawsuit related to … Villavizar was relevant to the case and defense counsel was permitted to cross examine him about it. We also informed the Court of multiple unrelated lawsuits, which defense counsel first identified, and the judge found were not useful for cross examination.”

Donnell Murray’s mother, Darlene Murray, speaks out for her son at a rally in New York City.
Donnell Murray’s mother, Darlene Murray, speaks out for her son at a rally in New York City.

Cops without credibility are not allowed to testify in court

New York City has long had a problem with cops who have a shady history of testimonies. Police credibility has been an open issue in BrooklynThe district attorney continued to prosecute arrests of officers accused in evidence tampering and perjury. Manhattan prosecutors were forced by public pressure to publish lists of “bad cops” whose testimony is suspect. A WNYC/Gothamist investigation into the Bronx district attorney’s use of “bad cops” included a gun case where an officer’s testimony was contradicted by video but was prosecuted anyway.

The federal level continues to be plagued by problems. Assistant U.S. Attorney Jessica K. Feinstein, whoIn Murray’s trial claimed the government knew of only one lawsuit against Villavizar, had previously argued against officer misconduct being entered into evidence for other gang cases.

As reported in The Appeal, Feinstein argued that the credibility of NYPD Detective Jeremiah Williams, whose prior gun arrest of Carletto Allen in 2015 was key in Allen’s federal gang trial, was not sullied by the fact that Williams had been sued numerous times. Allen was indicted during the 2016 trial. Bronx 120 gang sweepThe largest gang takedown in the city’s history. Allegations against Williams ranged from needless anal searches to smashing someone’s head against a police car.

While Allen’s lawyers suspected foul play, specifically that Williams may have planted a gun on their client, he was nonetheless convicted in large part due to the testimony of the detective, the only person who could tie him to a gun — like Villavizar in Murray’s case. Williams was also the subject in at least eight lawsuits, just like Villavizar.perhaps moreAccording to The Appeal.

But because all of those lawsuits were settled, Feinstein could (and did) argue that there was no admission of guilt; hence, Williams’s testimony was credible.

Feinstein’s penchant for relying on testimonies of cops with murky histories even included a case where one may have been a flat-out racist. Her prosecutionDonque Tyrell, another defendant in the Bronx 60, relied partially on testimony by David Sammarco, a police officer. Sammarco has at least 35 allegationsof misconduct, has been named at least six federal lawsuits and was accused by one of Donnell’s co-defendants of stopping and spitting on him.

According to evidence presented at trial Officer Sammarco appears to have also maintained an active social media presence via the (since removed) Twitter account @ObamaHater55. This account posted racist memes about Colin Kaepernick as well as Muslims. Though Tyrell’s attorney tried to bring up the cop’s social media posts, they were excluded from the trial as irrelevant (the cruel irony being that social media posts are often used as evidence against defendants in gang cases). As in other cases, Sammarco’s testimony helped Feinstein connect Tyrell to a gun.

Screenshots of NYPD Officer David Sammarco's since deleted Twitter account, "Obamahater55."
Screenshots of NYPD Officer David Sammarco’s since deleted Twitter account, “Obamahater55.”

You may have noticed a pattern in which cops with questionable pasts are used to testify in gang cases. Williams, Sammarco, and Villavizar all worked out of 47th Precinct. But testimony from “bad cops” is just one piece of the puzzle prosecutors use to score convictions against those who are gang-accused. To accomplish this, the feds have a comprehensive legal framework.

How Prosecutors Use Conspiracy in Gang Cases

Former Southern District Judge Billings Learned Hand wrote almost 100 years ago that conspiracy laws were the “darling of the modern prosecutor’s nursery.” Decades later, federal prosecutors turned racketeering laws, made possible by the 1970 Racketeer Influenced and Corrupt Organizations Act(RICO), into the new darling

While conspiracy laws liberalized standards of proof and allowed prosecutors to connect multiple defendants to a crime, RICO enabled the lumping together of people as an “enterprise.” RICO was created to peel away the power of organized crime. Prosecutors, like former U.S. Attorney Rudy Giuliani, used it against Mafia leaders who ordered crimes but didn’t necessarily commit them themselves.

While RICO may have turned the tide against the Mafia, it didn’t end there. RICO’s reach targeted labor unions, pharmaceutical executivesEven the alleged conspiratorsThe scandal surrounding celebrity college admissions. RICO’s footprint in communities of color, however, has arguably been the most devastating.

In the 1980s, prosecutors began using RICO to prosecute street gangs, even though critics were skeptical. arguedThis was an exaggerated application. Most street gangs didn’t affect interstate commerce, required under RICO, and were unlikely to be able mount the costly legal defenses that mobsters could. How, one might ask, could police be trusted to identify who was in a gang, what crimes were “gang-related,” or even what a gang was?

There were also cultural and political undertones. RICO was used against groups formed from Chicago’s Almighty Black P Stone NationThe Black nationalist group, as also known as the Latin Kings, who were getting involved in police violence protests against Rudy Giuliani, the former New York City prosecutor in the 1990s. BiasSome suggested that this could lead to a confusion between hip-hop music gangs and groups. The Giuliani administration villainized the legendary hip-hop collective Zulu Nation, calling it a “gang,” and the FBI once tried to build a RICO case against the Wu-Tang Clan.

In 2012, the NYPD intensified its anti-gang efforts and partnered with federal authorities. Murray’s trial and those of his co-defendants were charged as Mafia leaders. This is perhaps the best example of what happens when police or prosecutors use their most powerful weapons against young Black men.

Some days, the rear doors of Judge Paul Gardephe’s court would swing open to reveal Murray’s fiancée and their 7-year-old son, Adon. They sat in the courtroom as Feinstein painted Murray’s life as one of violence and drugs. Murray, Brandon Green and Latique John, his co-defendants, had all been sentenced to decades in prison for going to trial. Most don’t. By one count97 percent of federal cases are resolved by a plea bargain.

They had a very difficult task. Conspiracy and RICO lower the burden of proof for prosecutors, who essentially only have to convince a jury of a crime that benefitted an “enterprise.” Another important advantage for prosecutors is the ability to allow normally inadmissible information, hearsay (someone testifying as to what someone else said), into court. RICO also allows prosecutors to prove the existence of an enterprise by discussing bad acts of people who aren’t even on trial.

The linchpins to hearsay are cooperating witnesses, or “snitches.” With the Mafia, the threat of RICO and mandatory minimums turned some low-level soldiers, sworn to never snitch, into snitches. However, the use snitches is not new. been spotlightedAs extremely unreliable, coercive, and the basis for many false convictions. The practice has been so ripe for abuse that desperate prisoners have often offered testimony against people they didn’t even know — sometimes testifying in cases they’d only read about.

Prosecutors can create a web of guilt by relying on snitches. In Murray’s trial, cooperators testified about the alleged gang, the Bloodhound Brims. However, all were facing federal sentences and received “5k1” lettersIn return for their testimony, the government will recommend that they be sentenced to lighter sentences. Some of those who spent life in prison might now be able to get out with time served. Pat Daly? an ex-cop who’d become addicted to crack and indicted in the case,He testified that the gang ran drug operations from his home in upstate New York. He was issued a 5k1 notice.

Several cooperators struggled to take the witness stand at the trial. Two key cooperators were serial snitches. One complained about being re-indicted under RICO for a crime for which he’d already served a state sentence. Others offered conflicting versions of the gang’s structure. One cooperator said Murray was a leader of the gang, but another said he didn’t have any standing in the gang. At least two didn’t know who Murray was. All received 5k1 letters.

Prosecutors claimed Murray was part of a 2012 shooting. To prove Murray’s culpability, they brought a jailed cooperator to the witness stand who claimed he overheard Murray brag about it in prison. Murray was also connected to the shooting by another witness that prosecutors used. The judge later reacted to this testimony. called him the worst cooperator he’d ever seen. The cooperators’ testimonies were the only sources of evidence connecting Murray to a violent act.

Presumption that Guilt is a Fact

After weeks of trial and many hours of deliberation, all three co-defendants were convicted of most charges but not all. Murray was convicted of racketeering conspiracy. However, the jury did not find that he attempted to murder as part of the conspiracy. Murray was convicted in the end of racketeering conspiracy, narcotics conspiracy, and gun possession. This could lead to a life sentence.

Murray’s mother, devastated by the conviction, remained hopeful because he wasn’t facing a mandatory minimum. His attorney argued for five more years. Murray was sentenced to 19 years by Judge Gardephe, which would make him almost sixty-five when he is released.

Throughout the trial, the presumption of innocence seemed purely theoretical — to be in a gang was a sign of guilt, with the details to be sorted out later. There are gangs in Bronx. During the trial, there was acknowledgement that the gang in issue was real. Murray and Latique were childhood friends with similar aspirations in music and clothing. The jury was convinced that they were a criminal organization.

The appeals process could take many years and is now the only hope for the defendants and their families. The trial, which was fueled by decades-old tactics for the Mafia, and testimony from cops with a history of abuse, leaves a bitter taste.