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Judges should avoid creating insufficiently-supported truisms

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Bill of Rights. (From the public domain.)

News and lore report MS-13 to be beyond violent, depraved and heartless.

Judges, however, are not journalists nor professional storytellers. Their job is to judge cases, and to do so fairly and with meticulous adherence to their oath of office.

Why, then, did the Fourth Circuit yesterday unnecessarily tell a story — and an interesting and deeply disturbing one at that — as if it were fact about how MS-13 truly operates? U.S. v. Ayala, ___ F.3d ___ (4th Cir., April 8, 2010). Instead of saying that the trial evidence at a RICO/VICAR case presented this and that testimony about MS-13 — which the defendants were found to be members of — the court said:

La Mara Salvatrucha, otherwise known as MS-13, is one of the largest and most violent street gangs in the United States. The gang originated in Los Angeles, California in the 1980s. Since then, it has spread across the country and into foreign countries such as El Salvador, Honduras, and Mexico. Today, it has a large presence in the eastern United States, including parts of Maryland and Virginia.

Violence defines MS-13’s mission. The gang initiates its members through violence: existing members beat up the new members for a period of thirteen seconds. This ritual is meant to signify the beginning of a new, more brutal lifestyle. Once initiated, MS-13 members commit violent acts to defend the gang’s territory against its rivals and to spread fear so that citizens do not report the gang’s activities to the police. In fact, gang members are required to attack and, if possible, kill rival gang members whenever they see them. MS-13 members gain status within the gang through their willingness and ability to commit such violent acts.

The gang maintains internal discipline through the use of violence as well. Members who do not follow the rules are routinely beaten, and those who cooperate with the police face penalty of death. The violent nature of MS-13 is captured by one of its mottos: “mata, viola, controla” which means “kill, rape, control.” 

MS-13 is organized into local cliques. Each clique has two leaders: a “first word” and a “second word.” The first word is responsible for running the clique’s meetings, and the second word does so in his absence. At clique meetings, MS-13 members report on their violent activities which often include murders and robberies. The gang also discusses ongoing police investigations and devises ways to prevent others from cooperating with the police. In addition, members pay dues at meetings, which the clique uses to buy weapons, make loans to members, and support members who are in jail. 

Leaders of the various cliques frequently communicate and coordinate with one another to achieve the gang’s objectives. They provide each other with material support, often in the form of guns or places to hide from the police.


Unfortunately, when appellate judges repeat themselves enough with unsettled and questionable factual findings — including the hole-riddled federal caselaw on probable cause to search after smelling unburnt marijuana — trial courts are likely to follow suit, leaving present litigants to suffer for any foibles, lack of resources, or bad luck of the judge-draw by their predecessors who got hit with harmful caselaw.

The above-italicized language from Ayala may or may not be fully accurate about MS-13. However, criminal defense lawyers defending alleged MS-13 members in future cases will be disserved by Ayala’s painting MS-13 as if the painting depicted incontrovertible fact, rather than saying that the court’s description came from the prosecution’s “expert” testimony presented about the groups but not from gospel.

ADDENDUM: As an aside, Ayala addresses alleged MS-13 activity in Montgomery County, Maryland, where I live and work, and neighboring Prince George’s County, where I started my criminal defense career nearly nineteen years ago. One of my drug felony clients sported MS-13 tattoos. The jury did not hear that, and the judge said he would not consider it for sentencing. I said it is a free speech matter, and does not confirm whether my client was a member of the group (just as my wearing a necktie does not automatically mean I am one of Brooks Brothers, which I thankfully am not).

We can scream and holler all we want about violent gangs, real and imagined. The criminal justice system won’t solve the problem. The overpopulated “deport-THEM-all” crowd won’t either. I have said repeatedly that the American criminal justice system is overcriminalized. The most powerful way to reduce violence in society is for each person to reach out to others in need. Otherwise, rampant violence will continue, and convicting and jailing people for violent crimes will just be a band-aid that barely covers the wound, and that does little to prevent new wounds. Jon Katz