Episode 5: The Sanchez Problem

for which the railroad was clearly responsible. My father's job was to minimize the amount of money that the railroad had to pay to the employee. My dad went hunting for a creative defense. I don't know where I got the idea, but the idea was that handicap people I can still work. That's my dad, Tom Lewis. His hunt for a creative defense led him to Nashville, Tennessee, where he found well, he actually found an expert who trained people with no arms to do lots of amazing things.

This expert promised to show any jury that it wasn't a big deal at all to lose your arms. You could still do so much. My father was so impressed that he flew the guide in New Orleans and put him on a witness stand as an expert witness. And he said, oh, yes, he said, and then he started to give me exam that this is on the stand for example, says he. I deal with the man who had lost the use of his arms or hands, and

we taught him to type with his toes. When I was a kid, my father used to really ham it up. He had rolled back in his chair and raised his feet high in the air. Because this expert was apparently truly enthusiastic about his expertise, my dad would lift his feet high over some imagine giant typewriter to show how

ridiculously easy it was to type with your toes. The problem was it didn't really look easy, and it was apparent even to me in my naive state at that time, that that was not going over well with the jury and the railroad got cloverty. To my kid brain, this story had a couple of takeaways. Apart from the obvious one that my father wasn't cut out to help a railroad screw over a man who'd gotten hurt on the job, My biggest takeaway was how well our system of justice worked.

The railroad was forced to fork over a huge pile of money, and the expert had helped the jury to see the truth, which is what experts are supposed to do. Right. I'm Michael Lewis, and this is against the rules My show about on fairness in American life. This season is all about experts, and today's show is all about a special kind of expert, maybe the most official kind, the

expert witness. A decade ago, some law professors set out collecting data on all wrongful convictions in the United States, the National Registry of Exonerations they called their project. They only collected data going back to nineteen eighty nine, that was the first year that DNA analysis could offer definitive

proof of a wrongful conviction. They've now counted more than three thousand wrongful convictions, three thousand people sent to prison when they should not have been, almost twenty seven thousand years spent behind bars, all by people who should never have been there in the first place. And that's obviously just the tiniest sliver of the problem. These were the people who were able to find people to help them. Even with this small sample, the law professors could see

some patterns. The reasons why justice often miscarries in America, there were two big ones. The first reason isn't all that surprising the behavior of the police. They are intimidating and threatening suspects. They're intimidating and threatening witnesses. Simon Cole, a professor of criminology, Law and Society at ucu Arne, now runs the Exonerations Project. They're getting people to lie, they're hiding evidence, just a whole litany of kind of

behaviors like that. The second reason for all the wrongful convictions was a bit less obvious, the expert witnesses who take the stand in trials and help the prosecution. In about a quarter of the wrongful convictions, the experts were

at least partly responsible. The classic one is microscopic hair comparison, where it's kind of well understood now that you could say a person might be the source of a hair, but no one in the microscopic hair comparison discipline would ever say, now that a hair must come from one person, from you, Michael Lewis, and not from any other person. But at the trial they say something like the defendants

the source of the hair. So they've greatly overstated the value of the evidence and what the evidence can do. People have been convicted and sentenced to life in prison or even death on the word of hair experts, bite mark experts, ballistic experts. Experts used to take the stand to claim with certainty that a fire was arson. Then actual science proved that the fire experts were almost always wrong. A bunch of people were convicted for setting fires that

were not in fact set by anyone. It's not that the expert witnesses know nothing, is that they don't know nearly as much as they claim. The FBI pulled a bunch of its transcripts from its own experts and said, we're going to go through these transcripts and see if they testified erroneously. Again, it doesn't mean they made an error in the hair analysis. It doesn't mean the guy was innocent. It doesn't mean the hair wasn't from the guy.

But did they overstate the testimony right? Yes, they did in ninety six percent of cases, right, every all the time. And this is the FBI. If they're experts are screwing up in this way, it's hard to imagine that most other experts aren't as well. It seems to be like across the board and these expertises that it's just a systematic overstatement of one's level of certainty. And I'll tell you why I think that is right. I think the

lawyers try to make you do it. That's their job to get the expert to go as far as they can get them to go. I mean, they want the expert to say they're certain. Back in nineteen eighty eight, the state of California passed a new law. More than thirty other states would go on to copy it. The new law allowed prosecutors to demand extra prison time for anyone convicted of a crime committed on behalf of a gang.

If you robbed a gas station, you might get seven years in jail, unless you did it for a gang, in which case you might get twenty years. These so called gang enhancements affect roughly twelve thousand inmates just in California right now. Ninety two percent of these people serving

extra time or Black or Latino, an amazing statistic. So for the past thirty years, American juries have had to decide not just whether a defendant is guilty or not guilty, they also have to decide gang member or not gang member? Did he rob the gas station for the gang or just to pay for his drug habit when he committed his crime, what exactly was going on inside his head? To figure it all out, courts have relied on a new kind of expert, the gang expert. For thirty years.

That expert has almost always been a police officer, almost always a male police officer, and this officer almost always testifies that he's sure that whatever crime was committed was for the benefit of a gang. I don't know, Maybe it's just me, but I'd have thought it's at least possible to find someone out there with a clearer sense of the motives of the kids who wind up in gangs, someone who's actually had the experience. Okay, so we're gonna we're gonna get out of the car. Lja's gonna take

our phone. All right, we're going that way, right, we're headed towards the overpath. It's actually not all that hard to find someone like that, someone who's actually had the experience. My producers did it in less than a day. So whose territory are we in now? You're still in Shelltown. Adam or Terra is a former gang member of San Diego, Shelltown,

the thirty eighth Street branch. There are two branches of Shelltown, So you have Shelltowen, which is the neighborhood, ye, and then you have the two branches this thirty eighth Street and Gamma Street. So you're gonna see the Gang refeed, you're gonna see a lot of the Three eights, and then you're gonna see the GBS, which is Gamma Boys, and then Gamma Streets you see on the floor where

you're walking. Yeah. Yeah, Adam lives in La now, but he's giving me a tour of his old neighborhood over FaceTime. I'm walking through a part of San Diego that some urban planner had once clearly hoped would be a park, but instead it's become a place people avoid at night. It's nestled beside a freeway overpass, and so there are lots of concrete surfaces and just about every inch of them is covered in graffiti. To me, it's just an incoherent mass of shapes and letters. To Adam, it's a language.

You see the GBS right there, Uh gbs, Yeah, right there, it's GBS. Gamma Boys. That's the Gamma Boys all right, Yes, So if you keep walking and I'm probably are you going to see Youngster's name right there? Because I'm pretty sure I saw it when I was there. Oh yeah, there was that youngster. Youngster, that's the name of someone with a talent for spray painting, who Adam has taken

an interest in. Why, I'll explain in a minute. For now, I just want you to listen to a guy who knows a lot teaching me a guy who knows nothing. And what's the ax over the end? Did someone try to ax it out? They put an X over the end because one of the rivals of Shoutown is National City. At an end, they put an X on it as a form of disrespect. God, there's so much meaning in this thing. And why is there an X on the

bottom of the y that part? I don't know. I was walking down under the freeway into what amounted to the museum's main gallery. Adam was taking a trip down memory lane to a time when it was his name on these paintings, Perico. He signed himself little Parrot because his older brother was the big Parrot. So I started off with writing gang graffiti on the walls. Get it into some fizz fights. Up until about the age of fourteen, Adam would have defined the word gang. It's just the

people he hung out with. He'd adored his ad but his dad had vanished when he was five. Shelltown was shockingly dangerous To keep safe, Adam stuck close to his older brother and his friends. Without them, he was likely to be robbed or beaten or worse. I was shot at a few times, and then when I got shot at, I realized this is very serious and I need a weapon that is more in line with what's going on

in my life. And because of the violence became so intense, I started carrying a weapon, which was a pistol a gun. But his main activity for years was this graffiti. That was how you showed your devotion to the gang when you were a little kid, by painting the gang symbols all over the place. On days he was feeling reckless, Adam would sneak into the territory of rival gangs and paint on their walls. So tell me which you did

that got you in trouble with the law. Okay, initially I got arrested for possession of marijuana at fourteen, vandalism, writing on the wall, gang graffiti, assault with the firearm on three people, and ultimately I committed a gang related murder when I was seventeen years old. Was it against the rival gang member? Yes, it was against the rival gang member. So some gang members included my older brother.

We're in front of my house one evening, drinking, talking, shooting dice, typical hanging out, and a rival gang came and shot at them and hit a few people. My grandmother was home, my brother's wife, his child, his newborn daughter was home. So me and my rage I went looking for those rival gang members and I found one of them, and I am responsible for taking his life. Adam pled guilty to murder back in nineteen ninety one. His sentencing was complicated because he was still a miner.

He remembers the system trying to figure out if there was any hope for him, and one of the psychological evaluations, the psychologist asked me, if you could do anything, if you could have any impact on the world, what would

it be. And I remember telling them I would help address the ozone later because at the time that was a big problem in nineteen ninety one, and it really really threw him off because he was expecting something completely different, and he told me, like, you know what, we're really different. You are the average gang member, but at the same time you're not. Adam is still only seventeen years old.

His lawyers argued that he should be released at the age of twenty five and given another chance, but he was tried as an adult and the fact that he had been in the gang probably didn't help his case. He wound up being sentenced to life in prison. Behind bars, he remained affiliated with his old gang, but more and more as an anthropologist of gang life than as a member. He learned everything he could about gang culture, gang sociology, gang law. He was a model p and in twenty thirteen,

after twenty two years, Adam was released. He knew exactly what he wanted to do with the rest of his life. He wanted to work with kids in gangs to help them avoid what had happened to him. He founded a nonprofit called the Juvenile Justice Advocates of California to work with kids who are already in trouble. He became known to social workers, and they'd asked him to speak to various groups about his experience. After one of these speeches, a member of the audience came up to him. She

said she was a public defender. She wanted to tell him about a case she'd just been given. A twenty three year old San Diego man had been arrested for vandalism. By sheer coincidence, he was in the same gang that Adam had been in. Graffiti was usually a misdemeanor, but this guy had allegedly painted so many walls and buildings that he was being charged with a felony, and that

meant the possibility the gang enhancement to his sentence. The guy's given name was Alejandro Loza, his street name was Youngster. They had pictures of him, and she was like, did one person do all this gang graffiti? And why would you know anything about that? Like that sound like something that like I don't know, an art connoisseur would determine, like this hand is different from this hand. How would you How would you know any more than anyone else?

How much of the graffiti he did? Me personally, I would know because I was I did gang graffiti, so I recognize different lettering styles, different artists. Youngster's defense attorney wanted Adam to testify at trial as an expert at witness. She could see that Adam knew as much about San Diego's gang graffiti as a person could know. But Adam hadn't the fakest idea of himself as an official expert. How to sound like an expert, how to persuade others

that he's an expert. It's prised him that he'd be invited into a courtroom except as a defendant. Like, what even were the rules about who got to take the stand? Adam would learn all that, and we will too after a break. There are kind of two distinct phases in kind of modern American legal history. Emily Shulman is an expert on expert witnesses. She also lectures at Harvard Law School. She's here for a very brief lesson on what qualifies

as expertise in the court. For a surprisingly long time, there was one case, that Supreme Court case that governed evidence law, and that was called the Fry case. And so it was experts had to satisfy the Fried test. What was the Fried test? You know, boiled down to its essence, it really just said that expert witnesses could testify if what they were testifying to sort of their expertise was generally accepted in the scientific community. So it's

related to science right from the beginning. That was it, That was the yardstick. So I can't be an expert on horoscopes. Not on horoscopes, No, not on horoscopes, but you could claim a scientific basis for all sorts of other stuff bite marks Arson. All you needed was a cluster of people in your field to agree that what

you were doing with science. Handwriting analysis, for example, little cottage industries develop and you know, one handwriting experts as yeah, there is such a thing as handwriting expertise, and the others says, yeah, I agree with you, and you know, the next thing, you know, you have a little handwriting expert kind of community that is doing pretty well for itself. And there you have it. Under the cover of science.

A lot of dubious experts got paid to serve as witnesses, and in criminal cases, these experts overwhelmingly serve the prosecution. That changed in nineteen ninety three when a mess of a case based on pseudoscience got appealed all the way to the Supreme Court. Ultimately, the Supreme Court said, yeah, we're no longer going to just kind of roll over in the face of scientific consensus, like, we have our

own standards to uphold. And the kind of new view was that experts could testify if their testimony was going to be helpful to a jury and they were offering scientific or technical or some other kind of specialized knowledge to the jury. So now the trial judge decides who can be an expert. This, of course, just substitutes one

problem for another. It's still a highly subjective process, but a telling process because the courtroom is the one place in American life that tries to be super precise about experts. An expert who lies on the stand can, in theory, go to jail. And yet even now the justice system has trouble figuring out some very basic things about experts. Okay, everyone, welcome to the first substantive part of the independent Fence

at Gain Expert College at Loyal Law School. Sean Kennedy is a former public defender now an associate professor of law at Loyola Law School in Los Angeles. This is going to be expert witness, one on one, and I'm going to tell you how and why I believe every single one of you is ready right now to day to qualify as a forensic gang expert in a state and federal courts. In California, Sean's in a zoom box, and in a dozen other zoom boxes, a dozen former

gang members watch Sean talk. He starts by explaining the problem, which they all more than understand. The cops who serve as gang experts often don't know much and never know as much as they claim to know. Peak absurdity came back in two thousand and sixteen in a case involving a man named Sanchez and led to what got called

the Sanchez problem. And the Sanchez problem is a police gang expert case where the cop went up there and testified everything in this trial is all about the defendant did everything because it was for the benefit of the street game. But the cop had no interaction with the case. He didn't know the defendant. He didn't do any investigation, didn't do any preparation for his testimony. He just got up there and repeated what was on the police report

and said, I'm an expert. After Sanchez, the California Supreme Court ruled that anyone who wanted to be a gang expert had to know something about the case, about the defendant, or at least about gangs. Hence Seawan Kennedy's training class. So we need some new experts. You are those experts. Shawn's held a bunch of these classes. This one's online and the students are all women. Shan lays out the stakes and then leads them into the meat of the course,

a role playing game. So let's try it. Do I have anyone of our experts, buddy experts, who wants to qualify the way it would be done in court. Just just raise your hand, qualify, submit your credentials as an expert. There aren't any hands. I'm seeing some smiles, Jessica, you're ready. Let's give it a shot. All right, So you're on the stand, you have been called, you have stated your name, and you've been sworn in, and so I'm going to qualify you as an expert. Okay, could you tell us

about your education? My education was I received a GD and I'm currently a college student. And I was I grew up in a gang infested neighborhood. Do you have any personal experience with gang involvement? Yes, I do. UM joined a gang and at seventeen I was arrested. What gang? What gang? I'm sorry, Um, do we have to say this. I'm sorry, we're in court, that's the question. Sean's just being a lawyer. But their response is the opposite of the guy who taught people to type with their toes.

They're not full of conviction or enthusiasm, and that makes sense. To testify is to violate the basic codes of the street. How did it feel, Jessica, I'm not comfortable with, you know, speaking to anybody who's in a position to to ask me a question like that's very uncomfortable. UM. I felt like I sensed you as as an attorney, and I don't I mean no disrespect to you shot, but from a white male in a suit, it just feels like it's coming led up or or somebody in authority figure. Yes,

no disrespect taken. But when you were there, you were feeling the heat. And I'm your lawyer, I'm your friend, and I we're just talking about you know, your qualifications. We haven't even got into the substance of the matter, and you're feeling the heat. What's it going to feel like when the DA stands up and tries to make fun of you on cross examination? It's not rhetorical Sean's just getting a lot of blank stares here. I want you to understand this, Professor Kennedy. It's just that this

is the first time that we're on this side. A lot of times, everything that a person has ever said in their life, especially being black or Latino, have allus been used as a weapon against us. So I don't want you when you hear Dominique or you can hear Jessica and they're kind of hesitant. It's not that they don't trust you, because they wouldn't even be in this process if they didn't trust us in the process. But it's just, you know, working through these things, working through

these things, learning how to articulate these things. The Sanchez problem was about cops with no knowledge saying that they knew. This class is just the reverse people who actually know a lot and can't get it across because it's not just who knows, it's who's willing to say that they know. And it's not easy to say that you know when for your whole life you've been told not to say anything. Plus no one in power ever really thought you were worth asking. Can you please tell the court now what

that experience is? My experiences I'm an inactive gang member. I was involved with Uh the um oh man, the it's kind of you get a little nervous. I'm sorry, Um, don't break, don't break character. We're in court. Just say how to feel. Oh my gosh, for like trial, you are on trial. You are on trial. Right, you're an expert. Okay. Is there a way we can do more um mock hearings like this because it was a little intimidating. Yeah, um.

And I don't want to I don't want to feel like that, Like, I want to be able to articulate myself in a professional manner. I want to be able to address that in a way to where it sounds like I'm educated, where it sounds like I'm educated. She's not worried about what she knows. She's worried about how she seems to others. I thought, coming in, I mean just me, I thought, come in, they would know that they were experts. Marissa Harris works with Sean Kennedy at

Loyola's Gang Expert College. It took about a full class until we got to the end of the first class for them to start typing in the chat box on Zoom or raising their hands to say, you know what, I could do this. I'm definitely an expert. I know everything you're talking about. I remember all of this. The people who have the lived experience should be the experts.

They are the experts just there. You know, existence makes them experts, and so all they really need is some legal tools and you know, polishing, and they're the ones who should be in those chairs. It's all new. This training. People talk about structural racism. Here's a byproduct, structural expertise ism. It'll take months before any of these students get to a witness stand as an expert. But before this kind of training even existed, a few people were taking the

stand anyway, and one of them was Adam Mortara. Against the rules. Will be right back. Let's go back to twenty and eighteen. A public defender had asked Adam Mortara to testify as a gang expert in the trial of Alejandra Loza aka Youngster. Adam really studied Youngster's work and his case file. The guy was not exactly a model citizen. He'd beaten someone up, he'd been arrested before, he had a drug problem. But his graffiti, to Adam's eye, the

graffiti was really good. The tag that Youngster used though we looked pretty common. Adam kept pointing it out to me on our FaceTime tour. There it is right there, there's see now there's a version of youngster. You see the difference. There's a thirty eight under that, or it's not the same youngster because it's a different branch. Right, Youngster was from Gamma, Right, this guy is youngs and

he's from thirty eight. The police had caught Alejandroloza tagging red handed, but they'd accused him of a lot more than they'd caught him doing. And when Adam compared the graffiti youngster was known to have done with the graffiti he was just suspected of having done, he noticed some differences. I mean, there was just a bunch of different ways

of the name young or youngster or youngs. And what I was, what I believed was that it was really more than one youngster or youngs, that it was baby too, and what was older and what was younger. If I came in here with a cop and said explain all this to me, how well you think they do? They do pretty well? You think they do pretty well, They're not always they can decipher this stuff. They could, Yeah, they could, because it's pretty it's pretty basics. Nothing that

I just sold you is complex at all. No, you're right, but but it means making some distinctions that um that people don't normally make. Yes, and it means actually, it means actually looking at it. It's funny because this is sort of background noise in American life that this this stuff is everywhere, and I'm just I'm kind of blind to it unless it's something that's just strikingly beautiful. I just think I was someone someone to face that highway.

But that's not where that person is thinking. That person is thinking, I've actually communicated something pretty specific here, and some of its gang related and some of it's not. Some of it is by who it says it's by, and some of it's by some imitator. You can really see that, and you could tell some of the distinctions because you're actually interested. Now, law enforcement they see exactly what you see. They see the distinctions, but they don't

say it's possible that it's more than one person. We're not going to say that. Let's just say it's this one person, so we could give him the felonine there was a bunch of graffiti signed Youngs or Youngster, but the script was different, and the changing names that was also weird. Adam knew that graffiti artists seldom changed their signatures. They wanted people to know exactly who had painted it.

He also knew that the best gang graffiti artists always spawned imitators, and one way to acknowledge the master was to adopt a similar name. There was also a more subtle question of Youngster's motives, which prosecutors didn't even care to ask. Why had Alejandro Loza painted at all? It was gang graffiti? Even his defense lawyer admitted that much. But to Adam, graffiti wasn't just graffiti. Let's go down here so you can so I'll show you because I

have a question about your own at tagging. Did you think of it as art? Did you think of it as something else? I thought of it as art. The world saw Youngster's work as gang graffiti, and that was that. But Youngster's art career was more interesting. He had a side hustle drawing people's portraits. He claimed he had no imagination, but he could capture perfectly in paint anything you put in front of him, right down to the last strand of hair. He reminded Adam just a little bit of

his younger self. Okay, initially, obviously I was nervous, and you'd only been there once before, and that was when they put you in jail. Adam had never really thought of himself as an expert on anything, except perhaps on injustice, which had been woven into his existence since he was a little kid. I was fourteen years old when I first got arrested, and I wasn't treated like a child. I was treated like a criminal, and I had five

dollars worth of marijuana. I was treated like I mean, I was handcuffed, I was put in a police car, I was taking a jail. I was booked, and my parents had to pick me up with my grandmother. You think about going to the courtroom, that's your memory. Yeah, So my memory is that courts have always been punitive. They've never been about any type of rehabilitation or justice or getting to the truth. It's always been punitive. But now he had to go to court to testify as

an expert witness. I have no idea what to expect. Honestly, what do you decide to wear? I wore slacks, and I wore a collared, short sleeved shirt, which I do not recommend doing and I will not do again. Why's that because it's it's appropriate to wear a suit and tying the courtroom, right, And I realized that now and that's how I dressed now. But at the time I just wore slacks in a collared shirt. He's wearing the wrong clothes. He's nervous, and they aren't taking him seriously.

You can see this in the court transcripts. When the judge tells the prosecutor that he's going to allow Adam to testify. The prosecutor replies, he's going to admit to being a murderer. And I'm not sure anything gets more prejudicial than that. He was asking me if I was if I got paid to be there, and initially I

was like, how is that relevant? And I know what he's doing, but I felt uncomfortable talking about getting paid to be there, Like if I was doing someone a favor because they gave me money and I was not there to provide a service, And what would you say now? Now, I would say, I'm here as a professional as well as everyone else in his court. So I'm assuming everyone here is getting paid. To day, Adam understands that. Now, hell,

the prosecutor got paid. But at Youngster's trial, Adam didn't think to point any of that out, and it put him back on his heels. The money he had been paid just hung in the air as an accusation. When you read the transcript from the trial, you're struck by a couple of other things. One is Adam's reticence. He doesn't insist on his expertise. He's just offering an opinion, the opinion of a convicted murderer who is being paid. The other thing is the confidence of the cop who

testifies for the prosecution. The cop is totally sure that Youngster has painted everything he's accused of painting. No, I didn't think that they were going to let him go, even though you thought he was innocent, not of all of it, but of some of it. What mattered was the prosecution was going hard to get maximum conviction from maximum setting, and I knew that what was happening, And that's exactly what happened. In the end, the jury convicted

Alejandroloza Youngster. The prosecution call for a gang enhanced sentence, and the judge sent him to prison for six years for graffiti, some of which was quite likely applied by copycats. The criminal justice system is designed that poor people and minorities, mainly blacks and Latinos, go through the system and end up in prison or jail. Injustice is not the case. No one's interested in justice, sadly. So here's a theory.

The greater the inequality in any society, the more perverse the use of experts will be, because actual knowledge, actual expertise threatens those on the happy end of the inequality. The truth can be a weapon for anyone, so you can't just let anyone have it. Against the Rules is written and hosted by me Michael Lewis and produced by Catherine Gerardo and Lydia Jean Cott. Julia Barton is our editor, with additional editing by Audrey Dilling. Beth Johnson is our

fact checker, and mil o'bell executive produces. Our music is created by John Evans and Matthias Bossi of Stellwagen Stempanette. We record our show at Berkeley Advanced Media Studios, expertly helmed by Tofa Ruth. Thanks also to Jacob Weisberg. Heather Fame, John Schnares, Carl mcgliori, Christina Sullivan, Eric Sandler, Maggie Taylor, Morgan Rattner, Nicole Morano, Royston Besserve, Daniella Lakhan, Mary Beth Smith, Jason Gambrel, and a special thanks to Jason Roskowski and

Julia Cott. Against the Rules is a production of Pushkin Industries. If you love this show and others from Pushkin Industries, consider subscribing to Pushkin Plus. Pushkin Plus is a podcast subscription that offers bonus content and uninterrupted listening for four dollars and ninety nine cents a month. Look for Pushkin Plus on Apple podcast subscriptions. Keep in touch, sign up for Pushkin's newsletter at pushkin dot fm, or follow at

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