Trece attorneys subpoena injunction author Smith

Jun 6 2012 - 10:50pm

OGDEN -- On the eve of trial for the Ogden Trece injunction, Trece attorneys have subpoenaed its chief author, Weber County Attorney Dee Smith.

Smith's office, in a motion in opposition, called the move a bad faith attempt to eject Smith from the case, as rules of evidence prohibit a lawyer's involvement in a trial where he's called as a witness.

The question will likely be the first order of business Monday at the opening of a trial scheduled to last five days over making the injunction permanent.

The injunction bans members of Trece, the city's oldest and probably largest street gang, 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. In place since September 2010, the injunction has no formal expiration date but is still legally considered a preliminary injunction until the trial is completed.

Ogden Trece was formed in 1974, originally under the name Ogden Knights, according to the 330-plus page injunction. It documents hundreds of Trece criminal incidents in Ogden going back several years, ranging from loud parties, graffiti and an auto theft ring to several homicides.

As to whether the move to subpoena Smith is just a bad faith ploy, Randy Richards, one of the Trece lawyers and a former law partner of Smith's, would only say, "No comment, we'll argue it Monday."

Mike Boyle, another member of the Trece pro bono defense team, said it was his idea.

He said Smith filed an affidavit in 2010 briefly listing his reasons for developing the injunction, which technically makes him a witness in the case.

"So he made himself a witness ... and we'd love to know what started this whole injunction process," Boyle said. "We want to know what the motivations are for filing the injunction in the first place."

Next week's trial is likely the last chance for Trece lawyers to defeat the injunction before an expected long tour through the appellate process.

Defense attorneys and the Utah chapter of the American Civil Liberties Union maintain that the injunction amounts to curtailing behavior of individuals before they commit a crime. They claim it amounts to unconstitutional search and seizure and is a suppression of First Amendment rights of association.

They point to the injunction's ban on carrying felt-tipped pens as graffiti tools as an example of being "constitutionally overbroad." The ACLU is expected to monitor the trial, but not participate.

Since the injunction went into effect, more than 200 members of the 300-plus member gang have been served with the injunction, necessary before they can be found in violation of it.

Scores of arrests have been made for violating the injunction, a class B misdemeanor processed in Ogden City Justice Court. Several felony cases have resulted when guns, drugs or other contraband were found on those arrested.

Officials say decreases in all levels of gang behavior are a result of the injunction, promising detailed statistics at next week's trial.

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