OGDEN -- Lawyers for Trece gang members had a tumultuous first day in the trial of the city's anti-gang injunction, succeeding only in angering the judge with last-minute motions.
The trial is scheduled to run all week and will determine if the Ogden Trece injunction, meant to curtail activities of the city's oldest street gang, is made permanent.
"That's a joke. I'm almost offended by that," 2nd District Judge Ernie Jones said in response to attorney Mike Boyle's arguments for naming Weber County Attorney Dee Smith as a witness in the case. Doing so would have effectively removed Smith from prosecuting the trial.
Jones quickly denied that motion and was sharply critical of another motion Boyle handed to him as the trial started. That motion claimed the injunction could be voided because Smith may not have been the duly appointed county attorney when he filed the injunction.
"I'm just amazed you come in here and file this at 9:15 a.m. on the first day of trial," Jones said. He denied the motion for not being filed in a timely manner, but said it could be resubmitted later.
Boyle claimed the appointment of Smith in May 2009 may not have been done within the 45-day deadline required after the resignation of his predecessor, Mark DeCaria, who was appointed a district judge. Boyle said if DeCaria resigned March 27, 2009, that could have limited Smith, appointed May 12, 2009, and sworn in three days later. During a recess, Boyle said he had yet to confirm if DeCaria's formal resignation was March 27, a Friday, or March 30, the following Monday.
Jones also sparred all morning with attorney Randy Richards in overruling Richards' objections that police officers' testimony describing Trece crimes over the years was hearsay.
The judge also unloaded on the third Trece lawyer, Mike Studebaker, in the afternoon when Studebaker hinted Smith's candidacy for higher office might be motivating him.
"He's running for attorney general," said the lawyer, with the judge immediately lashing out, nearly shouting, "That's totally out of line. That's a cheap shot."
As Studebaker tried to defend the remark, he couldn't get a sentence out as the judge reiterated, "Yes, it was a cheap shot ... " in silencing Studebaker.
The injunction, in place since September 2010 as a preliminary injunction, bans members of Ogden's oldest 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.
Opponents call it an unconstitutional violation of First and Second Amendment rights that too easily names individuals as gang members.
As officers took the stand to detail Trece crimes, including homicides, assaults, drug-dealing, burglaries and more, the defense lawyers challenged the methodology by which Ogden police add people to their gang database.
The department uses eight criteria to name someone a gang member, the first being an individual's admission to gang membership, which officers said they do readily.
Another criteria would be a parent or guardian telling police about an individual's membership. Two of the eight criteria are necessary to add an individual's name to the database.
The lawyers attacked one of the more vague criteria, which reads: "Resides/frequents a gang's area, adopts their style of dress, hand signs, or tattoos."
"That could be a Utah Jazz jersey, a Dallas Cowboys jersey?" Richards asked Sgt. Kevin Cottrell, a sergeant with the Ogden-Metro Gang Unit from 2005 to 2009.
"Yes, if they are the Trece's colors," he answered, which is blue.
Boyle homed in on the "resides/frequents" part.
He noted that because Treces aren't confined to one area but live throughout Ogden, just the fact someone lives in Ogden amounts to one box checked off among the eight gang factors.
"Theoretically, it's a possibility, I guess," Cottrell answered.
Utah State Prison gang expert Peter Walters testified that among the state prison's roughly 6,700 inmates, 10-15 percent are gang members, with 96 currently identified as Treces.