Despite efforts by prosecutors to label murder defendant Jerrin Hickman as a member of a criminal gang, Judge Michael Marcus said doing so could unfairly bias the jury.
Over the course of several hearings this summer, concluding last week, prosecutors argued that Hickman was a gang member and that the jury needed to know it. Defense attorneys countered that their client wasn't a gang member, and that the labeling would have made the trial unfair. They also say there are a number of inconsistencies and omissions in the initial affidavit.
Hickman is being tried for the Dec. 31, 2007 murder of Christopher Adam Monette. Monette was shot outside a party at 8407 N.E. Thompson St. by a man in a ski mask.
Although Hickman's jury trial isn't scheduled until November, the results of these hearings will have a profound impact on the way the trial progresses, according to comments made by defense attorneys Patrick Sweeney, Diana Gentry and Prosecutors Heidi Moawad and Jeff Howes in Judge Marcus' courtroom.
The Rolling 60s
Prosecutor Heidi Moawad told Judge Marcus that Hickman's alleged membership in the Rolling 60s Crips was part of the state's theory of motive in the murder. According to a neighbor who heard — but did not see the shooting — someone outside the house yelled, "I'm 6-0" before a gun was fired.
Moawad alleges this was the shooter yelling this out of allegiance to his gang. But Sweeney said it could have been anybody standing outside the party, which included a large number of African American males, many of whom have been alleged to be members of the Rolling 60s Crips.
Sweeney says the state has yet to establish a motive or that Hickman was an active gang member. At the time, Hickman was not living in Portland, had been employed as a licensed massage therapist and had just learned he was having a child with his longtime girlfriend.
On the night of Monette's murder, the 25-year-old had just been involved in a fist fight inside the residence with another person when Hickman arrived to the party. Prosecutors allege that Monette "disrespected" Hickman upon his arrival. The issue of upholding "respect" with extreme violence is key to the prosecution's theory of motive.
Gang Det. Peter Simpson testified that gang members' authority depends on the level of respect given to them and a violation of this respect must be met with swift justice.
"And how is this different from any other testosterone-fueled party," asked Judge Marcus. "We don't even know that this was a disrespect incident… It's not particularly any more plausible than any of the other reasons people kill each other."
Labeling Hickman a member of a "disfavored" group typically associated with crime and violence could also prejudice the jury, said Marcus. Being a member of a gang is not illegal, but using that membership as a way to influence a jury could bring in constitutional questions about the freedom of association, he said.
"If you tell a jury that you have a gang member, it carries a potential for assuming guilt for all the wrong reasons," Judge Marcus said.
Although Simpson said he does believe that Hickman was a member of the Rolling 60s, Hickman has never been listed as a gang member by Portland police. Prosecutors say rap lyrics, his associations with gang-affiliated family members and pictures of Hickman displaying hand gestures are all evidence of his gang membership. There are different levels of gang involvement, according to Simpson – there are hard-core members committed to the lifestyle, there are associates and there are people who simply grew up in the neighborhood and are listed as associates because they're seen with known gang members.
Terri Miller, Hickman's mother, says her son falls in the latter category. Many of the individuals listed as "informants" in the affidavit are estranged relatives of Hickman, relatives that Hickman grew up with and was friends with the majority of his life.
Miller said she completely gave up on her brother and his sons, but Hickman tried to maintain contacts.
She also says the police have it wrong about the Rolling 60s.
"The Rolling 60s is a car club," she said.
Judge Marcus denied the state's request to label Hickman a gang member.
INFORMANTS VS WITNESSES
Defense Attorney Diane Gentry says she has problems with the way police presented evidence to the magistrate for a search warrant. She says many of the witnesses/informants could be considered career criminals; one witness is receiving preferential treatment for crimes he has been charged with; details regarding evidence were also omitted. Gentry says the only other suspect to be identified was dismissed after passing a lie detector test. The person who identified that suspect recanted but didn't identify Hickman.
One of the primary eyewitnesses, Dontae Porter, changed facts of his accounts of the night in different interviews with police, Gentry says. Prosecutors say he merely clarified things. Porter has a deal to receive preferential treatment on a separate charge for his testimony.
"I consider facts that Porter provided and later changed up as material omissions," Gentry said.
Specifically, Porter has admitted handling key pieces of evidence before the shooting – a ski mask and the gun used in the crime. The ski mask contained the DNA of three people, including Hickman, although there were reportedly many masks at the party. It is unclear if the mask found was the mask used by the killer. The gun was found several days after the crime scene had already been cleared.
During the night of the shooting, a number of African American males, including Hickman and Porter, ran from the scene when the shot rang out.
Prosecutors allege that Hickman left a trail of evidence from the crime scene – including the mask, the gun, a broken watch and shoes. Defense attorneys say the trail was anything but linear, and say the shoe tested did not provide a DNA match, although Hickman was found without shoes the next morning.
Hickman ultimately fell off a 20 foot embankment, breaking his leg and cell phone, stranding him on a golf course until morning, when he was found by several golfers. Prosecutors says Hickman's request not to call police or paramedics is a sign of guilt.
Gentry says several witnesses have motive to lie about what they saw. Informants Johnny Miller Sr. and Rosy Miller had two sons there – one who gave a false name to police and another whose presence at the party was covered up. Miller Sr. also told police he thought his brother did a stretch of time in prison for a crime he accused Hickman of committing.
"These people could be conspiring to protect the real shooter," Gentry said, indicating that many of them had motive.
Senior Deputy District Attorney Jeff Howes says all the information taken by police was taken in good faith and although there were some omissions, didn't amount to a material omission. Marcus questioned whether someone in good faith would not have authorized a search warrant on the residence of Hickman, given his presence at the crime scene and circumstantial evidence away from the crime scene. It is unclear what evidence was collected from Hickman's home.
Gentry also says the photo lineup provided to witnesses was improper. Daniel Reisberg told the court police deviated from their normal protocol and provided a witness with five photos, which included three people that person knew as friends. After identifying Hickman from that lineup, they were instructed to sign the photo.
The trial is expected to begin Nov. 16.
