Michael Carlson: Gangs On Trial

Michael Carlson, Fulton County's gang prosecutor, literally wrote the book on Georgia's gang law. Here's how he will apply it in Atlanta.

When Fulton County’s district attorney Fani Willis came to office 16 months ago, she started hiring prosecutors to start clearing the county’s notorious case backlog. The office had been bleeding talent. Evidently, the despair of the dysfunction made it less attractive, even though prosecuting crime in the state capitol should have been a major career building opportunity.

It became clear quickly that Atlanta had a serious gang problem, but the DA’s office had not tried a full-blown gang racketeering case in a long time. So Willis, with political capital in hand, made two high profile hires: John Willis, who is an expert in racketeering prosecutions, and Michael Scott Carlson, who literally wrote the book on evidence in these cases.

Carlson and I had a long talk last week, mostly on background, about my concerns over what’s been happening in gangland Atlanta and what Willis’ office is doing about it. Willis had mentioned almost offhandedly at a press conference that a RICO case was coming down the pike, and I was hoping for some insight.

We assiduously avoided talking about specific cases, even off the record.

Normally, I’d post a straight transcript of our conversation, but we shifted on and off the record often enough that it would be a little disjointed. Let’s look at a couple of ideas we discussed instead, starting with Georgia’s gang statute itself, the Street Gang Terrorism and Prevention Act, which is uniquely powerful relative to other state laws and federal racketeering law.

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George Chidi: How do you explain a gang case to juries — or better, to a criminal defendant you’re trying to roll into testifying?

Michael Scott Carlson: (drawing a triangle on a piece of paper) What the state has to do, obviously, is prove that the defendant committed the crime. If the defendant is a member or an associate of a criminal street gang, and if the crime is a predicate offense, that constitutes what we call criminal gang activity. In other words, is this the kind of crime that this gang commits.

So then up here (top of the triangle), we have a criminal street gang, which of course has a specific definition under the law. So if now we have the defendant (points at second point of the triangle) associated as a member or an associate of a criminal street gang. And the underlying offense (third point) that the defendant committed is part of participating. And if it's specific to defendants' participation in the gang, then we can bring the charge of criminal gang activity under 16-15.

So, how does our statute work? Well, remember, you've got two areas of the law always, you've got the substantive and the procedural aspects of the case, let's look at the substantive first. Let's say the crime is an aggravated assault.

Normally, somebody could be charged with aggravated assault. Well, if that aggravated assault is part of the defendant’s participation in a criminal street gang, a group of three or more people associated that commit criminal gang activity. Well, now we know there's a violation under 16-15-4(a) gang act violation to an aggravated assault. So now we have the penalty for the aggravated assault, plus we've got the penalty for the gang act violation: five to twenty.

Now, remember: do gang members commit these kinds of crimes in order to increase or maintain their status in the gang? Absolutely part of it. So now we've got another five to twenty years on gang charges … So now you've got these two.

Remember, this could have been, let's say, a simple battery …

GC: … which is a misdemeanor …

MC: … which is a misdemeanor, but because that simple battery fits into this triangle, now that simple battery becomes a gang act violation. Usually, we wouldn't charge just that misdemeanor there. Now, let's take it into a case where you've got, let's say, two defendants. So now you would probably have the (e) violation for encouraging each other's participation in the gang through the commission of those offenses, and then that's another 20.

The jury in a properly constructed indictment under best practices is going to hear the gang charge in connection, the (second) gang charge connection, the (third) gang charge in connection, and then of course, the underlying predicate offense.

GC: So, it's just that every time there's a charge, it's multiplied three times.

MC: That's what we call comprehensive charging. And when we go down through now … that's what we would call going down through the statute like that. We call that the drops. That's the term in the trade. Now, let's say that it’s armed robbery. So he stole something correct. Oh, there's a charge for acquiring property through criminal gang activity. So now, you see. And then if he had a co defendant, the (e). So now we're up to that many more. If somebody was a leader on an offense, there's a separate charge for that as well under (d). That adds a different penalty than the other stuff. …

The benefit for prosecutors using gang charges is the nature of the evidence they can present in court changes. It might otherwise be considered improperly prejudicial to present a jury with pictures of someone flashing gang signs on their Instagram page or pointing a guns at a camera with their crew in a music video, if a prosecutor is simply trying to prove an aggravated assault case. An affiliation with a socially-reviled group is not a crime on its own, and the freedom of association is protected by the First Amendment.

But since prosecutors have to prove that criminal act was a gang crime — and not, say, just a crime by a gang member — prosecutors get to introduce all sorts of evidence about what a gang is, whether the group qualifies under the state’s gang statute, evidence that the defendant is actually part of that group, and whether the crime was part of the gang’s activities.

MC: It becomes a conduit for the admissibility of gang custom evidence, gang behaviors, gang symbols. 16-15-9 are the prior criminal activities of the gang that again, allows those into evidence, bypassing some of what the other evidence rule restrictions like 16-15-3 does with regard to that evidence of the prior activities. The gang 24-4-418 allows in the prior criminal gang activity. That doesn't necessarily mean charged as gang activity, that doesn't necessarily mean of a gang; that means of the defendant. So, the defendant’s prior burglaries, for example, if those offenses classify as gang activity.

GC: I was gonna say … usually you can't talk about prior crimes …

MC: Those are the character evidence rules. 4-18 exists as a statute that facilitates the admission of the defendant’s prior uncharged misconduct and allows it for any relevant purpose, including the generally forbidden purpose of propensity. … That means prior bad acts, or subsequent bad acts, that the defendant isn't charged with in this case.

GC: I’m interested in that last one. Does that mean that it's got to be a previous conviction?

MC: Great question. The way the statute is written is, it's the commission — and let me get it for you —this was passed in ‘16, by the way, and it's unique to Georgia. (Reading) “The accused commission of criminal gang activity.” So what that means is anything that falls under the definition of criminal gang activity, which does not require conviction under the gang statute.

GC: Defense attorneys must hate the shit out of that.

MC: I will leave that to your questioning of our friends in the defense bar.

Carlson, I note in passing, helped write that part of the law.

We spoke on the Friday before Sine Die, the last day of Georgia’s legislative session, and Carlson was watching his phone buzz intermittently. Carlson had been working with Willis and the legislature to revise Georgia’s gang statutes again, to allow for a gang prosecution in any county where one of the underlying gang crimes occurred.

That bill, SB 359, died in committee on Sine Die. Elements of the bill were controversial: it would have also introduced mandatory minimum sentencing for some acts of repeated domestic violence or abusing children, and would have pushed some evidentiary hearings into pre-trial days which some judges said would exacerbate prosecution backlogs.

While SB 359 failed, other legislation pushed by the governor and Attorney General Chris Carr to create concurrent jurisdiction for the state’s new gang unit passed. The AG’s prosecutors will have jurisdiction to try any gang case that a local district attorney could prosecute.