Mountain View Voice

Opinion - September 2, 2011

Grand Jury a good weapon against gangs

The dramatic announcement recently that a cold case murder that occurred in 2004 had been solved by a Mountain View police task force assisted by the FBI shows what can happen when witnesses face more pressure to tell authorities what they know about a crime — instead of refusing to talk as they often do when questioned by police.

Alejandro "Alex" Fernandez was 17 when he was gunned down on Rengstorff Avenue. In addition to persistent police work, the key factor that enabled charges to be filed against three people, including the alleged gunman, was the FBI's involvement and the decision to use a grand jury to question potential witnesses.

Mountain View Police spokeswoman Elizabeth Wylie said department investigators had always "felt like people weren't giving us information they had."

But when the FBI got on the case, which was reopened last year, dozens of witnesses were re-interviewed. Some were subpoenaed to testify before a grand jury, where they faced the added pressure of perjury charges if they did not speak truthfully.

In comparing the success of police or grand jury interrogations, Frank Carruba, a deputy district attorney for Santa Clara County, told the Voice: "People who are unwilling to speak to police have a right to turn around and walk out the door. But with a grand jury investigation, witnesses can be made to show up through subpoena and the presiding judge can compel them to answer questions." He added that witnesses can use the Fifth Amendment to avoid answering questions, but only if they believe that by testifying they would incriminate themselves.

Mountain View Police and city officials have watched the Norteno and Sureno gangs bump heads for years and believe they are responsible for many crimes. Back in 2004, murder was not often seen in Mountain View so when Alex Fernandez, said to be a member of the Surenos, was shot and killed in what appeared to be a gang violence, police worked extra-hard to solve the case. But they were up against the code of silence among gang members and possible witnesses, and never got the real story.

That changed when the task force, armed with more clues gleaned from the grand jury, was able to charge admitted Norteno gang member Giovanni Duarte, 24, with the shooting. In addition, officers found evidence that a city employee, Arthur Figueroa, 49, allegedly lied about the role his son, Anthony, 23, is accused of playing in the murder.

Other than tradition, it is not clear why more unsolved "cold case" crimes, particularly murders, are not taken to the grand jury. Mountain View Police Chief Scott Vermeer told the Voice that a grand jury investigation is "a tactic we don't use normally and that the FBI uses more frequently. It was an extremely important piece of this puzzle. In this county I think it (the grand jury) is rarely used."

Perhaps it is time for District Attorney Jeff Rosen to rethink this policy. Police and investigators often need leverage to pry information out of reluctant witnesses. And sometimes, if a grand jury is working on a cold case, witnesses are more forthcoming than they might be just a few days after the event, when the fear of retaliation is greater.

The grand jury proved in the Fernandez case that good investigators armed with more information from key eye witnesses and others who knew the defendants, are much more likely to be successful in bringing charges than they were able to before. It is a strategy we hope the DA will consider using in similar cases in the future.

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