Your average armed gang member in Massachusetts is a disorganized loser who couldn’t formulate and implement a complex plan to save his life. And that turns out to be a huge advantage for violent felons in a state where the law all but forbids wiretapping except “in connection with organized crime’’ — i.e. the Mafia.
District attorneys, the state attorney general, police, and even Supreme Judicial Court justices have been pointing out this flaw for a while now. Earlier this month, it appeared that lawmakers were going to fix the problem as part of the “three strikes’’ crime bill. The Senate supported a wider but judicious use of wiretaps. But House members eviscerated that section of the bill, leaving criminals free to blab about their violent exploits with little fear that their words might come back to haunt them in court.
Hearing the words of criminals can be chilling. But the public should know who’s out there. Last year, the state’s highest court ruled unanimously that wiretap evidence couldn’t be used against a gang member who was caught on tape admitting to the fatal shooting of a man in Brockton — or, as the perpetrator described his victim, the “homeboy that I bodied last night.’’
The court’s ruling followed the letter of the law. There wasn’t enough evidence of an organized criminal enterprise to warrant a wiretap. But the Brockton case prompted Justice Ralph Gants and retired Justice Judith Cowin to note the absurdity of denying police the use of electronic surveillance in gang-related shootings, which they described as “among the most difficult crimes to solve and prosecute using more traditional means of investigation.’’
The justices all but begged the Legislature to expand the wiretapping law to fit the profile of today’s violent felons. But lawmakers walked away.
The state’s wiretap law is a product of the late 1960s, when mistrust of police ran high and organized crime drove the body count. Lawmakers worried then, as they should today, about unreasonable intrusions on rights of privacy. But they went too far in the other direction by allowing wiretaps only on evidence of a “continuing conspiracy among highly organized and disciplined groups’’ engaged in “supplying illegal goods and services.’’
This doesn’t make a jot of sense today when shootings and killings take place over matters as trivial as treading on someone’s sneakers. The New England Mafia has eroded to practically nothing. No national crime syndicate is connected to the mayhem on the streets of Boston, Brockton, and other cities with gang problems. There are about 160 decentralized street gangs in Boston. They are dangerous, for certain. But it would be laughable to describe them as “disciplined’’ or “highly organized.’’
There is one area, however, where today’s gang members might compete with the crime syndicates of old — witness intimidation.
After the recent murders of three young women in Dorchester, police and religious leaders appealed to law-abiding witnesses to step forward with information. But such entreaties have become little more than a theatrical tradition in urban areas. Does anyone really think it is easy to find witnesses with the combination of physical courage and civic commitment needed to come forward, especially in gang-related cases?
“If we had a modern wiretap law, we could build our cases with less reliance on civilian witnesses,’’ said Suffolk County District Attorney Daniel Conley.
Conley is eager to remind the public and civil libertarians that judges don’t hand out wiretap authorizations like Halloween candy. First, investigators must provide affidavits that they have exhausted all traditional law enforcement methods before receiving approval for electronic surveillance. And even then, approval is usually given only for short periods of time. Extensions require detailed documentation and progress reports.
Often, shooting victims in Massachusetts cities are gang members themselves who live and die in a culture of criminal silence. The survivors prefer a .40 caliber handgun over a 12-member jury when it comes time to seek justice. The judicious use of wiretaps would also go a long way toward disrupting these retaliatory killings, which often go unsolved.
Police and prosecutors used to complain that they were handcuffed by ill-conceived laws. Today, it would be more accurate to say that their ears have been stopped up.