Even as the Hamilton County District Attorney's Office prepares to argue for a permanent order keeping a group of 31 accused gang members apart, defense attorneys are protesting a move to add two more men to the list without giving them notice.
Prosecutors tried to make Jerry Lee McMath III and Kendale Fuqua show up to Hamilton County Criminal Court on Nov. 29 to include them in their civil nuisance case against the Gangster Disciples and Grape Street Crips in East Lake Courts.
More than a year ago, District Attorney General Neal Pinkston asked the courts to approve a petition that would restrict specific behaviors from the targeted gangs, saying it would give law enforcement another tool to make the neighborhood safer.
Pinkston named 31 men, claimed they were gang members and said they would face a $50 fine or up to 30 days behind bars for associating with each other in the housing project. A trial to determine whether his order becomes permanent was recently rescheduled for March 13.
The prosecutor, however, never included Fuqua or McMath in his September 2016 petition, so it took defense attorneys by surprise when a summons for both men turned up in the public court file on Oct. 30. A summons is a piece of paper that tells a defendant they're being sued and need to show up in court. A person needs to receive the summons, and in this case, an officer from the Hamilton County Sheriff's Office tried to serve the men.
But defense attorneys say Pinkston didn't tell the men why he was adding them to his list. Are they regulars in East Lake? Are they proven gang members? Defense attorneys say they don't know; Pinkston just served them without any prior notice or listed allegations.
"If you think about it from [McMath's and Fuqua's] points of view, they're going to receive a packet that doesn't include their names anywhere," said defense attorney Chrissy Mincy, who represents some of the 31 men. "So what's the allegation against them?"
Pinkston's office says both men are Gangster Disciples members and that a state nuisance law allows prosecutors to add people from targeted groups "at any point while an order is in effect."
But defense attorneys don't believe the state has proved the 31 men are gang members, and from the beginning, they have contested the points system that police officers use to classify citizens as gang members, calling it hearsay and arbitrary.
"We're making the assumption they're being included because they're alleged gang members," Mincy said. "But the law doesn't provide for assumption. It provides for facts and a hearing."
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Proper notice to appear in court has been an issue since the case began, and court records show authorities are still working to serve all 31 original men with a copy of Pinkston's petition.
Law enforcement "made several attempts and left multiple cards" but never found McMath to give notice, according to a Nov. 9 entry on the court file. Defense attorney Lloyd Levitt, who represented McMath in a 2012 aggravated robbery case in Criminal Court, said he hasn't spoken to his former client recently.
Fuqua is a different story.
An officer left a petition "in the care of" attorney Chris Dixon, who is representing Fuqua in an unrelated criminal matter. Dixon said he gave the petition to Fuqua but he doesn't believe it's proper service. A defendant must give an attorney permission to accept service on their behalf, Dixon said, and Fuqua didn't do that.
Authorities tried to serve both men about a month before attorneys were then scheduled for trial on Dec. 5, records show. Pinkston's spokeswoman, Melydia Clewell, did not answer why prosecutors want to include the men now.
Clewell pointed to a subsection of the nuisance law, which says a gang member not "specifically named in an [order]" may be subject to it "by service upon the person."
But defense attorneys question the timing and legality of the notice.
If he's going to include them, Pinkston should amend his petition to add specific allegations against Fuqua and McMath III, they say. And by including them so far into proceedings, he's restarting the clock on depositions, interrogatories and other evidence-exchanging measures in a typical civil case. That's a challenge for defendants, since they aren't entitled to an attorney in civil cases.
"Why [summon] new people before you've gotten the actual [order]?" Mincy asked. "Yes, there's a temporary [order] in place, but that's still subject to review, and these men haven't been proven to be members yet."
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When he filed his petition, Pinkston included a number of criminal offenses the men picked up in Hamilton County. But defense attorneys want Pinkston to prove how those crimes are connected to any alleged gang activity.
"[The state] asserts that certain convictions 'can be considered gang offenses according to Tennessee Law,'" defense attorney Zak Newman, who is representing one of the accused men wrote in a motion earlier this year. "[His client] has requested for [prosecutors] to identify how each of the listed convictions and pending charges are a criminal gang offense."
An enormous debate, though, is proving gang membership.
Defense attorneys take issue with the points system authorities use to "validate" people as gang members. Though it's helpful intelligence for officers who risk their lives to stop crime, the criteria are too subjective to build a case on, they say.
Hand signs, tattoos and self-admission are among the 14 criteria and each carries different values. A person only needs 10 points to be classified as a gang member and scoring less can define someone as an associate.
The effects are long-lasting either way: Validation is good for five years, regardless of one's level of activity in a gang, according to court testimony.
The Times Free Press recently analyzed about 45 validation forms that Clewell released after a hearing in October 2016.
Chattanooga officers asked the 31 men about their gang involvement when they could: during traffic stops, executing search warrants, or at the scenes of homicides. They combed Facebook for photos of the men hanging out with each other or showing off certain colors, hand signs or tattoos.
Some men have been validated multiple times, even if they say they're no longer in a gang, records show. A few were validated in state prison and Chattanooga officers re-validated them using the "confirmation through an outside agency gang unit" upon release.
When officers picked him up in 2014 as a possible suspect in a burglary, Demetrius Buchanan, 22, said he joined the Gangster Disciples when he was 14 but had recently "been beaten out of the gang." Police gave him eight points for his tattoos and nine for "self admission."
Meanwhile, the Tennessee Department of Correction validated Shermain Bowles when he went to state prison in 2005 for drug possession. When he returned to Chattanooga in 2011, officers gave him nine points for "confirmation through an outside agency gang unit" but nothing else.
An East Ridge police officer thought he smelled marijuana in Lee Clements' car when he stopped him for failure to yield on Nov. 15, 2014. A search yielded no drugs, but the officer "found that [Clements] is a member of the Gangster Disciples street gang." Clements said he was no longer an active member. He received nine points for self-admission and another nine because the East Ridge officer validated him.
"Self-admission is probably the biggest one, 'cause you get nine points for that," said defense attorney Brian Pearce. "But the thing I have a big problem with is when someone says, 'Oh, I used to be in a gang but not anymore,' and that still gets him nine points.
"And then you can always find one point somewhere," Pearce said. "And that's the absurdity of it. It's based on association and it's really easy to get validated."
Police spokeswoman Elisa Myzal said several community members live in fear because of gang activity in their communities and that officers only want to help them feel safe.
"The Chattanooga Police Department is supportive of legal tools such as a gang injunction that will allow our officers to deter and cease gang activity in the area where we receive regular complaints," she said.
Belonging to a gang isn't as simple as it appears, records show.
When Chattanooga officers approached Greg Gillespie in January 2012 after he exited an "illegally parked vehicle in front of his home," Gillespie had good news: He'd stayed off the streets, gotten a job at the "Chicken House" and was getting his GED. Asked if he was a Gangster Disciple, however, Gillespie said, "I will always be GD."
Just because he wasn't in the streets didn't mean he'd abandoned the Gangster Disciples, Gillespie said. "He stated that [GD] is more than being in a gang," the officer wrote.
That day, Gillespie received 11 points, according to his validation form. The officer cited him for self-admission, wearing gang colors and using symbols and logos.
Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.