Khanh Le is a stoic guy. He keeps to himself, smiles broadly and constantly, and reacts to most everything with calm -- so much calm that Houston Police Department officers thought it suspicious when they arrested him one afternoon in November 1996. Le had just put his nephew to sleep and left to buy bottled water when he was pulled over by a sheriff's deputy in a patrol car just blocks from his family's Alief home. He was still wondering if he had been speeding when he realized this was not a routine traffic stop. Seven officers from three law enforcement agencies -- HPD, the Bureau of Alcohol, Tobacco and Firearms, and the sheriff's department -- waited behind the squad car.
"I didn't know what was going on," Le says. "They asked to search my home. I said, 'Sure, why not.' "
The officers arrested Le on charges of aggravated robbery with a deadly weapon for the holdup of a nail salon that had occurred three months earlier. Combing his room, police confiscated snapshots of Le with friends; "photos of possible gang members," an officer wrote in the offense report.
Today, at age 29, Le has one more year to serve on his three-year probation for conviction on a reduced charge, of robbery. But Le insists he's not a robber, much less a gang member. And he finds himself an unwitting example of what Asian community activist and attorney Tom Hoang says is a troubling trend: police slapping young Asian-Americans with gang-member labels when they're not gangsters. If a prosecutor proves that a defendant committed a crime as part of an organized group, that evidence can increase the penalty by a degree. But Hoang and other defense attorneys say that the mere suspicion of gang membership can lead to the conviction of innocent people.
Concerns go beyond those of defense attorneys and clients. Texas legislators, as part of a law setting up a statewide database on gang members, toughened the standards law enforcement uses to determine if someone belongs to a gang. To comply with the new law, Houston police are reviewing more than 15,000 entries on alleged gangsters.
"The buzz word is 'gang-related,' " says Hoang, onetime secretary of former mayor Bob Lanier's Asian anti-gang advisory board. "It bumps up the penalties and bolsters the credibility of the officer. Just because of the label, they put them away, whether or not they committed the crime."
When an HPD officer suspects someone of gang activity, he fills out a "gang card," which is then reviewed by officers in the Criminal Intelligence Division. If the evidence meets state qualifications, the name is entered into a database of gang members. Documentation in the database can serve as strong evidence for the state, says Assistant District Attorney Julian Ramirez. "If the evidence is there, oftentimes a jury will be willing to assess a higher punishment," he says.
Because of the damaging nature of inclusion in the database, officers meticulously evaluate the cards, says John Karshner, CID gang sergeant. So accusations of racial profiling are unfounded, he says.
"A guy can say, 'You picked on me because five of us were standing here and we're Asian, but we're not a gang.' And we say, 'Well, you meet the criteria of a gang, and we say you are.' So it becomes a game thing, 'Yes, you are.' 'No, I'm not.' Back and forth," Karshner says. "Nobody goes into a church and says, 'There's five Asians; that's a gang.' We don't do that. Defense attorneys have their own obstacles, so it may appear to them that way. But I don't have evidence of that. Asians make a small part of our gang stuff."
In fact, it has been harder to classify people as gangsters since the state Legislature revised the regulations last September, Karshner says. For example, under the old laws, self-admission of gang membership was enough to earn a spot in the database. Now, law enforcement must first establish reasonable suspicion that someone has committed crimes. And gang ties must be verified by at least two types of independent information gathered by police. Officers themselves can identify the person as one who associates with known gang members, or police can have reliable informants make that identification. Other types of information include confirmation that the person dresses like gang members and "throws" -- flashes -- their hand signals.
The stricter rules came about after law enforcement agencies requested a statewide gang database. Royce West of Dallas, the state senator who wrote the bill, says he wanted not only to establish uniform standards, but also to ensure that people wouldn't be classified as gang members based solely on characteristics. Just because someone wears baggy pants and lives in a gang area doesn't mean he's in a gang, West says.
The database is scheduled for launch in September. Houston police CID officers have until then to examine the 15,312 people in the database, says Lieutenant Milton Jones, citywide gang coordinator. "If an individual doesn't fit the new criteria, then we gotta delete it," he says.
Besides, Karshner says, inactive records are removed from the database after three years for adults, and after two years for juveniles. "We don't believe the California story that once you're in a gang, you're in forever. Once that record goes, it's gone," he says. But while the record's around, it could help identify criminal suspects. "We've solved some homicides and big-profile crimes using [database] information we have, but we're very cautious with it," he says. "Does it help us solve crimes? Yes. Do people get put in there wrongly? I don't know."
Sergeant Russell Dunlap, head of the Asian organized crime unit that worked Le's case, concedes that officers sometimes do misidentify people as gang members. "A lot of times we're quick to label someone as a gang. But a group of friends that get together is not a gang," he says. "Most of the time when they call themselves a name they're letting people know where they're from more than anything else."
With Asian-Americans, officers often have trouble identifying suspects, Dunlap says. That's when his unit, which specializes in Asian street gangs, steps in. "A lot of people say that they all look alike," he says. "They'll go to The Roxy and can't find [the suspect], and we'll walk through and say, 'That's him.' Or sometimes we look at a guy they got and say, 'That's not the guy.' If a suspect in jail is not the person at all, we work as hard as we can to get them out. It happens a lot in Asian cases because they all look the same to someone. Or someone picked someone out from a photo spread, and that's enough to charge someone."
But Khanh Le is not a case of mistaken identity, says Dunlap, who arrested him. An anonymous caller reported to police that one of the two salon robbery suspects was named Kham Le and lived in a certain apartment complex. No one named Kham Le lived there, so police checked into six other people with similar names. The nail shop's manager, an elderly woman, picked Le and another man out of a lineup. The other man had a strong alibi; he had been in Harris County Jail at the time of the robbery.
Hoang, who was Le's attorney, argued that his client did not match the suspect's description and that he had a clean past. One of Le's co-workers at a body shop and a customer supported his alibi, saying that he was working at the time of the robbery, and Le passed a lie detector test.
Dunlap says that the victim was adamant that Le was the robber. Le gave three different alibis, leading prosecutors to file the case against him, the officer says. The alleged gang photos seized at his home were never evidence in the case, Dunlap says. Le, saying he feared he would not get a fair trial, ended up entering a no-contest plea to robbery and taking the probated sentence.
"When we're investigating, we're investigating the crime committed," says Dunlap. "And if somewhere along the way someone says this or that person is in a gang, that's immaterial. The question is, 'Did he do an aggravated robbery?' That's a first-degree felony."
As an attorney who regularly defends minorities accused of gang involvement, Eva Silva knows the stories well: An Asian teenager gets into a fight with another girl over a boy, and she is the one arrested for assault because of suspected gang ties. Then there's the premed student with the 3.8 GPA and college scholarship who is with a group of friends at a party. A fight breaks out with an Anglo man, and the group gets arrested and labeled as a gang.
"Because he was with five or six guys, they wanted to classify it as gang because they can use the law of participation, saying that the others knew this was going to happen," Silva says. "I do think there's racial stereotyping of people. The more we practice, the more we tend to believe that if they are a group of whites, they won't get classified as a gang, whereas Hispanics and Asians do."
Silva shares an office with attorney Scott Bui, who says that even in the face of evidence that clients aren't gang members, the gang-related stigma is hard to erase. "Once they presume you're a gang member, even if they arrest you on the wrong charge, they assume you did something wrong," Bui says. "I guess that goes with human nature. Prosecutors are human. It's hard to get them to reduce the charge or drop it."
Robert Pham, too, has clients he feels were unfairly labeled. A 16-year-old Vietnamese was sent to detention to await trial on drug possession charges instead of being released to his parents, even though he had a decent home situation. Might as well stamp 'guilty' on his head, Pham says. He may win the trial, but he'll have already spent three, six months -- who knows how long -- locked up, he says.
If you like this story, consider signing up for our email newsletters.
SHOW ME HOW
You have successfully signed up for your selected newsletter(s) - please keep an eye on your mailbox, we're movin' in!
Mislabeling is a serious problem, the defense attorneys say. Yet none of their clients are willing to talk about it. Talk to someone else, they say timidly. Sometimes they're afraid of police retaliation, Bui says, especially if they emigrated from a country such as Vietnam, where police are notoriously corrupt and abusive. Generally they're ignorant of the law. But mostly they're embarrassed, afraid of losing face.
"Losing face is like being banished from the community," Bui explains. "It's worse than the conviction. They don't want people to know they were charged with something....Even if the sentence is wrong, they feel it's over. They've put it behind them. Why raise up the dead?"
But Hoang can't put it behind him. He is disillusioned with the way HPD handles Asian-American cases. Once a supporter of the Asian organized crime unit, he now says labeling a crime as gang-related seems like an easy way to get a conviction. Even if there's no evidence that the defendant is a gang member, the damage is done. "It's hard to convince a jury that someone's innocent when they hear 'gang-related.' As soon as they hear that word, they're going to slam the door on you."
E-mail Melissa Hung at email@example.com.