Reputed members of gang acquitted

A day after jurors announced they were hopelessly deadlocked over whether two reputed Dorchester gang members were guilty of federal racketeering charges, a federal judge entered her own verdict in the case yesterday: not guilty on all counts.

US District Judge Nancy Gertner said that after six weeks of trial, prosecutors failed to prove that the Esmond Street Crew was a racketeering enterprise, the charge that permitted the government to prosecute members in federal court in a string of gang-related shootings in Boston. Her ruling raises questions regarding two related trials scheduled for this spring that have higher stakes: the death penalty.

Announcing her decision from the bench, Gertner said that if the Esmond Street Crew could be defined as a racketeering enterprise because of its continuing street battle with the rival Franklin Hill Giants gang, ''then the Hatfields and the McCoys are an enterprise."

The judge said her ruling applies only to the case of the two men she acquitted, Jonathan Hart, 24, and Edward Washington, 25, and not the government's racketeering case against codefendants Darryl Green and Branden Morris, who face the federal death penalty if convicted.

But in light of Gertner's ruling, defense lawyers said yesterday that prosecutors should reconsider going forward with the death penalty cases against Green, whose trial is set for March, and Morris, whose trial is slated to follow.

Green and Morris are charged with murder in aid of racketeering in the slaying of Terrell Gethers during Boston's Caribbean Carnival in August 2001.

''If you can't get past step one, you have some real issues as to whether this case should be in federal court; that's the issue," said Boston lawyer Randolph Gioia, who represents Green, adding that he hoped prosecutors would rethink their decision to push the death penalty case.

Gertner said the evidence in Hart and Washington's case suggested that gang members sporadically joined together to commit crimes, but weren't part of a continuous criminal enterprise, as the law requires to sustain a racketeering conviction.

''These were the activities of individuals that were related for reasons having nothing to do with an organization, but just because they lived in the same neighborhood and went to the same schools," Gertner said.

US Attorney Michael J. Sullivan released a statement yesterday saying that prosecutors were disappointed by Gertner's decision to acquit Hart and Washington and that her action ''deprives the government of both an opportunity to retry the defendants and appeal the ruling."

Washington had been charged with one shooting in 2000, while Hart had been charged with two shootings in 2001.

Gertner granted a so-called Rule 29 motion by the defense, which permits judges to acquit a defendant if they find that no rational jury could convict based on the prosecution's evidence. The decision cannot be appealed because a jury had already been impaneled in the case and had not rendered a verdict.

Gertner said that law enforcement officials may still seek to bring charges against Washington and Hart in state court.

Sullivan defended his decision to prosecute the racketeering case as ''appropriate based upon the facts and evidence developed during a thorough and lengthy review," according to the statement, and said that the jury's failure to reach a unanimous decision indicated one or more jurors had been holding out for a guilty verdict.

He also indicated that his office will continue bringing federal cases as part of its effort to help Boston and other cities reduce gang activity and gun violence.

But minutes after Gertner acquitted the men, Washington's lawyer, John Cunha said the government had ''egregiously overreached" by bringing the case in federal court, where his client probably would have faced a life prison term.

''They did it with good intentions, but the road to hell was paved with good intentions," Cunha said.

Hart's lawyer, George Gormley, said, ''The evidence showed that the government's witnesses couldn't carry a tune, much less sustain a criminal enterprise."

The verdicts meant that Washington, who has been in custody awaiting trial without bail for five years, while simultaneously serving time on state charges, walked free yesterday.

''God is good," Washington said, smiling broadly as he hugged his lawyer.

Hart, who has remained free on bail and still faces federal charges in another case, told relatives, ''Let's hear it for the boy."