‘He COULD Have Done It, But I Don’t Think He Did’

By Debora Gordon

Lam offered me contact information for his attorney, David Kelvin, who agreed to speak with me in last October. I felt limited in my knowledge of the criminal justice system, even though I’d taught American government. I’d had no first-hand experience with the law beyond the very occasional moving violation, and a couple of acts of civil disobedience that were never charged 25 years ago. What I knew was mostly from television and movies.

I asked Kelvin to explain the specific charges against Lam and how he was identified and later arrested.

I learned that Lam was charged with 4 counts of  187-664. That’s attempted murder. Plus, assault with a deadly weapon, a 245. And a 246 – shooting into an occupied vehicle.  He was arrested when one of the female passengers in the car, who had been a middle school classmate, implicated him.

I asked about the notorious Oakland “no snitching” street imperative, but Kelvin was dismissive of this.  “People snitch all the time,” he told me. “The D.A. comes. They bring them down to court. They put them on the witness stand. They usually talk.”

The Oakland Tribune reported in a story about Lam’s sentencing that he was a “gang leader.” But Kelvin scoffed. “It’s not like they have a board of directors.”

One this was for sure, Kelvin said: “His friends are gangsters. (The police) searched his house, they got a warrant, there were photographs of him holding a gun, flashing gang signs.”

“There is no question that he was in a gang.”

When I first read about Lam in the Oakland Tribune, I initially thought that his no contest plea was equivalent to admission of guilt, but Kelvin felt that Lam was pressured by the judge into pleading. Although it was a strong case for the prosecution, Kelvin said that he let Lam know that he had a chance for a different outcome if the case went to trial. “I told him it was his choice. I told him if he went to trial and lost, it would be a disaster for him.”

But Kelvin assured Lam that he had a triable case – one with evidence on both sides. So, Lam had something that was fairly atypical: a fighting chance.

But on the day the trial was set to begin, Kelvin recalled, “the judge talked to Lam. He was of the opinion that we should settle the case (by pleading), so (Lam) did.”

Lam opted for a no contest plea, Kelvin said, because he was uneasy about a nuance in the law. “There was one witness who claimed to have seen him in the rear view mirror. Lam felt that even though there were (other) witnesses that might have supported him not being the shooter. He was worried about the ‘gang clause’ – that the crime was committed for the benefit of the gang.”

To convict Lam, prosecutors would not only want to show that Lam was in a gang, but also “horrible things other people in the gang did” – even things that happened before Lam was born.

“The list of crimes committed by gang members can be brought before the jury,” which would then be presented with this line of reasoning: “the gang has committed horrible crimes. He was a member of the gang. Therefore he committed horrible crimes.” And then, there was all that evidence of Lam’s gang connections.

Despite Lam’s affiliations, Kelvin isn’t convinced he pulled that trigger. “He was at the scene when these shots were fired, no one is disputing that. It was his neighborhood, he lived there. He didn’t have an alibi.”

Kelvin also felt the district attorney’s witnesses were not credible, that they may have been high at the time of the crime, and that they changed their stories.

However, Lam still chose to take the plea with its guarantee of a maximum of 25 years, rather than risk the possibility of getting a life sentence if he went in front of a jury.

Although Kelvin has represented other accused gang members, he thought Lam was different. “He wasn’t a typical gang member. He was more educated, more thoughtful, more of an intellectual.”

This doesn’t mean he’s denying Lam’s potential to have done something violently illegal. “In the right moment, he might have committed a crime. But he didn’t commit this one. And that’s supposed to be the issue.”

So how did Lam get here? Kelvin takes a long view, pointing to the legacy of the Vietnam War. “It was American policy in Indochina that put (Lam’s mother) and her family in this situation. They never would have come here if we hadn’t blown up their country.  They come over here, they can’t speak the language, so they have no money, they do the best they can.”

That chain reaction lead Lam to become “involved with violent people. It’s a disaster, a tragedy of the first magnitude.”

Next: Contradictions in the Court Transcript and the Judge’s Advice to Lam

Author Profile

Debora Gordon is a writer, artist, educator and non-violence activist. She has been living in Oakland since 1991, moving here to become a teacher in the Oakland Unified School District. In all of these roles, Debora is interested in developing a life of the mind. “As a mere human living in these simultaneously thrilling and troubled times,” Debora says, “I try to tread lightly, live thoughtfully, teach peace, and not take myself too seriously.”

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