THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, December 23, 1995 TAG: 9512230373
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY LYNN WALTZ, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 107 lines
Angry federal prosecutors said Friday that a federal judge's decision to dismiss crack cocaine indictments has thrown numerous cases into disarray, placed witnesses at risk and may ultimately force them to abandon communities plagued by crack violence.
U.S. District Judge Raymond A. Jackson threw out two drug charges Thursday after prosecutors defied his order to turn over working papers so defense attorneys could determine if blacks had been unfairly targeted.
Prosecutors vehemently denied they were motivated by racism in the case, which involves three alleged Peninsula drug gangs. They said that complying with the judge's orders in the cases would have required them to break the law.
``The decisions in this case were made on the basis of evidence,'' said Helen Fahey, U.S. attorney for Eastern Virginia. ``No decision was made on the basis of race.''
The judge's order, if upheld, could have far-reaching implications, Fahey and other federal prosecutors said:
It could result in a racial quota system for all drug crimes and possibly other crimes.
Federal law officers could be unable to bring charges, especially in African-American communities, even in cases where members of those communities requested help.
Witnesses' lives could be endangered if their identities were released weeks or months before trial. In federal trials, witnesses' identities sometimes are not revealed until they testify.
While Jackson dismissed only two indictments Thursday, it is nearly certain that charges against up to 20 other drug defendants will be dropped. Jackson dismissed drug conspiracy and money laundering charges against Anthony L. Olvis and Angela D. Palmer, claiming that prosecutors' refusal to turn over working papers made it impossible to tell whether Olvis, Palmer and other defendants in the case were unfairly prosecuted because they were black.
Prosecutors said they offered transcripts of the grand jury testimony in the drug cases to the judge so he could determine if there was racial bias.
``He refused,'' Fahey said. ``So for him to say we weren't cooperating is absurd. . . . The government has nothing to hide.''
The grand jury transcripts are among the papers that Jackson ordered prosecutors to turn over to defense attorneys.
Defense attorneys say five whites who testified before the grand jury - but were not charged - were more involved in the drug gangs than blacks who were charged.
But prosecutors say that about 55 other witnesses, all black, also testified before the grand jury and were not charged, even though most of them were more heavily involved in the drug trade than the white witnesses.
Violent crack gangs in Hampton Roads are almost exclusively run by African Americans in African-American neighborhoods, prosecutors said. The irony of Jackson's ruling, prosecutors said, is that law-abiding members of the black community who have asked for more law enforcement may end up with less.
``Most of the victims are black. Most of the perpetrators are black. And the people who are the losers in all this are the people in the community,'' Fahey said. ``If this prevails, there are two choices. We can set up a quota system for prosecution and we can determine how many blacks, whites and Hispanics need to be prosecuted for each crime. Or we can withdraw from the areas of violent crime.''
Fahey said the judge's order to turn over evidence, specifically grand jury testimony of witnesses, ``would have been contrary to the law and would have put our witnesses at risk and in substantial danger, and I will not do that.''
Prosecutors' fears of witness intimidation are already coming to pass, said Executive Assistant U.S. Attorney Michael R. Smythers in Norfolk. The sister of a witness in one drug case, whose name was released by defense attorneys, has been threatened.
``That girl's sister - a 15-year-old high school student in James City County - was threatened,'' Smythers said. ``They said, `We may not be able to get your sister, but if she testifies, we know how to find you.' ''
Prosecutors are appealing Jackson's ruling. Alleged members of the crack gangs will remain in jail while the case is on appeal.
Prosecutors do not dispute that most of the defendants in crack cocaine cases in Hampton Roads are black. Defendants, however, must not just prove a statistical case of discrimination - they also must prove that the defendants were prosecuted specifically because of their race.
Taking the defense arguments to their logical conclusion would result in a quota system, they said.
``If we go down that road, we'd have to prosecute more blacks in marijuana cases, more blacks in LSD cases, more blacks in methamphetamine cases, more blacks in white-collar crimes,'' said Smythers. ``We'd have to say, `We have too many men in prison. We need to arrest more women. More Protestants. More Jews.' ''
In his ruling, Jackson hinted that further refusals by prosecutors could lead to their being jailed for contempt of court.
``This threat is unprecedented,'' Smythers said. ``I've never seen it done in federal court, period. I've never seen a judge even hint to throw someone in jail. There's no place in our judicial system for parties to threaten each other.''
Fahey, speaking from her Northern Virginia home, said the prosecutors in Norfolk had acted at her direction in the case. Asked if she could be jailed for contempt, Fahey declined to comment. ILLUSTRATION: Color photos
Raymond Jackson
Helen Fahey
KEYWORDS: DRUG ARRESTS INDICTMENTS DISMISSAL by CNB