THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Friday, May 17, 1996 TAG: 9605170480
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY LYNN WALTZ, STAFF WRITER
LENGTH: Long : 101 lines
Are blacks being unfairly targeted by federal prosecutors for selling crack cocaine?
One judge in Los Angeles and another in Norfolk both considered the question and came to the same conclusion: Yes.
This week, however, the U.S. Supreme Court said no, at least in the California case. And that ruling could have implications for the Norfolk case.
At stake in the Norfolk case is this: Will about two dozen alleged members of a violent Peninsula drug gang be prosecuted for drug crimes, or will they be freed and the charges dropped?
Norfolk U.S. District Judge Raymond A. Jackson in December dismissed indictments against two of the alleged gang members. He also withheld ruling on the others pending appeal of those two cases. The appeal is to be heard by a federal appeals court June 6 in Richmond.
Jackson dismissed the charges after defense attorneys argued their clients, who are black, had been the victims of selective prosecution based on race. The lawyers cited statistics showing that 93 percent of defendants prosecuted on crack charges in Hampton Roads during a three-year period were black in more than 200 cases where race was known.
Lawyers in the California case had made a similar argument, producing figures that showed all 24 defendants prosecuted by that office in crack cocaine cases in 1991 were black. The trial judgethere, citing those statistics and criticizing prosecutors for failing to provide case files to defense attorneys, dismissed drug charges against five black defendants, ruling they had been unfairly targeted because of their race.
In Monday's ruling on the California case, U.S. vs. Armstrong, the Supreme Court decreed that statistics alone do not prove that prosecutors unfairly prosecute blacks.
But the ruling went further. The high court also said that if defense attorneys can prove that ``similarly situated defendants'' of one race are treated differently than defendants of another race, a case can be made for selective prosecution.
That ruling highlighted the distinction between the Virginia and California cases.
The judge in the California case ruled solely on the statistical issue. But Jackson considered both the statistics and a second issue: whether whites involved in the case had received special treatment because they were not charged.
Defense attorneys argued that the white defendants received special consideration. Prosecutors disagreed, saying they had received special treatment because they cooperated with authorities, not because of their race.
Next month, the 4th U.S. Circuit Court of Appeals must decide whose argument is the most compelling. The court will also have to decide exactly what the high court meant by ``similarly situated'' defendants, because, in its ruling, the justices did not define the phrase.
One of the whites not charged in the case is a woman who was romantically involved with an alleged gang member and drove a car for the member, who sold crack.
Prosecutors say she approached them and agreed to help with the investigation, working undercover for investigators. That set her apart from the defendants, who refused to cooperate, prosecutors said. Defense attorneys, however, argued that she should have been charged because she was such an integral member of the gang that customers hailed her car on the street to buy drugs.
Another central subject in dispute was the driver during a drive-by shooting associated with the gang. The man, who is white, offered to help prosecutors with their investigation. Prosecutors said they did not know of the shooting at the time and did not charge him after he willingly offered incriminating information about himself along with other suspects.
Defense attorneys say he was more deeply involved than some of those charged and should also have been charged. Prosecutors counter that the gunman in the drive-by shooting - who was black - was also not charged after he, too, volunteered information.
Prosecutors say others who were charged were not helpful, did not turn over evidence and, in some cases, lied to the grand jury.
Further, they say in the brief, as many as 50 blacks who were involved in the drug trade were not charged for reasons, just as several whites were not charged. Those blacks were ``similarly situated'' to the whites not charged, prosecutors argue in their brief.
Both sides hailed this week's high court decision as favorable to their cases.
``Defense counsel relied heavily on the (pending) Armstrong case for making it's motion (to dismiss),'' said Executive Assistant U.S. Attorney Michael Smythers. ``Their reliance has obviously been misplaced. . . . Armstrong is now the law of the land and (the appeals court) is required to follow it because it sets a precedent that applies to all circuits.'' Smythers declined further comment.
However, defense attorney James Ellenson believes the ruling supports his contention that blacks were unfairly prosecuted.
The ruling says ``you have to point to specific evidence, that mere statistics aren't enough,'' Ellenson said. ``Just look at the facts of the case. Twenty-five blacks were prosecuted and at least five whites were not. At least three of those whites were very high up'' in the drug organization.
KEYWORDS: CRACK COCAINE RACISM PREJUDICE DRUG
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