THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Friday, June 7, 1996 TAG: 9606070489
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY LAURA LAFAY, STAFF WRITER
DATELINE: RICHMOND LENGTH: 67 lines
A federal appeals court listened Thursday as federal prosecutors challenged a judge's ruling that their office may have targeted African-Americans for prosecution in a drug conspiracy probe.
In December, U.S. District Judge Raymond A. Jackson dismissed charges against two defendants after defense lawyers raised allegations of selective prosecution and the U.S. attorney's office in Norfolk refused to provide information for a hearing into the allegations. The U.S. attorney appealed to the 4th U.S. Circuit Court of Appeals.
Assistant U.S. Attorney William G. Otis argued Thursday that Jackson's dismissal of the charges constituted an abuse of judicial discretion. Defense lawyers had not offered enough proof of racial discrimination to warrant a hearing into the matter, he said.
The defense lawyers, James Ellenson of Newport News and Sterling Weaver of Portsmouth, had pointed to grand jury testimony implicating five white people in the same Peninsula crack ring conspiracy for which their clients - Anthony L. Orvis and Angela D. Palmer - and 18 other African Americans were being prosecuted. None of the whites were charged.
In addition, the lawyers cited statistics showing that, of the 250 crack cases tried in Norfolk federal court since 1992, the race of the defendants could be determined in 226. Of those, 210 defendants were African American.
In a recent decision in a California case, the Supreme Court ruled that such statistics are not enough to support a claim that the government is selectively prosecuting African Americans. However, if defendants can show that ``similarly situated'' suspects of other races escaped prosecution, the government must explain why.
Otis argued that prosecutors decided not to charge the five whites based on ``ordinary race-neutral considerations'' such as degree of culpability, cooperation with police and enforcement priorities. None of them, he said, was ``similarly situated'' to those who were charged.
In addition, Otis said, allegations of discrimination made no sense because there were roughly 50 additional African Americans involved in the case whom prosecutors chose not to charge.
But Weaver argued that the defendants had no way of knowing who had been passed over for prosecution because prosecutors had refused Jackson's order to produce information for a hearing on the matter. And as for Otis' contention that the whites in the case were spared prosecution because they cooperated with police, Weaver argued that prosecutors had apparently used race to select the people for such deals.
Weaver's client, Angela Palmer, was subpoenaed the night before the grand jury convened and was never given a chance to cooperate with investigators in exchange for immunity, he said.
At issue in the case is the meaning of ``similarly situated,'' which the Supreme Court has not defined. According to Otis, Jackson's definition included everyone involved in the conspiracy. Such a definition, argued Otis, ``would take away the government's ability to exercise discretion and make them indict everyone.''
A ruling is expected in about six months. Hearing the case Thursday were judges Paul V. Niemeyer of Baltimore; Clyde H. Hamilton of Columbia, S.C.; and Sam J. Ervin III of Morganton, N.C. Niemeyer, the most vocal of the three, asked Weaver what kind of remedy would be appropriate should the court affirm Jackson's finding.
``Why dismiss the indictments?'' asked Niemeyer. ``Why not just prosecute the white people?''
``Maybe we should prosecute the U.S. attorney,'' Weaver said. ILLUSTRATION: Judge Raymond A. Jackson dismissed charges against 2
defendants. by CNB