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No Discovery for Selective Prosecution Claim:

After a federal grand jury indicted James Thorpe for being a felon in possession of a firearm in violation of federal law, Thorpe sought to dismiss the indictment on grounds of selective prosecution on account of race. Lacking much evidence to support his claim, Thorpe sought "discovery of all of the government's files regarding the Project Safe Neighborhoods (PSN) program under which Thorpe was being prosecuted." The district court granted the request, but the federal government failed to comply fully with the discovery order, and the court dismissed the indictment.

On appeal, the U.S. Court of Appeals for the Sixth Circuit reinstated the indictment, holding the district court's discovery order was improper. Before he could be entitled to discovery, the Sixth Circuit held, Thorpe was required to show "some evidence" that "similarly situated persons were treated differently" under United States v. Bass 536 U.S. 862 (2002). That most PSN prosecutions in the Eastern Distrcit of Michigan arose from those counties with the greatest African-American populations did not suffice to meet this test.

Justin (mail):
An understandable decision, though an unfortunate situation the law has placed people in. The court's dance with prosecutorial discretion and disperate impact discrimination really puts victims of discrimination (and, in fact, victims of all unlawful government actions, such as in 4th amendment cases), in a heavy burden to prove themselves.

I'm not sure what, if any solution, there is. On the one hand, I have no doubt in my mind that in at least some jurisdictions, there really is selective prosecution, and that at least one factor taken into account, at least unintentionally, is race. However, does that mean the law cannot be enforced at all? And how do you weed out the good from the bad?

The easy answer is to let the political divisions weed out racism. But "political solutions" have shown themselves to be much more effective in theory than in practice, particularly in jurisdictions where minorities are, in fact, minorities.
12.27.2006 1:45pm
Rich B. (mail):

"discovery of all of the government's files regarding the Project Safe Neighborhoods (PSN) program under which Thorpe was being prosecuted."


As I read the case, the issue was precisely that he WASN'T being prosecuted under PSN. He was being prosecuted under 18 U.S.C. 922(g). PSN was a program under which the DoJ was to increase enforcement of several statutes, including but not limited to 18 U.S.C. 922(g). If the Plaintiff had attempted to show evidence of all prosecutions under 18 U.S.C. 922(g), that might have been resolved differently (under at least one prong of the test).

Now, the Court certainly has a point. But, taken as it is, it would be impossible under this court's decision to EVER show that PSN was discriminatorily enforced, because no one was EVER charged for violating PSN. That simply can't be right. It is entirely possible that (at least statistically speaking), all combined prosecutions under a PSN-focused statute were selectively enforced to a statistical certaintly, even if there was no certainty as to 922(g), or any other specific sub-section.

Now, I don't know what the evidence would eventually show, but the opinion here is essentially concluding that a "policy" can never lead to selective prosecution -- only the specific charges upon specific statutes. And that is definitely wrong.
12.27.2006 2:03pm
anonVCfan:
Justin, maybe the answer is to gather what evidence one can without the government's help, and either file a civil suit, or have the next person in Thorpe's situation do as Thorpe did here, but with the aid of additional evidence.

There's probably enough raw data out there that one could do a study and crunch the numbers. Sounds like a potentially good project for an activist group if anyone thinks there's something there.
12.27.2006 3:11pm
Justin (mail):
anonVC, this type of empirical data collection is incredibly expensive, and the type of people who need this information tend to have the least resources. I know some programs who do this kind of data tracking - one, based in New Orleans, lost their data in Hurricane Katrina.
12.27.2006 3:49pm
jgalak:
Would he (or another interested party) have been able to get the necessary data with a FOIL request?
12.27.2006 4:21pm
BruceM (mail) (www):
Lesson for Government: Discriminate against the darkies all you want, just make sure there is no direct evidence of it made public. So long as the evidence of racism-based selective prosecution is kept confidential (think: red-haired racist cop on South Park who tried to arrest "Mr. Jefferson" for being black until he found out he may actually be white) no darkie-defendant will ever be able to get some evidence to get all the evidence.
12.28.2006 12:09am
Dave Hardy (mail) (www):
Would he (or another interested party) have been able to get the necessary data with a FOIL request?

FOIA only covers existing records. So if the gov't already has a racial breakdown of prosecutions under the relevant statute, you can get it. You might be able to request all records of arrest or warrants or something like that that reflect race, and compiled it yourself, but search and copy costs are going to be high. And it's going to take months (regardless of the FOIA time limits).
12.28.2006 10:36pm
NickM (mail) (www):
Don't make fighting crime in high-crime areas a high priority in law enforcement, and you are attacked for discriminating against poor and minority citizens.

Make fighting crime in high-crime areas a high priority in law enforcement, and you are attacked for discriminating against poor and minority citizens.

Some people will never be happy.

Nick
12.29.2006 12:40pm