Dismissal of Drug Case Over Race : Courts: Defendants said U.S. selectively prosecutes blacks. The charges were thrown out when officials declined to show statistics.

A federal appeals court in San Francisco on Thursday upheld the dismissal of crack cocaine trafficking and weapons charges against five Los Angeles African Americans after the government refused to provide information to rebut allegations by the defendants that the U.S. attorney’s office was selectively prosecuting blacks on drug charges.

In a 7-4 decision, the U.S. 9th Circuit Court of Appeals said the defendants had made a “colorable” showing of selective prosecution because a study revealed that the defendants in all 24 crack trafficking cases concluded by the Los Angeles federal public defender’s office in 1991 had been black.

The majority opinion stressed that not every defendant will be able to compel the government to turn over information of the sort asked for in this case. “The colorable basis standard ensures that the government will not be called to answer for its charging decisions as a result of frivolous and unwarranted allegations,” wrote Circuit Judge Stephen Reinhardt. He said “selective prosecution claims call into question the very integrity of our system of criminal justice.”

The decision could have broad ramifications in the nine western states of the 9th Circuit because it will enable some defendants to make wide-ranging inquiries about which cases federal prosecutors decide to bring to court.

Deputy Federal Public Defender Barbara E. O’Connor said the ruling will permit drug trafficking defendants armed with some statistical information indicating that disparate numbers of their race are being prosecuted to get information about how the government is waging the drug war.

In this case and many others, drug defendants are arrested by joint state-federal task forces and then a decision is made about where they are prosecuted. The consequences are significant, O’Connor said, noting that her client is facing a 35-year mandatory minimum sentence, while he would face a sentence of three to five years if his case had been lodged in state court.

The ruling is a license for defendants to engage in “fishing expeditions,” wrote dissenting Judge Pamela A. Rymer. “If the majority opinion remains the law, it will be at no small cost,” she wrote. “In this case alone, locating more than 3,000 files (requested by the defendants) and figuring out which were crack and firearms prosecutions, the racial identity of each defendant . . . will be a time-consuming and expensive process.

“Resources intended for controlling crime, one of the nation’s most pressing concerns, will be chasing statistics instead. With the prospect of having to fight discovery and justify every charging decision, it will not be surprising for crack prosecutions to wane,” Rymer wrote.

Richard E. Drooyan, chief of the criminal division of the U.S. attorney’s office in Los Angeles, agreed: “You’ll see more discovery motions by defendants and more of our time spent responding to them.” He maintained that race plays no role in the office’s decisions. The office may appeal to the U.S. Supreme Court.

Proving selective prosecution is extremely difficult. A defendant has to show that a prosecutor acted with discriminatory intent and that the actions had a discriminatory effect.

The majority opinion said it would be unfair to require a defendant to show as much to obtain discovery as he would to prove selective prosecution.

“Defendants are not required to present . . . a ‘smoking gun’ that irrefutably demonstrates the existence of a prosecutorial bias. Nor are defendants required to compile facts which are not easily obtainable by them,” such as the racial breakdown and offense characteristics of other defendants, Reinhardt wrote.

His opinion said that 24 cases do not conclusively establish selective prosecution. “However,” Reinhardt wrote, “the fact that every single crack defendant represented by the federal public defender in all cases that terminated during 1991 was black provides a colorable basis for believing that the challenged prosecutorial policies are driven by discriminatory motives and yield discriminatory effects.”

Therefore, the majority concluded that federal district Judge Consuelo B. Marshall did not abuse her discretion when she dismissed charges after the government declined to provide the information she ordered prosecutors to produce in response to a defense motion.

Marshall told prosecutors to provide a list of all cases during the prior three years in which the government charged both crack cocaine and firearms offenses; the racial identity of the defendants; whether state, federal or joint law enforcement authorities investigated each case, and to explain the criteria used by the U.S. attorney’s office in deciding if it will file a crack case in federal court.

The U.S. attorney’s office declined, filing papers saying that socioeconomic factors led some racial groups to be particularly involved in distribution of certain drugs and that blacks were especially involved in the Los Angeles-area crack trade. A ranking official filed a declaration saying that among the factors prosecutors used in making filing decisions were the strength of evidence, deterrent value of the case, the suspect’s criminal history and other “race-neutral” criteria.

The four dissenting judges said the majority gave too much significance to the statistics offered by the defendants and they contended that the statistics were meaningless without a comparison group.

Still, Rymer acknowledged that the defendants’ claims reflect legitimate, widespread concerns “which I share--that mandatory minimum sentences in general, and those for crack offenses in particular, fall heavily on young black males.” Rymer cited data from the U.S. Sentencing Commission that 87.9% of those convicted for crack cocaine offenses nationwide are African American.