Massachusetts Daily Collegian

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A free and responsible press serving the UMass community since 1890

Massachusetts Daily Collegian

A free and responsible press serving the UMass community since 1890

Massachusetts Daily Collegian

Judge’s ruling allows Vassell to seek selective prosecution defense

n.jasonAs the weeks drag on, nothing seems to be getting much clearer in the nearly two year-old Jason Vassell case.

Hampshire Superior Court Judge Judd Carhart ruled Oct. 7 that Vassell’s defense team had met the legal standards necessary to pursue a so-called racially selective prosecution defense.

Such a defense entails the accused and his attorneys alleging that the defendant is being targeted for prosecution based on a pattern of racial injustice in law enforcement and a personal bias against the accused.

While Vassell’s defense attorney Luke Ryan would not discuss specifics of the case, he stated that selective prosecution is provable by illustrating to a jury that a history exists of a disparity along racial or socioeconomic lines in law enforcement of a given crime in a particular place.

He used the example of traffic stops, stating that defendants have used a selective prosecution defense in arguing that their population group was targeted disproportionately along a given stretch of road relative to percentage of population.

Last Friday’s ruling comes as a follow-up to an order which dates to last February, when Judge Carhart ordered that the Northwestern District Attorney’s office give five years’ worth of data about racially charged incidents to Vassell’s defense team to help them build a claim of selective prosecution.

That ruling was appealed by First Assistant Northwestern District Attorney Elizabeth Dunphy Farris to the state Supreme Judicial Court, which requested in a July order that Carhart refine the specifics of what cases would be turned over to Vassell’s team of defense attorneys.

The Oct. 7 ruling is Carhart’s response, both stipulating what cases Vassell’s team will have access to and granting the defense permission to pursue a selective prosecution defense.

Legal experts had mixed feelings about the potential benefits or drawbacks of attempting such a defense, though most felt it was a difficult strategy to attempt.

Northeastern University School of Law Matthews Distinguished Professor of Law Michael Meltsner said that while such selective defenses have been sought, their precedent is limited and the burden of proof lies with the defendant, making such claims arduous.

“Such claims have been raised before but are rarely successful,” he said.

“The courts, de facto, defer to the prosecution unless there is overwhelming proof of the state proceeding in a prohibited way,” he added.

Essentially, Meltsner continued, it is not the court’s obligation to decide whether a prosecutor has personally targeted a defendant based on demography. The court is generally neutral on such issues, and can only throw out a case if there is clear evidence, a so-called “smoking gun”, that a defendant is being unfairly selected.

To accomplish this, Meltsner added, “there must be a clear showing of failure to prosecute similarly situated individuals of a different race, ethnicity (or other population group).”

Meltsner said, however, that defense teams can sometimes utilize such strategies as a means for increasing sway in seeking a plea agreement.

“Sometimes a victory on a pretrial motion will increase plea bargaining leverage,” he said.

Fellow Northeastern School of Law Professor Dan Williams contended that such a claim is not even a legal defense, but rather a strategy to have a case dismissed before trial.

“While such a selective-prosecution motion is permitted, the chances of success are highly remote,” he said.

“It is not, technically speaking, a ‘defense,’ it is a claim that would be raised pre-trial to knock out the indictment,” he added.

Williams echoed Meltsner’s statement that the prosecutor has great leeway in bringing charges and determining whom to prosecute, meaning courts are generally reluctant to outright refute a prosecutor’s judgment.

“Because prosecutors have great discretion on whom to prosecute and courts are reluctant to second-guess the exercise of that discretion, such motions rarely succeed,” he stated.

“The defense would have to show actual racial motivation in pursuing this case, which amounts to having a smoking gun.”

Boston University School of Law professor Tracey Maclin said that such defenses are feasible and winnable, but maintained that the defense must prove actual racial motivation to succeed.

“It’s certainly feasible if he [Vassell] can prove that the prosecution had race in mind in filing charges,” he said.

The landmark case which has set the standard for selective prosecution cases is United States v. Armstrong, where Christopher Lee Armstrong, a black accused crack cocaine dealer, alleged that he was being targeted for prosecution based on his race.

Similar to the Vassell case, the District Court involved ruled that the prosecution must turn over three years of files on similar cases. The prosecution refused to comply, and the court threw out the case, ruling that a defendant need not prove that similarly situated persons would be treated differently.

The state appealed all the way to the U.S. Supreme Court, which voted 8-1 in May, 1996 that in order to file racially selective claims, defendants must prove that the state failed to prosecute similarly situated individuals of other races.

Chief Justice William Rehnquist wrote that if the claim was substantive, “it should not have been an insuperable task to prove that persons of a different race were not prosecuted.”

Northwestern Massachusetts District Attorney Elizabeth Scheibel’s office was asked for comment but did not return phone calls.

Director of the American Civil Liberties Union of Massachusetts Carol Rose’s office initially referred comment to Western Massachusetts Director Bill Newman, however, Newman declined to comment on the case, citing the organization’s ongoing involvement in Vassell’s defense. Rose’s office then ignored calls.

The Committee for Justice for Jason was asked repeatedly for comment, but did not return requests by press time.

Sam Butterfield can be reached at [email protected]

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  • K

    KingCastNov 11, 2009 at 9:30 pm

    Oh so Ed, it makes it all right because you have a black cop who is also bigoted against blacks, I’m All Clear Now, thanks!


    What force is reasonable? A pocket knife to two assailants who pushed their way into his abode (drunkely, after shattering his window but not being charged with either offense) then later told a story about how they knew someone in the building.


    You let two black boys run that game on a white boy and see them get put up underneath the jail.


    Well anyway Ed tell it to the High Court, I can’t wait to see what dirty games the Prosecutor has been playing all these years. I’m sure you don’t mind, right because the history you speak of will show that she’s fair and balanced, right?

    Boston (AP) — A single justice on the state’s highest court has ruled that a former University of Massachusetts student charged with stabbing two men in his dorm can see five years worth of prosecutor’s records.

    Lawyers for Jason Vassell requested the records from the Northwestern District Attorney’s office to determine whether there is a pattern of racially-tinged prosecutions.

    See more at:

  • E

    edNov 6, 2009 at 1:41 pm

    Evidence of racial bias? How about that cop, Lieutenant Thrasher, calling Mr. Vassell “drug dealer” and a “donkey” when in point of fact none of that is true and he had no Good Faith basis for so stating.

    What about his BLACK former partner, now promoted to Sgt himself, who woke him up and TOLD HIM that HE thought it was a drug deal? Yes, the person who thought it a drug deal is BLACK!

    And then one other thing: Thrasher also said, in reference to a very WHITE Brad DeFlumeri that he “wanted to hang Brad by his balls.” Said this to two young ladies.

    And we have racism because?

  • E

    edNov 6, 2009 at 1:38 pm

    and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling.

    REASONABLE! Have you seen the video? (I have.) “Reasonable” does not mean running the length of a PUBLIC lobby to stab two kids cowering by the door. That is an attack.

    There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling. (a) running towards an aggressor is not a form of “retreat.” (b) there is no duty to retreat, but if you DO retreat do it so as to get a weapon so that you can stab someone, that is something else entirely. And (c) if you do it the way the Klan used to – with a hood over your face to hide your identity, well it don’t look good, does it???


    Then I heard that later on in the proceedings the real perps

    Oh, really? Imagine the other way around: two black kids are here to visit someone – lets make it the same white girl – and a white kid first orders them to leave and then damn near kills them. Would you still be of the same opinion? Of course you would…

    tried to say that they knew someone on campus and were coming to see her, that is wholly unbelievable because that would have been the first defense out of my mouth.
    -Christopher King, J.D.

    Of course it would, thanks to the law degree you got for free.
    Those boys weren’t able to even graduate high school.

    And people like you need to learn from history. We are in the same situation now that we were during reconstruction. And then what happened when reconstruction ended? And what is likely to happen again? I hope you dine fine on the grapes of wrath…

  • E

    edNov 6, 2009 at 1:29 pm

    Sam: It is the Supreme JUDICIAL Court, or SJC – the “Supreme” Court is technically the Legislature, whose official name is “The Great and General Court of the Commonwealth” although most call it just the ‘General Court.’

    This is because Massachusetts is a ~400 year old Commonwealth.

    Point well taken on how SJC will rule not being known.
    And remember that the only two precedents involve the exact same thing – where here you have armed v. unarmed….

  • K

    KingCastNov 4, 2009 at 8:39 am

    Not to mention the Castle Doctrine.

    MGL 278 8A.

    Chapter 278: Section 8A. Killing or injuring a person unlawfully in a dwelling; defense

    Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.


    Then I heard that later on in the proceedings the real perps tried to say that they knew someone on campus and were coming to see her, that is wholly unbelievable because that would have been the first defense out of my mouth.

    -Christopher King, J.D.

  • K

    KingCastNov 4, 2009 at 8:33 am

    Ed, to hell with your opinion. My blog entry is here:

    You try to make these white men into innocent unarmed people when in fact they were not. They race-baited him and commenced violence at his window, breaking it. They were not charged with malicious destruction of property.

    They rushed into Mr. Vassells domicile without permission and broke his nose. They were not charged with criminal trespass.

    If two black men did what these drunken white men did they would have been up underneath the jail.

    And oh, they were not charged with public intoxication.

    In fact, one of them was not charged with ANYTHING as far as I know, even though they were clearly co-conspirators jointly engaged in criminal enterprise.

    Evidence of racial bias? How about that cop, Lieutenant Thrasher, calling Mr. Vassell “drug dealer” and a “donkey” when in point of fact none of that is true and he had no Good Faith basis for so stating. We will be filing a complaint against him even though I’m sure they will do nothing about it.

    I will discuss this matter today and TOUCH 106.1 will be attending hearings on this matter.

  • S

    Sam ButterfieldOct 21, 2009 at 5:22 pm

    Ed, thanks for writing in.

    In a lot of ways I agree with what you’ve stated here about how the case will go back to the Supreme Court and about their concern’s in Carhart’s ruling, but I can’t really report on speculations or legal guesses as to how the Supreme Court will rule before they weigh in; that’s not my job and it would be pretty unethical. Also, I was writing specifically about Judge Carhart’s ruling, and not about their prior motions other than how they led to this one. That’s why I did my best to get a variety of legal opinions on how selective prosecution defenses work and their likelihood of success.

    The legal opinions I got, from various law schools, were fairly negative in their assessment of this defense. I also don’t think my article in any way mitigates or attempts to justify the alleged actions of Mr. Vassell, nor does it denigrate Mr. Bowes or Mr. Bosse. Rather, it explains the logic behind Vassell and his legal team’s defense. It is certainly not my job or intention to comment on any alleged crime or speak to whether it is justified or, conversely, unjust. I am reporting on what people are saying about this, their thoughts on the course of this case, and the facts as they appear in court involving this case. Also, I believe I did print that this will return to the Supreme Court on appeal, which it will in a few months, and then we will see how it develops.

    Thank you again for your opinion.

  • E

    Ed CuttingOct 20, 2009 at 8:38 am

    Sam, respectfully, you are wrong. Last summer, I asked three lawyers (bright lawyers whom I respect) what was going on and all three gave me different but equally wrong answers. This case is complex…

    The short version is as follows: Appeal of Carhart’s order to release info to DA went to single justice of Supreme Judicial Court. Single justice said that (a) she wanted the entire SJC to rule on the matter, but (b) Carhart hadn’t given a rational reason for his order in the first place.

    Hence while she thought that the SJC ought to rule on the matter due to its importance, she thought that Carhart might want to give them something more than just the Hoose/Ryan brief as the basis for his ruling. She thus remanded the case to Carhart FOR CLARIFICATION OF HIS RULING and “suggested” that he might want to have additional evidence heard and such. This led to three hearings, of which Sam is reporting on the third.

    The State Supreme Judicial Court then will rule on all of this, and IMHO, is going to say that Carhart is wrong. Oh, they are leaning that way big time already, but there is procedure.

    Remember too that the two cases being cited by H/R (and I have read both) are statutory rape cases, one being that gay sex with a 14 year old is every bit as illegal as heterosexual sex with a 14 year old, and the other that if the prosecute a 15 year old boy (as an adult) for receiving a Monica, they also have to prosecute the 15 year old girl who gave it to him.

    None of this mitigates the fact that Jason Vassell brutally stabbed two human beings, and this is on video and indisputable. They may have been the Milton town drunks (my personal favoriate was being arrested at 6:30AM passed out drunk in the Starbucks bathroom in either Milton or Quincy (it wasn’t clear if you don’t know the area). But schmucks are human beings, and to paraphrase Shakesphere’s _Orthello_, if you stab them, they bleed red blood too…

    My gut feeling is that the SJC is going to rule that unless it can be proven that the UMPD (as much as we may have issues with them) nonchalantly ignores white kids who stab black ones. Now if we had a half dozen incidents where a white kid brutally stabbed TWO UNARMED black kids and the cops did nothing, well I would be protesting that but I somehow don’t think I would be the first one doing it.

    Now bear in mind that there is a whole lot more I am hearing out of my sources in Boston that I am not going to put into print here (and Sean, you know I wouldn’t say what I have without primary sources to defend it). Amherst is 25.27 square miles surrounded by reality, and even in Massachusetts things like brutally stabbing unarmed men is considered to be doubleunplusgood.