Judge’s ruling allows Vassell to seek selective prosecution defense

By Sam Butterfield

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]