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Fedz in the ’hood (continued)


Because of those harsh sentences, the mere threat of moving a case to federal court is often enough to get a defendant to plead guilty or, better, to cooperate by providing information to prosecutors. And US attorneys can hand out immunity on their own, says William Young, chief judge of the US District Court for the District of Massachusetts, while DAs need to obtain judicial approval. That has led to success through Boston’s Unsolved Shootings Project, says Joyce. It also led to information that freed Donnell Johnson in 2000, when federal prosecutors learned from a gang member facing drug charges that Johnson was not involved in the murder for which he had been convicted.

But it also produces bad information, critics charge. "They’re creating a whole generation of desperate people who will say desperate things," says Stephanie Page, an attorney with the Committee for Public Counsel Services, the Massachusetts public-defender office. Desperate people also make for less-than-believable witnesses, as US attorneys have learned in the case of Wurie, one of the death-eligible defendants currently under prosecution in the state. A key witnesses against Wurie is Augusto Lopes, who is cooperating with the US attorneys in exchange for a potentially reduced sentence. As part of that deal, Lopes also testified against Wurie on a separate federal charge last month. In that case, after defense attorney Norman Zalkind had Lopes recount the many shootings for which he has been granted immunity, the jury took an hour and a half to acquit Wurie.

In addition to its sometimes questionable legal merits, federalization involves real dollar costs. Federal trials tend to be longer and considerably more expensive — a recent federal case that would have been a one-week trial in state court lasted 90 days, says Boston defense attorney Robert Sheketoff. Longer prison sentences also come at high cost to taxpayers.

Furthermore, many believe that the pursuit of street crime distracts US attorneys from prosecuting high-level crimes more appropriate for federal court. In February, Judge Wolf took the unusual move of publicly complaining about the number of street-crime cases clogging up the federal court, and suggested that Sullivan concentrate on more serious cases. Sullivan blasted back at Wolf in the press, at which point two of Wolf’s benchmates, Young and Rya W. Zobel, jumped to his defense. (Wolf declined to comment for this story.) "The mix of cases with which we work has been, since Donald Stern and continuing with Michael Sullivan, moving to these kinds of drug and gun cases," Young says. "The judges expect to see sophisticated prosecutions," says Sheketoff. "They see Mickey Mouse nonsense that could be handled in state court. It must be frustrating." (Young, it seems, has had enough of these cases. This week, considering decades-long prison terms for five drug dealers, the judge issued a 174-page declamation against the federal sentencing guidelines. In it, he describes prosecutorial methods that "exceed all constitutional bounds," involve "repeated instances of illegal fact bargaining," evince "a moral code more suited to the alleys of Baghdad than the streets of Boston," and reveal "such callous indifference to innocent human life as would gag any fair-minded observer.")

Perhaps more important is a concern raised last fall by Suffolk County district attorney Dan Conley. Conley spoke publicly against the decision to prosecute Green and Morris in federal court, especially in light of the decision to seek the death penalty. He warned that it could damage partnerships between law enforcement and community groups, making it harder to prevent and prosecute crime. (Conley declined to comment for this article.)

Some defense attorneys also point out that moving a case from Suffolk County to US District Court causes a dramatic change in the make-up of the jury pool. Young black men end up judged by primarily white, suburban juries. Is it possible that gang cases are being moved to federal court specifically because those juries are more likely to convict — and sentence to death — African-American men? "Let’s face it, I teach lawyers forum-shopping," says Judge Young. "Wouldn’t it be wrong not to go where you can get your best shot?"

Such prosecutorial tactics can further erode minority communities’ faith in the criminal-justice system. "There’s a genuine level of distrust," says the Reverend Eugene Rivers, president of the Ella J. Baker House, a Boston youth-outreach center. He plans to draw more attention to these cases, which he believes have been overlooked by many in the city. "I think the use of the death penalty is absolutely disgraceful. Sullivan has not made a credible moral or political case for why he is doing it." Former Suffolk County DA Ralph Martin shares these concerns. "I think the death penalty creates problems," he says. "There are historically concerns about the application of the death penalty. And that’s compounded by problems with wrongful convictions, which more often than not have been people of color."

THIS IS AN inopportune time to upset community trust — in fact, Boston Police commissioner Kathleen O’Toole and Mayor Tom Menino have renewed efforts to court that trust in the wake of a recent rise in violent street crime. They met with three dozen clergy and social workers at City Hall in mid May, and O’Toole has made a number of community appearances since taking office in February.

Despite the step-up in harsh federal prosecution, gun crime has increased in Boston since the gang era subsided, in 1996. The total number of homicides, robberies, and aggravated assaults involving firearms was rock-steady from 1997 through 2000, and rose in the last three years. This year through March, the number of reported aggravated assaults involving firearms was at its highest since 1996. "We see over and over again that just making a lot of federal cases doesn’t make a lot of violence-level difference," says Kennedy.

Yet a bill now in the US Senate would widen the federal net much further. Introduced last fall and sponsored by the odd couple of Orrin Hatch (R-Utah) and Dianne Feinstein (D-California), the "Gang Prevention and Effective Deterrence Act" would define a "criminal street gang" to include an "informal group" of "three or more persons." It would make seven new federal crimes death-eligible, according to the American Civil Liberties Union, and create the vague felony of gang "participation." This follows the Drug Kingpin Statute of 1988 and the Federal Death Penalty Act of 1994, which vastly expanded the list of federal crimes, including those punishable by death. "The Congress has significantly expanded the number of federal crimes, and taken crimes which were traditionally handled by local courts and made them federal crimes," says Young.

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Issue Date: June 25 - July 1, 2004
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