The Decision to Prosecute Drug Offenses and Homicides in Marion County, Indiana

Chapter 2

Public Commentary


Two Marion County prosecutors testified before the Advisory Committee: Scott C. Newman (R), the current Marion County prosecutor; and Jeffrey Modisett (D), former Marion County prosecutor. Scott Newman has served as Marion County prosecutor since 1995, winning reelection in 1998. Jeffrey Modisett is currently the attorney general for the state of Indiana; he served as Marion County prosecutor from 1991 to 1994.

Scott C. Newman, Marion County Prosecutor

I think after thorough study [this Committee] will find unequivocally that prosecution decisions are not tainted by issues of race. The focus of your study . . . includes decisions whether to charge or not to charge. You want to know whether any racial bias, explicit or implicit, direct or incidental, characterizes those decisions.

Let me begin with the issue of violent crime, specifically, the unacceptable number of homicides in the last decade in Marion County. The first thing you should know is that the homicide problem itself has its own disproportionate impact upon the African American population of this community.

In 1998, 73 percent of homicide victims in Marion County were African American. If you look just at the Indianapolis Police Department's jurisdiction and their roughly 130 homicides in 1998, some 81 percent of those victims were African Americans. These figures represent roughly triple the representation of African Americans in the general population. The disproportionate impact of violent crime on young African American males in Indianapolis has held true over time, as was noted in a study published by the National Institute of Justice in Government of 1979.[1] Of the eight major U.S. cities studied there, Indianapolis showed the highest overall disproportionality of black male homicide victims age 18 to 24 during the years 1985 to 1994.

Too many African Americans are being victimized by violent crime in our community, and they are being victimized far out of proportion to their numbers in the general population. They are dying young and the perpetrators of those violent deaths have also disproportionately and overwhelmingly been African American as well. These are facts which any right-thinking person in our city, black or white, bears with deep sadness and even shame.

Probably no one in this city, other than those who have personally suffered the loss of a family member, experiences the devastating realities behind these homicide numbers more poignantly than the county prosecutors. In the living rooms, in the churches, in the funeral homes, at the crime scene, on the streets, and in the courtrooms and police stations of this community, I and my colleagues are the legal system, fellow sufferers with the angered, bewildered, and bereaved family members of those who have been cut down before their time . . .

The stunning disproportionality of black victimization by violence I have described previously also means that as prosecutor in this community, I literally spend the majority of my time and energies in service to African American members of this community, and that is truly how I view my work in bringing justice to violent crime victims, most of whom are African American. I am in their service. And while the well-to-do on occasion fall victim to violent crime and more often to property crime, it is largely among the economically disadvantaged and the downtrodden that we spend our time and do our work. We cannot do our job well if we do not care deeply about the least of these.

Despite all of the advances in the technologies of criminal investigation, such as the use of DNA analysis, the best way we have to solve crimes and bring justice continues to be simply this: People come forward and tell us what they saw and heard. People come together in their neighborhoods and decide they have something to defend. They decide to drive out drug dealers rather than tolerating or even glorifying local drug dealers. Getting needed cooperation from witnesses germinates best where there is a fertile soil of support and positive peer pressure in the affected community, and in many cases that has been increasingly hard to come by.

The reluctance to come forward results from some combination of fear of retribution, lack of adequate resources for witness protection, and mistrust of the justice system. That is one reason why impartial studies and frank discussion of issues of race and justice is so important and why fear mongering and racially charged rhetoric is so destructive. If people are given the information that they need to be assured that the system is trying to help them, they will be encouraged to participate, to cooperate with the police to serve as witnesses and indeed as jurors. If they are told irresponsibly that the system itself is the problem rather than the criminal, they will find reason not to participate and criminals will go free.

Let me turn now to the mechanics of the charging decision. [Regarding] narcotics cases, nearly all of the felony level drug charges in Marion County are screened by a deputy prosecutor with 20 years [experience] . . . In meetings and discussing these cases with detectives, the areas of inquiry are simply: What drugs are involved in the case? What quantity by weight? Who can be proven to have possessed them and for what purpose? For delivery or dealing or for personal use? These are the points of discussion because these are the determinants as to what level of charges can be lodged under Indiana law. Considerations of race, creed, color, gender, sexual preference, and ethnicity play no part in those discussions.

Dealing cocaine or possessing with intent to deliver cocaine over 3 grams translates to a class A felony. Dealing under 3 grams means a class B felony. Possessing for personal use, depending on the quantity can result in a class C or D felony charge, and it should be noted that under Indiana law there is no distinction made between crack cocaine and cocaine in powder form. Possessing marijuana over 30 grams is a D felony, under 30 grams a class A misdemeanor, and so forth. The difficulties lie principally in determining who can be said to have possessed the drugs when the evidence is seized during the search of a house or car with multiple occupants. They are known as constructive possession cases.

Another fertile area for discussions at charging time is whether any evidence exists to justify a charge of intent to deliver or intent to deal. Those discussions invariably revolve around the quantity of drugs seized, the method of packaging, and the presence or absence of other evidence tending to show the carrying on of a drug business as opposed to the satisfying of the personal craving of an individual drug addict. For the nonviolent addict, within the last few months my office has participated in the successful implementation of a federally funded drug treatment court allowing even indigent defendants the opportunity for long-term intensive outpatient drug treatment in partnership with Fairbanks Hospital. Initial eligibility determinations for this program are now also being made in my screening division.

Rather, the most common concern voiced is that lower level crack cocaine dealers are disproportionately targeted for arrest by law enforcement, that those dealers are overwhelmingly African American, and that higher level suppliers (often presumed to be white or Hispanic) escape detection. These issues involve primarily the policies and police strategy and are beyond the scope of what I understand to be your inquiry.

[Regarding homicides,] the charging decisions . . . are made in a section called the prosecutor's Screening Division. The lawyers in this division meet with detectives on a daily basis and are briefed on the results of police investigations. They ask questions about the evidence, make suggestions as to further evidence that might be gathered, and are then called upon to render a legal opinion as to the appropriate charge or charges, if any, to be filed. They then draft those charges for filing with the court . . .

The charging discussion in the homicide revolves around the following issues: First, identity. Is there sufficient evidence to identify the killer? Is the evidence credible? Can it be corroborated by physical or other circumstantial evidence? Can other suspects be excluded?

Second, intent. What is the evidence as to the state of mind of the killer? Was it a knowing or intentional act with some evidence of deliberation or motive which would justify a murder charge? Was it the act resulting from legal provocation indicating a voluntary manslaughter charge? Was it a reckless act, meaning that involuntary manslaughter or reckless homicide should be filed, or merely a negligence or accidental occurrence which would result in our declining to file any criminal charge?

Lastly, any anticipated defenses. Can the defendant raise a credible defense on the evidence, such as self-defense or insanity? While the decisions growing out of the foregoing questions can be complex and involve many related discussions of investigative tactics, the framework of the analysis is simple and is exclusively what I've described above.

Considerations of race, creed, color, gender, sexual preference, and ethnicity play no part in those discussions. On occasions, we have heard the allegation that there exists racial bias in our application of the death penalty. Without going into a detailed decision of the death penalty, the record stands with my having obtained death sentences on four individuals during my tenure. Three of them white, one of them black, all of them deserved.

[The Committee] may hear from some vocal critics in the community about some difficult charging decisions in individual controversial cases. Such decisions are the stuff of everyday for major metropolitan prosecutors, and I do not shrink from those decisions. In one case, a black male who allegedly had stolen some tools was pursued by a neighborhood resident who was white. There was an exchange of gunfire, and tragically the alleged tool thief was killed. The police elected not to make an arrest on the scene, deciding instead to present the facts to my office for a charging decision in light of a claim of self-defense. On being presented with the case, my only decision and only participation in the case was to stand aside and ask for an appointment of a special prosecutor owing to my personal acquaintance and service on a nonprofit board with the wife of the shooter. A well-respected prosecutor from another county presented this matter to a grand jury, entirely without my participation, and a racially mixed jury returned a no bill in that case.

In another more recent case, a bail agent was searching the home of an individual who had jumped bail. When the bail agent discovered the fugitive in the opening of a basement crawl space, he was startled by the movement and discharged his weapon, killing the fugitive. Again, in light of the claim of self-defense, the police did not make an arrest on the spot, a decision which rankled some leaders of the African American community. The police presented the facts to our office. We determined that the fugitive was unarmed and that the use of deadly force was not justified under the circumstances. We charged the bail agent with reckless homicide. Under the law of Indiana, this was the only correct charging decision. I stand by it and hope to convict the shooter and send him to prison. The tough job of making that charging call reflected only the remorseless facts and the law, not any callousness on our part or any downgrading of the value of the human life that was tragically and unlawfully lost.

Finally, much has been said about our restrictive plea bargaining policies in homicide cases, and I am proud of those policies, but relatively little has been noted as to the protection such policies actually afford the defendants. Our truth-in-plea-bargaining approach means an ethical, searching inquiry resulting in an appropriate level of charges at the outset, then requiring persistence on the part of our deputy prosecutors in obtaining a conviction of lead charges which we have determined to be the lead charge that most appropriately encompasses the defendant's actual culpability; this is what builds public confidence while at the same time being fairer to defendants . . . [2]

Jeffrey Modisett, Former Marion County Prosecutor, and State Attorney General

I am the attorney general [of the state of Indiana], but I am here to discuss my tenure as Marion County prosecutor. I think a forum like this provides a great opportunity for outside parties to come in to scrutinize the criminal justice system and how it performs here in Marion County and throughout the state. This type of oversight will, I hope, provide meaningful suggestions for improvement of the criminal justice [system] that criminal justice policy makers can follow. I think the topic [the Committee] is focusing on today is as relevant as 20 or 30 years ago. I will comment on both some of my personal observations as Marion County prosecutor and discuss some of the steps that I took to address some of the issues.

Being very candid, in the wake of the Mike Tyson trial, I felt that there was a need in our community to address certain perceptions that developed with regard to whether or not the system as a whole was being fair to minorities. As a result, I put together a group called the Fairness in the Criminal Justice System Community. The prosecutor's office wanted to know whether this issue was reality or perception. So our office undertook to study each point in the system where a discretion was exercised to determine if looking at that point of discretion, a disparate impact existed based upon race or ethnicity or any other inappropriate reason.

Unfortunately, my term came to an end before any report was published and I do not think that anything happened afterwards, but I can tell you what I recall from our findings, although there is nothing written about it. Early preliminary findings were that in Marion County to the best that we were able to find there was no finding of disparate treatment based on race throughout the criminal justice system except at the point of the intake. That is, once a defendant entered the system, we could not discern any statistically significant difference in treatment based on race. We could not find any overt discrimination in the system, and we could not find any statistical discrimination. But there were a disproportionate number of minorities who entered the system. Now, we didn t make any finding, not even preliminary, with regard to any potential causes for this phenomenon . . .

So, I will also comment on . . . observations I made based on my experience. First, concerning the perception of racial bias in the prosecution of drug offenses, many of these perceptions existed when I was prosecutor and they continue to this day. I think it would be useful for policy makers such as you to scrutinize and report on these perceptions.

I think there is a perception of racial bias in the prosecution of drug offenses, especially because a large percentage of defendants are African American and few, if any, of the prosecutors involved in drug cases are African American. As many of you know, a screener in the prosecutor's office determines whether a drug case is filed at all, whether a possession case is filed as a possession case or whether it's filed as an intent to distribute with the higher penalties that would be attached, or whether a case is filed when the search that found the drugs might have violated the Fourth Amendment. All of these are discretionary judgment cases that are made by the screener.

The Marion County Prosecutor's Office has few African Americans that screen major drug offenses. There are few African American deputy prosecutors assigned to the drug court. So, my first point is one of perception, and that is if you have a disproportionate number of minorities that seem to be going into the drug court, the perception would certainly be enhanced as far as the credibility of the system if you had better representation of minorities in the system.

The next observation I would like to make involves drug kingpins. I think there is a perception the prosecution has focused on the dealer and not on drug kingpins. In the criminal justice system, assume that the dealers are predominantly African American when drug kingpins who finance and profit from the drug trade are predominantly white. Police are always more likely to arrest a street dealer than the drug kingpin. That's just, again, that has nothing to do with their intent. That has to do with the reality of the situation. It can be explained by saying that the dealer will sell drugs to strangers, including undercover officers and informants, while drug kingpins only sell quantities to people that they know. Some might suggest that the street drug dealer is to be investigated and prosecuted by state and local officials while the drug kingpins are to be arrested and prosecuted by federal authorities; perhaps that's true. A prosecutor could suggest more aggressive tactics to catch the drug kingpins like the use of electron technique surveillance.

My next observation deals with crack cocaine versus powder cocaine. I think there is a perception that the treatment of crack versus powder cocaine by prosecutors could appear to be racially motivated. The conventional wisdom says that African Americans possess crack cocaine and whites more often possess powder cocaine. Federal sentencing law requires a disparity in the sentence of crack cocaine offenses as opposed to powder cocaine, and the sentencing for crack cocaine offenses is much higher than for powder. Indiana has the same sentence law for crack and powder cocaine and we don't provide for disparity in the sentence for crack and powder, but it would be interesting to evaluate whether or not a prosecutor's office nevertheless offers harsher sentences for crack cocaine than powder cocaine during plea negotiations.

Next, drug roadblocks. I think there is a perception that drug roadblocks are focused on the inner-city neighborhood which, even though it is less true than it used to be, still they are predominantly in African American communities. The police are going to use drug roadblocks. Some of these roadblocks might want to focus equally on suburban areas and more predominantly white neighborhoods. They should be used, not used by city police, but also by the sheriffs and other counties as well.

The fact is, however, that in the state of Indiana drug abuse is worse in the rural areas than it is in the urban areas. I know that is counterintuitive, so I should repeat it. In Indiana our drug problem is worse in rural counties than it is in metropolitan counties. The only drug that we found more prevalent in the cities was marijuana. Almost every other drug was more predominant in rural communities. So we need to deal with facts, and our criminal strategies and prosecution strategies must follow those facts.

I would also speak about two efforts that I undertook during my time as Marion County prosecutor that I think have direct relevance to this Committee involving the study of the prosecution of drug offenses and homicide prosecution. The first is a report that we were able to complete, subsequently called the Tramberg Commission on Homicide in Marion County, 1991.

Nineteen ninety-one was a record year for homicides in Marion County, which for various reasons has been surpassed a few times since then. Regardless, at that time just as now, homicides in Marion County was a real concern. As a result, I put together a blue ribbon panel headed by Judge John Tramberg. [The prosecutor s office] made observations with regard to the analysis of who were the people that were committing homicides in Marion County, who were the victims, and what those relationships were . . .

The Commission found that model conflict resolution programs should be initiated in the community . . . My predecessor in the attorney general's office had started a program called Project Peace, a program where young people in the schools are taught to mediate conflicts. There are [student] mediators in the school [and] when there is a dispute in the school, students go to the mediators rather than to teachers or adults who might cause the other side to feel put upon . . .

Second, there was a recommendation that environments that encourage violence should be eliminated from the community. This covers many things. If there are certain environmental factors that lead to aggravated assault, that's another point I should make. One of the first observations we made was that homicides were simply aggravated assaults gone bad. So we had to look not only at homicides, but also at aggravated assaults and how they were being committed because oftentimes the only difference is whether or not the person got to the ER in time to be revived as opposed to whether or not they died. So we wanted to make sure that the community looked at what was in its own environment that caused some of these problems and what could be dealt with.

Three, structured activity for young people should be developed and implemented in the community. That is self-evident now, but again, this report was a number of years old now.

Four, members of the community should be encouraged to participate in reclaiming their neighborhoods and keeping them safe, again making sure that the police and prosecutors work directly with the members of the community to try to solve their own problems.

Five, young persons access to guns should be reduced. Again, this is not in any way addressing the Second Amendment argument. Our issue was to try to make sure that we kept guns out of schools, kept guns out of the hands of children, and various programs can be implemented to do that.

Finally, communication among law enforcement officers and between law enforcement agencies and the community should be employed. Those were the recommendations in 1991, and I think they ring as true today as they did then. [3]

Statements from the Community

Ten individuals addressed the Advisory Committee on their perceptions of fairness along racial and ethnic lines regarding the decision to prosecute drug offenses and homicides. They included Rozelle Boyd, minority leader of the Marion County City-County Council; Monica Foster, an attorney with the law firm Hammerle, Foster, Allen & Long-Sharp; Lilberdia Batties, attorney-at-law; Lionel T. Rush, pastor with the True Victory Church of God; Mmbja Ajabu, member of the Nation of Islam; Roderick E. Bohannan, president, NAACP Indianapolis chapter; George H. Neal, Indianapolis Urban League; Toby Miller, Greater Indianapolis Pro gress Committee; Tyrone Chandler, Indianapolis Weed and Seed Program; and Larry Vaughn, who addressed the Committee during the public session.[4]

Rozelle Boyd, Councilman, Minority Leader, Marion County City-County Council

I am Rozelle Boyd and I am the minority leader of the Indianapolis City and County Council. I am a lifelong resident of Indianapolis, Marion County, and have some familiarity with the community. I have not spent many hours going through the prosecutor reports and that kind of thing, but I have been in the community for a long, long time and have had an opportunity to make some observations and receive some observations and to develop some perceptions and perspectives about what some of the issues are and the perceptions [of the community].

Let me say then, having said that, that there is a general perception in the [minority] community that perhaps persons working with the prosecutor's office are not really in the corner, if you will, of the minority community. And I would underline perception, because in many instances you would not necessarily be able to follow that up with factual information. But, as has been suggested around the table, in the sense that perception is in a sense reality, then it is something that very definitely has to be considered. 

I was very interested in listening to some of the comments made by the attorney general this morning, particularly when he indicated that there is some significant evidence of disparity at the intake level. But then when you carry the statistics and the studies beyond that point, the consistency does not necessary carry through. Well, whether the consistency in fact carries through or not, the fact is that the perception carries through.

So if you are dealing with a population of people who at the intake level are aware that there is a disparity, they see that and it permeates the whole system.

There is also a perception in the minority community that the homicide problem does not receive the attention it should.

There is also the perception [in the minority community] that there is significantly more attention being given to incarcerating violators of [laws]. I am talking about building additional prisons, that there is more attention being given to this than to preventative measures or to treatment measures. And I think that for the most part the information generally will bear that observation out.

Then, there is another perception . . . that law enforcement officers for the most part want to stay out of certain inner-city communities where there is a relatively high homicide rate, where there is high drug activity. I would suggest to you that as I have had an opportunity to talk with and to meet with many community and neighborhood organizations there is a very popular perception that there is an awareness of the activity of crack houses but no major effort put into putting them out of business but rather for the most part containing them to those areas. [5]

Monica Foster, Attorney, Hammerle, Foster, Allen & Long-Sharp

My practice focuses exclusively on representing persons charged with serious crimes or convicted of serious crimes on appeal. A large portion of my practice over the last 15 or 16 years has been devoted to representing persons charged with or sentenced to the death penalty. Those cases I accept on a public defender appointment basis because virtually none of the individuals who are charged with the death penalty throughout the state of Indiana have the funds to hire private counsel. 

There is a perception in [the minority] community that race has played a role in the death penalty charging decision for quite some time. So one of the things that our firm did as part of its representation of [a particular person] was to look at the charging practices by this particular prosecutor to determine if, in fact, our perceptions were accurate.

So we tracked cases [involving the death penalty] to see what the plea posture was. In other words, did the prosecutor at any point in time offer a plea bargain for something less than death? . . . There were six white defendants and eight African American defendants . . . Of the six white defendants charged with the death penalty, Prosecutor Newman offered a plea for life in five of those cases, . . . which computes out to 83.3 percent. Of the cases where an African American was the defendant, the statistics completely flip flop. There were eight African American defendants charged with the death penalty. Prosecutor Newman offered a plea for something less than death in only one of those cases. And in seven of the cases, the African American defendants have been required to go to trial with the death penalty hanging over their head. Only 12 percent of the African American defendants are offered life pleas. [6]

Lilberdia Batties, Attorney

My name is Lilberdia Batties and I am an attorney practicing here in Marion County. Primarily I do criminal work as well as civil work. I have had occasion to represent pro bono and as private counsel in Marion County Superior Court. One of the things that strikes me as odd when I go down there is the fact that 95 percent of the defendants you see in drug court are black. In all of the time I have been there . . . I have only seen one white defendant, which seems odd that the only people in Marion County that are committing drug crimes are black people, because I know that drugs affect the entire community.

Further, it seems to me that and this is just what I get from clients and what they say that even if they do not have anything on them, police officers harass them. [7]

Lionel T. Rush, Pastor, True Victory Church of God

This is a grave subject that we take up today, and I think it must be met with an equal portion of seriousness. I pastor the True Victory Church of God and Christ here in this city and I have been involved in human rights and civil rights as an activist and I have great concern about the issues that you raise.

Notions of disparity and inequality as it were is ubiquitous and pervasive throughout all of the whole criminal justice complex from the standpoint of many in the African American community. That is outside of the police department and inside of the police department. Outside of the criminal court and inside the criminal court. It is very, very pervasive.

This is a pervasive problem that all African Americans face. When whites [receive] preferential treatment it usually disintegrates into unequal treatment for blacks.

I will share with you a portion of a press conference that [recently] took place, and it was directed in some ways at one of your previous guests this morning . . . It [will give you] the breadth and the depth of some of the things [other] speakers are saying in terms of the black community.

We come to speak to an ethical or more so a deep-seated concern about how the office of Marion County prosecutor is run administratively. It must be said at this time that this is not brought on by any political motive. It was a fair notice in equality. The effectiveness of this obviously is questionable, especially the procedure and administration of this office, leaving many of the community with grave concerns. The following list raises some of the questions. This list is not exhaustive, but only indicative of one, the death penalty under Prosecutor Scott Newman's auspices. The death penalty has been filed for 13 individuals; five were white, eight were black. All of the five white persons were granted a plea bargain. A plea bargain was only offered to one black and that was as a result of a court ruling that made the death sentence invalid. The community must now question what seems like obvious disparate treatment in the administration of the death penalty cases where no whites die in this context.

Number two, there's a great concern about the capricious and nebulous nature which the grand jury system is employed. Concerns focus on the lack of protocol surrounding when it is appropriate for grand juries to be called, which cases grand juries should hear, who determines who comprises the grand jury, and from what part of the community those selected live. This leads the community to think that there is foul play when the grand jury is convened. [8]

Mmbja Ajabu, Member, Nation of Islam

I want to talk about a subject that is so serious that it is actually costing people their lives because they're black. If you want to know how something is going to act or perform in its existence, then what you need to do is to look at how it was created and the environment in which it thrives.

When you're talking about the death penalty, here in America, I advance the argument and actually have that the death penalty comes out of trying to control a racist attitude . . . We in this city at this very time can have a prosecutor who has filed a death penalty 13 times, eight times against black people and five times against white people . . . I am saying that that situation that exists right now is part and parcel of the process to whereas that the death penalty initially started.

If you look at the death penalty and its history here in America it actually started in 1636 with the Massachusetts Bay County; those were the first laws, written laws in America. Of those statutes, they had one statute that whereas that a person could be killed by the state for maybe stealing. If you understand that in 1636 this was post when the slave trade started, which was about 150 years before then, people were stealing slaves; white people were stealing slaves. Some collusion of black people, but those people who were taking part in the theft were not subject to the penalty to whereas here in America if a white person or any person stole a white person, a white man, for that act, you could be killed. 

So, in essence, what that says, if you steal a black person, work him to death. If you steal a white person, then we'll kill you for that because you cannot be stealing white folks.

This country is about being right . . . Men and women who are concerned about what is right, not necessarily what is legal, should stop this racist practice that has been racist from day one. It is racist now and will continue to be racist because when it started it was racist, and it is going to continue to be racist if it grows any more. [9]

Roderick E. Bohannan, President, NAACP Indianapolis Chapter

African Americans do feel the system is unfair. But let's presume that every official speaking this day is an honorable person and the issue is not whether or not intentionally there is racism. Rather the question becomes whether the institution has put safeguards to do a check and balance so that it begins to look as though to make sure the question of fairness is across the board.

What happens if the new prosecutor comes in and recognizes that there is, in fact, a problem at the front end. The question I have is, what have you done beginning to fix that? From the African American community, I would say nothing.

Let me give you an example: the decisions to overcharge. The prosecutor . . . will tell you that the young African American males who are overcharged have some sort of record with judges and there may not be a conviction. But if there pops up in the investigation that they in fact have some relation to drugs, they get overcharged.

Our community has a problem with that. If I have a new trial, I should be charged for the new crime and not punished for past crime.

Something else not discussed by the prosecutors was the grand jury . . . What I have been told is that there has never been an African American as a prosecutor to the grand jury. I also have been told they only have one black police officer who have ever been assigned to the grand jury in 16 years.

You have been told that the prosecutor's office has eight prosecutors involved in drug cases and two African Americans, but the two African Americans are in misdemeanor court not in felony court . . . There is an attitude [about] these prosecutors . . . and they say point blank and it's just not black and white, Gestapo kind of mentality.

If you want the community to feel the criminal justice system is fair, the prosecutors have to be perceived as fair-minded people. 

The cases sent to the federal court need to be examined because . . . you will find the majority of cases that are referred to the federal court are small weight in terms of what the drugs are. [10]

George H. Neal, Indianapolis Urban League

The Urban League is as concerned with homicide and drugs in our community as anyone, particularly as impacted the African American community. But it is our opinion, while not scientifically measured by survey or whatever, that there is a great general perception in the African American community that African Americans are singled out and are targeted by prosecution at a higher rate than whites. 

Now, perhaps you can call this prosecutorial profile, and there are concerns in the African American community about selective prosecution. The question becomes, is this real or perceived? Hopefully this study will answer some of these important concerns. Is it justice or is it just us?

In a recent article in the Indianapolis Star titled Prosecutors Linked to Unethical Tactics and this is Associated Press coming out of Chicago article. I'll read you the first couple of paragraphs: Prosecutors throughout the country have key evidence leading to wrongful convictions, retrials, and appeals that cost taxpayers millions of dollars according to a Chicago Tribune analysis of thousands of court records in homicide cases. It goes on to state: Winning has become more important than doing justice.

Let me close with this . . . prosecutors take over the cases after the arrest, deciding whether or not to press charges and what sentence to insist upon in the plea negotiations. Therefore, plea negotiations become a very important part that you need to take a good look at. More than 90 percent of criminal convictions are obtained as a result of guilty pleas. Here, too, the discretion of prosecutors again is greater for a less serious offense. 

We submit that within this context a system of overt discrimination and bias has been created whereby similarly situated black and white people are treated differently, and a covert discrimination where policies have been implemented that if employed in a color blind fashion will apply principally to black Americans. This system lends itself to subtle subliminal racism where black defendants are stereotyped, disregarded, and dehumanized by judges and prosecutors where we see bias introduced in the system at least obvious levels where an individual's discretion determines who gets arrested, who gets prosecuted, how the guilty are sentenced, and who gets mandatory sentences. [11] 

Toby Miller, Greater Indianapolis Progress Committee

I do not submit that I am the empirical giant, but I may be able to add some light to the perceptions that exist out in the community and why they are what they are. The status of this whole debate is that the perception in the community around law enforcement . . . this judicial system and the state of race relations in that regard are at a slow boiling point. 

I think perceptions are as powerful as facts, and sometimes the truth is that racism is at the decision-making level and influences how people and certain organizations that make the decisions respond in the ways that they do. I also submit that racism is not always there. I think it is unfortunate that it is all too easy playing to race. So, sometimes it is not fair.

I do not know if Prosecutor Newman or any prosecutor is going to be the ring master at a dance between law enforcement and the community, and so his challenge is to try to convince folks that he and his office are above board, honest, straight forward, ethical, and on balance not necessarily recognizing race as a variable in how they make decisions. I submit that is rather na ve, but I think many, including the prosecutor, try.

I think that one of the major failures in this community is that there is a lack of engaged and effective leadership at the point of top decision makers the prosecutor, the mayor, the judges, and also the various police chiefs and sheriff in terms of how decisions are made. 

Additionally I think there is a case of situational ethics. The squeaky wheel gets the grease, but unfortunately I think in balance the African American community and the minority community find them getting greased up too much. 

I think there is also a lack of engaged, effective leadership within the African American community. I think it's done a disservice within our entire community in the sense that some folks make its industry on the suffering of African American folks and would make it their business to continue to exploit that misery that is existing in the community without necessarily providing adequate working service to remedy that situation. I think that's been a miserable condition in our community, both African American and otherwise. 

Ultimately what we need to do is recognize the law needs to be applied fairly and equitably all the way across the board. [12]

Tyrone Chandler, Indianapolis Weed and Seed Program

Most of what has been said, I agree with, but I look at it with a different situation because of the initiative that we have going on the near west side and other sites called Weed and Seed in which we have active participation with law enforcement agencies. But just looking at stereotypes and perceptions, particularly ones used by the media, makes me believe . . . that the media plays a big role in some of this stuff because of the perceptions that they put out there about different groups of people. 

What we are trying to do is to look at intervention and prevention programs with the young men growing up . . . In talking to youth we found out that there is a big dislike for police officers and law enforcement . . . Those kids early on can see officers and others in other situations outside of making the arrests. 

What we try to do is to get younger people involved in leadership positions in their community. So, it's a natural occurrence as they get older they assume more responsibility. They start to find out how the system works and then also to, like was mentioned earlier, try to put the right people into place so that as things occur we have some people or we have people there that understand and can help us get through these difficult things. [13]

Larry Vaughn

My name is Larry Vaughn, a concerned citizen. The reason that I am here is to contradict Mr. Newman's testimony this morning, which I feel was nothing but no more than a testimony of lies and deceit. He has commonly used the citizens of Indianapolis to scapegoat things and cover his racist policies, which just pervades his office where blacks are concerned.

We touched on a lot of different items here today, but not a syllable about the real underlying racism in the policies of his office. Mr. Scott Newman has a policy in his office that he uses in our community in which the community in which I live which is primarily black and underprivileged, illiterate people who are out in the cuff just trying to scrape to make it. 

What Mr. Newman does is he will let these drug dealers . . . sell dope as long as they can . . . [The prosecutor] is allowing the most highest drug dealers, the ones that have turned over the most dope, to come in and out of jail like a revolving door. 

Eighty-five percent of the cases [in drug court] are cases in which a sting was the way that people got there. Sting cases happen where [the prosecutor] has a good case on a drug dealer that is known in the community, and [the prosecutor] tells him to go and get me two or three other people and in the process you sell this kilo of dope for me. So now there are four or five dope dealing cases and [the prosecutor] has his cases, and these drug dealers are just in and out of jail like a revolving door. And you know that their supplier is not going to give them dope if they're just in jail because they're going to figure that they got a tail on them. 

So what I'm telling you about is [the prosecutor] should not be able to be in that office down there, letting his racism and hatred color that office and ruin lives and they are going to be the ones that pay the price because of who Scott Newman is. Because when the drug dealers get through with the blacks and poor and underprivileged, they're not going to stop there. [14]

[1] See U.S. Department of Justice, National Institute of Justice, The Study of Homicide in Eight U.S. Cities, I.J. Interregional Research Project,  CJ 167263 (1979).

[2] Scott C. Newman, testimony before the Indiana Advisory Committee to the U.S. Commission on Civil Rights, fact-finding meeting, Indianapolis, IN, Jan. 29, 1999, transcript pp. 6 42 (hereafter cited as Transcript).

[3] Jeffery Modisett, Transcript, pp. 43 66.

[4] Individuals are listed in the order they testified before the Advisory Committee.

[5] Rozelle Boyd, Transcript, pp. 94 115.

[6] Monica Foster, Transcript, pp. 116 22.

[7] Lilberdia Batties, Transcript, pp. 155 58.

[8] Lionel T. Rush, Transcript, pp. 159 68.

[9] Mmbja Ajabu, Transcript, pp. 168 78.

[10] Roderick E. Bohannan, Transcript, pp. 184 89.

[11] George H. Neal, Transcript, pp. 193 204.

[12] Toby Miller, Transcript, pp. 209 18.

[13] Tyrone Chandler, Transcript, pp. 219 29.

[14] Larry Vaughn, Transcript, pp. 230 39. Marion County Prosecutor Scott C. Newman stated in his letter to the Indiana Advisory Committee that Mr. Vaughn has been prosecuted by his office twice during his tenure, and that the Marion County Prosecutor's Office had obtained convictions of Mr. Vaughn on at least four separate occasions in the 18 years prior to the Newman administration. (See letter of Scott C. Newman, May 12, 2000, in the appendix.)