U.S. Commission on Civil Rights

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

Appendix

Letter from Scott C. Newman, Marion County Prosecutor

Marion County Prosecutor's Office

May 12, 2000

Constance M. Davis, Regional Director
Midwestern Regional Office
U.S. Commission on Civil Rights
55 W. Monroe St., Ste. 410
Chicago, IL 60603

RE: A Study of Decisions to Prosecute Homicides and Drug Offenses in Marion County, Indiana

Dear Ms. Davis:

Thank you once again for allowing me the opportunity to participate in the fact-finding meeting regarding the above study on January 29, 1999. As I stated in my testimony at that time, while any prosecutor approaches the prospect of being studied with some trepidation, I welcomed your inquiry because the issues of race and justice are important ones worthy of study and searching public discussion.

I also appreciate the opportunity to respond to the Indiana Advisory Committee s proposed report as well as the Committee's findings and recommendations regarding the above study. Having now had the opportunity to review both of those documents, I feel it's important to make the following comments.

Regarding part one of your report, and specifically the section dealing with methodology, please be advised that I have served as the Marion County Prosecutor since 1995 and not 1994. I also won re-election in 1998 and not in 1997. My predecessor, Jeff Modisett, served as the Marion County Prosecutor from 1991 to 1994 and not 1989 to 1993 as your report indicates. These dates attributed to Mr. Modisett s term as the Marion County Prosecutor are also incorrectly stated in section 2 of your report.

With regard to section 2 of your report, Public Commentary, I have also found some inaccuracies with regard to my testimony at the January 29, 1999 public hearing. Specifically, on page 9, beginning at the third full paragraph, there are some mistakes in the transcript, The second sentence of that paragraph should read as follows:

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.

The fourth paragraph of page 9 likewise contains some mistakes. The first sentence in that paragraph should read as follows:

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.

Continuing on to page 10 and the fourth full paragraph, the second sentence should read as follows:

While the decisions growing out of the foregoing questions can be complex and involve many related discussions of investigative tactics,

On page 11, the first full paragraph and the last sentence of that paragraph, should read as follows:

The tough job of making that charging call reflected only the remorseless facts and the law,

The final paragraph on page 11 reads as follows:

Finally much has been said about our restrictive plea bargaining policies in federal homicide cases... The word federal should be deleted.

The above includes all of the corrections that I could find with regard to the excerpted transcript of my testimony.

I take serious issue with the testimony of Monica Foster of Hammerle, Foster, Allen & Long-Sharp. The statistics cited by defense attorney Foster regarding the death penalty are simply incorrect. As the enclosed table (see Appendix A) discloses in detail,

• 22 death penalty cases have been handled by the Newman administration in the Marion County Prosecutor s Office during the years 1995-2000.

• During that period, 11 capital defendants were African-American, and 11capital defendants were white.

• Among capital cases in which the defendant was African-American,

  • 8 cases have been disposed of, as follows:

    • 5 defendants were either offered plea agreements (Highbaugh, Mosley, Powell) or death penalty request/case was dismissed (Miller, by the Court; Webber, by the State; Powell, by the State);

    • 3 defendants received no plea offer (Dye, Moore, Price), all of which were murders of multiple victims.

    • 3 cases are still pending (Adams, Jones, Veal).

• Among capital cases in which the defendant was White,

  • 10 cases have been disposed of, as follows:

  • 5 defendants were offered plea agreements (Boyd, Games, Lowrimore, R. Mathisen, T. Mathisen);

  • 5 defendants received no plea offer (Barker, Gross, Thompson, Timberlake, Underwood), two of which were murders of multiple victims.

  • 1 case is still pending (Martin).

Having indicated that I strongly disagree with Ms. Foster's statistics, I would welcome any actual empirical study that this Committee would care to undertake with regard to whether or not the Marion County Prosecutor's Office unfairly charges or offers plea agreements to African-Americans regarding the death penalty. I am convinced that if this Committee would choose to undertake such a study it would find that race does not play a role in either the Marion County Prosecutor's Office charging decisions with regard to the death penalty, nor does race play a role in the decision as to whether or not to offer a plea to Life Without Parole to a defendant charged with the death penalty.

With regard to the testimony of Roderick E. Bohannan, he indicates that there has never been an African-American as a prosecutor in the Grand Jury. He also indicates that there has only been one African-American officer who has been assigned to the Grand Jury in 16 years. Mr. Bohannan is wrong. Ralph Staples, an African-American prosecutor, was my first Grand Jury Supervisor. In addition, I currently have, and have had in the past, more than one African-American officer assigned to the Grand Jury.

In addition to those incorrect statements, Mr. Bohannan speaks of a gestapo kind of mentality. Such language is offensive, and unsupported name calling of this kind has no place in this Committee's report.

The final individual who spoke at the hearing on January 29, 1999 was Larry Vaughn, who is referred to in this report as a concerned citizen. At the time of his testimony, Mr. Vaughn had been prosecuted by my office on two separate occasions for harassing an elderly gentleman and former United States Attorney. Moreover, the Marion County Prosecutor's Office convicted Mr. Vaughn at least four separate times in the 18 years prior to my taking office, on charges ranging from theft to patronizing a prostitute. I would characterize Mr. Vaughn s entire testimony as mere hate speech by a prior defendant which has no place in this Committee's study. I would request that his testimony be stricken from this report.

There are several areas that I would like to address with regard to your third section of this report, entitled Data Analysis . Directing your attention to page 26, in the fourth and final paragraph of that page, the Report compares arrest demographics with those of the population at large, and concludes that African-Americans are disproportionately subject to arrest. But your Study is intended, as its title suggests, to focus on prosecutive decision-making. For this purpose, the appropriate comparison would then be between arrest statistics and charging statistics e.g., if formal charges showed a disproportion of African-American defendants compared to those arrested by police, a bias might be demonstrated in the charging decision. The prosecutor his no authority to control the strategic decisions of police departments that result in the arrest statistics being compared with the general population. The end result of including such comparisons in a report on Decisions to Prosecute (your title), is to mislead the public into believing that such arrest/population comparisons connote prosecutorial bias.

With regard to the demographic data on page 27, a recent influx of Hispanics to our community has caused that ethnic group's population percentage to rise to approximately 8.3% of all residents in Marion County. Thus, your statement that the county is essentially divided between two racial groups, whites and African-Americans, would be incorrect.

On pages 28, 29, and 30 you have included three tables, 3.3, 3.4, and 3.5. I would again note that these tables do not bear upon the decision to prosecute narcotics cases in Marion County. That is, these statistics deal with arrests made by the various police agencies. Since the purpose of your study was to examine charging decisions in drug cases in Marion County, the citation of such arrest statistics is misplaced.

On page 30, your table 3.6 indicates that it includes statistics for arrests for Possession of a Controlled Substance . I believe this is a typographical error, and is in fact a table showing the arrest for Possession of Marijuana, as indicated by the heading of the paragraph that contains this table.

The analysis of the data that you collected begins on page 31. In the final paragraph on page 31, you once again compare the percentage of all arrests for drug possession with population. I believe that this comparison has nothing to do with the Marion County Prosecutor s Office's charging decisions in drug cases. Likewise, on page 32, the first full paragraph once again repeats this same misplaced analysis.

On page 34, the Committee indicates its results with regard to the decision to charge in narcotic dealing cases. I note the Committee's finding that the results of its studies clearly show that the race of the person arrested was not found to be a significant contributing factor in the decision to prosecute narcotics dealing arrests holding other variables constant. The Committee goes on to state that the only variable found to have a significant contribution was a defendant's previous arrest record. Finally, the Committee states that [o]f particular interest is the finding that year (1993 or 1997) is not a contributing factor, which implies that the two prosecutors have both followed racially neutral policies in the decision to prosecute.

While I am gratified that these were the results and that these findings were included in the body of your report, I am extremely puzzled with the Committee s proposed findings with regard to those conclusions. Based on your own conclusions contained on page 34 of the report, I take great issue with Finding 1. The last full sentence of the first paragraph in Finding I states that minority communities experience the criminal justice system in an entirely different way than the white community, and inescapable subjectivity along racial lines permeates the criminal justice system. (emphasis added) The italicized portion of this statement is simply not supported by the study. That is, race was not found to have been taken into account in decisions to charge individuals regarding drug offenses. Thus, this phrasing of your finding is simply contrary to the results of your own empirical analysis.

Further in the next full paragraph under Finding 1, you indicate that the Committee is unable to draw a statistically valid conclusion that race has played a role in the decision to prosecute drug offenses and homicides in Marion County in 1993 under the administration of Jeff Modisett and 1997 under the administration of Scott C. Newman. In fact, you have been able to draw a statistically valid conclusion, and you so state on page 34 of your report. As stated above, race of the person arrested was not found to be a significant contributing factor in the decision to prosecute and of particular interest is the finding that year (1993 or 1997) is not a contributing factor, which implies that the two prosecutors have both followed racially neutral policies in the decision to prosecute.

Finally, with regard to recommendation 4.2, Mr. Modisett indicated that during his tenure as the Marion County Prosecutor he put together a group called the Fairness in the Criminal Justice System Community. The Committee's recommendation is that the Marion County Prosecutor's Office should complete and update the report generated by this Committee. The Committee should be aware that the Marion County City-County Council refused to appropriate the funds to collect this data. To our knowledge, no data was ever collected or transmitted to the Marion County Prosecutor's Office, so there is no report or data to update or complete.

I appreciate the opportunity to respond to the Committee's report as well as the proposed findings and recommendations. In keeping with the Committee's mission to accurately collect pertinent data, and to responsibly inform the public as to what the data reveals, I trust that the Committee will incorporate our observations and corrections before its Report is issued in final form.

Sincerely yours,

SCOTT C. NEWMAN
Marion County Prosecutor

cc: Peter Minarik

APPENDIX A

DEATH PENALTY CASES

HANDLED BY NEWMAN ADMINISTRATION

1995-2000

*  Indiana Supreme Court Rules prohibit disclosure of any plea discussions in a pending criminal case.