Mixed Rulings on Drug Arrest Issue : The courts: One judge allows attorneys to probe enforcement practices. Another denies move to dismiss case against Latino defendant.


A Los Angeles federal judge Monday said he would allow attorneys representing 11 minority defendants accused of narcotics trafficking to investigate the practices of the Los Angeles Police Department and the U.S. attorney's office to determine if they are selectively targeting blacks and Latinos for prosecution.

However, later in the day another federal judge denied a motion to dismiss charges against a Latino man accused of cocaine trafficking, ruling that his lawyer had failed to show that he was selectively prosecuted.

Both hearings were part of an attempt begun this fall by drug defense lawyers who assert that blacks and Latinos are being illegally targeted for prosecution under a 1986 law that requires stiff prison terms for those who deal drugs near school grounds.

The lawyers have filed papers alleging that 89 of the 93 people prosecuted in federal court have been black or Latino, whereas whites arrested under the same law have been prosecuted in state court, where penalties are less severe.

All of the schoolyard cases prosecuted in Los Angeles federal court involved arrests made by the LAPD, which referred the cases to the U.S. attorney's office.

In the first hearing, U.S. District Judge Terry J. Hatter said defense lawyers should submit a request for discovery to him by Dec. 11. He set a hearing for Feb. 5 to determine how broad the investigation can be.

Hatter's decision meant that the defendants had cleared the first hurdle for proving selective prosecution. Such a finding is difficult to reach and rarely occurs, criminal law experts say.

"I accept the view of the defendants that we're beyond this being a frivolous claim," Hatter said.

The decision was hailed as a victory for defendants who claim they are being selectively prosecuted under the 1986 law, said Carol Klauschie, a deputy public defender representing one of the defendants.

"I'm encouraged by the fact that Judge Hatter is going to allow discovery on these issues," said John Crouchley, another defense lawyer. But he added, "our work has just begun," referring to the fact that the U.S. attorney's office will resist allowing the defendants to make a broad inquiry.

U.S. Atty. Steven G. Madison, representing the government in the schoolyard cases, said he believes the defendants are not entitled to discovery. However, he said "we will comply" with whatever Hatter orders.

Among the things defense lawyers have asked for are records on a special combined district attorney-U.S. attorney's office program to curb narcotics trafficking near schools, records on how so-called drug "hot spots" are chosen, and records on how police chose locations for two major schoolyard drug sweeps in October, 1988, and June, 1989. Also sought are records of all criminal prosecutions for drug law violations in the Central District of California, starting Nov. 14, 1987--including the name and race of the arrestee.

The Central District of California is the area in which the U.S. attorney's office has jurisdiction. It encompasses seven counties--Los Angeles, Orange, Riverside, San Bernardino, Ventura, Santa Barbara and San Luis Obispo.

In the second hearing, U.S. District Judge W. Matthew Byrne Jr. spurned a selective prosecution filed on behalf of Felipe Gutierrez, who was arrested in September and charged with possessing slightly more than eight ounces of crack cocaine with intent to sell it within 1,000 feet of Sacred Heart Elementary School in East Los Angeles.

Byrne said that Gutierrez's lawyer had failed to show that his client had been treated any differently than another defendant would have been treated under similar circumstances.

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