Judge Crusades Against ‘Injustice’ of Drug Dealer’s Sentence

During his long career as a federal judge, Terry J. Hatter has not been shy about second-guessing the government in high-profile cases--and has been both revered and reviled as a result.

He has taken on the U.S. armed forces, forcing the Navy to readmit a gay soldier and ordering the Pentagon to stop discriminating against gays.

He has challenged the Immigration and Naturalization Service, blocking the deportation of 20,000 Central American immigrants seeking asylum.

He has chastised the Los Angeles County Sheriff’s Department for allowing deputies “motivated by racial hostility” to “intimidate and ridicule blacks and Hispanics” and brutalize minority suspects.

He has ruled against the Metropolitan Transportation Authority, siding with passengers who fought a bus fare hike they believed discriminated against low-income riders.

He has blasted stiff federal sentencing mandates and complained that prosecutors and Los Angeles police use them--rather than less restrictive state charges--to seek longer prison terms for black and Latino drug dealers than they seek for white pushers.

As recently as Friday, he stymied a federal probe of corruption at the Port of Los Angeles by dismissing bribery charges against a former import executive because the government’s star witness--an INS agent--lied in court.

But none of Hatter’s crusades has lasted as long--or provoked as much emotion--as the one to keep a convicted drug dealer from serving a long prison term.

The Pacoima man, Bobbie Marshall, 43, has by all appearances reformed since his arrest seven years ago. And Hatter has refused to sentence Marshall to the prison term that prosecutors say is the shortest sentence allowed by law and good conscience.

“This is probably the most frustrating situation that I have found myself in [during] some 16 years on the federal bench,” Hatter said during a hearing on the case last year. It was one of several times that he had ordered the prosecution and defense to negotiate a term shorter than the nine years Marshall faces.

*

With three previous drug convictions, Marshall faced a 24-year sentence when he was arrested in 1989 for selling crack cocaine from his mother’s home, across the street from a Pacoima elementary school.

Marshall agreed to plead guilty in exchange for a 14-year term. But while he was out on bail, he embarked on a course that to Hatter made even that reduced sentence seem like a miscarriage of justice.

Marshall began volunteering at local schools, parks and churches, doing everything from painting and cleaning to organizing young gang members against violence and drugs. He became a churchgoer and a counselor to young men in Pacoima’s roughest neighborhoods.

By the time he appeared before Hatter for sentencing, Marshall’s list of supporters included some of the northeast San Fernando Valley’s most respected citizens--ministers, school principals, a congressman and a police commander. Even prosecutors now say the high school dropout and drug addict has been a “model citizen.”

Impressed with such testimonials, Hatter allowed him to remain free on bail and refused to approve the 14-year prison term.

“This man is working in the community with young Hispanic and black males . . . the ones who are most at risk, the ones who need help the most,” Hatter said in court. “He is providing some help to that community. And if I can provide them with just a little bit of hope, then I will have at least lived up to my oath.”

He sent the U.S. attorney’s office and Marshall’s defense lawyer, Denise Meyer, back to the bargaining table, resulting in an agreement for a nine-year term, giving Marshall credit for his years spent doing community work. Prosecutors said they could not agree to less time because of federal sentencing rules that mandate long prison terms in crack cocaine cases.

That was not good enough for Hatter.

In March 1994, he sentenced Marshall to half that time, 4 1/2 years. Marshall was taken into custody in May 1994 and sent to Terminal Island Federal Prison.

But the following December, a federal appeals court ruled that Hatter had no right to modify the plea bargain.

Since then, Hatter has publicly agonized over the case, railing in court that the federal government, in its quest to look tough on crime, is slamming the door on convicts who might find redemption by helping their communities.

“The White House does its things for its political reasons, the Congress does it, and the public suffers while they both talk about being tough on crime,” Hatter said in court earlier this year, as he again delayed resentencing Marshall. “And we just know that there are not the good-faith efforts to do something about the root causes of crime.

“I will not be a party to this injustice,” he said. “The Congress cannot make me do this, the president cannot make me do this.”

Legal observers say Hatter’s conduct in the case is unusual for a judge, but it’s not entirely a surprise for those who know him as a passionate jurist who sees nothing wrong with letting his personal convictions influence his decisions.

Critics say this leads him to exceed his authority and to try to legislate from the bench. Two years ago, when Hatter blocked the MTA’s bus fare hike, County Supervisor Mike Antonovich called him a judge with a “pattern of outrageous decisions which have been overturned.” Hatter, in fact, is frequently overruled by the 9th Circuit Court of Appeals.

But even a top prosecutor who has clashed with Hatter says he is a man of integrity.

“Judge Hatter . . . is a man of great intelligence and independence who feels very strongly,” said Richard Drooyan, chief of the criminal division of the U.S. attorney’s office in Los Angeles. “He’s not afraid of expressing those views and acting upon those views.”

During his legal career, Hatter, 63, served as a public defender in Chicago, where he grew up, and as a federal prosecutor in San Francisco in the 1960s. He spent several years in legal and administrative positions with federal anti-poverty and legal aid agencies, including serving as head of the Western Center on Law and Poverty. He also worked for former Los Angeles Mayor Tom Bradley as the city’s first director of criminal justice planning.

Appointed to the federal bench by President Jimmy Carter in 1979, Hatter has built a reputation as one of the region’s most liberal jurists. Lawyers who have argued cases in his court, however, say that view is incomplete.

“I think he’s far too complex a man to characterize as a liberal or a conservative,” said Steven D. Clymer, a former federal prosecutor here who now teaches at Cornell University’s law school in New York. “He’s a man who takes his job extremely seriously . . . who tries very hard to be fair.”

Hatter has been a harsh critic of federal sentencing mandates that take discretion from judges in an effort to toughen and standardize prison terms. But Clymer said that while he has sympathy with the judge’s stance, Hatter has carried that criticism too far with his refusal to sentence Marshall.

“Congress has the right and the ability to tell him how to sentence people. If the statutes require a certain sentence . . . it’s out of Judge Hatter’s power to oppose that,” Clymer said.

“He may be right that it’s an unduly harsh sentence in this case, but he’s wrong not to stick to it.”

Hatter would not agree to be interviewed about the case, but his pronouncements from the bench make clear that, to him, getting Marshall out of jail is as much about justice for the Pacoima community as it is about fairness to the convicted drug dealer.

“He is now providing some help to a community that needs a break. And I’m not going to dismiss that,” Hatter told attorneys in 1992.

Hatter, who is black, grew up on the South Side of Chicago during an era when the city was still so segregated that he could not accompany his light-skinned mother, who was an attorney, into many of the city’s establishments.

He says he has felt the sting of racism--he was once refused service at an East St. Louis, Ill., lunch counter, even though he was wearing his Army uniform at the time--and the burden of being one of few black judges on the federal bench weighs heavily upon him.

“I grew up in a community such as that in which [Marshall] lives now,” Hatter said during a 1992 hearing. “I don’t think the president of the United States, I don’t think most congressmen . . . understand these kinds of communities.

“I know the pain that [Marshall] has inflicted upon the community. But I also know what he has done to try to alleviate that pain and the hope that he is bringing to people. I can’t overlook that.”

Hatter told Marshall that his efforts to reduce the convict’s sentence may fail. “But if you’re able to save one child, keep one person from having the horrendous record that you have, then it will be worth it,” the judge said.

“Someone is going to have to take some chances. I’m willing to take that kind of a chance.”

Last week, however, Hatter acknowledged that he may have carried his protest as far as it can go.

His choices now, when court reconvenes on Jan. 13, are to agree to the nine-year sentence, set the case for trial or send Marshall to another judge, who might well impose a harsher term.

“The judge has indicated that he will go ahead and sentence Mr. Marshall on Jan. 13,” Drooyan said.

Marshall’s attorney intends to appeal to President Clinton for a commutation of that sentence, and Drooyan said his office will not oppose that request. But it stands little chance of succeeding, both sides admit.

That means Marshall, who has been in federal prison since May 1994, will probably spend the next seven years behind bars.