In news of creative defense litigation, in United States v. Coley, the Ohio Federal Public Defender has been litigating a motion to dismiss an indictment on the basis of race-based selective prosecution. The claim is that federal prosecutors are indicting only black defendants on Hobbs Act robbery charges in federal court, while leaving similarly situated white robbery defendants in state court. United States v. Armstrong sets forth the (very high) standards for a selective-prosecution claim.
To pursue the claim, the FPD notes that 25 cases of Hobbs Act robbery have been brought in the division between 2013 and 2017: 24 defendants were black, 1 was Hispanic, and none were white. The FPD subpoenaed state court presentence reports of robbery defendants, in order to show that white defendants with similar histories to the federal defendants were not prosecuted in federal court. The state judges objected to producing the documents, arguing that they were irrelevant and confidential. The United States pushed for the setting of a trial date.
In January, the district court issued two orders that are worth a look. First, the court overruled the state judges' motion to quash the subpoenas for the PSRs. United States v. Coley, 2020 WL 373984 (N.D. Ohio Jan. 16, 2020). The court found that Coley's need for the documents outweighed any objections to producing them. Shortly thereafter, the court denied the United States' motion to set a trial date. The court noted: "The outcome of this case is important to the public - and its importance goes far beyond wanting a speedy trial and timely verdict. It is more important that the public have confidence that the government and those who work with and for it are race-blind. In the end, this case is about whether, in this instance, that confidence is merited."