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The Colors of Justice

In two sets of felony drug cases in a 'tough on crime' Texas county, only the African American defendants end up on the heavy side of justice's scales.
 
 
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In 2003, Williamson County Sheriff's Office investigators made a series of significant felony drug busts. In January and again in October, WCSO detectives dismantled two methamphetamine lab operations – one near Georgetown and one further west, in Liberty Hill; three people were arrested and charged. During the same period, undercover investigators – including at least one of the detectives involved in the west side meth busts – spent six months making a series of crack cocaine buys in Taylor. Those transactions eventually resulted in nine arrests.

Despite the large quantity of drugs and methamphetamine-manufacturing chemicals seized by investigators, neither of the speed-lab busts made the news. By contrast, the December arrests of the nine Taylor crack suspects made headlines. In press accounts, Williamson Co. District Attorney John Bradley labeled the nine suspects "well-connected" and "high-level" drug dealers.

The two sets of drug cases bear some superficial similarity. Significantly, WCSO and court records suggest that law enforcement officers built solid cases against each of the 12 defendants. But there are at least two significant differences between the two sets of cases. In the first place, the Taylor nine are black, the meth cooks are white. There was also a difference in the quantity of drugs seized – the Taylor nine were arrested for dealing between one and approximately 45 grams of crack; the three meth cooks were charged with the manufacture, possession, and intent to deliver more than 200 grams of speed.

Six of the defendants arrested in connection with the crack and meth busts have had their cases adjudicated and disposed. Only one case has been heard by a jury in open court; five cases were disposed of through plea bargains negotiated with Bradley's office. Of the five plea-bargained cases, three defendants – including two of the Taylor nine – are doing jail time for their crimes.

One of the meth defendants had a previous felony drug bust, and agreed to a seven-year prison term – a sentence much lighter than those now being offered by prosecutors in several of the crack cases involving both lesser amounts of drugs and less-experienced defendants. The other two meth defendants whose cases were bargained out did even better – they were offered deferred adjudication, meaning that, if they successfully complete the terms of their probation, all record of their guilty pleas in connection with the speed-lab cases will be expunged.

For a county that has spent more than two decades cultivating the image and reputation of being "tough on crime," the apparent disparity of punishment meted out between the two groups of alleged drug dealers is somewhat puzzling – even to some involved in Williamson Co. law enforcement.

The situation is not surprising to others – including two national legal experts – who suggest that the disparity is symptomatic of the nearly unchecked power prosecutors now have to decide the fate of defendants in plea-bargained cases. Nationally, plea bargains account for more than 90% of all criminal case dispositions. "There is an enormous shift of power away from the judiciary and over to the prosecution. The judges are a lot like clerks," said Steven Bright, professor of law at Yale and Harvard universities and executive director of the Atlanta-based Southern Center for Human Rights. "So really, all of the power is being exercised by the district attorney."

Still others say that the apparent disparity is attributable to one thing: the race of the defendants. "For the most part [Bradley's office offers] harsh sentences across the board," said Nelson Linder, president of the Austin chapter of the NAACP. "But based on our analysis, they are harsher for African-Americans."

Linder and others ask: Williamson County's law enforcers may well be tough on crime – but are they tough and color-blind?

Ounces and Ounces

On July 11, 2003, after a brief meeting with a ponytailed man in the parking lot of a Taylor car wash, Floyce Lee Jackson got into a white four-door Buick and headed north on Main Street, carrying $1,000 in cash, and leaving the ponytailed man holding two flat, white "cookies" of crack cocaine folded inside a fast-food hamburger wrapper. What Jackson didn't know was that the ponytailed man, who'd telephoned Jackson earlier looking to score, was actually undercover WCSO investigator Gary Haston.

Between April and September 2003, Haston (a former U.S. DEA agent), WCSO Detective Sharif Mezayek, and other members of a joint WCSO-DEA task force, conducted more than a dozen similar buys in the small eastern Williamson Co. railroad town, scoring nearly $20,000 worth of crack, according to reported estimates.

The undercover operation culminated in December with the arrests of nine people. Each was charged with first-degree-felony "delivery of a controlled substance," punishable by up to life in prison.

"What surprises us is, when asking the [Taylor] crooks to deliver the drugs, they were willing to deliver in ounces and ounces," Bradley told the Austin American-Statesman. "Once you get that amount being delivered, you know you're dealing with a substantial problem."

Bradley's description was dramatic but misleading: When all was said and done, the accused Taylor nine, collectively, delivered to investigators just over five ounces of crack. The two largest busts netted just over 1.5 ounces each, while four of the buys were for about one gram of crack – hardly the "ounces and ounces" Bradley described to the press. (A gram is about the weight of a paper clip, and there are 28 grams to an ounce.)

Nonetheless, five of the Taylor defendants had prior criminal records – including convictions for drug possession and/or delivery. Regardless of the amount of drugs they allegedly dealt to investigators last year, their records would increase their potential punishment this time.

Indeed, when Jackson met with Haston, he was on parole after serving fewer than 10 years of a 27-year prison sentence on a Potter Co. possession case. That circumstance, combined with his four other priors (two for possession, one for burglary, and one for theft), made Jackson's case, in courthouse lingo, the "high bitch" of the Taylor nine. In other words, in the view of criminal attorneys, Jackson was the defendant whose record meant prosecutors could reasonably expect to secure a life sentence, regardless of the amount of drugs he'd sold in this instance. (In fact, the cookies he'd sold weighed just over 1.5 ounces, the second largest package delivered during the operation.)

Given those circumstances, it wasn't a surprise to Jackson's appointed legal defender Carlos Barrera that Bradley's office intended to try Jackson's case first. Defense attorneys say that when there are multiple defendants, prosecutors will often try the "high-bitch" first in order to create a precedent – and, if a jury convicts and if the sentence is long enough, thereby persuade other defendants to accept whatever plea deal is offered.

What did come as a surprise, Barrera says, was the deal prosecutors offered his 53-year-old client: 50 years in prison. The offer was essentially a life sentence for Jackson, who wouldn't be considered for parole for 17 years. Of course, given the county's record of obtaining guilty verdicts in jury trials – in the last three years only two defendants have avoided a guilty verdict – there was little doubt Jackson would do time. Realistically, the only question was how long he'd be locked up. In the end, Jackson opted for a jury trial.

After two days of testimony, Jackson was found guilty and sentenced to life behind bars.

Pounding the Defendants

So far, Jackson has fared far worse than the other Taylor defendants, including those who have been offered plea deals but have yet to decide whether to accept or to take their chances with a jury. In what now seems an act of razor-sharp foresight, two of the nine pled early, accepting what are likely to be the very best deals Bradley's office will offer any of the nine.

In May, 43-year-old first-time felon Joyce Lee Harris waived her right to trial (and her right of appeal), pled guilty to one count of delivery, and accepted a five-year prison sentence. According to her indictment, Harris was charged with the May 2003 delivery of "between four and 200 grams" of crack. However, in the probable-cause affidavit filed for her arrest there is in fact no mention of a May buy; instead, Detective Mezayek detailed an April 2003 buy during which Harris sold investigators 0.79 grams of crack. Also in May, Norma Faye Wright, 39, another first-timer, became the second of the Taylor nine to take a deal, accepting a 15-month state jail sentence for selling 0.12 grams of crack on April 3, 2003.

Those deals, attorneys close to the Taylor nine cases say, were the most lenient offered by Bradley's office. Barrera says that prosecutors originally offered Jackson 20 years for a guilty plea, but that Bradley yanked the offer shortly after it was made. Indeed, other sources told the Chronicle that shortly after Harris and Wright pled out, Bradley standardized all future offers for the Taylor nine, directing his prosecutors to offer nothing less than 20 years of hard time to each of the defendants – two of whom have no prior felony record.

"This is as much a reflection on the conservative [views] of Williamson County [residents] as it is on the prosecutors," said one area defense attorney who practices in the county. He also asked to remain anonymous, citing a fear of retaliation for speaking harshly of Bradley's office. (Incidentally, this source was not alone; numerous attorneys expressed this same concern and agreed to speak to the Chronicle only on condition of anonymity, while others declined to comment at all.)

DA Bradley also has a reputation for "micro-managing" the office, the source said, and the deals that come out of his office are intended to "pound" defendants. But county voters are complicit in the practice, the attorney said: Williamson Co. "jurors have a perverse view of what crime is."

After repeated requests for an interview to discuss his approach to prosecutions, Bradley agreed to respond in writing to a list of questions submitted by the Chronicle. But a week later, Bradley told us that he had changed his mind and, citing "ethical" concerns, declined to answer any questions for this story.

Different Folks, Different Strokes

Also last year, county sheriff investigators busted two methamphetamine-cooking operations in the western half of the county. Those cases resulted in outcomes quite different from those of the Taylor nine. In January, officers with the sheriff's Special Missions Team (including Detective Mezayek) raided a house near Andice, northwest of Georgetown. Inside, they found four people, including Paul Morrow, then 38, who told Detective Kevin Hallmark that the officers would find "dope" in his bedroom. On a desk, Hallmark found 15 small zip-locked plastic baggies, "all of which contained a white powdery substance," he wrote in his report. Collectively, the bags contained approximately 11.3 grams of meth.

Hallmark also found empty pseudoephedrine-tablet blister packs, a can of acetone, three bottles of an "unknown liquid," muriatic acid, Red Devil lye, and a small bottle "of what I believe to be red phosphorus" – among other items "consistent with items commonly used in a red phosphorus 'lab' for the production of methamphetamine." The officers called in additional investigators after finding "numerous" other items, including guns, power tools, and three auto trailers, which they "believed to be stolen," Hallmark wrote. Morrow and three others were booked into the county jail.

The Department of Public Safety lab later confirmed the presence of methamphetamine, pseudoephedrine, and red phosphorus among the items taken from Morrow's house. The DPS also reported finding 8.7-milligrams-per-milliliter of methamphetamine in a 589-gram liquid mixture found at the house. Morrow was charged with two counts of felony manufacturing at least 400 grams of meth (including any "adulterants" or "dilutants"), and with possession with intent to deliver the same, charges punishable by between 15 to 99 years or life in prison and a fine of up to $250,000.

That fall in Liberty Hill, investigators responded to a call from someone complaining of a "strong chemical smell" coming from 36-year-old Carl Clay Wright's property. Detective Mezayek had received similar complaints in the past, he wrote in his report, so he and several other officers with the sheriff's narcotics and K-9 units went to check it out. Wright was in the front yard when the officers arrived; he told Mezayek that another man, Randy McAnally, was out back, "cooking methamphetamine." Wright said that he'd quit cooking the stuff and that the items in the backyard shed actually belonged to McAnally.

From the shed, Mezayek seized several bottles containing layered liquid mixtures (one field-tested positive for meth), a jar of Red Devil lye, a 32-ounce can of lighter fluid, two boxes of pseudoephedrine tablets, and a bottle of red phosphorus, among other items. Wright and McAnally were arrested. On Nov. 12, 2003, Wright was indicted on two counts of manufacturing and possessing between 200 and 400 grams of meth (punishable by 10 to 99 years, or life, in prison, and up to a $100,000 fine) and on one count of possession of "precursor" chemicals subject to regulation under the state's Controlled Substances Act.

Morrow and Wright each had prior criminal records. Morrow had four prior misdemeanor arrests, including two theft charges and a charge of driving on a suspended license. Wright had five priors, including two dismissed marijuana possession charges, an assault charge, and a charge of unlawfully carrying a weapon. Theoretically, given their criminal histories and the seriousness of the meth charges, Morrow and Wright should've been in the same boat in which the Taylor nine were rapidly sinking. But they weren't; Indeed, as a result of the 2003 meth busts, neither man spent more than six months in county jail.

In Morrow's case, Bradley's office dropped the manufacturing charge and, in exchange for a plea of guilty on the possession charge, Morrow was offered 10 years deferred adjudication, 180 days in the county jail – balanced against a 174-day credit for time already served – and a $2,500 fine.

For Wright, the state dropped the drug manufacturing and possession charges and offered eight years deferred adjudication, 120 days in county lockup, and a $2,500 fine, in exchange for a guilty plea on one count of possession of precursor chemicals. (Randy McAnally, who had a previous meth-related felony conviction, pleaded guilty to one count of possession of precursor chemicals and was sentenced to seven years in prison.) Significantly, because the DA's office offered deferred adjudication on the sentences, if Wright and Morrow successfully complete the terms of their probations, all record of their guilty pleas will be wiped from their criminal records.

Stark as it appears to be, the disparity between the sentences offered to Morrow and Wright and those offered to the Taylor nine comes as no surprise to many involved with the Williamson Co. criminal justice system. The county's tough-on-crime image is a conscious, long-enduring official construction aimed at maintaining a public perception, some critics charge – but which has successfully obscured a much grittier reality.

"There is a big difference between [the] public relations image that the DA will cultivate and the reality of the office," charges Keith Hampton, an Austin defense attorney and legislative chair of the Texas Criminal Defense Lawyers Association. "[In] a county like Williamson, that likes to portray itself as 'tough on crime,' [the question to ask is] what, exactly, does that mean?"

Bullying and Bias

As it turns out, what it means to be "tough on crime" in Williamson Co. depends upon whom you ask. It also depends on exactly what you ask. To hear Bradley tell it, the county's system of criminal justice is transparent and fair.

"We prosecute people for the crimes they commit," he told the Statesman in 2002. "If a criminal gets a long prison sentence, it is because he or she deserved it." Judging only by the office's conviction record in jury trials, Bradley's assertions appear true. From January 2002 through June 18, 2004, his office tried 40 felony cases – involving a diverse group of defendants facing a variety of charges – and secured convictions in all but two.

But others charge that Bradley's simple cause-and-effect explanation masks a much more complicated reality. Indeed, although the county's felony jury trial system has sent 38 offenders to prison in the last 21 years, since 2000 the DA's office has sent nearly 3,000 people to prison. In other words, the overwhelming majority of the county's criminal defendants have their fates decided through plea arrangements – a process that happens in the hidden halls of justice, with a minimum of public scrutiny.

In this regard, Williamson County's system of criminal justice is little different from any other around the country. Nationally, over 90% of criminal cases are disposed of by plea arrangements. Many argue that the system must handle cases in this manner; without pleas, court dockets would be inextricably backlogged and the wheels of justice would grind to a halt.

However, the plea system is also ripe for abuse, because it offers the state a vast and unchecked discretion to determine the fate of criminal defendants based on unknown or arbitrary criteria – and, potentially, upon deep-seated biases – all without the check of public scrutiny.

"There is no way to evaluate it, that's one of the problems. It is a low visibility system," said Albert Alschuler, Julius Kreeger Professor of Law and Criminology at the University of Chicago and a former UT law professor who has studied plea systems for more than 30 years. "The prosecution is tough in newspaper cases and [is] giving away the farm on everyday cases. It is very difficult to review. It is not like there is a public process."

In total, he said, it is a disturbing way to conduct the public's business. "The administration of justice is important, but largely not visible."

Empirical evaluation of a plea bargaining system can only happen if prosecutors put every offer into writing and into the public record, and that doesn't happen, said Steven Bright, executive director of the Southern Center for Human Rights.

"It is an almost Herculean task to try and figure it out," he said. Further complicating the matter, Alschuler said, is that in 98% of cases, judges rubber-stamp whatever sentence the prosecutor offers. Bright agrees. "The problem with plea-bargaining is that there is not much bargaining; the DAs have a take-it-or-leave-it policy," he said. "Sentencing ought to be done by judges, not prosecutors. [Prosecutors] are advocates and they're one-sided. That's not the way it should be."

In the absence of oversight, they agree, justice is often determined by two things – bullying and bias – and conscious or not, much of the bias involves race. Plea bargaining "becomes an end to itself [with] prosecutors bludgeoning people into pleading – 'Well, you're welcome to go to trial, but if you do you'll be facing more time,'" Bright said. Alschuler agrees. Bargaining is "highly discretionary," he said. A prosecutor "can make it in a defense attorney's best interest not to defend the client – and if you don't win, you're going to get socked."

Many local criminal defense attorneys say this is exactly what happens in Williamson Co. Indeed, many told the Chronicle it is a major reason they won't take cases there any more.

"I refuse. It's been almost 20 years. I was very much mistreated; my clients were very much mistreated," said Betty Blackwell, a veteran Austin criminal attorney and former president of the TCDLA. In Williamson County, "the defense attorney takes on the persona of the defendant," she said. "This doesn't exist almost anywhere else, where they recognize the Sixth Amendment right to be represented by an attorney."

Similarly, Hampton hasn't taken a case in Williamson since about 1995, "because my clients were treated harsher, literally, because of me," he said. "What they encourage there are obedient criminal defense lawyers." Bradley, he said, doesn't "understand the value of what an independent ... defense attorney brings to the table. He wants to run it almost like a bureaucracy."

Apparently, these are criticisms Bradley has heard before, and condescendingly dismisses. "I think that I'm an aggressive prosecutor," he told the Statesman in February 2002. "I work very hard to make sure that I know the law that I'm pursuing and I know that occasionally hurts the feelings of the defendants that I'm trying to put into prison." The reporter apparently didn't ask whether he also prefers defense attorneys who operate under the same priorities.

Still, a take-it-or-leave-it policy, such as many attorneys say exists in Williamson – shadowed by the specter of potential retaliation in the event an attorney should decide to "leave it" – has translated into a lopsided system of criminal justice, under which minority defendants are vulnerable to injustice based on racial bias.

"I hate to use a big brush," said Blackwell, "but I'd say it's safe to say that in felony cases that is true." Austin attorney Larry Sauer agrees. "Nobody likes to go" to Williamson County, he said. "They're unreasonable with their [plea] recommendations." Moreover, he said, "blacks and Hispanics don't fare as well" as white defendants. To be fair, notes Hampton, disparity in sentencing happens not only in Williamson, but also throughout the criminal justice system.

"There is a disparity, it's well known, documented and studied," he said. "It seems to be not so much racial, but aimed at the people who are the most vulnerable. It's not race, but wealth and power, and it happens to be that minorities are disproportionately represented" among the poor and powerless.

Whatever the specific causes, Bright said, the criminal justice system is biased against minorities, especially African-Americans. Some of it is unconscious, he said, but "the criminal justice system is generally very biased against black people. They are largely excluded from participation. The lawyers, prosecutors, juries, and judges are white. District attorneys are overwhelmingly white. [And] there are hardly ever going to be black people on the jury anyway."

Indeed, in Floyce Lee Jackson's case, jury bias was initially cause for a mistrial. Jackson was originally scheduled to stand trial in July, but that was pushed back a month after Barrera won a favorable ruling from District Judge Burt Carnes on a race-based jury selection objection. During jury selection, Barrera said, prosecutors struck all but one of the potential black jurors without cause – in apparent violation of Jackson's constitutional right to a jury of his peers.

The situation comes as no surprise to local NAACP President Nelson Linder, who sees Bradley's treatment of the Taylor nine, in comparison to his treatment of Morrow and Wright, as just another example of Williamson County's deep-seated racial bias.

"It's a worst-case scenario, and unfortunately that's what [there] is," he said. The NAACP routinely receives complaints, he said, that in Williamson Co. criminal justice, blacks are treated more "harshly" than are whites. "We want Bradley to use discretion to eliminate the double standard," he said. In early 2002, after receiving more than 20 complaints of discrimination in less than a year, the NAACP initiated an investigation into the allegation of racially biased sentencing practices in the county.

"We want to see the facts," he told the daily. Bradley quickly countered the NAACP's assertion, telling the Statesman that of the 35 defendants the county sentenced to at least 20 years in prison in 2001, "almost half were white, one-fourth were African-American and one-fourth were Latino."

As far as they go, Bradley's cited statistics are accurate, and have remained consistent over time for county defendants sentenced to prison time. Since 2000, according to TDCJ statistics, Williamson Co. has sentenced 2,770 people to state jails or prisons. Of those, nearly 56% were white, nearly 26% were Hispanic and just over 18% were black. However, what Bradley failed to mention, and what the daily failed to report, is that according to 2000 census figures, Williamson County's population is more than 82% white, 17% Hispanic, and just over 5% black – numbers that belie Bradley's assertion of across-the-board fairness.

"Those are the correct figures that illustrate everything," said Ann del Llano, an attorney with the Austin ACLU, who describes Williamson Co. as a "white flight" county, concluding, "Let's be real."

Holding the Line

If the wheels of Williamson Co. justice continue to turn on their current course, the Taylor nine will soon be added to the TDCJ roster, while their white meth-cooking counterparts appear likely to avoid that fate. For his part, District Attorney Bradley declined to answer any questions about the process by which his office arrives at plea offers, or about which factors his office considers when contemplating plea deals. He told the Chronicle that discussing any pending cases, such as those of the Taylor nine, would be "unethical."

Yet he also declined to discuss any closed cases, such as those of Wright and Morrow, explaining that he found it difficult to "isolate" those cases from pending cases. He also declined to have what he termed a "global" discussion about the process of plea-bargaining, saying that he finds "open-ended" discussions "unproductive." Bradley declined to elaborate on his reasoning. "I don't think I want to discuss this any further," he said.

If the claims of critics are accurate, it wouldn't be the first time that black people in Taylor have found themselves on the heavy side of justice's scales. Since at least the early '90s, the Williamson Co. DA's office has taken more than a passing interest in "cleaning up" the city's minority communities – notably with the 1994 "Turn Around Taylor" efforts, presided over by Bradley's mentor and former boss Ken Anderson, now a district judge, who served as county DA before handing the reins to Bradley in 2001.

In that effort, reportedly aggrieved citizens were worried about the scourge of drugs in a historically black neighborhood known as "The Line" and banded together with county law enforcers to create the TAT. Using police sweeps and "nuisance" laws, the group sent a host of drug dealers to jail and boarded up or bulldozed a host of offending properties.

In the view of many familiar with the cases of the Taylor nine, the county is now engaged in a repeat performance. "It is clear that they targeted the black population," said one defense attorney. But "I don't know what has caused the prosecution to make such [a big deal out of these cases]."

If the Taylor nine are so well-connected, asks another attorney, "where is the investigation [and prosecution] of their supplier?" And why, they both want to know, hasn't TAT or Bradley's tough-on-dealers approach extended to the Taylor defendants' white counterparts? Hampton thinks he knows the answer to that one: "The thing is that there are no [TAT] people anywhere [in the county] that are concerned about white redneck drugs" – no matter how insidious their operations might be.

Cats and Mice

If Floyce Lee Jackson was in fact a "high-level" drug dealer, as Bradley claimed, he does a very good job of concealing his altitude, as do his fellow Taylor defendants. The neighborhoods they call home boast none of the trappings of wealth. At best, the communities, on run-down streets in Taylor's small black quarter, are depressed, many of the homes are in need of serious repair, their foundations are crumbling, and more than one house boasts clumsily boarded-up windows and doors.

In August, Jackson sat in the courtroom wearing a pair of scuffed white sneakers and a borrowed suit several sizes too large, while a team of two prosecutors told the eight-woman, four-man jury (11 of them white, even after the judge-ordered delay and repaneling) that Jackson was a "mid-level drug dealer" ripped from the streets of small-town Taylor by courageous narco officers. Moreover, prosecutors repeatedly declared to the jurors, Jackson was actually one of 15 dealers swept off Taylor's streets by the undercover police.

Although the public-menace status of the Taylor nine had apparently been downgraded from "high-" to "mid-level" dealers some time between December and August, Jackson's prosecutors were adding a new and more onerous burden to his defense by repeatedly telling the court that Jackson was busted along with at least a dozen other conspirators. (The precise number was apparently flexible; prosecutors switched seamlessly between estimates of 12 and 15 drug dealers.)

Despite the clear misrepresentation – neither Jackson nor any of the other Taylor defendants was indicted on conspiracy charges – Barrera failed to object to the state's assertions, leaving Jackson alone in the courtroom to face the alleged wrongdoings of 14 ghosts.

After two days of testimony, the jury found Jackson guilty and sentenced him to life in prison, which Judge Carnes ordered Jackson begin serving only after he finished serving the time remaining on his previous Potter Co. sentence.

In his closing arguments, Barrera asked the jury to consider what a conviction would actually accomplish. "If you want to convict Mr. Jackson for this crime, do you think [it's] going to stop one person in Taylor from getting their drugs?" he asked. "This is a demand-driven industry and these guys are playing cat-and-mouse games. They're not keeping any dope off the streets."

Jordan Smith is a staff writer at the Austin Chronicle.