An Ohio Supreme Court case filed by Bill Mason against a county judge suggested that the county prosecutor had no intention of addressing the disparity in drug cases.
In May 2003, a year after Mason's meeting with the NAACP (see main story), Cuyahoga County Common Pleas Judge Burt Griffin, a 30-year veteran of the bench, was getting ready to impanel a new grand jury. According to court documents (he declined to comment for this story), Griffin felt compelled to tackle the high volume of "crack pipe" felony indictments. He set aside the usual legal texts from which he read jury instructions, and wrote 10 pages of an original charge. Much of it was pro forma, but what Griffin said about crack pipe cases was unprecedented in Cuyahoga County.
He reminded grand jurors that only the prosecution would present its case, not the defense, and advised that if jurors had doubts, they should demand more evidence. Griffin also encouraged them to consider, where appropriate, indictments for lesser charges than those asked for by prosecutors.
Finally, Griffin explained in great detail the controversy involving crack-pipe cases. Defendants caught with these could be charged with either possessing a drug abuse instrument - a misdemeanor - or drug possession and trafficking, a fourth- or fifth-degree felony (assuming crack residue is found on the pipe). He then told the grand jury about "differential prosecution," and how other jurisdictions in Ohio often treat such cases as misdemeanors.
"You may notice that your Grand Jury is being asked only to prosecute these crack pipe cases as felonies when the arrest has been made in the city of Cleveland," Griffin wrote in his instructions. "That is because few, if any, of our suburbs bring these matters as felony prosecution. They are prosecuted as misdemeanors in the suburban municipal courts."
In court documents filed later, Griffin explained that he was "trying to lay the foundation for possible policy reform" - the very thing Mason had pledged to do with black leaders 12 months earlier. He continued: "An honest exploration and development of the facts surrounding the apparent differential prosecution of crack-pipe cases in Cuyahoga County might lead both to a reduction of the burdens of minor drug prosecutions," Griffin wrote to the court, "and to greater confidence by members of the African-American community in our criminal justice system."
Mason was outraged. He called Griffin's assessment "a bald allegation with no support of any kind," and accused the judge of a "stunning … disdain for the prosecutor's office," according to affidavits and motions filed immediately against Griffin. The judge should be disqualified, Mason told the court, for harboring prejudice against prosecutors and for incorrectly instructing the jury to use a different burden of proof for crack-pipe cases. Such a statement, Mason wrote, "is an act to prevent the prosecution of felonies under Ohio law."
More recently ("Disparate Times," Scene, July 30), Mason defended his opposition to Griffin's instructions through a spokesman's e-mail to Scene: "The legal standard for indicting all felony cases is probable cause. This standard is the same for drug possession (including crack-pipe cases) and aggravated murder." This is "why we asked the [court] to disqualify [Griffin]." In court filings, Mason argued that if Griffin wanted these cases charged or indicted another way, his real course of redress should be changes to Ohio's criminal code.
The matter was finally settled in Griffin's favor when the court found no grounds for bias or prejudice. Griffin retired in 2005. Similar instructions have never again been issued by any judge.
Earlier this year, an ACLU study concluded that the racial disparity in Cleveland's treatment of crack-pipe cases versus those in the suburbs was, in fact, real - far from a "bald allegation with no support of any kind."