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Racial, institutional bias compound the damage inflicted by a flawed law

Sunday, March 18, 2001

By Barbara White Stack, Post-Gazette Staff Writer

One black teen-ager paid the entire price for the robbery of a Duquesne beer distributorship by three black youths. And the cost was high.

That's because the hold-up took place on March 26, 1996, just eight days after Pennsylvania began getting tough on teens charged with serious felonies. This robbery clearly qualified. Three youths, two with guns, entered the shop just before noon, ordered one of the owners to hand over money from the cash register and grabbed a bank bag and a wallet.

Gene C. served 20 months in jail for a 1996 beer distributor robbery in Duquesne -- even though there is doubt he committed the crime. (Stacy Innerst, Post-Gazette illustration)

One owner saw the teens briefly before they covered their faces. He didn't know any of them, but months later, he identified a Duquesne teen-ager, Gene C., as one of the three.

Based on that, police charged Gene with armed robbery, one of the charges that sends youths 15 and older directly to adult criminal court under the new law. A jury found him guilty, and he served 20 months in jail. He unsuccessfully appealed his conviction, and, to this day, insists he was innocent.

The case of Gene C. is troubling because questions about his guilt arose after the trial, when the shop owner, who was the only witness against him, committed suicide and left a note saying: "I can't live with the suffering I've caused. I had to make things right after that trial."

Gene C.'s case is disturbing for another reason as well. He and other black youths charged in Allegheny County in the first year of Pennsylvania's 1996 "adult time for adult crime" law suffered much more than their white counterparts charged with the same types of violent offenses.

In that first year, black youths were more likely to be charged as adults, more likely to be wrongly charged, more likely to be denied transfers to juvenile court and more likely to be sentenced to longer terms.

Here are the numbers:

Of the 129 youths charged as adults in Allegheny County in the first year, 94 of them -- nearly three quarters -- were black, even though the numbers of black and white children charged in juvenile court are about even. National surveys have shown that black teens do acknowledge committing more crimes than white teens do, but the difference is significantly smaller than the rate at which black youths are charged as adults.

Once the cases got to preliminary hearings, 53 of them were dropped for lack of evidence, unwillingness of victims to testify or other reasons. Of those teens, 83 percent were black, and they spent an average of 10 days in jail before charges were dropped.

After the dropped charges, 76 teens remained in the system, 50 black and 26 white. More than half of the black children -- 26 -- were denied transfer to juvenile court. Only eight of the white teens were. That meant that black teens had less than even chances of getting their cases moved to juvenile court, while the white teens had a 70 percent chance.

Of the 34 teens sentenced under the "adult time" law in its first year, the median prison sentence -- meaning half served more and half less -- was 16 months for blacks. For the whites, it was half of that -- eight months.

Allegheny County's statistics are not a localized fluke.

One study has shown that across Pennsylvania, black children charged as adults in 1996 were much less likely to be granted a transfer to juvenile court.

A national study showed that black youths were six times more likely to be incarcerated than white youths with the same backgrounds who were charged with the same offenses.

Another national study, this one of children charged as adults in the country's 18 largest counties, including Philadelphia, showed that black youths were more likely to be sent to criminal court for trial than white youths, no matter what the charge.

In some respects, Allegheny County is worse than elsewhere. In the study of the 18 largest counties, only 52 percent of the teens charged as adults were black -- nearly 30 percent fewer than here.

"If you commit the same crime, you are treated differently if you are black. That is what the research shows. That is the clincher. You can't refute that," said Marc Schindler, staff attorney for the Youth Law Center in Washington D.C., which is researching unfair treatment of black children in the justice system with a coalition of groups called Building Blocks for Youth.

A belated identification

After the Duquesne robbery, the owner of the beer distributorship rode around in a police car searching for the three teens, but couldn't find them.

Six months later, in September, he was delivering beer to a bar in Duquesne when he saw Gene waiting at a counter for a take-out order. He thought the teen-ager was one of the three who'd robbed him.

This time, the shop owner got Gene's name. It was embroidered on his jacket. Even so, he waited three weeks before telling police. They arrested Gene on Oct. 13, 1996, and he was held in jail on $75,000 bond until his preliminary hearing 10 days later.

At that hearing, the shop owner described the robbery and said Gene had put a gun to his head.

That was enough for District Justice Nicholas Diulus to hold Gene for trial. Gene returned to jail.

Like having his name on his jacket that day, Gene was unlucky again. He would not be among the 40 percent of the youths charged as adults in Allegheny County that first year whose charges were dropped at their preliminary hearings.

Of the group that had charges dropped, about half of both blacks and whites were arrested later on new criminal charges. Of those who stayed crime-free, though, an analysis shows that black youths were six times more likely to have been wrongly arrested than would be expected from their proportion of the population.

State Attorney General Mike Fisher, who helped mold the "adult time" law, expressed concern about the large number of teens who were jailed on charges that had to be dropped at the preliminary hearing.

"We never intended [the law] to be a tool to teach someone a short-term lesson or give them shock treatment," he said, "To hold someone in jail for two weeks if you do not have the evidence is not the way you want the criminal system to work."

In Allegheny County, eight out of every 10 youths against whom charges were dropped were black. In a similar but slightly less dramatic finding, the study of the nation's 18 largest counties found that prosecutors failed to convict 43 percent of the black youths who were charged as adults, compared with 24 percent of the white youths.

Both numbers suggest that police charge black youths significantly more often than whites in cases that don't withstand legal scrutiny.

Too close to 18

At Gene's next hearing, it wouldn't be the strength of the evidence but his age that would work against him.

By the time he was arrested and then asked a judge to transfer the case to juvenile court, it was Dec. 12, 1996, the day before his 18th birthday.

Charles Burgess, the juvenile probation officer assigned to Gene's case, pointed out that he had no convictions as a juvenile. He said even if Gene were guilty of this very serious crime, the court should give him a chance at reform school.

Three teens -- two holding guns -- walked in the Duquesne beer distributor's store shortly before noon on March 26, 1996. They held up the owners, grabbing money from the register, a wallet and a bank bag. (Stacy Innerst, Post-Gazette illustration)

Gene's aunt also testified for him. She told the judge that child welfare workers had taken Gene from his mentally retarded mother. They placed Gene with his aunt when he was 7. She cared for him like a son, she said, but he was always sad. "All his life he wanted to go back to his mom, and no one would let him," she said. As a teen, he was treated for depression.

The aunt had promised to return Gene to his mother when he was old enough to take care of her. She let him go when he was 16.

Common Pleas Judge Timothy O'Reilly said if Gene were younger, he'd move the case to juvenile court. But it was too late. "He is so close to 18," the judge said. "I think he is ready to handle it as an adult."

That day, Gene became one of the 34 Allegheny County youths during the first year of the "adult time" law who were denied the opportunity to go to reform school instead of prison -- 76 percent of them black.

Just three months later, a 17-year-old white youth charged with armed robbery of a store sought transfer to juvenile court and got a very different result.

David S. had pointed a gun at the clerk in a Lawrenceville market, and demanded, "Give me all your money." The clerk screamed. David fled. He got no money.

Although David had a juvenile record, his case was moved to juvenile court after his attorney persuaded the prosecutor not to fight the request.

David had a private attorney. Gene could not afford one.

A Building Blocks study found that children represented by private attorneys are more successful in getting their cases moved to juvenile court for trial and that white children are twice as likely as black youths to have private attorneys. The authors of that study speculated that the problem for blacks was that public defenders tended to be overburdened.

At the time Gene's case was being handled by an Allegheny County public defender, the American Civil Liberties Union was suing the county, contending its public defenders were so underfunded and overworked that poor people were unconstitutionally deprived of proper representation. In 1998, Allegheny County settled that suit by agreeing to hire 31 additional public defenders, but that was too late for Gene.

His trial began on April 8, 1997.

It was not until that day that his public defender, Charles Clark, informed him that Clark had failed to subpoena two of his defense witnesses.

The two were Duquesne residents who would have testified that they knew the three youths who had robbed the beer distributorship, and that Gene was not one of them.

One would have said that at the time of the crime, she was the girlfriend of one of the teens who robbed the shop. His street name was "Ta-Ta."

The day of the holdup, she said, Ta-Ta arrived at her apartment and dumped a bag full of money on her bed. Another friend showed up later, and Ta-Ta told his girlfriend that this teen and a third youth were in on the robbery.

Another friend of Gene's was prepared to testify that two of the same teens told him that they and the third youth had used two guns to rob the beer distributorship and take a wallet from one of the owners.

Gene, who had been in jail nearly six months because he couldn't pay his $75,000 bond, agreed to go ahead without the witnesses. He did that partly because a Duquesne High School math teacher was there to testify that she'd marked him present in her class, which lasted until 11:40 a.m., just five minutes before the robbery. And Gene's mother was there to testify that he'd walked home from school that day to eat lunch with her.

But the prosecutor pointed out that the school is only a few blocks from the beer distributorship, no more than a five-minute walk. And the math teacher could show Gene arrived at class at 10:53 a.m. when she took roll, but not that he was there at the end of the class.

The shop owner himself clearly testified that Gene was one of the three teens who held him up.

The jury believed him. They convicted Gene.

The suicide note

A month later, the 33-year-old shop owner killed himself.

What he meant by the note he left, in which he said he had to make things right after the trial, is not clear.

But Gene's new lawyer asked for another trial based on the note. Common Pleas Judge John A. Zottola, who had presided over the trial, had appointed a private lawyer, Wendy Williams, to represent Gene for the sentencing and an appeal.

Williams contended the shop owner had been despondent over the possibility that he had misidentified Gene.

The prosecutor, Nicholas Radoycis, opposed a new trial, saying the owner had never officially recanted his testimony and the jury had found him credible.

Zottola refused Williams' request, saying such extraordinary relief was proper in few instances. He then prepared to sentence Gene, noting that five years is mandatory for felonies committed with guns.

Williams pleaded for a lesser term, telling the judge Gene was a good youth who'd earned his general equivalency diploma in jail.

Zottola told Gene he didn't want to give him more than two years because that meant he would serve time in a penitentiary, and he didn't want Gene there. "You would be a different person when you came out. Your prospects in society would be greatly diminished. People throw away their lives when they go to the penitentiary. I don't want to do that to you," he said. Then he sentenced Gene to two years in the county jail.

Radoycis protested and said he'd appeal, but he never did.

All but one of the white teens tried in criminal court got sentences shorter than Gene's. The one who got a longer term had pistol whipped the victim of his robbery. Among the white youths who got shorter sentences was a 16-year-old who had a juvenile conviction for indecent assault and was charged as an adult for sodomizing an 11-year-old neighbor. He served no time. Another 16-year-old white youth knocked a man unconscious with a brick, then killed a friend in a drunken driving crash. For the two, he served 8 1/2 months.

The Building Blocks study of the nation's 18 largest counties showed the same discrepancy. It found that 43 percent of the black children charged as adults were incarcerated, but only 26 percent of the white children. When specific offenses were compared, black youths in almost all cases got longer sentences than white youths. And for drug offenses, black youths were less likely than white ones to get probation.

Schindler, of the Youth Law Center, said there are many reasons the justice system treats black children differently, and usually, none is deliberate, conscious discrimination.

"We like to believe we have a system that metes out justice fairly. But the fact is that we don't. Low on the list of explanations is intentional discrimination. But policies, somehow, cumulatively result in [discrimination] over time," Schindler said.

He and other experts cited numerous examples of nondiscriminatory practices that result in the disproportionate arrest of blacks.

For example, black youths are more likely to sell drugs openly on the street, where it's easy for police to see them. White youths are more likely to sell drugs indoors.

Often, police patrols target low-income neighborhoods, and black people are disproportionately poor.

Common Pleas Judge Cheryl Allen Craig, one of the few black jurists on the Allegheny County bench, agrees with Schindler that many times unfair treatment of black people occurs inadvertently as a result of views and biases about which people aren't even aware.

What's important though, she said, is admitting the fact that it happens: "People get defensive about this. That is what makes it hard to address. The problem comes when you are not willing to look at it and be open to change."

Gene served 20 months in jail and then was paroled. Williams appealed to Superior Court to give him a new trial, contending in part that his attorney had been ineffective.

Superior Court refused, so Gene will carry that criminal record for the rest of his life.

He got a job immediately as a telemarketer and has had several jobs since then. Last year, he started classes at a computer technology school Downtown. But he also has struggled.

He has twice been charged with possession and intent to sell crack cocaine, and is awaiting trial on those charges.

Of the three young men who Gene and his friends say actually robbed the beer distributorship five years ago, only one has not been to jail. "Ta-Ta" is serving a 7-to 20 year sentence for another robbery. The other young man has been in and out of jail on assault and criminal mischief charges.

Gene has never expressed bitterness about what he says is a wrongful conviction and imprisonment. He says that's just the way it is.

Tomorrow: Gov. Ridge reacts.

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