United States v. Armstrong 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed.2d 687 (1996) The police sent some informants to buy drugs from Armstrong and his co-conspirators seven times. The police arrested Armstrong et. al. and found more drugs and guns during a search. Armstrong filed a motion for discovery pursuant to a motion to dismiss on the basis that he and his cohorts were specifically targeted for Federal prosecution because they were black. The claim was that when whites were arrested, they were prosecuted under the State system while blacks were prosecuted under the Federal system. The Federal system has much harsher penalties. Armstrong produced evidence that every one of the 24 cases that the Federal prosecutor brought involved black defendants. In addition, out of the 3500 Federal cases brought in Georgia that year, 3489 were against black defendants. Armstrong noted that the race statistics for drug users show that African Americans use drugs about as often as Caucasians did. Implying that there should be a lot of unprosecuted white drug dealers out there. The Trial Court granted the motion for discovery and ordered the prosecutor to produce evidence about how they decided to prosecute drug cases. The prosecutor asked for reconsideration. The prosecutor submitted their general guidance on how they make prosecutorial decisions, but there was a lot of data on Armstrong that they did not provide. The Trial Court denied the petition for reconsideration. The prosecutor said they could not comply with the discovery order, so the Trial Court dismissed the case. The prosecutor appealed. The Appellate Court affirmed. The prosecutor appealed. The US Supreme Court reversed and denied discovery motion. The US Supreme Court noted that the standard requirement for a selective-prosecution claim was that they must demonstrate that there is some evidence that the prosecutor's policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." That includes a showing that members of other races were not prosecuted. Armstrong produced no evidence that there were Caucasians crack dealers out there that were only being prosecuted in State courts. See Ah Sin v. Whitman (198 U.S. 500 (1905)). The Court found that Armstrong gave no evidence of discriminatory intent. Since a claim must include evidence of both discriminatory effect and discriminatory intent, the claim fails. The Court found that most of Armstrong's evidence was anecdotal and hearsay. The Court looked to Fed.R.Crim.P. 16(a) and found that a defendant may examine documents material to his defense, but may not examine Government work product in connection to his case. Basically, the defense can examine government documents material to the preparation of their defense against the Government's case-in-chief, but not to the preparation of selective-prosecution claims. Since that claim is not a defense of merits but an independent assertion that the prosecutor has brought the case for reasons forbidden by the Constitution. The Court found noted that the Constitution gives broad discretion to Executive Branch Agencies (like DOJ) to exercise their power, and the Court is limited in what they can do. The Court agreed that the prosecutor's discretion is subject to constitutional restraints, and Armstrong's allegations could constitute a violation of the 14th Amendment, and that would be justicable. However, the Court found that there is a presumption that the prosecutor is acting in accordance with the Constitution. And, in order dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present "clear evidence to the contrary." That's a high standard. In a dissent it was argued that Armstrong probably didn't have a strong case, but there was enough evidence to show that the Trial Judge did not abuse her discretion in granting the discovery order. The dissent noted that 65% of the people using crack were white, but only 4% of the people convicted in Federal courts for selling crack were white. Basically, in order to make a case for selective prosecution, you have to establish both a discriminatory effect (aka a disparity), and a discriminatory intent. Showing evidence of discriminatory intent often requires data about the prosecutor's office's thought process. You can't get that data without discovery! This creates a Catch-22. You need to show discriminatory intent to get discovery, but you can't show evidence of discriminatory intent without discovery. That's probably why there are very very few successful selective prosecution claims. If the disparity is really bad, that might be enough to imply that there is a discriminatory intent.