In Jena, Louisiana, a black student challenged the de facto segregation of his high school by asking permission to sit under the “white tree.” School officials told him to sit where he liked. The next day three nooses hung from the tree, which triggered an impromptu protest by the black students of Jena High. LaSalle Parish District Attorney Reed Walters, flanked by the police, informed the black students at an assembly later that day that he could end their lives “with the stroke of a pen.” Racial tensions grew, the school’s academic wing was burned, and Robert Bailey, a black student, was attacked by a group of whites at a party. One person was charged with a misdemeanor for that beating. The next day Bailey and two friends were threatened with a shotgun at a convenience store by a white man who had been present at the beating. They wrestled the gun away from him and ran to report the incident to the police, who charged them with robbery of the shotgun. Finally at school two days later, a group of white students, including the noose hangers, taunted Bailey and other students, calling them “niggers.” A white student was beaten by a group of black students, taken to the hospital and released within three hours. He attended a school function that night. Six black students were charged with second degree attempted murder for the fight. The first to be tried was Mychal Bell, whose public defender put on no case, called no witnesses, and permitted a friend of the DA, the mother of a prosecution witness, and a good friend of the victim’s mother, to be empaneled on the six person jury. Bell was quickly found guilty.

After repeated delays prior to his trial and conviction, Mychal Bell’s sentencing has now been delayed until September 20th. It is possible the sentencing was delayed because of the planned rally and march in Jena on July 31st, the original sentencing date. Jena’s black population of 12% will be substantially augmented on that day by people from all over the country coming to show support for the Jena 6.

The Department of Justice Community Relations Service conducted a forum in Jena “hoping to address the racial tensions in the small community that have built and escalated since last fall with the hanging of nooses in a tree on Jena High School’s grounds, interracial off-campus fights and then in December the attack of white student Justin Barker that resulted in six black students being charged with attempted murder.”

Donald Washington, U.S. Attorney for the Western District of Louisiana had several interesting comments. The goal of the meeting was evidently to try to calm people and convince them that nothing unjust occurred.

“We have a concern that something needs to be done to make sure these kinds of things don’t repeat themselves next school year,” Washington said, speaking of fighting among students over racially related issues or other kinds of adolescent behavior.

“We hope that the folks that attend the meeting come away with the view that there is an intact justice system at the federal and state level and those systems have their best interest in mind.”

Washington followed up with this canard:

He mentioned and addressed each of the complaints he thought community members have raised in recent months — selective and malicious prosecution, the fact that some students have been suspended and others expelled, hate crimes and patterns or practice of racism.

Many questioned whether there was prosecutorial misconduct on the part of LaSalle Parish District Attorney Reed Walters. He did not attend the forum, citing a judicial gag order.

Washington said selective prosecution is very hard to prove, and in order to do so he would have to have to “dig in his head” to determine if Walters was treating black and white people differently.

In fact, neither extrasensory perception nor brain surgery are methods used to determine selective prosecution..

In order to establish a prima facie case of selective prosecution, a defendant must show both “(1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive, i.e. discriminatory purpose or intent.” Id. at 475 (emphasis added). See also United States v. Bourgeois, 964 F.2d 935, 938 (9th Cir. 1992). The impermissibly discriminatory purpose or motive must imply “that the decision-maker selected or reaffirmed a particular course of action at least in part because or, not merely in spite of, its adverse effects upon an identifiable group. The identifiable group is typically a race, religion, or group of persons exercising a constitutional right.” Gutierrez, 990 F.2d at 476 (citations omitted). Selective prosecution claims are evaluated according to ordinary equal protection standards. Bourgeois, 964 F.2d at 938. Similarly, to establish a prima facie case of vindictive prosecution, a defendant must make a “showing that charges of increased severity were filed because the accused exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness.” United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982).

It is clear that others similarly situated have not been prosecuted. Lacking ESP, discrimination must be proved by showing a pattern. That requires investigation.

One interesting detail is that the DOJ investigated the noose hangings a week after they occurred.

“What you may not be aware of is that we had agents in Jena a week or so after the incident. They did an investigation.”

That investigation’s findings, he said, were given to Washington’s office. Washington said there were all the elements of a hate crime but one — threat or use of force.

“How would I prove that in this particular case?” Washington asked. “What’s my evidence? … Put yourself in my shoes, and tell me what you’d do differently.”

However, it may be concluded that the noose is a threat in and of itself – just as the Supreme Court has decreed cross burnings are a threat. At this point, no meaningful investigation of this case, LaSalle Parish prosecutions, or DA Reed Walters has been conducted. It is important to note that the group the Department of Justice sent down was from the Community Relations Service, not the Civil Rights Division, so it seems unlikely that such investigations are planned.

Sources:
Forum may ease tension in Jena
Attendees at LaSalle forum on ‘Jena Six’ case lament lack of audience diversity
138 Sample Memorandum Supporting Motion Precluding Evidence of Selective Prosecution

Full background on the Jena 6 here.

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