No Right to Discovery as to Possible Selective Prosecution in Prosecution for Burning Police Car at George Floyd Protest
From U.S. v. Wilson, decided yesterday by Ninth Circuit Judge Danielle Forrest, joined by Judge Patrick Bumatay and District Judge James Donato (N.D. Cal.) (for a similar result in a case alleging selective prosecution against alleged white supremacist rioters, see U.S. v. Rundo (9th Cir. 2024)):
On May 31, 2020, Defendants-Appellees Nathan Wilson and Christopher Beasley allegedly joined a protest in Santa Monica, California [following the killing of George Floyd] and set fire to a police car. They were both federally indicted on one count of arson. Defendants moved to dismiss their indictment, arguing that they were unconstitutionally singled out for prosecution based on the perception that they held anti-government views.
The panel held (disagreeing with the trial court) that defendants weren’t entitled to “discovery on their selective-prosecution claim”:
The Executive Branch has “‘broad discretion’ to enforce the Nation’s criminal laws.” Thus, a “‘presumption of regularity supports’ … prosecutorial decisions and, ‘in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.'” Selective-prosecution claims—assertions that a prosecutor has brought charges for reasons forbidden by the Due Process Clause of the Fifth Amendment—require courts “to exercise judicial power over a ‘special province’ of the Executive.” …
Given the separation-of-powers concerns at play, the standard for proving selective prosecution is “a demanding one.” The Supreme Court has established a two-factor standard: the defendant must demonstrate “clear evidence,” first that the decision to prosecute “had a discriminatory effect and[, second,] that it was motivated by a discriminatory purpose.” “[T]he showing necessary to obtain discovery” on a selective-prosecution claim is “correspondingly rigorous,” and is intended to be a “significant barrier to the litigation of insubstantial claims.” …
To show discriminatory effect sufficient to warrant discovery, a defendant must “produce some evidence that similarly situated defendants … could have been prosecuted, but were not.” … Defendants argued to the district court that they were unconstitutionally prosecuted based on a policy of the Trump Administration to prosecute an arbitrary class: “‘individuals associated with protests who the government thought held anti-government views, regardless of what actual views they held.'” And they asserted that to evaluate the discriminatory effect of their prosecution, the district court should look to “a control group consisting of ‘all individuals whom the [U.S. Attorney’s Office] could charge federally for arson.'” …
Focusing on its selected control group—arsonists in the Central District of California—the district court turned to statistics. It noted that the U.S. Attorney’s Office for the Central District brought four arson cases related to the George Floyd protests, two arson cases in the previous 10 years, and nine others in the decade before that. It also highlighted that the George Floyd protest cases were the first stand-alone arson charges brought since 2007. The district court further surveyed arson cases occurring in the area within the Central District overall, finding that between 2010 and 2
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