CHARLAYNE HUNTER-GAULT: For more on today's Supreme Court hearing, we're joined by Stuart Taylor, correspondent for "The American Lawyer" and "Legal Times" and a NewsHour regular. Stuart, thank you for joining us. There's probably not much to add to that, but is there anything else that we need to know that clarifies exactly what it is that the court heard today?
STUART TAYLOR, The American Lawyer: Well, they--what they have is a relatively narrow piece of a big social issue. The big social issue is whether we have racial bias in our criminal justice system, and there are lots of statistics showing huge, hugely disproportionate numbers of blacks being locked up for certain crimes, particularly drug crimes, and especially crack cocaine, which has huge penalties. The narrower issue the court is deciding is whether the defendants in this case have made enough of a preliminary showing to get to first base, as it is, as it were in trying the very difficult task of proving race-based selective prosecution which, if proven, is a violation of the Constitution and would justify throwing out the cases against them.
CHARLAYNE HUNTER-GAULT: And where would that take us? I mean, where would that leave us in the whole issue of selective prosecution?
STUART TAYLOR: Well, if the defendants win this case that what they win from the Supreme Court is an affirmance of a lower court order that the prosecution has to come forward with certain, with a lot of details about its prosecutorial policies, about the cases it's brought for crack cocaine, about statistics showing black-white, et cetera. If the defense wins that, then they go back to the lower courts to litigate in greater detail whatever evidence comes out proves racially disparate, racially selective prosecution, I should say, and by the way, there's only been one case in the history of the United States, as far as I can recall, in which that has ever been proven to the point of getting a case thrown out, and that was 110 years ago in the Supreme Court.
CHARLAYNE HUNTER-GAULT: So you mean the defense lawyer has a pretty tough road to hoe?
STUART TAYLOR: It's a very tough road.
CHARLAYNE HUNTER-GAULT: Well, you were in court today and you had the Clinton administration's lawyer on one side and a pretty tough street-wise defense attorney on the other side. We saw briefly in the taped piece Ms. O'Connor. How did it go?
STUART TAYLOR: The argument--she acquitted herself very well and was very poised in the argument but she got--she ran into a lot of flak from the Justices. They were polite, but was striking about it was that across-the-board even the more liberal Justices on the court who one might have thought would be more receptive to her argument were, in essence, saying to her, you've got to make a pretty good preliminary showing to convince us to make the government cough up these data. And several of them indicated that the statistics that have been brought forward so far, although they do show large disparities in terms of more blacks being prosecuted for crack, didn't necessarily show that there were whites out there selling crack of whom the prosecutors knew or had reason to know--
CHARLAYNE HUNTER-GAULT: And--
STUART TAYLOR: --who were not being prosecuted.
CHARLAYNE HUNTER-GAULT: And that's what they've got to show, that not just that persons prosecuted are of just one race but that whites in this case or other non-blacks got off lighter or didn't get prosecuted at all.
STUART TAYLOR: That's right. They--ultimately to prove selective prosecution, they have to show that there are a lot of white people who are getting off easy and that the blacks are getting prosecuted in federal court, and to get discovery, they have to at least, to get this information they want from the government, they at least have to make a start down that road. So, for example, Justice Stephen Breyer was asking Barbara O'Connor, the defense lawyer, she couldn't--you haven't presented us any cases of particular white defendants who got the light penalties in state court, instead of the heavy penalties in federal court, and couldn't have you have gone around to the Bar Association meetings, other defense lawyers, and found somebody, and he indicated that he was troubled that the defense had not--had not made as strong a showing as he thought it should have been able to make at this stage.
CHARLAYNE HUNTER-GAULT: Were there any sympathetic questions or any questions that indicated, you know, any interest in that side at all?
STUART TAYLOR: There was certainly interest on the court. I think they realized that the allegation of racial discrimination is a very serious one in criminal prosecution. They typically don't show their sympathy to one side or the other by asking them nice questions. They may show it by asking the other side hard questions. And Solicitor General Drew Days got some pretty hard questions too from various members of the court.
CHARLAYNE HUNTER-GAULT: Like--
STUART TAYLOR: Well, they wanted to know, Mr. Days, you're saying that the statistics that were presented in this case aren't good enough to justify forcing you to come forward with this information, what kind of statistics, various members of the court, would you insist on? Suppose there were 200 cases, and all of them were black, and one of them were white, would that be good enough, and he had to bob and weave a little bit because he didn't want to concede anything, yet, he didn't want to be in the position of seeming to indicate that there was nothing in the world that could possibly satisfy the legal requirement to make the government disclose its policies.
CHARLAYNE HUNTER-GAULT: Well, the Justices in the past have been pretty closely divided on cases involving statistics based on race, and they've tended to be conservative in terms of law enforcement, being on the side of law enforcement. What's your sense of where this is going to go, or do you have one yet?
STUART TAYLOR: Based on today's argument, I think it looked like the government is pretty likely to win this case. Part of the reason is that the, the court is very deferential to the discretion of prosecutors to decide who to prosecute.
CHARLAYNE HUNTER-GAULT: All right. Well, we'll come back at a later day. Thank you, Stuart.
STUART TAYLOR: Thank you.