Posted by Jonathan Adler: No Discovery for Selective Prosecution Claim: http://volokh.com/archives/archive_2006_12_24-2006_12_30.shtml#1167241383
After a federal grand jury indicted James Thorpe for being a felon in possession of a firearm in violation of federal law, Thorpe sought to dismiss the indictment on grounds of selective prosecution on account of race. Lacking much evidence to support his claim, Thorpe sought "discovery of all of the government�s files regarding the Project Safe Neighborhoods (PSN) program under which Thorpe was being prosecuted." The district court granted the request, but the federal government failed to comply fully with the discovery order, and the court dismissed the indictment. On appeal, the U.S. Court of Appeals for the Sixth Circuit [1]reinstated the indictment, holding the district court's discovery order was improper. Before he could be entitled to discovery, the Sixth Circuit held, Thorpe was required to show "some evidence" that "similarly situated persons were treated differently" under United States v. Bass 536 U.S. 862 (2002). That most PSN prosecutions in the Eastern Distrcit of Michigan arose from those counties with the greatest African-American populations did not suffice to meet this test. References 1. http://www.ca6.uscourts.gov/opinions.pdf/06a0471p-06.pdf
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