The district court ordered discovery in this case only after deliberate and thorough consideration both of the respondent's showing that a significant statistical disparity existed in the race of defendants prosecuted in federal court for crack distribution violations and of the government's explanations for that disparity.

With their motion for discovery, respondents introduced evidence showing a pattern of prosecutions which suggested that race was a significant charging factor. Respondents demonstrated that all 24 crack cocaine cases prosecuted by the government and closed by the Federal Public Defender's Office in 1991 involved black defendants.

At the hearing on the discovery motion, the district judge expressed concern that the “government hasn't offered any explanation at all as to why ... persons ...being brought ... to Federal court for these drug offenses ... all ... are black.” The judge offered the government an opportunity to provide an explanation. However, at the hearing, the assistant United States Attorney was unable to offer any explanation for the disparity, stating, “I can't explain why the public defender's office has only encountered black defendants [in] crack cocaine cases--I would have no explanation for that.”

In the face of the government's complete inability to explain the statistical disparity, the district judge ordered limited discovery, explaining that “what the Court wants to know is whether or not there is any criteria in deciding which of these cases will be filed in state court versus Federal court and if so, what is that criteria.”

To determine the appropriate scope of the discovery order, the Court took into account the government's assertion that one criteria it used for deciding whether to file in federal rather than state court was the existence of a joint federal/state investigation. Government counsel explained that a joint federal/state investigation is initiated when there is use of a firearm in connection with a narcotics trafficking violation. In response to this explanation, the judge directed discovery of four specific non-privileged items: a list of all cases from 1989-1992 in which the government charged both cocaine base offenses and firearms offenses, the race of defendants in each of these cases, whether each case was investigated by federal, state or joint law enforcement authorities, and an explanation of the criteria used by the United States in deciding whether to bring cocaine base cases in federal court.

In its motion for reconsideration of the discovery order, the government offered some of its criteria for prosecuting cases in federal as opposed to state court. As part of its explanation, the government submitted the declaration of the Chief of the Criminal Complaints Section of the U.S. Attorney's Office which stated that the decision to bring the instant case in federal court was made because the case met the general criteria the government applies to all crack cases. However, the purported general criteria simply described several aspects of the instant case. Counsel for the government later suggested that the official general criteria applied to all crack cases were in fact the same as the criteria present in the instant case.

In response to the government's explanation, respondents argued that a number of the defendants did not satisfy the suggested criteria. Moreover, respondents introduced evidence demonstrating that white crack cocaine dealers exist and are prosecuted in state court only.

After carefully weighing all the evidence, the district judge found the explanations offered by the government inadequate, concluding that the government had failed to make clear the criteria, “if there is any criteria, for bringing this case and others like it in Federal court.” Thus, the court affirmed her discovery order.

The district judge's approach to ordering the limited discovery in this case was cautious, careful and reasonable. First, the judge, confronted with unrebutted evidence of a pattern of racial prosecutions, gave the government a full and fair opportunity to offer an explanation. Only after the government was unable to offer a single explanation for the racial disparity did the judge order limited discovery of nonpriviledged relevant information. This order is structured in a way that limits its reach to evidence directly relevant to issues that the government articulated were its criteria for bringing crack cocaine cases in federal as opposed to state court.

The Court should view this order as a sound resolution of this fact-intensive dispute. Because respondents have set forth a colorable showing, and “without discovery, the contention that 'other similarly situated' have not been prosecuted ... may be impossible to show,”' the lower court judgment should be affirmed.