OXFORD, Miss.—An Asian man facing prison time on a drug charge got a plea deal soon after his attorney alleged selective prosecution and used the Oxford Police Department’s own data to reveal worsening patterns of racial disparities for arrests and prosecution of drug charges. Now, he is facing five years of supervised probation instead.
In an April 13, 2021, motion filed in the Lafayette County Circuit Court, Attorney Kevin Frye relied on OPD records and an April 6 Mississippi Free Press investigation to argue that his client was a victim of a pattern of disparate treatment of people of color in Oxford courts.
Frye argued in the motion that his client was selectively prosecuted based on his race. On Oct. 8, 2018, Oxford police arrested Frye’s client, who was indicted along with two white men—but the Asian man was the only one of the three who found himself up against state prosecutors following those indictments. Frye’s motion said that, at the time of his filing, “two years, seven months and eight days” had passed since the co-defendants were indicted.
However, the two white men had not been served at the time of Frye’s filing—and only were served after Frye’s recent April filing and his client’s plea deal.
To have the charges dismissed on those grounds, Mississippi legal precedent holds that Frye must fulfill two requirements. First, show that his client has been singled out for prosecution while other people who the government believes have committed the same acts have not been prosecuted.
Second, Frye is required to show that the government’s prosecution of his client is “selective, invidious, in bad faith or based on impermissible considerations such as race,” according to his motion. This means that Frye must show that the choice to prosecute his client, while at the same time choosing to not prosecute people accused of the same crimes, was based on his client’s race.
Frye’s lengthy motion-to-dismiss filing attempted to meet that two-part test on behalf of his client, including OPD citation and arrest data that “evidences systemic bias by law enforcement against racial minorities within our community,”according to the motion, and that the disparity is steadily increasing. It included the Oxford Police Department’s 2020 Year End Report, showing “a significant disparity” between white citations and arrests, compared to people of color.
The motion also alleged a “culture of obfuscation and secrecy” within the City of Oxford ”over the “clear and sustained racial disparity in policing in our community.”
DA Denies Selective Prosecution, But Offers Plea Deal
In an April 23 response to Frye’s selective prosecution motion, Assistant County District Attorney William M. Mallette denied selectively prosecuting Frye’s client based on his race. He also defended the delay in serving indictments to the other co-defendants, saying their choices were within the “broad discretion” guaranteed on whom to prosecute and when to serve indictments.
“The State presumes that the defendant is referring to the fact that those co-defendants have not been served their indictments,” Mallette wrote. “However, service is not the marker for prosecution. When those indictments are served, they will be faced with the (sic) complying to the court process the same as this defendant…,” the documents stated without explaining why the white men had not yet been served.
Though prosecutors disagreed with Frye’s arguments in his April 13 motion claiming racial discrimination, they soon negotiated a plea deal for his client, offering an alternative to the prison sentence they had originally sought. The plea was filed on April 23.
Additionally, court documents show that the Lafayette County Circuit Court ordered the arrest of one of the white men for the September 2018 indictments the same day Mallette filed a response to Frye’s motion and the subsequent plea deal. An arrest warrant for the final codefendant was filed a week later on April 30 with the county clerk.
Frye’s client, the court documents reveal, pled guilty to the charge of sale of a controlled substance and received five years of supervised probation. A condition of the deal is that the defendant must not return to Lafayette County for at least two years, or until his probationary period expires. He must also refrain from contacting the Lafayette County Metro Narcotics Unit informant who helped bring charges against him.
The Mississippi Free Press’ investigation into the unit included earlier reporting by Buzzfeed and “60 Minutes” about the narcotics unit’s use of untrained confidential informants, many of them University of Mississippi students threatened with prosecution of low-level drug crimes.
The DA’s office did not return calls for comment.
DA: Data on Racial Disparities ‘Not Germane’
Despite Mallette’s argument that Mississippi law gave legal cover for prosecutorial decisions against Frye’s client, and that he wasn’t able to prove selective prosecution, the question still remains about racial disparities of who actually faces prosecution for drug crimes in Oxford, based on the City’s own records.
In his nine-page April 13 filing to support his allegations of racist prosecution, Frye used Oxford Police Department statistics to show that minority groups make up only about 28.6% of Oxford, but they accounted for 44.3% of citations and 50.3% of drug arrests in 2020.
“The analysis set forth in Exhibit D shows the clear and sustained racial disparity in policing in our community,” Frye asserted in his motion. “Most distressing, however, is that the data reveals this racial disparity has increased significantly between 2016 and 2020, with minorities receiving more than 44% or citations issued in 2019 and 2020 and being arrested for more than 50% of narcotics offenses—while only representing 28.6% of the overall Lafayette County population.”
While Mississippi is 58% white, white people make up only 30% of the state’s prison populations. Overall, Mississippi’s prisoners are 57% black, despite them making up only 37% of the population. Latinx people make up only 3% of the population but are 12% of prisoners in Mississippi.
These racial disparities in policing and prosecutions also show up nationally. Although Black and white Americans report the use of drugs like marijuana at about the same rate, Black Americans are more likely to be arrested than their white peers nationally. In 2020, an analysis of all five of New York City’s boroughs showed that 94 % of people arrested for marijuana were non-white.
Frye’s motion for dismissal provided nine examples of cases similar to his client’s in which the prosecution had provided other white defendants more favorable options.
In his response to Frye, Assistant DA Mallette dismissed statistics showing these racial disparities in Oxford policing and prosecution as “a wide variety of social justice issues that are simply not germane to this motion insofar as (Frye) alleges inequitable treatment of minorities on a broad scale by many agencies.”
Frye, however, said Oxford and Lafayette County must not gloss over what the data show. “The issues raised in this motion about the racial imbalance apparent in policing are real, and this is from the data provided by OPD themselves,” Frye told the Mississippi Free Press.
Attorney: ‘The War on Drugs Has Proven to Be a Failure’
To Frye, Oxford’s racial disparities in drug enforcement is another example of failed national drug policy.
“In our community, as in the rest of the nation, the war on drugs has proven to be a failure of policy,” he said in a later interview with the Mississippi Free Press. “That’s one reason we see the university making strides away from punitive treatments and toward a public health approach to their students with respect to controlled substances.”
Frye added that his clients are his first priority, but said that he has a professional obligation to ensure the fair and equitable operation of the local criminal justice system. For Frye, this meant taking on the systemic racism that local police data show.
“The national conversation about policing and race that we have seen over the last year is one that impacts our community as well,” he said. “And while this particular case has been resolved, the issues raised will continue to impact the community. And I believe that these broader issues remain unresolved and that there are critical discussions that we need to have as a community.”
Frye said the Lafayette County, Oxford and University of Mississippi community is critical in the development of young people and that community leaders must “make sure that our values that we impart while people are in Oxford include fairness, transparency and accountability, but also grace for when people fail to meet expectations.”
The attorney also advocated for increased oversight of local policing.
“I would like to see at a minimum the commission on police transparency made into a full commission with oversight authority to ensure that we’re following modern best practices,” Frye said. “I think we as a community need to dig deeper into that data so that we can understand what’s happening and take steps to improve the quality of justice in our community.”
A Narcotics Unit Under Fire
The Mississippi Free Press investigation showed in April that Lafayette County’s narcotics unit had lost track of about $34,000 over time without going public about the missing money—but that wasn’t the first time the unit has been caught acting improperly with methods that might have caused the death of a young informant.
A 2015 Buzzfeed investigation showed that the unit was relying on questionable investigation tactics, using college students threatened with arrest and ruin as untrained informants. Buzzfeed’s investigation included a story of a drug dealer, Chris Bland, who claimed to have killed Chris Poole because he believed he was one of the narcotics unit’s band of informants. After the Buzzfeed report, “60 Minutes” followed with its own report.
The Mississippi Free Press obtained 2016 correspondence between the City of Oxford’s attorney Pope Mallette and counsel for Lafayette County and the University of Mississippi showing that those funds went missing over the course of several years and spurred a federal investigation.
“After an investigation,” Mallette wrote in 2016, “the FBI reported to the Control Board that, although it had suspicions as to the source or individual who may have taken the money or caused the loss, it did not believe that it had enough evidence to pursue anyone at that time.”
It is still unclear what local government officials and law enforcement will do regarding the missing $34,000.
Meanwhile, the war on drugs—with all its disparities—isn’t abating anytime soon in Oxford, the mayor recently made clear.
Oxford Mayor: ‘The War Has to Be Fought’
On April 27, 2021, the League of Women Voters of Oxford/Northern Mississippi held a mayoral forum where incumbent Mayor Robyn Tannehill endorsed the Metro Narcotics Unit during a debate with opponent Brandon Pettis.
When asked if she would commit to ending the controversial drug unit, Tannehill provided a lengthy answer, marked by the militaristic rhetoric that defined the early days of the American War on Drugs.
“You know, I have to say, I’m not against Metro Narcotics,” Tannehill said. “I’m against drugs in our community. Metro Narcotics is fighting drugs in our community.”
Tannehill acknowledged Mississippi Free Press’ reporting on Metro Narcotics’ loss of tens of thousands of seized dollars, but did not mention any plan to recoup the money.
“That all happened in 2016 and information regarding those funds that went missing was turned over to the FBI for investigation, and each governing entity was informed in 2016,” she said in the forum. “Since then Metro Narcotics has been completely revamped.”
Tannehill mentioned information that the Mississippi Free Press reported about the restructuring of the unit—but not that the former Oxford police chief and current Lafayette County Sheriff Joey East resisted the University of Mississippi’s efforts to collect data specific to Metro Narcotics use of student informants.
“They operate under a control board that consists of three members,” she said in the virtual debate. “The OPD Chief, the Lafayette County sheriff and the UPD chief. And when those issues were revealed, the control board brought in new leadership, new agents, and had the entire unit enter the accreditation process that OPD does which includes audits of operations and finances….”
Mayor Tannehill did not mention that several of the same law enforcement officers have been recycled through the unit. For example, current control board member and Lafayette County Chief Deputy Scott Mills served in the unit prior to assuming duties on the control board.
Additionally, current Metro Narcotics Commander Alex Fauver served in the unit while it was under the command of Keith Davis, who left the unit following the damning Buzzfeed report that detailed the abusive tactics Davis and company used when attempting to create informants.
Ultimately, Tannehill defended the unit, saying it was still necessary.
“I don’t like this war on drugs,” Tannehill continued. “But as long as drugs are being used and sold and purchased in Oxford, Mississippi, there’s going to be a need for drug enforcement. That’s the reality. It’s a bad thing that we have to have it, but it’s a good thing that we do. We just need to do it the right way.”
“So, we’re always open to doing things the very best way, and open to hearing criticisms and suggestions, but right now the war has to be fought whether we like it or not.”