Feds attack racial bias claims at rare court hearing over ATF tactics

Nine federal district court judges in black robes took the bench together.

Twelve criminal defendants, many dressed in orange, watched from one corner.

And then, in an unusual joint proceeding Thursday at the Dirksen Federal Courthouse, a team of defense attorneys took aim at what they say is a racially discriminatory ATF sting — one meant to target violent criminals who would rob stash houses full of drugs.

The attorneys say charges should be tossed in 12 criminal cases. An analysis by Columbia Law School professor Jeffrey Fagan alleges clear discrimination in the racial makeup of defendants who were caught up in the stings.

However, a federal prosecutor spent Thursday afternoon picking apart the professor’s methods.

“This was an attempt to create a result,” Assistant U.S. Attorney Andrianna Kastanek said of Fagan’s findings.

The consolidated two-day hearing in the Dirksen building’s ceremonial courtroom is a battle over statistics by two experts — Fagan and Northwestern University law professor Max Schanzenbach.

Between 2006 and 2013, black defendants made up 74 of the 94 people charged here as a result of the ATF’s stash house sting operation.

Fagan’s testimony dominated the hearing’s first day. He said his analysis revealed an “almost zero” percent chance that the racial makeup of the 94 defendants occurred properly.

Between 2010 and 2013, he said those odds become “as low as you can get without being absolutely zero.”

Fagan based his findings on a control group of nearly 300,000 people he selected. However, Kastanek challenged whether that group was truly comparable to the stash house defendants.

First, even though the ATF directs agents to target people involved in violent crimes, Fagan said he also looked at people convicted of drug and weapons offenses.

Second, he chose not to study potential offenders who have simply been arrested for violent crimes — another criteria considered by the ATF.

Finally, she questioned Fagan’s failure to consider a potential offender’s willingness to participate in a stash house robbery — a crime that could potentially end in murder.

Fagan, Kastanek said, studied “the wrong group of people.”

It is not clear when — or how — the judges will ultimately rule on the request to dismiss charges. The hearing is set to continue Friday.