Student takes selective prosecution claim to judge

Student who claims he is being selectively prosecuted on charges of drug possession may be raising the first instance of it in Centre County.

Recent marijuana-related events have sparked a defense strategy for Robert L. Fix that has never been used before in Centre County, according to the district attorney.

Claiming he is being prosecuted for a crime while others are not, Fix (sophomore-chemistry) soon will attempt to convince a Centre County judge that he is being singled out for charges of drug possession, a defense known as selective prosecution.

Selective prosecution is a relatively new term for this region, said Ray Gricar, Centre County district attorney.

"I have never even heard the term used in Centre County," Gricar said.

David Crowley, Fix's attorney and chief public defender, said he also has never been a part of a case using a plea of selective prosecution.

Fix was arrested Dec. 15 by the State College Police Department for possessing a small amount of marijuana and drug paraphernalia in his apartment. He is accusing the district attorney's office and area police forces of being selective in their arrests and prosecutions of marijuana cases.

Fix cites the case of Professor Emeritus Julian Heicklen, the professor who has smoked a "joint" in front of the University Gates three times in the past four weeks and has not been charged for drug possession. Heicklen said he will smoke again this Thursday.

Fix also cites the case of Alan Gordon in which the charges of drug possession brought against him were dropped.

Gordon turned himself into the office of the district justice, 1524 W. College Ave., with a box of marijuana plants and seedlings in July 1997.

The commonwealth did not prosecute Gordon, said Stephen Sloane, an assistant district attorney for Centre County at the time, because Gordon's case would be an outlet for Gordon to spread his political views on marijuana.

Unlike Fix and Gordon, Heicklen smoked his alleged "joints" in an area under the jurisdiction of University Police Services, not State College police. Also, University police said none of Heicklen's "joints" contained marijuana.

To enter the plea of selective prosecution, the defendant must file a pretrial complaint with the Court of Common Pleas, Crowley said. The judge then determines if the defendant has been selectively prosecuted.

In general, if the defendant and his attorney are successful in proving selective prosecution, the charges are dismissed, Crowley said.

However, the term does not have a clear definition, Gricar said.

"The term can't be looked up in the Pennsylvania criminal statutes," Gricar said. "It's an odd concept, but (Fix) can certainly try something new."

The basis for filing the plea results from a defendant feeling he or she has been singled out in the district attorney's prosecution of cases, Crowley said.

The process to prove selective prosecution is not easy, Crowley said.

"Simply showing that someone else did (the crime) is not enough," Crowley said.

"Every instance where a criminal is prosecuted is based on the law, the differences in each case account for decisions to prosecute or not prosecute," Gricar said.

Crowley said election finance cases are the most common instances of using this plea. These cases involve one candidate accepting illegal funds and being prosecuted for it while claiming the other candidate is doing the same without being prosecuted, Crowley said.

Heicklen said he does not support drug use but said he does believe the law should be enforced uniformly.

"I am not in support of Fix, but I am opposing the district attorney prosecuting him," Heicklen said, adding that he is not a drug advocate but he believes it is not government's business to put people in jail for possessing drugs.