Exclusive: As violence rises, prosecutors bargain away gun charges

Leandrew "L-Rock" Beasley, a drug dealer with a history of gun violence, took part in a wild and deadly shootout on the Northeastside not long after getting out of prison in 2012.

In the melee, Beasley clutched a gun in each fist, blasting away. More than 40 shots were fired as neighbors huddled in their homes and bystanders were only yards away.

James Allen III was struck by six bullets, including a fatal shot to the head. Yet another name was added to the long list of Indianapolis murder victims — a toll that accelerated this year causing the community and public officials to join in discussions and seek answers to a deadly surge in gun violence.

And, while many agree that attacking root causes such as poverty, despair, poor parenting and educational failure can help, Beasley's case points to a more immediate, more pressing question, one uncovered in a recent Indianapolis Star investigation.

Why wasn't Beasley in prison that day? And what about others like him?

Twice, Beasley had been charged with possession of a firearm by a serious violent felon, an offense specifically designed to reduce the murder rate. The crime carried a 20-year prison sentence. Yet — twice — prosecutors dropped the gun charge, allowing Beasley to plead guilty to a lesser offense and escape a long prison term.

Making such charges stick could significantly reduce the number of shootings in Indianapolis, some criminal justice experts say, because it would take gun-toting career criminals like Beasley off the street. There is little or no dispute about the logic behind the law.

"If you have a violent felon and he's carrying a gun, practically nothing good can come of it," said former Marion County prosecutor Scott Newman, who helped write the 1999 law.

But The Star's review of every gun charge in Marion County from 2009 to June of this year found that prosecutors — Democrat and Republican alike — dismissed 3,059 gun charges, including 1,508 felony counts. Among those dismissals were 371 charges for possession of a firearm by a serious violent felon.

The Star's findings include:

• More than half of felony gun charges were dismissed, usually in plea agreements.

• Possession of a firearm by a serious violent felon — the charge specifically aimed at getting violent criminals off the streets — was dismissed in 41 percent of cases.

• A change in the state's criminal code that began July 1 reduced the jail time for possession of a firearm by a serious violent felon.

Why the charges meant to keep gunslingers off the street are dropped is a complicated question tangled in prosecutorial will, rules of evidence and sentencing practices written into the law. But when shown The Star's findings, Newman called for legislation to close the incentive to bargain away such charges. It is an idea endorsed by public safety officials.

'I'm angry that he was out'

The serious violent felon law has been called "the homicide prevention statute," but it didn't stop Beasley and others.

Beasley, 33, had all the hallmarks of why the law was written. At his sentencing hearing, the prosecutor noted that Beasley had a juvenile record and seven convictions as an adult, with 19 arrests.

"He's had many chances," the prosecutor told the judge.

Beasley had a long rap sheet that included multiple drug and gun arrests, including two convictions for carrying a handgun without a license.

In 2008 and again in 2009, Beasley was charged with possession of a firearm by a serious violent felon. But prosecutors dropped the charges both times. Instead, he pleaded guilty to lesser charges: visiting a common nuisance in the 2008 case and resisting law enforcement in the 2009 case, both pleas coming during former prosecutor Carl Brizzi's term.

Had he been convicted on the 2009 gun charge and received even the advisory sentence of 10 years, rather than the maximum of 20 years, Beasley would have been in prison today. Instead, he was released in May 2012.

Back on the streets, Beasley quickly returned to his old ways, carrying a gun despite the legal prohibition placed on felons. And soon, his gun came into play in a dispute with Allen. The day before Allen was killed, the pair struggled over a gun, and Allen fired a shot that grazed Beasley with a bullet.

In the next day's shootout, Allen was killed. Beasley was convicted of murder and the attempted murder of Allen's cousin. He is appealing.

Allen's mother, Sylvia Tolbert of Indianapolis, told The Star her son had a troubled past but was putting his life together.

Tolbert bristled when told that Beasley's previous gun charge had been dropped.

"I'm angry that he was out," Tolbert said. "If he still had been locked up, my son would be alive today."

At the sentencing hearing, the judge noted Allen was Tolbert's only son.

"You never want to bury your children, and that's what had to happen for the Allen family," the judge said. "I haven't endured that. I hope not to, and I hope no one has to, but it's clearly a tragic loss of life."

And Allen's was not the only life lost in that way. At least three other times during the period studied by The Star, charges of possession by a serious violent felon were dropped against someone who later was charged with a gun-related homicide. All three of the brutal deaths occurred when the killers would have been in prison if they had been convicted on the earlier gun charges and given the advisory sentence.

Dorvae Barnett, 36, was charged with possession of a firearm by a serious violent felon in 2011 after police responded to a report of a loud party at an apartment and found a gun in the bathroom. Barnett's cousin, who lived in the apartment, and her boyfriend both told police the gun belonged to Barnett, who admitted police might find his fingerprints on the gun because he had moved it.

Despite not being able to give police a reason for why he would have moved the gun, the state dismissed the charge because a key witness could not be located for the trial. Barnett was charged with murder in 2013 in the shooting of James Chatman after an argument. In March, he was found guilty of reckless homicide and sentenced to 12 years in prison.

Anthony Spearman, 23, was charged with possession of a firearm by a serious violent felon in June 2013, but was found not guilty after a judge disallowed the evidence because of problems with the arrest.

Less than a year later, Spearman was charged with murder in the fatal shooting of Kevin Coughlin, who was found bound and shot in an alley just south of West 34th Street on April 23. He is now awaiting trial. While in jail, Spearman had his telephone privileges revoked for contacting a prosecution witness, even though he had signed a no contact order.

Daryl Gilbert, 31, was charged with serious violent felon in possession of a firearm in December 2010, but found not guilty by a jury.

Last December, he was convicted of murder in the fatal shooting of Aaron Adams at a local gas station in what police described as a drug deal gone bad.This time he also was convicted of possession by a serious violent felon, for which the judge added 12 years to his 58-year prison sentence on the murder charge.

'Swallowing the gun' law

Prosecutors have their own lingo when they drop a gun charge as part of a plea agreement.

They call it "swallowing the gun."

It happens for a number of reasons. Sometimes there is a problem with evidence or witnesses, such as in the Barnett case. If a criminal runs, drops the gun and isn't caught red-handed, it can be difficult to prove who had the gun.

Sometimes the evidence is thrown out by the court, as in the Spearman case. But only 11 percent of all the gun charge cases dismissed by prosecutors during the five years studied by The Star were for evidentiary reasons.

Other times prosecutors bargain away such a charge in order to secure a guilty plea on another charge.

Marion County Prosecutor Terry Curry said his office often dismisses a charge in negotiations to get a guilty plea on another charge.

That's typical of other prosecutors as well. A large majority of cases nationwide are plea bargained. While the most recent cases examined by The Star, from 2011-2014, were dismissed by Curry, a Democrat, his predecessor, Republican Carl Brizzi, dismissed gun charges at a comparable rate from 2009-2010.

Typically, Curry said, the guilty plea is on a charge in which there was a victim — a robbery or sexual assault, for example — and the charge carries the same or more severe penalty than the gun charge.

That happens in the "vast, vast majority of cases," Curry said.

Curry said the record shows he has been tough on gun crimes. Chief Deputy Prosecutor David L. Rimstidt said in 2013 alone the office filed 354 of what it considers "major felony gun possession" charges — possession of a firearm by a serious violent felon (a B felony) and illegal possession of a firearm (a C felony).

Of the 284 concluded cases, Rimstidt said, 217 resulted in a conviction to the highest gun charge filed in the case. And 11 others resulted in guilty pleas to other felonies equal to or more severe than the highest-level gun charge in the case.

The Star analysis, however, showed prosecutors often bargained to a lesser charge when they dismissed a charge of possession by a serious violent felon. In 102 such cases handled by Curry in which The Star could determine the outcome, almost 75 percent resulted in a plea to a lower charge.

Rimstidt said that sample is too small "to tell the story of serious gun possession prosecution in Marion County."

"The (serious violent felon) charge is an important weapon that we clearly use regularly," Curry said.

A simple fix in the law

Newman and others believe a simple fix in the law would remove an incentive for prosecutors to swallow the gun, and thereby reduce the amount of gunplay on Indianapolis streets. Newman calls it "one of the most direct routes to reducing crime."

Possession of a firearm by a serious violent felon is not classified as a "crime of violence" for sentencing. That means judges aren't compelled to sentence the charge consecutively — so criminals can serve the gun sentence at the same time as another charge.

Without the guarantee of more jail time, Newman said, prosecutors tend to use the charge as a bargaining chip.

"It's a real weakness," Newman said. "This is the banana peel that this statute is standing on."

The Star's analysis showed that, among cases with a disposition, there were 502 convictions on the possession by a serious felon charge. But there were 371 dismissals, including 212 because of a plea agreement.

"We're winning the war here, in the sense that we have more of them convicted than not," Newman said. "But I wonder how many of those got concurrent time — saw no additional punishment. That's a very bad message to send."

David Powell, executive director of the Indiana Prosecuting Attorneys Council, said prosecutors would support consecutive sentences. Without that tool, he acknowledged, the current law results in more plea bargains.

"That's why you often see those charges negotiated," he said. "In terms of publicity, there is the opportunity for it to look bad when, in reality, it would not make any difference in the overall sentence or amount of time someone spends in jail."

Powell said the serious violent felon charge needs to have tougher consequences.

When the criminal code was revised, prosecutors wanted the crime to be classified as a Level 3 felony, with a sentencing range of three to 20 years. But lawmakers made it a Level 4 offense, which carries a penalty of from two to 12 years.

There is not much difference in potential jail time because the new code requires defendants to serve at least 75 percent of a sentence rather than 50 percent under the old structure. But, Curry said, "If you do the math, at every level of the comparable sentences, this sentence is less than the prior B felony."

Powell agrees with Newman that the serious violent felon law should be designated by lawmakers as a "crime of violence," which would require judges to issue consecutive sentences. But he is not sure the legislature wants to address the issue after just revising the criminal code.

Some legislators might be concerned that it would increase the prison population and cost taxpayers more money.

Lawmakers from rural counties, where the serious violent felon statute is used rarely, also might not see it as a problem that needs immediate attention.

"The general attitude, I think, is that legislators want to leave what they've done alone," Powell explained. "There is not a lot of legislative interest for big changes until we see how things work out over the next year or two."

Still, Powell said, changing this one law — which would impact only a few hundred cases a year — might be possible.

"Certainly, gun violence is a significant issue," he said. "The public safety concerns should offset the small additional costs."

Potential solutions

The homicide rate in Indianapolis is on track to hit a seven-year high in 2014, and there are different ideas on what the state and local officials should do.But taking armed criminals off the street is increasingly seen as a method that will reduce the blood shed, as well as the risk to innocent bystanders.

The serious violent felon laws are aimed at career criminals involved in drugs and gangs. Often the victims of such crimes have long records themselves, making it difficult to garner sympathy from the public. But recent events suggest one does not have to be involved to become a victim.

Police say criminals packing guns have become more brazen. Since April 2, 2013, at least 41 IMPD officers have been assaulted with guns, including two who were fatally wounded and six others who were injured. And this summer seven innocent bystanders were shot when a dispute broke out on a crowded Broad Ripple street.

Indianapolis Mayor Greg Ballard wants a mandatory 20-year prison term for anyone who uses a gun in a crime. Ballard also wants that sentence to run consecutive to the sentence for any other conviction related to the crime, such as a robbery or drug charge.

Ballard lobbied the state legislature unsuccessfully for the change this year. He will try again next year, said Marc Lotter, the mayor's spokesman.

Longer sentences, Lotter said, could be a game changer. According to data from Indianapolis Metropolitan Police Department, even a 10-year mandatory sentence would have cut this year's homicide rate by 25 percent.

"That's because either the suspect or the victim would have still been in prison for an earlier gun charge conviction," Lotter explained.

Curry scoffs at the notion that the legislature would ever pass a blanket 20-year sentence.

"One size doesn't fit all," Curry said. "If it's all or nothing, that also sort of undermines our leverage in resolving cases (through plea agreements). Having said that ... certainly it's appropriate to have a discussion to build in an enhancement that's some combination of mandatory and discretionary (sentencing)."

Strengthening the serious violent felon law, in particular, is a way of controlling guns without infringing on the rights of law abiding citizens, Newman said. That means it likely would not invite much opposition from gun rights advocates. After all, it's about felons with guns.

So, to Newman, it's an easy call — just as enacting the serious violent felony law was nearly two decades ago.

"If I were the prosecutor or the mayor or the police chief or the prosecuting attorneys council," he said, "this is what I would be pounding the table for in the legislature."

Call Mark Alesia at (317) 444-6311. Call Tim Evans at (317) 444-6204. Follow them on Twitter: @markalesia and @starwatchtim.

BUILDING A SAFER CITY

Today's report on gun crime prosecutions is part of a new initiative from The Indianapolis Star that will look at the root causes of crime and ways to make our streets and neighborhoods safer.

"Building a Safer City" will examine a broad spectrum of issues relating to public safety. We'll look at the front-line contributors to crime such as illegal guns, drugs and gangs. And we'll size up how policing strategies and the criminal justice system are facing those challenges. We'll also look at how generational poverty, educational failures and limited job opportunities are sowing the seeds of crime.

We'll consider whether drug abuse treatment and mental health programs are adequate, and look at the obstacles convicted felons face in trying to find a life apart from crime. We'll also look at practical ways people can make their homes more secure and their neighborhoods stronger. In the end, our goal is simple: Building a Safer City.