In the early morning hours of July 23, 1999, Swisher County police
raided trailers and public housing units here, arresting residents
accused of selling cocaine to an undercover mole. The culmination
of an 18-month sting operation in conjunction with the Panhandle
Narcotics Task Force, police arrested 43 people, 40 of whom were
black--more than 10 percent of the town's black community.
Local newspapers quickly set about congratulating the operation.
One editorial excoriated the "scumbag dealers" and likened them
to a "cancer" deserving a "major dose of chemotherapy behind bars."
The undercover police officer was later named "Lawman of the Year"
by the Texas Department of Public Safety.
But the newspapers and accolades consistently failed to mention
that no drugs,
weapons nor assets were seized during the surprise morning raid. Indeed,
residents insist they never saw evidence of the expensive type of
drugs poor locals were accused and convicted of selling. In the nearly
two years since the bust, the racial disparity of the arrests and
the dubious testimony of the undercover agent has led to national
press attention, lawsuits from the NAACP
and ACLU and an investigation by
the Justice Department.
Billy Wafer was freed after
was at work when police argued he
was selling drugs somewhere else.
Tulia is a scrappy town of 5,000 surrounded by fields of cotton,
located between Lubbock and Amarillo. Faced with few opportunities
besides manual labor jobs at the local livestock auctioning barn,
the mostly black, idle and disillusioned kids who couldn't afford
to escape after graduation became easy fodder for Texas police departments
earning their bread and butter fighting the drug war.
This type of operation is common throughout the state. Narcotics
task forces depend on high body counts to keep the federal funds
flowing. Devastated by a shrinking rural economy throughout this
part of the country, blacks are those least able to seek their fortunes
elsewhere. Hence, if a task force wants convictions, its best bet
is to focus its investigations across the tracks. Statistics compiled
by the Justice Policy Institute show that in Texas blacks are incarcerated
at a rate seven times higher than whites. This is nearly 63 percent
higher than the national average. Robertson County District Attorney
John Paschall, former head of the South Central Texas Task Force,
says the number of black men arrested is so high because "they're
the easiest ones to get because they're selling on the street."
But Gary Buchanan, police chief of the east Texas town of Brenham
and director of the Independence Narcotics Task Force, says task
forces have lost sight of their goal and are more focused on catching
easy targets rather than stemming the flow of drugs. "It's a numbers
game," Buchanan says. "We're fighting the same battles as 10 years
ago. Heroin is coming back. LSD is back. You don't have to show
any impact, just numbers."
In Tulia, blacks experienced firsthand the dubious methods available
to task forces that wish to artificially boost their statistics.
The black community knew something had gone awry when they learned
people were being indicted for selling powder cocaine. Police charged
them with delivering "eight balls"--an eighth of an ounce of cocaine,
which at $180 a pop is significantly more expensive than the small
bags of marijuana and cheap rocks of crack cocaine usually found
in this depressed rural community. "Ain't nobody got powder in this
town," says Sam Barrow, a Tulia resident who had four relatives
caught in the sting. "A $10 rock, OK. But they were accusing people
of carrying an eight ball in their pockets, and you know just the
other day he tried to get $5 off of you for gas."
Most of those arrested agreed to plea bargains with prosecutors.
For those suspects whose cases went to trial, part-time cotton farmer
and full-time civil libertarian Gary Gardner was skeptical they
could receive a fair hearing in Tulia, because he felt the city
had an interest in whipping up drug hysteria. He urged the defendants
to request a change of venue. The requests were denied for all but
two white defendants, and the court quickly began dispensing its
own version of justice--multiple life sentences for several deliveries
of cocaine and 20 years for a single delivery with no prior convictions.
Additional felony charges were tacked onto the cases because the
agent claimed the deals had occurred in a public park. In all, 22
of those arrested were sent to prison.
The stiff sentences were made possible by a series of laws then
Gov. George W. Bush signed in 1997 as part of his "get tough on
crime" platform. A first-offense cocaine charge, which had previously
been a misdemeanor punished with mandatory probation, was upgraded
to a felony. He also created "drug-free zones" around schools and
parks, in which any drug activity was automatically a felony charge.
Even more disturbing was the incredibly low standard of evidence
needed for a conviction. All of the indictments centered around
the uncorroborated testimony of Tom Coleman, the undercover agent
planted by the Panhandle Regional Task Force. The sole witness against
the defendants, Coleman's police reports never amounted to more
than a couple of paragraphs, and he frequently presented conflicting
testimony while on the stand.
A probing defense attorney, Paul Holloway, discovered Coleman had
been described as a "compulsive liar" in court documents and had
been arrested during the sting operation for a string of unpaid
debts in other counties. He also discovered that Coleman's former
boss, Cochran County Sheriff Ken Burke, had filed a complaint with
the Texas Commission of Law Enforcement (TCLE), the state agency
that licenses police officers, in which he wrote: "Mr. Coleman should
not be in law enforcement." The judge denied the defense motion
to introduce any of the evidence about Coleman's past.
Further impugning Coleman's credibility was the case of Billy Wafer,
who was arrested and charged with arranging the delivery of 2.3
grams of crack. Wafer was more than nine years into a 10-year probation,
and faced life in prison once charges of breaking probation and
delivering drugs near a "drug-free zone" were added. Yet timecards
and his boss' testimony proved Wafer was at work when the alleged
sale occurred, so the charges were dropped. But not before he spent
two weeks in jail, lost his job and was turned down for a home loan.
Holloway charges that local law enforcement officials worked in
concert to manufacture charges against Tulia's mostly indigent black
community. Some defendants did admit selling crack to Coleman, but
Holloway speculates that the cocaine found in the reported deliveries
came from a single source that Coleman himself spliced and mixed
with the crack to upgrade the charges. Holloway believes Coleman
was charging the task force for purchases of cocaine but buying
crack. A chemist found that the amount of cocaine in many of these
baggies was not even enough to get high on and was of poor quality.
Yet due to a quirk in Texas drug law, an eight ball has to contain
only a trace of cocaine for the entire weight to be registered as
a cocaine delivery. The judge refused to provide funds for an outside
investigator and denied the request to run laboratory tests that
could prove Holloway's theories.
What most upsets Holloway is that the judge's obstinacy and the
jury's willingness to overlook Coleman's often conflicting testimony
is perfectly legal according to Texas judicial procedure. "It's
a joke to do criminal defense here," Holloway says. "If the jury
wants to sit and watch a cop lie, they can. These were marginal
people on the stand and [the jury] just decided to believe the cop."
William Harrell, head of the Texas ACLU, agrees and blames the
Tulia debacle on Texas' poor record of indigent defense. Texas,
he says, is at the "bottom of the barrel" when it comes to defending
poor people. Although statewide statistics are not available, a
1999 Houston Chronicle study of 1,800 first-offense cocaine
charges found that 21 percent of defendants who hired attorneys
were sentenced to jail or prison time compared to 53 percent of
defendants with court-appointed attorneys.
Judges in Texas are elected in a culture where "getting tough on
crime" enjoys bipartisan support and constitutional niceties are
often ignored, Harrell says. These same judges appoint defense attorneys
and determine their salaries. Critics say the current method of
appointing lawyers inherently discourages defense attorneys from
mounting a zealous defense and pressures lawyers to seek plea bargains.
"It's an unconstitutional system of criminal defense," Harrell says.
Holloway, who spent nearly 1,000 hours researching his defense,
was authorized to receive payment for only the first 10 hours he
spent on a case. "They didn't want me to defend this case," says
Holloway, who ended up accepting a plea bargain for his clients.
"It was like making a deal with the devil, I knew we couldn't win."
Yet as a result of the racial imbalance of the sting's victims
and shoddy police work presented to the courts, the NAACP and the
ACLU filed a lawsuit and a complaint with the Justice Department,
claiming that Coleman conspired with the sheriff and the district
attorney to deny local blacks their civil rights. Prisoners report
that FBI agents have interviewed them about Coleman's behavior during
the operation. County officials and Coleman's supervisors refused
to comment on the charges.
Sadly, this small town is not alone. Harrell says the ACLU is currently
investigating six "Tulias" around the state. "There's a pattern
of narcotics task forces operating on DEA funding, hiring the most
amazingly unscrupulous informants to hunt down suspects, 90 percent
of whom end up being black or Latino."
To protect Texans against the drug war, the ACLU and the NAACP
have proposed a series of laws they're calling the "Tulia Proposals,"
which would require corroboration for testimony of undercover officers,
limit the authority of judges to exclude evidence pertaining to
a person's innocence and provide public access to TCLE records.
"Our system rests on the premise that the gatekeeper of evidence
will act justly," Holloway says. "Coleman could steamroll anyone
because in a swearing match between a cop and a citizen, the cop
wins. From my perspective it's a really scary world."
Read Steven Wisnia's article, "What's