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Staff file photo by Dan Henry / Chattanooga police investigate a homicide that happened inside a home on Fourth Avenue in October.

Listen to the audio of the Times Free Press interview with District Attorney General Neal Pinkston and some of his staff.

EDITOR'S NOTE

District Attorney General Neal Pinkston has said this Times Free Press story on the city's Violence Reduction Initiative was not accurate and was taken out of the context of how he prosecutes cases involving gang violence. He later called the story a fabrication.
The newspaper stands by all aspects of the story. In recordings of the interview between reporters Shelly Bradbury and Zack Peterson, which the newspaper has posted online, Pinkston and his staff members clearly and repeatedly say his office does not treat VRI cases differently to other criminal cases, nor does he seek tougher punishment.
The VRI is based on criminologist David Kennedy's anti-crime program, in which police partner with prosecutors and federal agents to make sure the penalties are as stiff as possible for targeted gang members who continue to act violently.
The interview clearly shows that Pinkston and his staff do not subscribe to this approach because they say the law does not allow them to treat VRI cases differently.
The paper has offered for editors and reporters to sit down with Pinkston and his spokeswoman Melydia Clewell to discuss the story line by line, but they have refused to meet with us.

GANG-INVOLVED SHOOTINGS, YEAR-TO-DATE

Does not include self-inflicted, accidental or justified shootings

2015 - 64

2014 - 64

2013 - 68

Source: Chattanooga Police Department

GANG MEMBER-INVOLVED HOMICIDES

Year GMI gun homicides and Total GMI homicides

2015 - 10 and 12

2014 - 13 and 13

2013 - 11 and 11

Source: Chattanooga Police Department

ALL HOMICIDES

Includes July 16 and justified homicides

2015 - 26

2014 - 25

2013 - 17

Source: Chattanooga Police Department

some text Neal Pinkston

Even though 19 months have passed since the Violence Reduction Initiative launched in Chattanooga, District Attorney General Neal Pinkston appears hesitant to buy into his role, claiming Friday that VRI crosses an ethical line by asking him to target particular defendants.

Pinkston dodged responsibility for the initiative, saying he never promised to reduce crime, while he and his staff contradicted themselves during a 45-minute discussion Friday with reporters.

"Is there any proof that we've ever said that, 'Because someone is in the VRI we want them held in jail longer or [given] a tougher punishment?'" Pinkston asked.

But Mayor Andy Berke's initiative, which is designed to radically reduce gang-related gun violence, requires just that: The district attorney is asked to deliver heavy-handed prosecution against targeted groups and gang members as part of a partnership among police, federal agents, probation officers and other agencies.

Since VRI began in March 2014, Chattanooga police have netted 251 people in eight such enforcement actions. Because those people were targeted by VRI, police Chief Fred Fletcher asks Pinkston to pay special attention to those cases.

And though Pinkston's office prosecutes the majority of VRI cases, he and his staff said Friday they will not—and ethically cannot—treat those cases differently simply because the strategy encourages them to.

"The law does not accommodate VRI," said office spokeswoman Melydia Clewell. "That's the bottom line."

"We support VRI," Pinkston said Wednesday. "[But] just because the city has a crime initiative, that doesn't change the way we prosecute cases. The rules are already set for us."

Assistant District Attorney Kevin Brown said the office is aware when a VRI case arrives in court. Prosecutors keep that information in mind while dealing with judges, negotiating with defense attorneys or talking to an officer, he said.

"But it is not targeting a defendant and treating him differently simply because of the fact he is a part of the enforcement action," Brown said Friday.

The posture of Pinkston's office reveals a major disconnect between the officers who collar gang members on the street and the prosecutors who take cases in the courtroom.

It's a disconnect that could undermine the VRI.

"I think there's been a misunderstanding," said David Kennedy, the national criminologist who created the strategy.

***

Promises are central to VRI.

The strategy, laid out in Kennedy's book, is based on logic, on an if-you-do-this-then-this-will-follow approach to gang violence. At periodic meetings between police and gang members, officials communicate one message: the violence must stop.

At these "call-ins," officials explain two rules: don't kill anyone, and don't be the most violent group.

Any group that breaks the rules, they say, will feel the full force of the criminal justice system. Officers vow to target not only the man who pulled the trigger, but also anyone in his group who was involved in the violence.

Authorities will use any means necessary to get at the gang members, officials warn. It could mean calling the city code inspectors to condemn a house, cutting off someone's stolen cable or sending people to jail for minor offenses they'd normally make bond for.

"We bring all arrests involving that group or gang to the prosecutor and expect them to give each case the agreed- upon special attention due to the serious nature of gang activity," Fletcher said in a statement Friday in response to Pinkston's comments.

Pinkston, who was elected 11th Judicial District Attorney General six months after the initiative started, said his office does not track VRI cases. However, it always sends a representative to the call-ins to speak directly to gang members.

During a call-in Thursday, Brown stood before a group of 25 gang members and vowed prosecutors would pay special attention to any rule breakers.

Brown told the men he would know their names, that he would fight on their cases till he was blue in the face.

But on Friday, Pinkston and his staff revised that hard-nosed position.

"I, and all the other prosecutors, will fight till we are blue in the face on every single case," Brown said.

"We can't give anybody increased punishment just because they were arrested as part of the VRI," Pinkston said. "But if [police] bring that to our attention then yeah, we see that, but we can't add on to what they would serve or not."

Pinkston said a VRI enforcement action is just one of several factors he and his assistants consider when pursuing a case. It's not a factor that can carry a case alone. Everyone is equal until proven guilty under the law, he emphasized. And any repeat offender can trigger a heavier penalty, he said, not just targeted VRI defendants.

But Kennedy said Friday prosecutors have wide latitude to influence any case from the moment it hits their desk and can use that latitude to be hard on VRI cases without going outside the law.

He acknowledged every prosecutor must be fair and equitable, operate within the law and do what is best for justice and public safety.

"But the fact is, that allows for an enormous amount of discretion," he said. "[Whether] somebody is brought to trial or is offered a plea is not governed under the law — it's a possibility created by the law."

Kennedy said district attorneys in cities across the nation that use his strategy rely on that discretion to leverage the law against gang members targeted in enforcement actions. District attorneys can petition a judge for higher bonds, opt not to offer plea agreements, or push for a case to move to the federal courts—where punishments tend to be more severe.

"Whether somebody, for example, based on exactly the same prior history, is charged maximumly as a habitual violent offender or is charged with a lesser offense is up [to] the discretion of the office," Kennedy said.

Pinkston said the fact that a case comes from a VRI enforcement action does not impact how he or his team use their prosecutorial discretion. But at another point during the same conversation, Clewell said it does.

"In the areas where we do have discretion, if someone is a member of the VRI, that is going to play a factor in the decisions that are made based on discretion," she said.

At another point in that discussion, Pinkston was offered a hypothetical: consider two defendants. Both are charged with trespassing. Both have equitable criminal histories. One is VRI, one is not. Would you prosecute any differently?

Pinkston said he would not push for a heavier penalty in the VRI case. Prosecutors would be aware of the VRI status, but it would not change anything.

However, if police officers give prosecutors more evidence on a particular case because that case happens to be VRI — because officers targeted that individual — that evidence could prompt prosecutors to do more with a case, said Executive Assistant District Attorney Lance Pope.

"When that information comes to us through the VRI process, we can use that information," Pope said. "We don't always have that information. Sometimes based on the VRI we do — and when we get it, we use it. That's it."

Clewell pointed out the 251 enforcement action arrests are a tiny portion of the 50,000 cases Pinkston's office handles annually.

The city of Chattanooga has consistently refused to release the names of those 251 men, which means the Times Free Press cannot use public records to check how the cases play out in court.

Berke declined to comment directly on Pinkston's statements on Friday, but said earlier in the day he is most concerned with his own part in the initiative.

"The chief [Fletcher] and I meet regularly, we go through it and we are following through with our end of the bargain," he said. "And the groups know it. We see it on Facebook, we see it on social media, and certainly the numbers reflect it. And then we try to work with others to make sure that they can follow through on their end as well."

***

Total gang-related gun violence has decreased in Chattanooga since VRI began.

So far this year, police have recorded 65 gang-related nonfatal shootings and shooting deaths. At this point in 2013, there had been 74. Those numbers include justified, accidental and self-inflicted shootings.

There have been 12 gang-related homicides this year, compared to 13 at this point in 2014 and 11 in 2013.

But in several other cities where officials used Kennedy's anti-gang violence strategy, the number of homicides dropped sharply. Kennedy said that would happen here, too — but the city hasn't seen any major drop.

some text In this file photo, David Kennedy, right, listens as Mayor Andy Berke fields questions at a March 2014 press conference inside City Hall to address gang violence. Kennedy is the architect of the Violence Reduction Initiative, and is quoted as saying that residents should be able to tell fairly quickly if the strategy isn't working. The rate of shootings in Chattanooga is basically unchanged year-over-year.

According to Kennedy's strategy, the VRI only works if the partners — prosecutors, police, probation officers, federal agents — all cooperate. On the streets, the strategy seeks to rebuild the legitimacy of law enforcement in the eyes of gang members by both explaining the rules and backing up the threats.

One of those threats is gang members who break the rules will be more likely to have their cases taken into the federal court system — where sentences are longer, parole doesn't exist and inmates could be shipped anywhere in the United States to serve their time.

So far, eight men have gone federal as part of VRI.

Two have been sentenced: one received five months home detention, the other 46 months in federal prison followed by supervised probation. Neither received the maximum possible penalty — 10 years in both cases.

Sources differ on whether those sentences are enough to deter other gang members from violence. But they do agree the initiative has pushed cases into the federal system that otherwise would not have gone federal.

"The very fact that they're taking [these cases] is the special attention," Fletcher said. "Virtually all of those cases would not have been federally prosecuted but for their involvement in gang and group violence."

Like the district attorney's office, the U.S. attorney also sends a prosecutor to each call-in. That attorney warns the gang members the feds are watching. That the feds will take these cases.

It's part of the two main promises made: If gang members break the rules, the partnership will crack down. If gang members stop shooting and want help, the partnership will help.

If the promises aren't fulfilled, the initiative falters, according to Kennedy's strategy.

"Everywhere in law enforcement, you should never write a check you can't cash," Kennedy said.

Kennedy did not speculate on how Chattanooga's situation would play out. But the timing of Pinkston's comments — 19 months into the initiative — struck him as unusual.

"It's odd," he said.

Contact staff writer Shelly Bradbury at sbrad bury@timesfreepress.com or 423-757-6525 with tips or story ideas.Contact staff writer Zack Peterson at zpeterson@timesfree press.com or 423-757-6347 with tips or story ideas. Follow @zackpeterson918.

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