JUDGE WILL NOT BUDGE : MANDATORY SENTENCE REJECTED AGAIN FOR DRUG DEFENDANT.

Byline: Janet Gilmore Daily News Staff Writer

A federal judge refused Monday to impose a mandatory nine-year prison sentence to a former crack cocaine dealer who turned his life around with community volunteer work in Pacoima.

``I refuse to be a part of what I think is an injustice,'' said U.S. District Judge Terry J. Hatter. ``I tried to bring some justice to this case as best I can. I, too, feel frustrated.''

Hatter was scheduled to sentence defendant Bobbie Marshall on Monday, but said he was inclined to remove himself and let another judge impose sentence rather than bow to an appeals court decision requiring him to impose a nine-year sentence.

Instead Hatter took no official action, except to continue the hearing until July in order to give Marshall's attorney, Denise Meyer, time to evaluate what her next move should be.

Meyer said Monday that she was reluctant to take her case to another judge, because Hatter had been so supportive of her client's case.

``It's a really difficult case,'' she said. ``We might be close to conceding that nine years is the best we're going to get, but we're not there yet.''

Marshall was indicted in 1991 for selling drugs in a house across the street from a Pacoima elementary school. After serving about a year in prison, he was freed until 1994 while his attorneys pursued a series of appeals.

During that time he gained broad support from community leaders, including Rep. Howard Berman, D-Panorama City, for his positive influence working with youths, his effort to prevent violence in the wake of the Rodney King verdicts, and his efforts to organize a Clean and Sober Festival.

At one point he worked in Berman's office as a federal emergency aid worker after the Northridge Earthquake.

Noting his record of community service, Hatter sentenced Marshall to 4-1/2 years in 1994. But prosecutors appealed the decision, saying that they had negotiated a nine-year sentence that couldn't be altered by the judge. They noted that they had knocked five years off their original recommendation of a 14-year sentence.

The U.S. Ninth Circuit Court of Appeals ruled in December 1994 that the nine-year sentence must stand. After months of legal maneuvering, the case came back for sentencing Monday before Hatter, an increasingly outspoken critic of mandatory sentencing laws and laws that he considers unfair to ethnic minorities.

``I refuse to be a part of it, and the White House can play its political games,'' Hatter said, adding that Congress and the U.S. Attorney's Office also is playing games.

Erwin Chemerinsky, a USC law professor, said Hatter's move is a relatively rare one. Traditionally, he noted, judges have had the right to recuse themselves to avoid the perception of unfairness.

``This is a different circumstance than that, because this isn't the judge recusing himself because of a conflict of interest,'' Chemerinsky said. ``This is a judge recusing himself because he's saying, `I don't want to consider what seems to me an unjust law.' ''

Marshall's daughter, Tanisha, who was in court Monday, said she can't understand why her father can't be given another chance. But she is prepared to go along with any sentence that Hatter hands down.

``Whatever the judge feels is best,'' she said. ``He's the best judge there is.''

Prosecutor Richard Drooyan told Hatter that his office feels that the judge's options are limited: He can sentence Marshall to nine years, set the matter for trial, or let another judge impose sentence.

However, Drooyan noted that the Marshall case is different from others, and said that if Marshall appealed to the president to reduce the sentence, his office would, at the very least, not oppose it.

Presidential appeals are a long shot, Chemerinsky noted, especially given that this is an election year and with crime and drug problems high on political agendas.

If Hatter goes forward with his plans to remove himself, over Marshall's objections, Marshall could appeal that action to the Ninth Circuit Court. But Chemerinsky doubts that the appellate court would disallow it. The courts have a tradition of allowing judges to remove themselves, he said.

And the Ninth Circuit could find itself in the position of removing Hatter from the case if he tries again to impose a four-year sentence despite its rulings.

CAPTION(S):

Photo

PHOTO Bobbie Marshall

Turned his life around