Esteban Parra

The News Journal

From 2012 to 2014, more than 11,700 felony weapon charges were filed in Delaware, and in most cases, the weapon was a gun. Yet, 71 percent of those charges disappeared before trials began.

As President Barack Obama, state officials and others press for tighter gun controls after mass shootings across the country, gun rights advocates say there is less need for more restrictions and more emphasis needed on prosecuting criminals who have been charged with weapons violations.

State prosecutors said they're not surprised by the rate, but said there is more to it than those raw numbers. They said that cases usually have multiple charges, and that in Superior Court where felony trials occur, they get some sort of conviction in 87 percent of cases involving a firearm.

Most of the time, 62 percent, the convictions are for gun offenses.

"Cases are defendants and it's the defendants who we are prosecuting and it's the defendant for whom we are seeking incarceration, not a charge," said Steve Wood, who, with more than 30 years' experience is one of the most senior prosecutors in the Delaware Attorney General's Office. He said the important thing is to get a conviction.

Wood said if a defendant is charged with homicide and gun charges, prosecutors will sometimes drop the firearms charges in exchange for a guilty plea in the homicide. He called that result a victory because the defendant is going to prison for a long time.

"Nobody would care that a charge was dropped to get there," Wood said.

Then there is the case of Mateo Pinkston.

In late summer 2011, court documents say Pinkston walked up to a man, pointed a gun at him and took his cellphone.

Pinkston, who had already been convicted of two felonies and was a suspect in a still-unsolved homicide, was arrested by Wilmington police and charged with robbery and several gun counts.

But the Delaware Attorney General's Office cut a deal with him in 2012, agreeing to drop three weapon charges that carried a maximum of 41 years in prison in exchange for Pinkston admitting to second-degree robbery and terroristic threatening, which carried a maximum of eight years in prison.

Soon after being released from his 12-month prison sentence, Pinkston, police said, shot and killed 25-year-old Arteise Brown in Wilmington last year.

Man charged with murder in Arteise Brown killing

Brown, who had two young sons, and another woman were shot on April 28 as Brown visited relatives about three blocks from her home in the 700 block of W. Fourth Street. Pinkston faces charges of second-degree murder, first-degree assault, four counts of reckless endangering, possession of a deadly weapon during commission of a felony and deadly weapon possession by a person prohibited at his trial is scheduled for next month.

The case is an example of what some gun advocates say is wrong with gun laws – too many of them are not prosecuted.

Sen. Brian Pettyjohn, R-Georgetown, who has been tracking the number of weapons charges dropped in Delaware, said he would like to see more of these offenses prosecuted.

"I know there are plea deals that are done to get those charges dropped, but the question is, are we dropping the right charges," Pettyjohn asked.

He said that part of the reason for tracking these charges was to see if state lawmakers could help the Attorney General's Office better prosecute them. And while he understands that some charges will be dismissed, Pettyjohn said the system seems to be set up to have these cases plea bargained.

What stands out to Pettyjohn are the number of charges dropped when a person is accused of carrying a weapon during the commission of a felony. According to the 2012-2014 report by the Delaware Criminal Justice Council, of the more than 5,300 charges involving a gun or other weapon during the commission of a felony, 80 percent were not prosecuted in those three years.

"I don't think a weapons charge should be dropped," he said. "I think that we can drop some other charges, but if they're committing a felony with a weapon, whether its a knife or a hammer, ... I think we should be prosecuting for that. That would send a very strong message that the Attorney General's Office is very serious about prosecuting these crimes."

Not prosecuting gun charges makes him question why new gun laws are needed.

"I think we've got enough and I think we really need to start prosecuting the crimes that we have now," he said.

Matt Bennett of Third Way, a Washington, D.C.-based group that has worked for gun control legislation, said that the 71 percent figure for weapons charges that have not been prosecuted is not unusual when compared to other jurisdictions.

"My guess is that state prosecutors in Delaware go after the guys that need going after," Bennett said. "And that there is a lot of people brought in on gun charges that are pushed to cooperate in other ways or get run up on drug charges or what have you."

While prosecuting all gun laws sounds good, it's not always sustainable as other jurisdictions have found, Bennett said. He pointed to Project Exile, a crime reduction strategy launched in Virginia in 1997 by the U.S. Attorney's Office in Richmond. The program is credited with helping cut the high homicide rate in that city by shifting firearm prosecutions from state court to federal court, where sentencings are stiffer.

"There was some evidence that it worked a little bit, but it's extraordinarily expensive to prosecute every single felony possession," he said. "There are a ton of guns out there and a lot are in the hands of people who shouldn't have them. It just became too unwieldy for federal prosecutors in Virginia to do that.

"So what you're left with in terms of prosecution of federal gun crimes is an effort to go after bigger fish, which is to say people who are trafficking, interstate trafficking, dirty gun dealers."

Prosecuting gun charges is a high priority of the Attorney General's Office, said Chief New Castle County Prosecutor Joe Grubb. So much so that if a prosecutor deems it necessary to drop a gun charge, that decision is reviewed by the prosecutor's supervisors, even at times by Attorney General Matt Denn.

Prosecutors said that sometimes they have to drop a gun charge because their standards of bringing a case to trial is higher than the probable cause a police officer needs to file charges. Other times, intimidated witnesses refuse to testify, vanish or recant their stories. Prosecutors provided other examples of situations when they drop weapons charges:

* Five probationers are in a car and there's a gun on the seat and the vehicle is stopped by police. That officer has enough probable cause to charge all five with possession of a firearm by a person prohibited. But prosecutors will only indict the person whose fingerprints match prints on the gun, dropping the charges against the other four.

* A man gets charged by police with burglary and carrying a deadly weapon, which turns out to be a baseball bat. As prosecutors investigate the matter, they might end up dropping the weapons charge because the suspect is an avid baseball player who had the bat at the time of his arrest, not necessarily when he committed the burglary.

In Pinkston's 2011 arrest, he was charged with pointing a gun at a man and taking his cellphone. Police recovered the victim’s cell phone from Pinkston, but no gun was recovered, so the case only had the victim's assertion of a gun.

The victim had six felony convictions, including robbery and forgery, which is a crime of dishonesty. Prosecutors feared the defense would try to undermine the victim’s credibility, and his word was the only evidence that Pinkston had a gun.

Prosecutors say that's why the gun charge was dropped.

For every Pinkston case, where the conviction prosecutors achieve is for less time than a gun charge, Grubb says, there is a Jose Quinones, a 33-year-old arrested last year after being shot by a BP service station clerk he was trying to rob at gunpoint. A joint investigation by state and Wilmington police linked Quinones to at least 14 armed robberies.

Quinones was charged by police with 18 weapons charges among other crimes. He was not indicted on any of the 18 counts, but ended up pleading to seven counts of first-degree robbery and two counts of second-degree robber. He’s expected to receive about 30 years in prison.

“If you statistically look at the number of charges he pleaded guilty to versus the number of charges he was arrested for you would see a percentage that offends you,” Grubb said. “But then if you look at the actual sentence he received you will see he’s going to be in jail for 31 years.

“That’s a pretty good result to me,” he said.

Grubb reiterated that it’s not the number of charges you convict someone on, but the case as a whole.

State Prosecutor Kathleen Jennings said for every outlier like Pinkston, she can provide 50 cases where weapons charges are dropped and defendants are sentenced to longer prison terms.

"We can explain every one that you want us to explain," she said. "And we will because we have a good reason for doing it. I know it.

"To say that we are not enforcing the laws is just false."

Contact Esteban Parra at (302) 324-2299, eparra@delawareonline.com or Twitter @eparra3.