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Despite increasing political heat, District Attorney Kamala Harris appears determined not to seek the death penalty for alleged cop killer David Hill. The head of the local Police Officers Association wants federal prosecutors to take the case if Harris doesn’t pursue the death penalty for the fatal April 10 shooting of Police Officer Isaac Espinoza. Harris announced April 13 that she’ll seek life without parole for Hill, who is accused of shooting plainclothes officers Espinoza and Barry Parker with an AK-47 on a street in San Francisco’s Bayview District. At Espinoza’s funeral Friday, Sen. Dianne Feinstein received a standing ovation for her call for the death penalty in the officer’s murder. And a group of rank-and-file officers are circulating a petition denouncing Harris’ decision, and plan to march on Harris’ Hall of Justice office in protest today. The DA is unswayed. “She wants to keep the case in its home jurisdiction,” DA spokeswoman Debbie Mesloh said Tuesday, adding that Harris is “not going to change her mind” about seeking the death penalty. That said, Harris has assigned two of the top people in her office to the case: Criminal Division Chief Paul Cummins, a longtime San Francisco prosecutor; and the new head of the homicide unit, Valerie McGuire, an experienced homicide prosecutor recently poached from Solano County. POA President Gary Delagnes says his organization has told Harris that if she’s unwilling to pursue the death penalty, she should pass the case off to federal prosecutors. “We’ve urged them [federal prosecutors] to try to find a way to take this,” Delagnes said Monday. Assistant U.S. Attorney Matthew Jacobs, a spokesman for U.S. Attorney Kevin Ryan, declined to comment on whether the office has been asked to file federal charges against Hill, or if the U.S. attorney is considering doing so. Local lawyers say it would be a stretch for Ryan to find a legal hook to pursue the death penalty against Hill. Even if he could, some said he’s got plenty of reasons to leave the case to the DA. “I don’t see any application of the [federal] death penalty to this situation, unless there’s a gun charge” that would warrant it, said former U.S. Attorney Joseph Russoniello, now a senior counsel at Cooley Godward. The Department of Justice has, at least under Republican administrations, typically adopted a limited sovereignty view, said Federal Public Defender Barry Portman. Even if there were an applicable statute, the U.S. attorney would probably think hard about that limited interference tendency, Portman said, noting Ryan is a former San Francisco Superior Court judge and Alameda County prosecutor. Portman also noted that the U.S. attorney’s office has limited resources and is emphasizing white-collar and securities crimes. Also, while a state court conviction for first-degree murder with special circumstances could earn Hill the death penalty or life without parole, he could walk away from federal court with a lesser sentence, Portman said. “So that might be unattractive.” Ryan and Harris both might also be wary of setting a precedent, Portman said. “Does the U.S. attorney gradually then assume the role that the district attorney really has, which is to decide on when to seek the maximum penalty? What it does is, it institutionally weakens the district attorney. “I cannot say what Kevin Ryan thinks about these things, but my guess is he does think about these things.” If someone killed Espinoza due to his status as a police officer, that might qualify as a civil rights violation eligible for the federal death penalty, said Oakland criminal defense solo Daniel Horowitz. But, “It’s a stretch.” Hastings College of the Law professor Rory Little, a former federal prosecutor who served on the attorney general’s capital case review committee under Janet Reno, thinks Ryan may have a way into the case. “I have generally taken the position that if you work hard enough, you can turn any homicide into a federal case. “You have to look long and hard” through dozens of federal offenses that carry the death penalty that are spread through volumes of federal statutes, he said. But he cites one that federal prosecutors could use if they could show that Hill was engaged in a drug trafficking crime or a crime of violence. Possessing an AK-47 might qualify as a crime of violence under case law, Little said. For now, the relationship between the DA’s office and police officers is “not good,” Delagnes said. “The cops are upset. “We had a very poor relationship with the prior district attorney. We are still hopeful that we can repair this relationship and still move on. However, this is a tough one. It’s a tough one for her, it’s a tough one for our members. Emotions are extremely high right now.” Despite police officers who may be tightening the screws, Harris is politically on solid ground, said Peter Keane, formerly No. 2 in the San Francisco public defender’s office. “You can never satisfy cops,” he said, but San Francisco voters have soundly rejected the death penalty in state votes. As for Harris, Mesloh said she is “hopeful that everyone can work together now on convicting this guy and making sure he never sees the light of day.”

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