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Click here for the full text of this decision FACTS:The 5th U.S. Circuit Court of Appeals summarizes the facts as alleged in the indictment as follows. Tyrone Mapletoft Williams and Fatima Holloway were the only two African-Americans in a 14-person alien-smuggling operation in May 2003. Williams drove a tractor trailer loaded with 74 illegal aliens, and Holloway was a passenger. When the aliens banged on the trailer wall, Holloway urged Williams to turn on the refrigeration unit to the trailer or else open the door, but Williams refused. The government alleges that nineteen aliens died, as a result of suffocation or heat exhaustion. A grand jury returned a 60-count indictment against all members of the operation. Though all participants were eligible for the death penalty, the federal government indicated it would only be bringing capital murder charges against Williams. Consequently, Williams’ case was severed from the rest. Three months before his January 2005 trial was to begin, Williams filed a motion to dismiss the government’s “intent to seek the death penalty.” Alternatively, Williams asked for discovery of information related to the government’s capital murder-charging practices. Williams noted in this latter motion that he was the only one being charged with capital murder, and one of only two African Americans involved; he requested that the government show why it chose to seek the death penalty only as to him. In support of the latter motion, Williams also filed a memorandum of points and authorities. He cited United States v. Armstrong, 517 U.S. 456 (1996), in which the U.S. Supreme Court held that a defendant who seeks discovery on the basis of selective prosecution must show some evidence of discriminatory effect and intent. He also cited cases addressing selective prosecution and discriminatory practices in decisions regarding whether to impose the death penalty. U.S. District Judge Vanessa Gilmore granted Williams’ motion for discovery. On Nov. 10, she directed the government to produce information that “relates generally to the capital charging practices of the Attorney General of the United States including by not limited to the charging practices that were employed in this specific case.” Two weeks later, the government filed a notice of discovery in response to Gilmore’s order. In it, the government discussed its general protocol for how determinations for federal death penalty prosecutions were made, and it included statistical information from the AG. Gilmore chastised the government for filing a nonresponsive pleading and directed prosecutors to assert a privilege now they were going to do so. The government thus filed an addendum formally asserting deliberative process, work-product and attorney-client privileges. Williams filed a motion for contempt on Dec. 16. He also moved to dismiss the notice of intent to seek the death penalty. As part of this motion, Williams included a report detailing 68 other alien-smuggling cases where the defendants were similarly situated to Williams. Gilmore praised the report and told the government it should have provided thins type of information. Gilmore refused to allow the government to refute the information in the report. In the exchange that followed, Gilmore told the government that, if someone didn’t put a letter from then-Attorney General John Ashcroft on her desk by the end of the day, the government lawyers would be held in contempt. “I need it in writing,” Gilmore stated. “It needs to be signed by the Attorney General saying that the reason that you as an Assistant United States Attorney in Houston cannot comply with my order is because the Attorney General of the United States is prohibiting you from doing so based on separation of powers theory; that you will not disclose to this Court the basis upon which you chose in this case to indict the only black defendant for a death penalty crime in a case in which 14 defendants were involved in this smuggling and in which he was not the leader or the organizer or manager of this smuggling operation.” Gilmore ignored the government’s suggestion to dismiss the notice of intent as a sanction in lieu of finding the government in contempt for not complying with the Nov. 10 order. Instead, Gilmore created her own sanction. She announced that she would submit a jury instruction to be read during the punishment of Williams’ trial � should it come to that � informing the jury of the government’s refusal to comply with the order and allowing the jury to draw an inference that, by failing to produce evidence on how it selects death penalty cases, the government must be withholding evidence damaging to its own case. After Gilmore denied a motion for reconsideration, a motion for stay and a motion for a final trial, the government on Dec. 31 petitioned the 5th Circuit for a brief stay and then filed a petition for a writ of mandamus related to the discovery orders. HOLDING:Writ granted. The court characterizes Gilmore’s initial order, which included a threat of contempt, as a requirement that the government open up its internal, privileged data concerning its use of its discretion in seeking the death penalty, or that the government provide a letter from John Ashcroft himself asserting the privilege. The court confirms that other circuit courts of appeals have found mandamus to be the appropriate kind of remedy in cases involving errors in all three of the intertwined issues in this case: jury instructions, discovery orders and assertions of privilege. Going over the test for granting a writ of mandamus, the court first agrees that the government has shown that it has no alternative means of relief. If Gilmore granted the government’s motion to dismiss the death notice, her order could have been immediately appealed. Instead, because her order was styled a “sanction,” it was not subject to an interlocutory appeal. Furthermore, if Gilmore were to be acquitted, the government would not have the opportunity to challenge Gilmore’s tainted jury instruction sanction. The court next confirms that the government has shown that its right to the writ is clear and indisputable. The court finds that Gilmore erred in two principal, related ways: by incorrectly applying United States v. Armstrong and thereby improperly ordering discovery against the government, and by creating a “sanction” in contravention of the Federal Death Penalty Act by creating an unauthorized defense to the death penalty. Gilmore’s implied finding that Williams had made a prima facie case of selective prosecution ignored other U.S. Supreme Court precedent, as well as the plain facts as stated by Williams himself, the court finds. First, Williams admitted that he needed the discovery in order to make the prima facie case, so he can’t have made a prima facie case of selective prosecution entitling him to discovery. Second, the facts in Williams’ case belie his assertion that other similarly situated defendants in the alien-smuggling operation were not targeted for the death penalty. For instance, Holloway, who is also African American, was not charged with capital murder. Furthermore, of the other participants in the operation, only Williams as the truck driver had the ability to prevent the 19 aliens’ deaths. Finally, as to the report Williams submitted, it’s not enough that all of the defendants in it had been charged with alien smuggling but not with the death penalty. Williams had to also show that the defendants were actually similarly situated to him for purposes of his selective-prosecution claim. These errors constituted a clear abuse of discretion, as well, the 5th Circuit finds. The judge’s orders continually expanded the breadth of permissible discovery. Her jury instruction would have impermissibly shifted the burden of proof, preventing the government from enforcing the death penalty against Williams. As part of its order granting the writ and lifting the sanctions, the court states that it expects Williams’ trial to commence within 30 days. OPINION:Per curiam; Jones, Barksdale and Prado, JJ.

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