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Federal prosecutors have balked at an order to share witness names and statements with defense lawyers who represent five alleged gang members suspected of a brutal murder in a gritty San Francisco housing project. The tough new tactic to withhold the identity of witnesses until days before the start of trial � and witness statements even longer � is seen among angry defense lawyers as setting up a challenge to broad discovery rules in Northern California. The case highlights the conflict between the government’s need to protect frightened witnesses from potential gang violence and the defense’s need to investigate witness statements and prepare a case. It is a particularly acute problem in a capital case such as this one, where defense lawyers have the right to present opposition to the U.S. Department of Justice’s pursuit of the death penalty in advance of trial. Defense lawyers have asked that the government either announce now if it plans to seek the death penalty and provide all the appropriate discovery early, or be barred by the court from seeking executions in the case. Despite the magistrate’s June order requiring release of witness names 90 days before trial in this potential death penalty case, the U.S. attorney’s office has said it will withhold the names until just two weeks before trial. It will also withhold some witness statements until after the witnesses testify. Prosecutors say it is all part of an effort to protect the witnesses from potential intimidation. The government goes before a federal judge this week to challenge the 90-day discovery order. “I think they have made this a test case by taking a very hard line,” said Richard Mazer, San Francisco attorney for one of the five defendants, Rickey Rollins. “They want a policy like the Eastern District of Virginia, the rocket docket, where the government holds great sway, and judges let them run rampant over the defense,” he said. “It is impossible to fulfill our jobs,” Mazer said. “They don’t want to give us squat.” Not so, counters Assistant U.S. Attorney Philip Kearney. Kearney points out that the five defendants � suspected members of the Down Below Gangsters � allegedly killed Beverly Robinson in April 2004, believing he had a gun belonging to the gang that had been used in a recent homicide. The five wanted to hide the weapon from police. Robinson was shot three times and died in the courtyard of the notorious Sunnydale housing project. “Members of the DBG are suspected of committing numerous acts of witness intimidation, up to and including conspiracy to commit murder and murder of potential government witnesses,” Kearney wrote in court papers. Gang members are suspected of a 2003 drive-by shooting in which a 2-year-old was killed by a stray bullet, and of a 2004 double murder, according to Kearney. One police inspector is personally aware of more than 100 instances in which civilian witnesses said they were too afraid of gang retaliation to testify or cooperate with police, Kearney wrote. He said DBG members have also threatened law enforcement personnel investigating the gang. But withholding so much discovery for so long is unheard of in the Northern California federal courts. “I have never encountered this in 28 years of practice in state or federal court,” said Michael Burt, attorney for lead defendant Edgar Diaz in U.S. v. Diaz, 05-167, in front of U.S. District Judge William Alsup. Typically, the way this issue is handled in national security or gang cases is to issue protective orders allowing lawyers to gain access to the information but not to share it with clients, he said. The government claimed such an order was ineffective in another recent gang case involving prosecution of a violent prison gang, Nuestra Familia, in which “names of all the witnesses ended up on hit lists,” according to a government statement. Mazer, who represented the leader in the Nuestra Familia case, said that the defense got discovery early in that case, and some of it was redacted, but the order worked. “I don’t remember anyone getting killed,” he said. “It is all a cover to prevent us from mounting a meaningful defense. [The government] created fear that they are trying to duck under to bully the judges. It’s not like witnesses are dropping like flies.” Pamela MacLean is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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