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A brief summary of Judge William Alsup’s view of federal prosecutors in a seething capital gang case, gleaned from a Tuesday hearing: Prosecutors’ tactics are “slippery,” they “thumb their nose” at the court, are “hiding the ball,” making a “bogus argument,” using “gamesmanship,” being “frivolous,” and “inviting the court to make an error.” In short, the judge told Richard Cutler, the assistant U.S. attorney who endured Alsup’s flogging, that the government’s strategy “just isn’t fair.” And in the process, the judge said he plans to exclude a bevy of witnesses � including some with key testimony � from a gang case originating in San Francisco’s Visitacion Valley. Ten alleged members of the Down Below Gang face racketeering charges and seven murder and seven attempted murder counts. Alsup’s wrath in the case had been building for months, since it became clear that prosecutors from San Francisco U.S. Attorney Kevin Ryan’s office had decided not to comply with an order to turn over key evidence, including witness names. That frustration boiled over Tuesday � a red-faced Alsup tore into the government repeatedly. Family members of the 10 defendants quietly cheered the judge; after the hearing, one defense lawyer suggested that a defendant’s mother not smile during such a tirade for fear of further upsetting Alsup. But in the Down Below case, the defendants and their families have relatively little else to be happy about. One, Edgar Diaz, was certified for a capital prosecution earlier this month by Justice Department officials. The government may seek to execute two other defendants, too. “We’re under no illusion,” Michael Thorman, a lawyer for defendant Emile Fort, told Alsup. “Now that Mr. Diaz has been certified, that’s where we’re going with Mr. Fort, as well.” Prosecutors say that the Down Below Gang is known for witness intimidation, and say they want to keep names secret out of concern for witness safety. But Alsup said that since the government has refused to negotiate with him on a way to disclose some information and protect witness safety, he doubted that motive. “Every witness, anyone who has given information to law enforcement, whether it helps the defense or not, you have hidden,” Alsup told Cutler. “Why have you hidden them? For tactical advantage.” That’s the argument that defense lawyers make, as well. Like the judge, they say the government’s strategy in the case is aimed at getting an appellate decision that will allow the names to remain secret until trial. That tack, Alsup said in court, is intended to get around his requirement that prosecutors release the names under the terms of a complex protective order he devised. Not wanting to cough up the witnesses, the prosecutors defied Alsup’s order and asked him to sanction them � an action that would let the government appeal to the Ninth Circuit and, if successful, get a ruling forcing Alsup to drop his discovery order. In the “notice of noncompliance” they filed June 27, prosecutors proposed a punishment: “The government respectfully requests that the court impose a sanction for the government’s noncompliance, and suggests that the sanction should be to preclude the government from seeking the death penalty as to defendant Robert Calloway.” That would be perfectly acceptable to the defense, Calloway’s lawyer, Jones Day partner John Cline, told Alsup � but only if combined with other sanctions. Cline wants the witnesses whose names are hidden to be excluded from the case. And Alsup � to the surprise of everyone in the courtroom � seemed inclined to do that, but not to preclude a death prosecution, even though capital preclusion was a sanction proposed by both sides. “Frankly, I didn’t come here expecting that what the defense and the government agree is an appropriate sanction would be questioned by the court,” Thorman told the judge. Yet the judge said that excluding witnesses was a more appropriate sanction since it relates directly to the government’s behavior. “I’m going to tailor an exclusion order that’s appropriate to the wrongs of this case,” Alsup said. Cutler, of course, said he didn’t think there were any such wrongs, and that the government couldn’t ensure witness safety and still obey Alsup’s discovery order. But defense lawyers say they worry that the prosecutorial strategy in the case indicates a new and disturbing approach by San Francisco federal prosecutors. “It hasn’t been typical in the Northern District,” said defense lawyer John Philipsborn, whose client, Don Johnson, is not facing capital charges. “We don’t know if it’s driven by D.C., or if it’s driven by some changes in personnel in the U.S. attorney’s office.” Philipsborn isn’t the only defense lawyer who points out that Assistant U.S. Attorney Anjali Chaturvedi, who is supervising the Down Below prosecution, handled gang cases in Washington, where prosecutors tend to take a much harder line in discovery. “The first time that several of us talked to her, she said ‘that’s the way we do things in D.C.,’” Philipsborn said. Chaturvedi referred requests for comment to an office spokesman. Spokesman Luke Macaulay said prosecutors haven’t yet decided whether to appeal, and said the office’s stance in the discovery dispute isn’t meant to challenge local rules. “We are following federal law as it applies to serious local crimes,” he said. Rory Little, a former federal prosecutor and a professor at Hastings College of the Law who has studied the federal death penalty, said the government’s strategy in this case has been well-established in other capital cases where prosecutors felt a trial judge was out of line. “When they are confident of their chances on appeal, they dare the district judge to dismiss or change his/her order,” Little wrote in an e-mail. “I actually think it’s an entirely legitimate strategy, when it is used to constrain district judges to their lawful authority.” Alsup would probably characterize it differently. “I’m not going to fall for an appellate gimmick,” he told Cutler. “I am certain that the rulings I’ve made are correct,” the judge added. “Please don’t represent to the Ninth Circuit that I want appellate review.”

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