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In a game of capital chicken initiated by federal prosecutors, Judge William Alsup seems to have gained the upper hand. Frustrated with the San Francisco U.S. attorney’s office’s violation of his discovery order in a capital gang prosecution, Alsup delivered a denunciatory lecture to prosecutors at a Tuesday hearing. After berating prosecutors for their attempts to keep witness names out of defendants’ hands against the judge’s orders, Alsup said he planned to keep those witnesses out of the case. And with a Thursday order, the judge said how he intends to do it. The case against 10 alleged members of Visitacion Valley’s Down Below Gang has been stuck in Alsup’s craw for months, since he told the government to turn over evidence under the terms of a protective order designed to ensure witness safety. Prosecutors refused to do so, and requested that Alsup sanction them for violating his order. They told the judge that the sanction they wanted was preclusion from seeking the death penalty against three defendants whose charges make them eligible for execution. The evidence fight applies only to those three men, one of whom, Edgar Diaz, was certified by the Justice Department for a death prosecution earlier this month. The government’s request for sanctions upset Alsup � at the Tuesday hearing, he called it an “appellate gimmick,” and said he believes prosecutors want to appeal the sanction order to the Ninth Circuit U.S. Court of Appeals. If it won such an appeal, the government wouldn’t have to turn over the evidence, and could still seek death; a loss for the government would still allow it to keep the information private, but would preclude a capital case. On Tuesday, the judge said the government’s sanction request was “inviting error,” and that preclusion of the death penalty � which defense lawyers also requested � wasn’t an appropriate sanction. “Death-penalty preclusion is evidently the government’s preferred sanction because it would facilitate appellate intervention,” Alsup wrote in his order Thursday. “To build in error, however, simply to increase the chances of appellate review seems topsy-turvy.” That was considerably softer than what Alsup said from the bench Tuesday, when he called the tactics “slippery.” But the order still demonstrated that Alsup takes seriously Rule 16, requiring certain evidence to be disclosed months before trial. “The government’s deliberate, substantial and unjustified violation of direct orders to provide discovery owed under Rule 16 warrants the sanction imposed below,” he wrote. That sanction, which Alsup said was clearly most appropriate for hiding witness names, is that those witnesses be precluded from testifying. It was also a sanction requested by defense lawyers. They wouldn’t comment on the case, citing the sensitive nature of capital prosecutions. A spokesman for the U.S. attorney’s office said prosecutors are concerned about recent violence against witnesses in an unrelated case, and are still discussing how to deal with Alsup’s order. But Alsup said in court Tuesday that certain witnesses who would be excluded under his order have a key role in the case. Lawyers following the prosecution said that if the sanction stands, the government may have to dismiss charges � or even defendants � in the case against alleged members of the Down Below Gang. But, the lawyers say, there are plenty of ways out for the government. The order gives prosecutors two weeks to cough up the discovery material. Even if it stands, Alsup’s order gives the government the chance to argue witness by witness that the secret evidence was not significant enough to keep a person from testifying. That qualifier, lawyers following the case said, could help bolster the order against appeal, and may force the government to file a writ � rather than an actual interlocutory appeal � because it’s not a definite order. That could be a problem because the Ninth Circuit could elect not to review a writ.

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