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A difficult federal capital case got a lot less complicated Monday, when eight defendants in a racketeering case against the Down Below Gang entered guilty pleas to various crimes connected with drug and gun disputes in the Sunnydale housing projects. While two alleged gang members still face capital charges � and the case has been beset with controversy � the pleas are a victory for U.S. Attorney Kevin Ryan, whose aggressive pursuit of street gangs has been a hallmark of his tenure. Four of the eight defendants who entered pleas faced murder charges, and were therefore eligible for capital punishment, though the U.S. Department of Justice had decided against seeking death. They agreed to sentences ranging from 15 to 23 years for their roles in conspiracy to commit a gang murder. The pleas still have to be approved by U.S. District Judge William Alsup. Four defendants facing lesser charges also entered pleas Monday, leaving only four defendants in the case: two who are facing capital punishment, one who may be, and one who is on the lam. While the case has followed a rocky path since it was indicted last year � discovery battles and personnel problems in the U.S. attorney’s office continue to simmer � the large wave of pleas is a good sign, said Rory Little, a professor at Hastings College of the Law and an expert on the federal death penalty. They came after a discovery dispute before Alsup that forced lawyers on both sides to look closely at their cases. Several attorneys with knowledge of the case said that eventually, each side realized it had significant liabilities: The prosecutors had to depend on potentially shaky informants, while defendants faced combined gun and drug charges that could land them in prison for life. Resolving those issues with multiple pleas, Little said, is “a very good example of the system working in a way that’s very productive.” At least one defense lawyer in the case agreed. “We’re grateful for the fact that it looks as though the case may be coming to a close, and that the disposition we were finally offered, after months of hard negotiating, was what we think the outcome should have been,” said John Philipsborn, whose client, Don Johnson, agreed to spend 23 years in prison. But other attorneys in the case might not echo his sentiments. Disputes in the pretrial stages rankled defense lawyers and prosecutors involved. LIFE OR DEATH DECISION Since a panel of Justice Department officials decided in July to seek death for Down Below Gang defendant Edgar Diaz, the case has grown increasingly contentious. A discovery fight angered Alsup, and tension in Ryan’s office has dogged the prosecution. The stakes only grew higher in October when the Justice Department decided to seek execution of another defendant, Emile Fort. Throughout the process, one of the prosecutors handling the case had qualms about seeking the death penalty. That’s a frequent occurrence in any prosecutor’s office, said several government attorneys. Indeed, a federal statute allows assistant U.S. attorneys who morally oppose a capital prosecution to recuse themselves from the case. But in the Fort and Diaz prosecution, such a request seems to have caused friction: According to several lawyers in Ryan’s office, Assistant U.S. Attorney Richard Cutler bridled at the notion of seeking to kill the two defendants from the time the case was indicted. After a Washington panel took the opposite stance � and after Cutler made his opposition known to superiors in the U.S. attorney’s office � an investigator from the Justice Department’s main office came to San Francisco to question Cutler on the issue, according to lawyers with knowledge of the situation. The late-October meeting with the official from the Executive Office of the U.S. Attorney has not resulted in any disciplinary issues for Cutler, but lawyers in the office said the episode made them uncomfortable because of the appearance that Cutler was being probed for sticking to his opinion in the case. Cutler said office policy prohibited him from commenting, and he referred a reporter to the office’s spokesman. “That’s something I can’t confirm,” said spokesman Luke Macaulay, “and can’t comment on.” The issue with Cutler seems to have blown over � he was present at the hearing for the noncapital defendants, though lawyers familiar with the case said he’d probably be removed once the Diaz and Fort cases move ahead. But a separate personnel problem has also affected the case: In October, the prosecutor supervising all of the capital gang cases left the office. Anjali Chaturvedi, who had come to the office from D.C. � and brought along aggressive new procedures for the gang cases � announced she was leaving to join Nixon Peabody’s Washington office. It’s unclear why Chaturvedi left � she couldn’t be reached by press time � but over the last year of her tenure, the U.S. attorney’s office’s tight-fisted discovery policy led to contentious and ongoing litigation. JUDGE GOES BOOM Discovery problems in the Diaz and Fort case blew up in July in front of Judge William Alsup. He became upset when the government refused to comply with an order to turn over certain discovery material under seal. While prosecutors argued that they wanted to keep certain material private to prevent witnesses from being murdered, Alsup said their refusal to turn over discovery information was a means of gaining position on the defense. “Every witness, anyone who has given information to law enforcement, whether it helps the defense or not, you have hidden,” an irate Alsup told Cutler. “Why have you hidden them? For tactical advantage.” The government asked Alsup to sanction them for noncompliance by precluding the death penalty � a decision that would have given the government a strategic advantage at the expense of a capital prosecution. But Alsup refused, instead ruling that any witnesses whose information was not turned over to the defense be excluded from the case. That decision went to the Ninth Circuit, which eventually sent it back down to Alsup to reconsider. But Ninth Circuit Judge William Fletcher has asked the circuit to hear the case en banc.

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