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A federal appeals court said it lacked jurisdiction to review a judge’s refusal to block the death penalty where the prosecution failed to give adequate notice to the defendant. The U.S. Court of Appeals for the Second Circuit said it was declining to expand the limited universe of exceptions to the general rule that criminal cases are not reviewable until they are complete and the defendant is sentenced. The court in United States v. Robinson , 06-2014-cr, dismissed the appeal of defendant Kenneth “Supreme” McGriff for a lack of jurisdiction, and in so doing allowed to stand a ruling by Eastern District Judge Frederic Block. The decision will be published Friday. Judge Block had ruled last April that dismissal of the death notice is not the only remedy for the government’s failure to provide the defendant with reasonable notice that it intends to seek capital punishment. Instead, Judge Block said that the right remedy for a late notice provided by the government was simply to grant a continuance and give Mr. McGriff more time to prepare for trial. The circuit’s opinion, issued last Friday, agreed with Judge Block that the Federal Death Penalty Act’s requirement of reasonable notice “does not create a right not to be tried.” Mr. McGriff’s murder-in-aid-of-racketeering trial is scheduled to begin today in Brooklyn. He was charged with that crime in January 2005 and then with murder-for-hire along with several co-defendants in a superceding indictment in March 2006. Under the Federal Death Penalty Act, 18 U.S.C. �3593(a), the government must give notice to a defendant that it intends to seek the death penalty within “a reasonable time before the trial or before acceptance by the court of a plea of guilty.” The U.S. Attorney General authorized seeking the death penalty for Mr. McGriff and four co-defendants on March 21, 2006, and the defendants were given notice the following day. All five men moved to strike the death notices for failure to meet the “reasonable time” requirement. But on April 4, the government withdrew its death notices against all the defendants but Mr. McGriff. In a written opinion issued April 13 , Judge Block ruled that even though notice was not given within a reasonable time and the statute had been violated, the right remedy was a continuance – not a ruling striking the death notice. Judge Block pointed to United States v. Ferebe , 332 F.3d 722 (4th Cir. 2003), where the Fourth Circuit treated the right to be free from untimely notice as a right “not to be tried.” Judge Block disagreed and said he was free to postpone the trial. He noted that Mr. McGriff was responsible for a “good portion” of the time prosecutors spent making their recommendations because his memorandum on factors mitigating against the death penalty was not produced for nearly 11 months until after the initial indictment was issued. Limited Exceptions Judges Parker, Richard Wesley and Peter Hall decided the issue in a September summary order. The panel issued an opinion on Friday explaining its reasoning. Judge Parker said the court usually lacks jurisdiction to review criminal cases until the defendant is sentenced and a judgment of conviction is entered. Mr. McGriff argued that the appeal should be heard under the “collateral order” doctrine, an exception carved out for a small class of cases. Under Sell v. United States , 539 U.S. 166 (2003), the U.S. Supreme Court said appeals courts may review a preliminary or interim decision where review would “conclusively” determine the question, review would resolve an “important issue completely separate from the merits of the action,” and where the issue is “effectively unreviewable on appeal from a final judgment.” Judge Parker said the exception has been invoked by the circuit to review the denial of motions to dismiss on double jeopardy grounds. Mr. McGriff said the court had to take the case because if he proceeded to trial, the damage would already have been done. But Judge Parker said, “We are not persuaded that �3593(a) creates a right not to be tried.” The U.S. Supreme Court has cautioned that courts of appeals view claims of a “right not to be tried” skeptically, he said. “[T]he protection that �3593(a) affords a defendant in McGriff’s position more closely resembles the protection afforded by any number of pretrial rights that involve notification or disclosure for the purpose of allowing the defendant to prepare his case,” Judge Parker said. “None of these rights amounts to a right not to stand trial and, of course, none supplies a basis for interlocutory review under the collateral order doctrine.” And because the statute does not create a “right not to be tried,” he said, “it necessarily follows that the section cannot be read to authorize, as an exclusive remedy for the government’s violation of that statute, that the defendant may avoid trial altogether.” Judge Block had said it would be a “colossal waste of time” to conduct a capital trial only to have the death notice stricken after the fact by an appeals court. “While we are not unsympathetic to the district court’s practical concern, we do not believe it justifies expanding the narrow class of decisions in criminal cases we have recognized as collateral orders eligible for immediate appellate review,” Judge Parker said. David Ruhnke and Jean Barrett of Ruhnke & Barrett in Montclair, N.J., represented Mr. McGriff. Barbara Underwood, who served as counsel to the U.S. attorney, and Assistant U.S. Attorneys Linda Lacewell and Carolyn Pokorny represented the government. - Mark Hamblett can be reached at [email protected] .

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