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After a year of judicial discontent, contentious appellate wrangling, and internal strife in the San Francisco U.S. attorney’s office, a prickly capital gang prosecution has hit another bump: the ongoing turmoil surrounding Attorney General Alberto Gonzales. The case against members of Visitacion Valley’s Down Below Gang has been a time and money sink in the San Francisco federal building for nearly three years. It reached a tense crescendo last July when U.S. District Judge William Alsup accused prosecutors of “thumbing their nose” at him when they refused to comply with his order to turn over discovery information to the defense. Over the last nine months, much of the tension has dissipated. The Ninth Circuit earlier this year struck down Alsup’s discovery order, and eight defendants entered guilty pleas, substantially reducing the weight of the case on Alsup’s docket. Also, last November, defendants Emile Fort and Edgar Diaz � the two for whom the Justice Department decided to seek execution � reached plea deals with the U.S. attorney’s office, agreeing to spend 40 years in federal prison. But Gonzales never signed off on the deals. Earlier this year, government sources said the holdup was due to Gonzales’ preoccupation with the ongoing U.S. attorney firing scandal. That was the perception among defense lawyers, too. “For awhile, I thought it’s what we now know to be Alberto Gonzales’ well-known memory problem, and he forgot about it,” said Michael Thorman, a partner at Bonjour, Thorman, Baray & Billingsley representing Fort. “It was always ‘any day now, any day.’ It was always around the corner,” said Fort’s other lawyer, Bolinas solo Michael Satris. Assistant U.S. Attorney David Hall, lead prosecutor on the case, did not return a call for comment by press time. Another complication came up earlier this year when a defendant formerly known � because he was on the lam � as “Redacted Defendant Number One” came into the custody of federal authorities.
The defense plans to file a writ of certiorari, hoping the U.S. Supreme Court will reverse the Ninth Circuit ruling to strike down Alsup’s discovery order.

That man, Ramon Milburn, is unlikely to face execution, since he’s not accused of pulling the trigger in any of the killings. But at a Tuesday hearing and in a court filing last week, lawyers indicated that D.C.-based Justice Department officials are balking at approving plea deals for Fort and Diaz without Milburn agreeing to plead guilty as well. In a joint filing signed by prosecutors and defense lawyers, the government didn’t refer to the pleas. But prosecutors did express a desire to handle the defendants in a single proceeding. “The government’s overarching interest is that all defendants go to trial at the same time,” Assistant U.S. Attorney William Frentzen wrote. In their section of the filing, defense lawyers � led by Thorman � offered more specific information. Plea deals, they wrote, “have been pending approval in Washington for some time now. With Ramon Milburn’s arrest, the Justice Department has decided not to act on the Diaz and Fort plea bargains until Milburn’s position in this litigation can be determined.” Both sides requested that Alsup delay the trial, currently set for September, to work out the plea issues and � if the plea deals don’t materialize � to figure out how to deal with several issues, including the discovery spat that already went to the Ninth Circuit. In fact, the defense wrote, they’re planning to file a writ of certiorari in an attempt to get the U.S. Supreme Court to reverse the Ninth Circuit ruling on Alsup’s discovery order. Considering the various factors, Alsup on Tuesday agreed to the continuance with little of the frustration he showed last year, when he said the government’s failure to comply with his discovery order could turn the case into a “train wreck.” But he did say that he’s not averse to making the D.C. officials in charge of approving the plea deals tell him why they’re delaying. “I can order them to come out and explain why they’re holding up this case,” he said.

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