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The scandal over the firings of eight � or nine � U.S. attorneys may have consequences that go well beyond the circumstances of those individuals. Indeed, because of the appearance, if not the actuality, that partisan politics has infected the law enforcement decisions of all 93 U.S. attorneys, every decision now must be scrutinized in the crucible of political ideology rather than good prosecutorial practice. And no law enforcement decision requires greater scrutiny than one seeking to inflict the death penalty on an accused murderer. Consider the case of Richard James, who (along with Richard Mallay) faces the death penalty in a trial whose guilt phase is nearing completion in federal district court in Brooklyn, N.Y. If one agrees that the death penalty is an appropriate sanction, and if the government is correct on its version of the facts that, as an insurance broker in the Guyanese community, James set up policies for insureds and helped others murder them to share in the proceeds � few are more deserving of death. But, as we all know, capital punishment is as much a political decision as a legal decision. The ideology of the death penalty catapulted George Pataki into the New York state governors’ mansion when he successfully defeated Governor Mario Cuomo 13 years ago (even though no one was executed during Pataki’s 12 years in office). Currently, the death penalty is a high-profile “political” decision at Main Justice in Washington under Attorney General Alberto Gonzales, as it was under Attorney General John Ashcroft. They both have proudly acknowledged that capital punishment is a political decision � buttressed by the fact that George W. Bush defeated Al Gore in 2000 partly by leveraging “death politics” to victory. And to a large extent they are correct. If a presidential candidate campaigns on a particular platform � “tough on crime,” “immigration crackdown” or the like � if elected, he is entitled to have the attorney general execute that agenda, and demand such enforcement from the 93 U.S. attorneys he appoints around the country who truly serve “at his pleasure.” And if that agenda includes aggressive enforcement of the death penalty, despite the horrible mistakes fortunately reversed by DNA testing in recent years (too late if death had been imposed), the president is entitled to demand that the particular U.S. attorney who carries a death penalty case pull the trigger, as it were. So what is different today? Why is James entitled to any special or renewed Main Justice consideration of his seemingly worthless claim to life? After all, the U.S. attorney in Brooklyn, having reviewed the facts, requested that Ashcroft approve the death penalty for James � and he did, also presumably after having reviewed the facts. The death penalty is clearly available and James has received his Main Justice administrative review: “Now let a jury decide.” Every decision is suspect The problem, once again, is “political” � although not the benign “political” that President Bush and his supporters talk about. Because of the scandal that currently swirls around Gonzales, especially after his testimony, every political decision made by him � or even previously made at Bush Justice, which he has since endorsed � now becomes suspect. And the appearance that every one of the Bush Justice decisions was based on political, rather than legal, considerations calls into question even the decisions of the most respected and distinguished U.S. attorneys around the country � particularly if they have been overruled by Main Justice in the past over their unwillingness to load up their syringes. And, with no disrespect to many fine prosecutors in the Eastern District of New York who have not been as bloodthirsty as Main Justice would want them to be over death penalty decisions, they were indeed taken to the woodshed before they saw the light. That is, in a previous case in which prosecutors recommended against the death penalty, and had indeed cut a plea deal with defendant Jairo Zapata, Ashcroft nonetheless ordered them to seek the death penalty. The appearance of subtle changes in law enforcement policy further contaminates decisions by frontline prosecutors nationwide and raises even more serious questions. The president’s supporters like to spin the Gonzales firings as simply the administration’s prerogative to enforce policy through “political” appointees. But when the integrity of Main Justice’s decisions in this administration has been so undermined by questions about the attorney general’s credibility, should decisions about “death” be left in his hands? Is it possible that prosecutors around the country sought the death penalty against reprobates like James, when they initially declined to seek the death penalty in similar or even more compelling cases, for fear that they would be fired by the administration? As things stand now, with an attorney general who enjoys no credibility even among many supporters in the president’s own party, how can the public know for sure? Joel Cohen is a partner at Stroock & Stroock & Lavan in New York who practices white-collar criminal law. Bennett L. Gershman is a professor at Pace University School of Law and the author of Trial Error and Misconduct (Lexis Law Publishing 1997).

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