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U.S. District Judge Leonard Sand of the U.S. District Court for the Southern District of New York weighed in on the administration of the federal death penalty Monday when he refused to allow two accused terrorists to use an internal Department of Justice study as the basis for a motion to dismiss their death penalty notices. Defendants Khalfan Khamis Mohamed and Mohamed Rashed Daoud Al-’Owhali, who will go on trial in January for their roles in the bombings of two U.S. embassies in Africa in 1998, claimed that the application of the federal death penalty is influenced by geography and the defendants’ race. To support that claim, they cited concerns over racial and geographic disparity in the application of capital punishment raised by the “1988-2000 Survey of the Federal Death Penalty System,” released by the Department of Justice in September. But Sand, in United States v. Bin Laden, 98 Cr. 1023, said a closer look at statistics cited in the survey provides no basis to dismiss death penalty notices against Mohamed and Al-’Owhali. Sand first said that “to some degree, the racial statistics presented in the DOJ study are indeed troubling.” He said that at each step of the federal capital-approval process — the procedures that must be followed before a prosecuting attorney actual seeks the death penalty — “more blacks (always) and Hispanics (sometimes) are selected to face the death penalty than whites.” For example, he said that between January 1995 and July 2000, of the recommendations to seek the death penalty by the nation’s 94 U.S. Attorneys, 26 percent involved white defendants, 44 percent involved black defendants and 21 percent involved Hispanics. But Sand went on to note that these statistics and others “fail to account for the fact that, at each level of decision-making, the pool of federal defendants eligible for capital approval may be filled with different numbers of a given racial group.” Continued Sand, “Perhaps the reason why, between January 1995 and July 2000, the Attorney General authorized seeking the death penalty against more blacks than whites can be explained by the fact that more blacks were capital-eligible to begin with.” And in a footnote, Sand said, “This, of course, raises a further question: are minorities being charged by U.S. Attorneys with capital-eligible offenses at greater rates than whites who commit similarly culpable conduct?” However, where the Justice Department survey compares relative rates of capital approval within each racial group and at each decision-making step, Sand said that “the resulting statistics are far less startling.” For instance, he said, between January 1995 and July 2000, the 94 U.S. Attorneys as a whole recommended seeking the death penalty against 36 percent of the white defendants charged with capital-eligible defenses, compared with 25 percent of black defendants and 20 percent of Hispanic defendants. That statistic and others, he said, show that “black and Hispanic defendants who are capital-eligible are actually being approved for the federal death penalty at lesser rates than their white counterparts.” While the survey also suggests that geography has an impact on the likelihood that a defendant will receive the death penalty, he said, “none of the figures relating to geographic distribution S controls for the level of criminal activity underlying defendants’ indictments, or for contextual differences among the various federal districts.” FAILURE TO PROVE Sand said the survey noted that 21 of the 94 U.S. Attorneys never charged a defendant with a capital eligible offense during that five-year period. And in the Southern District of New York, U.S. Attorney Mary Jo White sought the death penalty against only 12 percent of the district’s capital eligible defendants, compared with much higher rates in other districts. Turning to the defendants in this case, Sand concluded they had “fallen far short” of showing “prima facie proof of discriminatory effect.” He said the defendants, in order to support a claim of violation of equal protection, were required to establish that at least one of the decision-makers on their case, either White, Attorney General Janet Reno, or Reno’s Review Committee on Capital Cases, had systematically declined to capitally prosecute non-African-Arabic defendants in similar cases. But there are no cases similar to the bombings of the embassies in Kenya and Tanzania that killed 214 people and injured hundreds more, except, he said, for the Oklahoma City bombing, and the perpetrators of that crime, Timothy McVeigh and Terry Nichols, “went to trial facing the death penalty.” Attorneys for Mohamed and Al-’Owhali had also asked that the Justice Department study be allowed to serve as the foundation for their alternative request for discovery on the government’s “capital charging practices in [their own] and other capital cases.” But because the two men had produced “absolutely no evidence” that they had “been treated differently from persons of other races who are comparably situated,” and his review of the study does not support such a claim, Sand denied the request. Assistant U.S. Attorneys Paul W. Butler, Patrick Fitzgerald, Kenneth M. Karas, Michael J. Garcia and Andrew C. McCarthy represented the government. Frederick H. Cohn, Laura Gasiorowski and David Preston Baugh represented Al-’Owhali. David A. Ruhnke, Jeremy Schneider and David Stern represented Mohamed.

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