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Attorney General John Ashcroft is overlooking U.S. attorneys’ recommendations and asking juries for death sentences at a much higher rate than his predecessors, according to lawyers who follow capital cases. Ashcroft’s decisions have conflicted with U.S. attorneys’ desires to seek a lesser sentence a dozen times since taking office. At this rate, the attorney general will soon eclipse the number of times the same thing happened during the entire seven-year reign of Janet Reno. “The number of disagreements between the local U.S. attorney and the attorney general is increasing, and most importantly it’s only increasing in one direction,” said professor David Bruck of the Washington and Lee University School of Law, one of a handful of Federal Death Penalty Resource Counsel lawyers who assist courts in capital cases nationwide. The trend is important for the Northern District of California, where one case is authorized for the death penalty and four more are eligible. If the Justice Department seeks death in those cases, it will likely drive up the district’s already-high defense costs, which have been the source of past congressional criticism. The trend is also significant because the decisions are nearly irreversible — under Ashcroft, the Justice Department has instituted a policy of not allowing plea deals once death is sought, unless Ashcroft himself approves the deal. Courts may now find themselves being asked to fund defense lawyers’ efforts to find mitigating evidence much earlier than was usual under Reno. Bruck, who tracks the numbers closely, said they demonstrate that a U.S. attorney’s recommendation “simply is not, any longer, particularly reliable.” No one knows that better than San Francisco lawyer John Grele, whose client is counted among the 12 “overrides.” “[The lawyers] should be prepared for Mr. Ashcroft to override those decisions,” said Grele, who added that a lawsuit may be filed over his experience with the Justice Department. PARTING OF THE WAYS A Justice Department spokeswoman could not confirm Bruck’s numbers. “I’m not aware of any of those numbers being made public,” said Casey Stavropoulos. Although Reno and Ashcroft are regarded as similar in many respects in how each handles the death penalty, Bruck and other Federal Death Penalty Resource Counsel lawyers say they seem to differ on how much deference to give U.S. attorneys. The Justice Department did not respond to numerous requests for comment on the issue. Of the approximately 30 cases Ashcroft approved for the death penalty, 12 were cases where the U.S. attorney recommended a lesser sentence, according to Bruck’s numbers. In Reno’s tenure, she approved 161 capital prosecutions, but just 26 of those differed from the local recommendation. “I think it reinforces my view … that you can’t just take the U.S. attorney’s recommendation to the bank,” said defense attorney George Cotsirilos Jr., one of the few San Francisco Bay Area lawyers with federal death penalty experience. “Courts should be aware of that, too.” According to Federal Public Defender Barry Portman, U.S. attorneys may not be happy about the developments. “I have heard that there have been rumblings from U.S. attorneys around the country that they’re getting the worst of the Reno and now the Ashcroft administrations in terms of micro-managing their cases,” Portman said. A spokesman for the U.S. attorney’s office in San Francisco declined to comment on Portman’s assertion. It is widely believed that the government’s intention to seek the death penalty against Grele’s client, Rico “Smiley” Garcia, is the result of Ashcroft’s decision to overlook the local U.S. attorney’s recommendation. The case also serves notice that no matter how well respected the local prosecutor, his or her opinion will not always carry the day at Main Justice. Garcia is part of the ongoing Nuestra Familia prison gang case, in which former U.S. Attorney Robert Mueller III did not notify defense lawyers that he would seek death against any defendant — something local prosecutors must do if they intend to seek the death penalty. Mueller served as the acting deputy attorney general — Aschroft’s right-hand man — and went on to become director of the FBI. However, after the Justice Department reviewed the case, it decided to seek the death penalty against Garcia, an alleged gang member indicted on several murder counts. “You would think that the local decision would carry a great deal of weight,” Grele said. “We thought that Mr. Mueller had given it very lengthy and careful consideration.” Portman said he knew that when Mueller left, “We were going to lose a prosecutor who knew the trial value of a case and who had the respect to make a recommendation stick back in Washington.” But he added the Nuestra Familia case showed him that wasn’t necessarily true. Mueller personally prosecuted the district’s only death-penalty case in the modern era — the prosecution of Walder Rausini, who pleaded guilty on the eve of trial to ordering the execution of a government witness. Rausini accepted a sentence of 40 years to life. The defense attorney in that case was Cotsirilos, who along with Grele is one of the few local lawyers to have gone through the attorney general’s review process. Just as a U.S. attorney must notify defense attorneys and offer them a chance to present mitigating evidence if the prosecutor intends to recommend death, the same is true if Main Justice intends to take up the question. That requires lawyers to investigate and develop mitigating evidence at the outset of a case, no matter what they’re told by the local prosecutor. That adds to the up-front costs of defending a case, defense lawyers say. If they don’t investigate — no matter what the U.S. attorney says — defense lawyers can be caught unprepared. ‘NEVER AGAIN’ Portman said he made that mistake once — when he was assured that the Northern District’s first death-eligible case since the federal death penalty was reinstated in 1988 would not be charged as a capital case. In 1997, John Filler opened fire one morning at a Department of Defense facility in Seaside, near Monterey, Calif., killing one co-worker and injuring another. After reviewing Filler’s medical history, however, Portman concluded that Filler wanted to die, and that the death penalty was not an appropriate sentence. He proceeded to handle the case based on preliminary assurances that prosecutors would not seek death. But as trial approached Portman was asked if he wanted to put forth any reasons why prosecutors should not seek death. After making his pitch to the Justice Department, prosecutors declined to do so. But the experience put a scare into Portman. “I decided ‘Never again, Portman, do you try to play that loose,’” he said. There is also the question of whether mitigating evidence is seriously considered by the Justice Department. “There are varying reports on the extent to which [Justice Department lawyers] do listen to you,” Cotsirilos said. While he was making his pitch to the Justice Department, Cotsirilos said, members of his client’s panel drifted in and out of the room as he spoke. When someone left the room, he said, he stopped his presentation. “I’ve talked to people who feel that they don’t listen,” Cotsirilos said. Grele, in fact, declined to talk about his experience. “The experience in Washington may be the source of some litigation, so I really don’t want to comment on it,” Grele said. A major difference between the Ashcroft and Reno Justice Departments are the rules for plea deals. Under Ashcroft, any deal after a decision to seek death must be approved at the highest level; the department wants to avoid using death as a bargaining chip. Bruck, a defense attorney himself who handled the Sharon Smith drowning case in North Carolina, said a remarkable number of defense attorneys have been able to persuade clients to accept plea deals that call for them to spend the rest of their lives in prison rather than take their chances at trial. “That is no small achievement — if you want to call it that — for a lawyer,” Bruck said at the Northern District’s recent annual conference, where he gave a presentation on the federal death penalty. “That tells you something about the skills that are needed.” Under Ashcroft, however, those skills are likely to be used far less often.

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