September 29, 2004

 Ashcroft Is Undeterred in Push for Capital Cases
 * Despite waning jury support, the attorney general wants more federal death penalties.
 By Richard B. Schmitt, Times Staff Writer

 WASHINGTON -- Shortly after arriving at the Justice Department nearly 
 four years ago, Atty. Gen. John Ashcroft was faced with a new 
 internal study that raised serious questions about the application of 
 the federal death penalty.

 A small number of federal districts, including pockets of Texas and 
 Virginia, were accounting for the bulk of death cases. Experts 
 decried the geographical disparities.

 For Ashcroft, an ardent supporter of capital punishment, the solution 
 was to seek the death penalty more often and more widely.

 Since then, he has pushed federal prosecutors around the country -- 
 often over their objections -- to be more aggressive in identifying 
 prosecutions that could qualify as federal capital cases. Much of 
 that effort has been in states that have banned or rarely impose 
 capital punishment.

 But Ashcroft's quiet campaign, which has been overshadowed by his 
 prosecution of terrorism cases, has made few inroads.

 With public support for the death penalty in decline, jurors have 
 rebuffed calls for the death penalty in 23 of the 34 federal capital 
 cases tried since 2001, according to the Federal Death Penalty 
 Resource Counsel Project, a court-funded group that assists defense 
 lawyers in capital cases.

 But the poor track record, added time and significantly higher cost 
 of death penalty prosecutions have not dissuaded Ashcroft.

 This month, federal prosecutors began a capital murder trial in Iowa, 
 where no one has been executed since the state abolished the death 
 penalty in 1965. Vermont, another state that long ago abolished the 
 death penalty, is gearing up for its own federal capital trial next 
 year.

 And in New York -- which hasn't executed a federal prisoner since the 
 Rosenberg spy case in 1953, and where jurors have already rejected 
 two Ashcroft capital cases -- a federal court on Long Island is 
 expected to take up another death case next year.

 Ashcroft and the Justice Department contend the moves represent an 
 effort to make the use of the federal death penalty more fair and 
 uniform.

 "Federal law should be standard across the nation," said Justice 
 Department spokesman Mark Corallo. Ashcroft declined to be 
 interviewed. "A person who commits a heinous crime under federal law 
 in one state should not fare better or worse than someone who commits 
 the exact same crime in another state."

 The threat of execution, advocates add, has helped push the number of 
 violent crimes around the country to a 30-year low.

 The Justice Department under Ashcroft has succeeded at least three 
 times in winning death penalties in anti-death jurisdictions.

 They include a death sentence in January in Massachusetts, whose high 
 court found the state death penalty unconstitutional in 1984, and in 
 a murder case in May 2003 on the Navajo Indian Reservation, which has 
 traditionally opposed capital punishment for cultural reasons.

 But the campaign has triggered accusations that the Justice 
 Department has overreached and is manipulating the legal process.

 Some argue that the department is bringing what are essentially local 
 cases to trial in federal court to achieve the political aim of 
 making the death penalty a reality in all 50 states.

 In doing so, they say, the Bush administration -- usually a staunch 
 advocate of the primacy of states' rights -- is making an end run 
 around local laws and customs against capital punishment. Federal 
 death penalty law, they argue, should be reserved for cases involving 
 crimes such as terrorism, racketeering or the murder of a federal 
 official.

 Last year in Michigan, a state that did away with the death penalty 
 in 1846, Ashcroft approved a capital trial for two brothers in a 
 drug-related murder case. Jurors convicted both men but rejected the 
 death penalty.

 The Justice Department said it was a federal case because it was a 
 murder linked to drug trafficking, which is punishable by death under 
 federal law.

 But a defense lawyer called it a routine local murder.

 "It was no different than many, many crimes in Michigan that never 
 see the federal courts, and people end up in state prison for life," 
 said Paul Mitchell, a veteran defense lawyer involved in the case.

 "I do not think the federal government has any business coming into 
 our state and attempting to basically force a death penalty on us as 
 a state that does not accept the death penalty or has not until now," 
 Mitchell said.

 He also represented a defendant in a 2002 murder case in which the 
 Justice Department did win a death sentence. The victim had been 
 found in a lake in a national forest in Michigan. Mitchell said he 
 had never encountered a capital case until Ashcroft became attorney 
 general.

 In some cases, the Justice Department is overriding the wishes of its 
 own federal prosecutors, undoing plea bargain agreements they made 
 that took the death penalty off the table in exchange for the 
 cooperation of defendants in continuing investigations. Federal 
 prosecutors declined to discuss the matter, but court records show 
 numerous examples.

 One such case was in Vermont, which was one of the first states to 
 impose capital punishment -- during the Revolutionary War -- but 
 which hasn't executed anyone since 1954 and abolished the death 
 penalty in 1964.

 Now a young drifter named Donald Fell is facing possible death for a 
 cocaine-induced killing and carjacking spree that left three people 
 dead. Federal authorities have asserted jurisdiction because he drove 
 one of his victims across the state line, beating her to death as she 
 pleaded for her life.

 The federal judge in the case initially threw out the possibility of 
 the death sentence, saying it was unconstitutional. He was overruled 
 by an appeals court.

 Vermont federal prosecutors proposed a plea agreement with the 
 defendant that would have resulted in a life sentence. They were 
 overruled by Ashcroft.

 Michael Mello, a law professor at Vermont Law School, said it was a 
 waste of time, effort and resources to pursue a capital case in his 
 state, because jurors were disinclined to sentence anyone to death.

 "I am provincial enough to believe that local prosecutors and local 
 judges are the real experts on what local juries are likely to do," 
 Mello said.

 New Yorkers have rejected Ashcroft capital cases twice in less than a 
 year.

 In December, a federal jury in Brooklyn rejected the death penalty 
 for a Jamaican immigrant, Emile Dixon, who was convicted of killing a 
 witness to keep him from testifying in a murder case against a fellow 
 gang member.

 A life sentence was imposed after defense attorneys disclosed to 
 jurors in closing arguments that Ashcroft had directly intervened in 
 the case -- dismissing a recommendation by New York prosecutors 
 against seeking the death penalty.

 "You don't have to listen to John Ashcroft," the defense attorney, 
 Richard Levitt, exhorted the jury.

 Last month, prosecutors persuaded a judge in another death penalty 
 case in New York to preclude defense lawyers from introducing similar 
 evidence of an Ashcroft override during the penalty phase of that 
 case.

 That jury, which had convicted two Bronx heroin dealers of murdering 
 a police informant, returned in less than two hours with a unanimous 
 sentence: life without parole.

 The federal district judge, Jed S. Rakoff, expressed personal 
 disagreement with the Justice Department's role. "A reasonable 
 exercise of discretion by the powers that be would not have favored 
 seeking the death penalty in this case," he said.

 The legal and cultural landscape surrounding the death penalty has 
 shifted during the last three decades.

 The Supreme Court struck down state and federal death penalty laws in 
 1972, saying that the wide sentencing discretion they gave juries had 
 led to a system that was "arbitrary and capricious." States responded 
 by rewriting their capital punishment laws, and the court reinstated 
 the death penalty four years later.

 The federal death penalty was restored in 1988, amid rising public 
 concern over a spike in violent crime and as states were beginning to 
 execute people on a regular basis.

 Initially limited to cases against drug kingpins, the roster of 
 death-eligible federal offenses was expanded in 1994 to include 
 kidnapping deaths, murder for hire, and fatal drive-by shootings, 
 among other crimes.

 Three federal prisoners, including Oklahoma City bomber Timothy 
 McVeigh, have been executed since the federal death penalty was 
 restored; the other two were prosecuted and sentenced in Texas.

 A handful of states continue to contribute a disproportionate number 
 of federal death cases.

 According to the Death Penalty Information Center, a Washington 
 organization that keeps statistics on such cases, of the 32 inmates 
 on federal death row as of July 1, 19 were tried and sentenced in 
 just four states: Texas, Virginia, Missouri and Georgia.

 Although a majority of Americans still support the death penalty, 
 Ashcroft's initiative coincides with a softening of the tough public 
 mood amid numerous studies showing flaws in the system. A Gallup Poll 
 showed that the percentage of people who favored the death penalty 
 for a person convicted of murder fell from 80% in the mid-1990s to 
 71% in 2003.

 Not only are there geographic disparities, but blacks are much more 
 likely to face the death penalty than are whites for comparable 
 crimes.

 Perhaps most important, the growing use of DNA and other evidence has 
 led to the release of dozens of death row inmates around the country 
 who were shown to be innocent. The clear inference has been that 
 innocent people were executed before the advent of DNA technology.

 Democratic presidential nominee Sen. John F. Kerry, who opposes the 
 death penalty except in cases of international terrorism, has vowed 
 to place a national moratorium on federal executions until he is 
 satisfied through DNA evidence that those on death row are guilty.

 President Bush, like his attorney general, is a strong proponent of 
 capital punishment, having presided over 152 executions as governor 
 of Texas.

 The number of death sentences nationally has declined from nearly 300 
 a year in the 1990s to about 150 a year, nearly all in state courts. 
 Executions have also declined since reaching a high of 98 in 1999. 
 Last year there were 65.

 The death penalty has long been one of Ashcroft's signature issues.

 As a U.S. senator from Missouri, he gained a measure of fame for 
 blocking the nomination of a black jurist from his home state to the 
 federal bench, saying the nominee had a weak record on the death 
 penalty. The judge, Ronnie White, later became chief justice of the 
 Missouri Supreme Court.

 Among his first acts as attorney general were two changes in internal 
 Justice Department rules and guidelines, which cleared the way for 
 his campaign to win more death sentences.

 He eliminated a Clinton administration rule that empowered local 
 federal prosecutors to enter plea bargain agreements that eliminated 
 the possibility of a death sentence. All such deals are now subject 
 to approval from Washington.

 Ashcroft also abolished a rule that barred federal prosecutors from 
 seeking a death sentence for the sole reason that the state where the 
 crime was committed did not have the death penalty. The rule was 
 intended to ensure that there was a legitimate federal interest in a 
 case, and to prevent prosecutors from bypassing state laws that did 
 not authorize capital punishment.

 "That little change turned out to be a big deal in states where there 
 was no death penalty," said Rory Little, a former top aide to 
 Ashcroft predecessor Janet Reno who served on her death penalty 
 review committee and is now a professor at Hastings College of the 
 Law in San Francisco.

 Reno, who was in office longer than Ashcroft has been, authorized 
 more death penalty cases. But Ashcroft has been much more insistent 
 on going to trial in death cases rather than striking plea bargains. 
 Despite that, his success rate in obtaining convictions is slightly 
 worse than his Democratic predecessor.

 Sixty-five defendants are facing federal capital trials, compared 
 with a high of 39 under Reno, said Kevin McNally, a Kentucky lawyer 
 affiliated with the Federal Death Penalty Resource Counsel Project.

 Under Ashcroft, the department has won the death penalty in a handful 
 of especially gruesome cases. But its generally poor record, critics 
 say, suggests not only waning public enthusiasm for executions but 
 also that juries and judges see through what are essentially weak 
 cases for the death penalty.

 Federal prosecutors sought a death sentence in a Connecticut case 
 last year on the theory that the defendant -- Luke Jones, a 
 Bridgeport gang leader -- killed two people to further his drug 
 trafficking and racketeering enterprise. That would have made it a 
 federal offense.

 A jury returned a conviction on the racketeering count. But the judge 
 ruled that the evidence suggested overwhelmingly that the defendant 
 had killed for another reason -- because the victim made a 
 disrespectful comment to Jones' girlfriend -- and criticized the 
 government's rationale for seeking death as "strained."

 Jones was to have been the first person in Connecticut history to 
 face the federal death penalty. He was sentenced earlier this year to 
 life in prison.

 Copyright 2004 Los Angeles Times