That's the title of Dan Levine's news article in Law.com's Recorder. LINK
Erick Lopez, aka "Spooky," is a hard-core MS-13 gang member who killed two people in San Francisco's Excelsior district, say federal prosecutors. He is eligible for the death penalty.
Luis Herrera, aka "Killer," is also allegedly part of MS-13, and he too is eligible for capital punishment. But while prosecutors say Herrera took part in a different murder -- the February 2009 killing of Moises Frias at the Daly City, Calif., BART station -- they don't think Herrera pulled the trigger.
Lopez and Herrera are two of six San Francisco Bay Area MS-13 defendants for whom Attorney General Eric Holder Jr. must ultimately decide whether to seek capital punishment. The relative culpability of each is a key factor the Justice Department will consider, so where Holder draws the line among those six MS-13 defendants will be one measure of prevailing death penalty attitudes in Washington, D.C., say attorneys involved in the case.
Over the past few weeks, pairs of defense lawyers representing some of the accused have filed into a conference room on Golden Gate Avenue to pitch Northern District of California U.S. Attorney Joseph Russoniello on why their clients don't deserve to die. U.S. District Judge William Alsup has set a Sept. 15 deadline for the DOJ to make up its mind.
Before becoming attorney general, Holder was critical of racial disparities in death penalty enforcement. And while he has said he is personally opposed to capital punishment, during confirmation he promised to enforce the law. At a news conference this past spring in Oakland, he called it "the toughest decision I have to make as attorney general."
Holder has green-lighted fewer death cases than his Republican predecessors, but he is still authorizing them. He OK'd seven out of 61 eligible death cases last year, or 11 percent, according to statistics provided by Federal Death Penalty Resource Counsel, an organization that assists defense lawyers nationwide. Former Attorney General John Ashcroft -- viewed as an aggressive death penalty proponent -- authorized 22 percent of 631 cases, while Alberto Gonzales said yes to 19 percent, and Michael Mukasey to 13 percent.
In the Northern District, Holder pulled back on one gang case last year and accepted a plea deal after trial had already begun. But he didn't retreat on two others. A jury convicted Dennis Cyrus last year on murder in furtherance of a racketeering enterprise, but declined to impose the death penalty. And in San Jose, a death case is currently under way against Ahn The Duong, accused of killing eight people while leading a crew of jewel robbers.
The MS-13 case appears to be the first Northern District case in which Holder will make the original call. First brought in 2008 against 29 defendants (many of whom are not charged with capital offenses), the case is typical of the huge gang prosecutions under Russoniello and former U.S. Attorney Kevin Ryan.
Per protocol, the local U.S. Attorney makes a recommendation to the DOJ's capital case unit in Washington. That group does its own workup, and the attorney general's review committee then considers the case and votes, said Hastings College of the Law professor Rory Little, who served on the committee under Janet Reno.
Holder will ultimately accept or reject their conclusions.
And:
Little, who has studied the federal death penalty and is skeptical as to its utility, served on Reno's committee with a capital prosecutor from Florida. Even though the two had radically different opinions about capital punishment, he said, they only disagreed in one out of 20 cases.
Reno never overruled a U.S. Attorney's recommendation against death, he said, while Ashcroft and Gonzales did. A spokesman for Holder did not respond to questions about current DOJ policies.
Related posts are in the federal death penalty index.
Comments