By David Hechler
The National Law Journal, November 29, 2004
www​.law​.com

The con­tro­ver­sial tenure of Attorney General John Ashcroft is already being debat­ed, even before he departs. But one aspect of his lega­cy is very much in doubt.

Will his effort to fed­er­al­ize the death penal­ty be viewed as a suc­cess? And will his pre­sumed suc­ces­sor, Alberto Gonzales, car­ry on Ashcroft’s aggres­sive approach, over­rul­ing pros­e­cu­tors’ deci­sions not to seek cap­i­tal pun­ish­ment a third of the time?

This is not a sub­ject the out­go­ing attor­ney gen­er­al has tout­ed among his accom­plish­ments. In a long list of ​“suc­cess­es” linked to the farewell let­ter post­ed on the Justice Department Web site, he nev­er men­tioned the death penalty.

Yet the issue car­ries enor­mous emo­tion­al weight, and Ashcroft’s actions con­tin­ue to spur debate. Just this month, two cas­es brought it to the fore. One raised the pos­si­bil­i­ty that Gonzales will be flood­ed with requests to recon­sid­er Ashcroft’s death penal­ty deci­sions. The sec­ond under­scored his pen­chant for over­rul­ing local pros­e­cu­tors, which some­times ham­strung their abil­i­ty to nego­ti­ate coop­er­a­tion agree­ments with defendants.

On Nov. 12, Nicholas Garaufis, a fed­er­al judge who sits in the Eastern District of New York, crit­i­cized Ashcroft’s deci­sion to seek the death penal­ty in the pend­ing mur­der tri­al of mob boss Joseph Massino. Convicted in July of sev­en rack­e­teer­ing mur­ders, Massino already faces a manda­to­ry sen­tence of life without parole.

“Mr. Ashcroft’s choice to make such a sober­ing and poten­tial­ly life-end­ing deci­sion now,” Garaufis read from a pre­pared state­ment at a court hear­ing, ​“after sev­er­al delays, and only after ten­der­ing his res­ig­na­tion to the President and announc­ing to the coun­try that he no longer wish­es to pre­side over the Department of Justice, is deeply trou­bling to this court.”

The judge acknowl­edged his respon­si­bil­i­ty to accept the deci­sion, but added that he hopes Gonzales, upon tak­ing office, will ​“reach an inde­pen­dent assess­ment.” ​“Accordingly,” Garaufis said, ​“at the appro­pri­ate time, I shall issue an order direct­ing the Government to resub­mit the mat­ter to the new Attorney General for his consideration.”

Four days lat­er came the announce­ment that Ashcroft had rescind­ed an order he issued in January 2003 demand­ing that pros­e­cu­tors seek the death penal­ty in the mur­der tri­al of Jairo Zapata. The ear­li­er deci­sion drew imme­di­ate fire because lawyers from the U.S. Attorney’s Office for the Eastern District of New York had already signed a coop­er­a­tion agree­ment with Zapata. The attor­ney gen­er­al’s action was crit­i­cized for jeop­ar­diz­ing future agreements.

John Nowacki, a spokesman for the Justice Department, declined to address the crit­i­cism direct­ly. ​“We don’t com­ment on the deci­sion-mak­ing process in spe­cif­ic cas­es,” he said. ​“The process that’s in place is one that ensures that each case is care­ful­ly and thor­ough­ly reviewed at sev­er­al lev­els before com­ing to the attor­ney gen­er­al for his ulti­mate deci­sion.” The goal is a sys­tem that deliv­ers ​“fair­ness and con­sis­ten­cy in its appli­ca­tion across the coun­try,” he said.

Not even Massino’s lawyer, David Breitbart, knows whether Ashcroft over­ruled Roslynn Mauskopf, the U.S. attor­ney for the Eastern District of New York, when he decid­ed to seek the death penal­ty. That infor­ma­tion is secret, said Breitbart, of coun­sel at New York’s Mintz & Gold. He added that he was ​“pleas­ant­ly sur­prised” by the judge’s statement.

Robert Blecker, a pro­fes­sor at New York Law School who sup­ports the death penal­ty, though he has mis­giv­ings about the way it has been fed­er­al­ized, had a dif­fer­ent reac­tion. ​“It’s not for a fed­er­al judge to direct the exec­u­tive branch to recon­sid­er its poli­cies,” said Blecker, who teach­es a course on con­sti­tu­tion­al his­to­ry. ​“He can state his opin­ion.” He can urge Gonzales to recon­sid­er. ​“But he has no author­i­ty to do it,” Blecker said.

The judge declined to comment.

John Martin, who was a fed­er­al judge in the Southern District of New York before he resigned in 2003, said he saw noth­ing inap­pro­pri­ate about the judge express­ing his opin­ion. He sug­gest­ed that oth­ers might also seek to have the new attor­ney gen­er­al review Ashcroft’s deci­sions. ​“Any defense lawyer rep­re­sent­ing a defen­dant would want to take any avenue they can to avoid the death penal­ty,” Martin said.

Currently, 71 fed­er­al death penal­ty tri­als are pend­ing nation­wide, accord­ing to Kevin McNally, a lawyer at the Federal Death Penalty Resource Counsel Project, which assists cap­i­tal defend­ers and func­tions as a clear­ing­house. In at least 15 of the pend­ing cas­es Ashcroft over­ruled local pros­e­cu­tors, McNally said. All told he has over­ruled pros­e­cu­tors on at least 42 of 128 cap­i­tal defen­dants (33%). He over­ruled pros­e­cu­tors the oth­er way-declin­ing to request the death penal­ty-on eight defen­dants. Though dis­agree­ments between the Justice Department and U.S. attor­neys are not always dis­closed, McNally said that his infor­ma­tion comes from defense lawyers and public records.

No one can know, of course, what Gonzales will do. His con­fir­ma­tion hear­ing will not be held until January, at the ear­li­est. Several close observers did not expect changes. Ronald Tabak, who co-chairs the American Bar Association’s Death Penalty Committee, said an arti­cle in the Atlantic ​“does not give one great hope that there will be greater atten­tion devot­ed to these cases.”

“The Texas Clemency Memos,” by Alan Berlow (July/​August 2003), described the way Gonzales briefed George W. Bush on death penal­ty cas­es when Bush, then gov­er­nor of Texas, con­sid­ered clemen­cy peti­tions. As Bush’s legal coun­sel, Gonzales wrote sum­maries that were ​“Bush’s pri­ma­ry source of infor­ma­tion,” Berlow wrote. ​“Many have a clear pros­e­cu­to­r­i­al bias,” he con­clud­ed, and they ​“repeat­ed­ly failed to apprise the gov­er­nor of cru­cial issues in the cas­es at hand.”

McNally found rea­son to hope that the new attor­ney gen­er­al will over­rule local pros­e­cu­tors less fre­quent­ly. Ashcroft him­self seems to have done so spar­ing­ly over the past six months, McNally said. His col­league, David Bruck, sug­gest­ed Gonzales may be best posi­tioned to bring about change, ​“like Nixon going to China.”

The land­scape first changed not under Ashcroft but under Janet Reno, Bill Clinton’s attor­ney gen­er­al. Between 1988, when the death penal­ty was restored to the fed­er­al arse­nal, and 1995, few of these cas­es were tried in fed­er­al court. But the Federal Death Penalty Act of 1994 great­ly expand­ed the offens­es for which it could be sought. Trying to impose a mea­sure of con­trol, Reno began requir­ing pros­e­cu­tors to clear deci­sions on all death-eli­gi­ble cas­es, which was­n’t pop­u­lar with all of them.

“I got the impres­sion that they want­ed to make the deci­sion them­selves,” Reno recalled. ​“I thought it was impor­tant that there be some over­ar­ch­ing coor­di­na­tion of these cases.”

Lawyers with very dif­fer­ent views agreed that coor­di­na­tion is appro­pri­ate. But many expressed reser­va­tions about the changes that Ashcroft intro­duced. The most con­tro­ver­sial was the require­ment that U.S. attor­neys clear plea bar­gains with him, which he added to the pro­to­col in 2001; under Reno, they had auton­o­my. This was the most impor­tant change from Reno’s admin­is­tra­tion to Ashcroft’s, accord­ing to Mary Jo White, who, as the U.S. attor­ney for the Southern District of New York from 1993 to 2002, served under both.

To tack­le the con­spir­a­cy cas­es so com­mon in fed­er­al pros­e­cu­tion ​“you have to be able to secure the coop­er­a­tion of peo­ple who are, at least in the­o­ry, death penal­ty-eli­gi­ble,” said White. ​“If you bog down in that process, you can lose that abil­i­ty.” Delays change minds, which can destroy cas­es against indi­vid­u­als ​“high­er up on the cul­pa­bil­i­ty scale,” she said.

In the­o­ry, it’s pos­si­ble to secure quick autho­riza­tion for coop­er­a­tion agree­ments, she said. ​“But I’ve nev­er seen any sys­tem work that effi­cient­ly in Washington. Once you’ve got a com­mit­tee in place,” she said, refer­ring to the Justice Department com­mit­tee that con­sid­ers death penal­ty cas­es and rec­om­mends action by the attor­ney gen­er­al, ​“you’re already talk­ing about time delays.”

To many, the Zapata case illus­trat­ed the prob­lem. Implicated in a 1993 mur­der, Zapata was in prison on a gun con­vic­tion when he was ques­tioned in 1997. He con­fessed his involve­ment and impli­cat­ed oth­ers, accord­ing to his attor­ney, Peter Tomao, a solo prac­ti­tion­er in Garden City, N.Y.

It’s unclear why noth­ing hap­pened for years. It began as a state case and was tak­en over by the feds, Tomao said. It should have been resolved under Reno, when pros­e­cu­tors still con­trolled their plea agree­ments, but the indict­ment was­n’t unsealed until 2002. A deal was worked out in December of that year, only to be over­ruled by Ashcroft the following month.

“Overruling rec­om­men­da­tions against the death penal­ty in cas­es where the defen­dants have agreed to coop­er­ate inevitably jeop­ar­dizes the abil­i­ty of U.S. Attorneys to con­duct such inves­ti­ga­tions,” U.S. District Judge John Gleeson of the Eastern District of New York wrote last year in the Virginia Law Review. 89 Va. L. Rev. 1697. ​“After Zapata, well-coun­seled defen­dants are unlike­ly to consider cooperation.”

One year after Gleeson’s arti­cle was pub­lished, Ashcroft changed his mind and a new plea was quick­ly worked out. Tomao does­n’t know what caused the change, but he’d filed motions in August to dis­qual­i­fy the pros­e­cu­tor (so that he could call her as a wit­ness), and to unseal records show­ing that Zapata’s co-con­spir­a­tors, who were involved in mul­ti­ple homi­cides, were not fac­ing the death penalty.

George Stamboulidis, a long-time fed­er­al pros­e­cu­tor who is now a part­ner at Baker & Hostetler’s New York office, expressed dis­may at the Justice Department’s pos­ture. ​“It breaks morale for pros­e­cu­tors if they think their office has worked well and come up with bal­anced opin­ions, and then all of a sud­den they get over­ruled by Washington for rea­sons they may not under­stand or agree with.”

Rory Little, a pro­fes­sor at the University of California Hastings College of the Law, said it’s espe­cial­ly prob­lem­at­ic to over­rule the way Ashcroft has. ​“People don’t mind being told what they can’t do,” he said. ​“But they real­ly resent being told what they have to do. Lawyering is an art, and if your heart’s not in it, juries fig­ure that out pretty quickly.”

According to McNally, the three states in which Ashcroft has autho­rized the most death penal­ties are Virginia, New York and California. He has autho­rized a total of 40 tri­als. Half are pend­ing. The oth­ers have result­ed in no death sentences.

The cost, said White, is not just in the mon­ey and resources expend­ed. It may also be reflect­ed in cas­es not brought. Her office used to pros­e­cute eight or 10 large rack­e­teer­ing cas­es a year. Had she sought the death penal­ty in each, she said, it could have been reduced to two. ​“And that would not be a good thing for the public.”