Judges Revolt Over Death Penalty

A revolt over capital punishment is brewing among Brooklyn's federal judges, who are appealing to Attorney General Mukasey to stem the rising number of death penalty trials over which they must preside.

Since the beginning of 2007, when the U.S. Courthouse in Brooklyn emerged as the hub of death penalty prosecutions in the Northeast, local federal judges have asked the Justice Department to reconsider decisions to seek the death penalty in four cases — nearly half the capital cases on the docket. Judges have no authority to force the Justice Department to withdraw capital charges. The judges framed their requests as just that, requests.

It is not clear how the Justice Department has responded. During court proceedings, prosecutors have said they would pass along the requests to Washington, where the final decision for whether to pursue the death penalty rests.

The judges in Brooklyn have not framed their requests in terms of ideological opposition to the death penalty. Nor have they mentioned any complaints about the strengths of prosecutors' cases. In three instances, judges have voiced concerns about the monetary and manpower costs of holding capital trials. In two of those instances, judges said outright that they didn't expect the jury to return death verdicts.

Most recently, Judge Jack Weinstein told the U.S. attorney's office in Brooklyn that its chances were "virtually nil" for getting a jury to deliver a death verdict against a drug dealer charged with dismembering two rivals, according to an order by the judge. The defendant, Humberto Pepin Taveras, is scheduled to go to trial in May. Judge Weinstein's order notes that the court is waiting for the Justice Department to review Pepin's motion for reconsideration of the capital charges.

In the order, which was released last week, Judge Weinstein appeared to make a case for why the government should forgo seeking the death penalty. Judge Weinstein wrote that the defendant, Pepin, was already in his mid-40s and willing to plead guilty in exchange for a sentence of 40 years, which "would result in a life sentence." Judge Weinstein's order also points out that the costs to the defense and prosecution to prepare the case have reached $1.5 million and will keep growing.

The order echoes comments made last year by another judge, Frederic Block, during a conference with attorneys about a
separate capital case.

"Will you kindly advise Washington that in this judge's opinion, there is no chance in the world there would be a death penalty verdict in this case?" Judge Block told prosecutors who were seeking the death penalty for a Queens drug trafficker, Kenneth "Supreme" McGriff, charged with murder for hire.

Three months later, Judge Block, in an op-ed article published in the New York Times, wrote of the monetary cost of capital trials and called for a "more prudent and realistic approach in the way the government seeks the death penalty."

Over the past 15 months, judges in the U.S. Courthouse in Brooklyn have seen five juries weigh death sentences for six defendants, including McGriff. In only one case did a jury return a death sentence, which requires a unanimous finding by the jury. That death sentence was for Ronell Wilson, who executed two undercover detectives.

The juries' track record appears to have prompted some federal judges in Brooklyn to conclude that the Justice Department is overreaching in seeking the death penalty at times.

Beyond their beliefs about a particular case, judges have a professional stake in whether prosecutors pursue death penalty charges or not. A capital trial involves a painstaking jury selection process and can extend months beyond a non-capital trial.

A defense attorney, Ephraim Savitt, who represented the man sentenced to death last year in Brooklyn, said Judges Weinstein and Block were "sending a message to Washington that this type of a program seeking death is uncalled for."

Another judge, Nicholas Garaufis, who is handling the heaviest load of capital cases in Brooklyn, has asked prosecutors to reconsider whether to go ahead with capital charges against an accused drug dealer. The defendant, Gerard Price, had been acquitted in state court of the same murder for which he now faces capital charges.

According to a transcript of the court proceeding from last September, Judge Garaufis asked an assistant U.S. attorney to allow Mr. Mukasey, whose nomination for attorney general was then pending, the chance "to make his own evaluation regarding the suitability of this case as a death penalty case."

"I'm agnostic about the outcome," Judge Garaufis said. "I just think that a clear-headed independent evaluation is in order with regard to this case."

It is not clear what became of that request.

In recent years, the Justice Department has tried to bring more uniformity nationwide to decisions to seek the death penalty for federal crimes. One result is local U.S. attorneys have less discretion to forgo the death penalty in some cases. It is not known whether prosecutors in Brooklyn were at odds with Washington over whether to purse the death penalty in any of the capital cases that judges have asked the department to reconsider.

A fourth request for reconsideration of death penalty charges came from the courthouse's chief judge, Raymond Dearie, last month in the case of a man charged with murder for hire, Gilberto Caraballo. Judge Dearie asked a prosecutor for a "response by the end of this work week" as to whether the government would reconsider seeking Caraballo's death. The Justice Department does not appear to have changed course in the case, as the death penalty phase of Caraballo's trial begins next Monday.