Table Of ContentThe Death Squad: Who Decides Who Should Die?
How DOJ Decides Who Is Tried - And Who Isn't - Under the Expanded Federal Capital
Punishment Law
Sam Skolnik
Legal Times, June 7, 1999
Every Monday at noon, a small group of lawyers files into a second-floor conference room at the Justice
Department's headquarters in Washington.
The agenda is a somber one: The officials sift through the gruesome evidence of recently filed federal
murder cases - and decide whether the government should seek the death penalty for the defendants.
The only other people present are the local U.S. attorney who'll have to present the case to a jury, and a
defense lawyer who'll have to rebut it in court. There's no notice alerting the public to the meeting, no
court reporter to make a record.
Often the session opens with a curt instruction from one of the DOJ officials to defense counsel: "This is
your nickel. Tell us what you want to tell us." During the next hour, the four-member committee listens
to all the evidence before asking the opposing advocates to leave the room while it hashes out its
recommendation.
The recommendation goes to Attorney General Janet Reno. By statute, the buck stops at the top:
Congress, in passing the 1994 Federal Death Penalty Act, said the AG must sign off on the decision
before any of the 93 local U.S. attorneys can go forward with a death penalty trial.
It's a decision that Reno is facing more and more frequently. Nearly five years after Congress widely
expanded the death penalty's reach, the federal capital punishment system is being tested as never
before.
The department is being deluged with possible death penalty cases - 166 in 1998, up from only two in
1990 and 28 in 1995. This fiscal year, the cases coming into the pipeline are on a pace with last year's
record levels. All told, Reno has authorized U.S. attorneys to pursue capital punishment in 121 cases
since 1995, or 32 percent of all those she reviewed.
Today, 21 men are condemned to death under federal law.
The U.S. Bureau of Prisons has built, at a cost of $475,000, a new lethal injection death chamber in
Terre Haute, Ind. Though the U.S. government hasn't carried out an execution since 1963, it's only a
matter of time.
Why some murder defendants get the death penalty and others do not is one of the most volatile
questions propelling the debate over capital punishment in America. And while the federal government
is stepping up its use of the death penalty, the Justice Department's process for answering this question -
particularly at the critical early stages of a case - has received very little public attention.
Reno, who has said that she opposes the death penalty but will nonetheless follow the law, refused to
speak publicly for this article, as did most of her top deputies. But interviews with nearly two dozen
defense lawyers and prosecutors who have handled both sides of federal death cases, as well as scrutiny
of recently released government statistics, do shed some light on the high-level decision-making.
In a way, the weekly Monday meeting at Main Justice is a formal version of what goes on in district
attorneys' offices around the country all the time: A prosecutor discusses a case with his or her staff,
perhaps meets with defense counsel off the record, and decides whether to pursue an execution. In fact,
capital punishment at the state level has settled into a steady routine; the states are likely to put more
murderers to death this year - 48 executed already - than at any time since the 1930s.
Yet the prosecutors and defense counsel working on federal capital punishment cases are tilling mostly
virgin ground. Once a curiosity operating on the fringes of American justice, the federal death penalty is
approaching full velocity. The U.S. government's death house is open for business. And the road that
leads there starts with the Justice Department's Capital Case Unit. Around Main Justice it's known as the
"Death Squad."
Janet Reno first formalized the process and established a protocol for handling cases internally in
January 1995, when the new death penalty law kicked in. She set up the Capital Case Review
Committee - the elite panel that hears arguments ffrom lawyers on both sides and makes the final staff
recommendations to Reno.
But last November, with the number of cases growing, Reno inaugurated another layer of review with
the larger Capital Case Unit. For staff, she cherry-picked veteran death penalty prosecutors in states like
Texas and Florida, where state-sponsored executions are a familiar feature of the criminal justice
landscape.
The Capital Case Unit is a nine-lawyer office that reviews all incoming cases in which the government
could, by law, seek death. It then sends cases on to the four-lawyer review committee.
The larger unit acts as Main Justice's overarching death penalty staff, monitoring cases and giving on-
the-ground assistance to local U.S. attorneys when needed. The review committee is the equivalent of a
board of directors. It helps Reno set policy and, most important, make the ultimate calls.
The meetings of the review committee are chaired by Deputy Assistant Attorney General Kevin
DiGregory, a top official in the Criminal Division. He's a former local homicide prosecutor in Dade
County, Fla., where he worked under Reno and tried several death penalty cases before arriving at the
DOJ. DiGregory is the only official at Justice who has served on the review committee since its
inception.
The chief of the Capital Case Unit is Margaret Griffey - like DiGregory, a veteran former homicide
prosecutor. Reno hired Griffey - as well as Griffey's second-in-charge, Paul Ridge, a former Florida
prosecutor - to run the unit last fall. The DOJ then recruited seven other lawyers, also mostly from state
prosecutor offices around the country. Both Griffey and Ridge decline to comment about the unit or
their roles.
Griffey is well-known among death penalty lawyers for her aggressive advocacy and willingness to test
the law. Defense lawyers who have appeared before the review committee say they believe Griffey is
already making her mark on the department's review process.
For several years, Griffey was the lead capital prosecutor in the Texas attorney general's office, handling
death penalty appellate work. She gained a reputation as a smart and tough advocate in the most avid
execution state in the nation. She pressed for the execution of convicted multiple murderer Henry Lee
Lucas, who was given a rare last-minute commutation by Republican Gov. George W. Bush, who
concluded that Lucas may well have been in Florida at the time of the slaying in question. Lucas is now
serving out numerous life sentences.
Among other cases, Griffey appeared before the U.S. Supreme Court in 1992 in Herrera v. Collins. She
argued that even the strongest claims of new proof of innocence for convicted death row inmates should
never be the sole basis for a stay of execution.
The Court partly agreed: Proving post-conviction claims of innocence could be the basis for habeas
corpus relief, wrote Chief Justice William Rehnquist for the majority in 1993, but the burden "would
necessarily be extraordinarily high." Prosecutors who've seen Griffey in action say that her broad
experience with the death penalty made her a logical choice for the post.
"She's well-regarded by judges in her state," says Rory Little, a former DOJ review committee member
who recently published an article on the process in the Fordham Urban Law Journal. "She's more than
willing to let defense lawyers have their say."
Justice Department officials say the goal of the protocol is to build uniformity and consistency into the
decisions on who faces the death penalty.
"In the federal system, the attorney general makes the ultimate decision in every case," DiGregory wrote
in a prepared statement issued in response to questions about the process. "This centralized system was
established in an effort to ensure, as best possible, consistency and fairness of treatment of similarly
situated defendants across the nation, recognizing that no two cases and no two defendants are exactly
alike."
Beyond that, DiGregory declined to answer most questions regarding the process.
Associate Deputy Attorney General Jonathan Schwartz, who also serves on the review committee, adds
in a written statement: "In response to concerns raised in part by United States Attorneys' Office and
defense counsel, the Committee instituted a set of procedures late last year that were designed to help
demystify its work by making it more transparent and regularized."
Yet if the Justice Department has taken steps to clarify the process for the U.S. attorneys and defense
lawyers who are enmeshed in it - a point that some defense counsel still dispute - it has not been eager to
publicize this fact. What follows is a description of the department's system for reviewing potential
death penalty cases, according to current and former DOJ officials and defense lawyers familiar with the
system.
After any U.S. attorney's office charges a defendant with one of the 60 or so crimes that are "death
eligible" under the federal law, it is obligated to refer the matter to Main Justice - along with an
overview of the case, materials from the defense lawyer, and a recommendation as to whether or not to
seek the death penalty.
A line lawyer with the Capital Case Unit reviews the file, and within two to four weeks presents an
analysis of the case to Griffey and Ridge - the top two officials in the unit. The analysis, along with the
unit's proposed recommendation, is then sent to the review committee.
The review committee meets weekly - on Monday at noon - with the local assistant U.S. attorney
working the case (or on some occasions, the U.S. attorney); the defense lawyer or lawyers involved; and
a Capital Case Unit team including Griffey, Ridge, and the line assistant.
The defense counsel speak first. Their argument, in which they try to persuade the prosecutors why the
law dictates the client should be spared, usually lasts 30 minutes or less. When they are finished, they
leave the room.
The U.S. attorney then gets a chance to rebut the defender's remarks and present the government's
viewpoint. About half the time, the U.S. attorney recommends seeking death, but almost as often
concurs with the defenders in arguing that a sentence of life in prison should be sought. The U.S.
attorney also exits the conference room when finished, leaving only the review committee and the
members of the Capital Case Unit.
Usually, the review committee reaches a tentative decision on the spot, the case unit is instructed to draft
a memo to that effect, and the U.S. attorney is brought back in and informed of the decision.
Defense lawyers are not told of the committee's decision - they have to wait for Reno's formal
announcement. Though defense lawyers are free to pass along to prosecutors additional mitigating
evidence they may come across later, this is the end of their structured role.
Three days later, on Thursday, the review committee and the Capital Case Unit meet once again to
finalize the committee's recommendation to Reno. Soon thereafter, it is sent to her for her review.
In the final step, held the following Monday or Tuesday, the committee and case unit meet with Reno.
The U.S. attorney is invited to attend - and is especially encouraged to do so if the recommendation of
the review committee is at odds with his or her own.
Occasionally, Reno will ask the committee to dig up more information on a particular case. Sometimes,
she peppers the members with tough questions. The review committee does not have to be unanimous
before it makes its views known to Reno, although it often is. In the end, the committee's vote almost
never splits 2-2.
The meetings with the attorney general are usually brief, taking as little as 15 minutes. Reno will usually
end them by signing a letter on the spot authorizing the U.S. attorney to seek, or not to seek, the death
penalty.
The DOJ says it does not have precise figures on how often the request of a U.S. attorney is overturned.
But review committee member Schwartz says that after occasional initial disagreement between the
three main parties - Reno, the review committee, and the U.S. attorney - by the end of the process, there
is no disagreement in more than 90 percent of the cases.
Defense lawyers estimate that Main Justice agrees in about 75 percent of the cases in which the U.S.
attorney seeks the death penalty, and that it concurs about 90 percent of the time when the U.S. attorney
advises against it.
Three former committee members say they could not think of one instance in which Reno and a majority
of the committee were, in the end, at odds in an opinion about a case.
"What you're told is that she makes an independent judgment," says veteran federal death penalty
defense lawyer David Ruhnke, a name partner in the Montclair, N.J., firm of Ruhnke & Barrett. "But the
fact is, very few people know whether she has ever rejected a recommendation of the review panel."
One of the major challenges for the review committee has been to mold a kind of common law to steer it
through these still-new applications of the federal death penalty.
Justice officials will only hint at what mitigating and aggravating factors either help or hurt defendants'
chances for death penalty certification. Clearly, the 1994 Federal Death Penalty Act - which lays out
what factors a jury should take into account when sentencing - provides a framework for the review
committee to work with.
According to the 1994 law, harm caused to bystanders is an aggravator, as is substantial planning and
premeditation. On the other hand, a crime could be mitigated by a defendant's minor or nonexistent
criminal background, as would be the case when a defendant had an "equally culpable" co-defendant
who already struck a plea deal.
But it is less clear whether such factors as a poor economic background or a tragic upbringing have any
effect on the decision-making of the review committee. In many cases, defense lawyers say the review
committee is decidedly unsympathetic to those not uncommon circumstances in a defendant's past.
One former review committee member has a different take.
"The goal here is consistency," says Paul Fishman, a partner at New York's Freidman, Kaplan & Seiler
and a DOJ review committee member from 1995 to 1997. "The goal is not to judge each case on an
emotional level," he adds. It's difficult to gauge, however, just how consistent the review process has
been.
All of the deliberations are handled in secret. In each case, the recommendations of the U.S. attorney
and the review committee are kept under wraps. No meeting minutes are ever taken; no tape recordings
are made; no records of any kind are ever made public. The only thing released is Reno's final decision.
Prior to 1995, there was no such formal DOJ process. That's largely because, prior to 1988, the federal
death penalty had been virtually extinct for decades.
From 1927 to 1963, the U.S. government executed 34 individuals under federal death penalty laws.
None have been killed since. In 1972, the Supreme Court in Furman v. Georgia invalidated state death
penalty statutes and essentially wiped out the federal death penalty.
Four years later, in Gregg v. Georgia, the Court laid out parameters for acceptable death penalty laws,
and many states promptly reinstituted capital punishment. The 38 states that now have the death penalty
executed a total of 68 people in 1998. About 3,500 inmates are currently sitting on state death rows.
The federal government didn't reinstate the death penalty until 1988, when Congress passed the so-
called drug kingpin statute. The law made murder in the course of drug conspiracy, or drug-related
murders of law enforcement officials, punishable by death.
And the noose tightened significantly in August 1994 with the Federal Death Penalty Act, which
expanded the death penalty to some 60 offenses, including use of a weapon of mass destruction, murder
of federal law enforcement officers performing their duties, kidnapping resulting in death, and murder
for hire.
No one has yet been put to death as a result of these two laws. But some of the 21 condemned murderers
currently sitting on federal death row are close to exhausting their appeals. In addition, there are 28
defendants certified by the DOJ for the death penalty who are either on trial or awaiting trial, according
to March 1999 statistics from the Federal Death Penalty Resource Counsel Project.
The rest of the more than 150 defendants deemed eligible for the death penalty since 1990 have avoided
the sentence (except for two who died while in custody), with guilty pleas being the most popular way to
escape lethal injection. Forty-five defendants copped pleas for lesser sentences; 30 were sentenced to
prison after trial; 20 avoided capital trials when prosecutors changed their minds about seeking
execution; and nine were either acquitted or had their death penalty charge dismissed. Of the remaining
three men, one is awaiting resentencing, one was murdered, and one committed suicide.
Federal death row is likely to swell long before it recedes. The government has been preparing: In early
1993, the Justice Department finalized rules mandating that most executions would be carried out at the
U.S. penitentiary in Terre Haute.
The federal execution chamber is ready to be put to use, according to a spokesman for the Federal
Bureau of Prisons. The prison at Terre Haute also has a 50-bed death penalty unit ready for short- or
long-term housing. Currently, condemned federal prisoners are spread out in different federal pens
through the country.
There is a steep price tag attached to federal capital prosecutions.
According to a 1998 study by the U.S. Judicial Conference, the federal death penalty costs the
government more than $580,000 per case, on average. Broken down, the tab for federal defense lawyers
for indigent defendants is $218,000, while the cost for prosecutors is about $365,000 - not counting
Main Justice's participation.
Now, with nine attorneys on board, the new Capital Case Unit is budgeted for $1.2 million this year.
As if to underline how the Justice Department's handling of death penalty cases is coming to the fore,
Reno's protocol emerged last month as a central legal issue in an Arkansas trial.
Danny Lee and Chevie Kehoe, accused white supremacists plotting to create a whites-only nation in the
Pacific Northwest, were both convicted by a federal jury for the triple murder of a gun dealer and his
family.
Initially, Reno authorized the U.S. attorney's office for the Eastern District of Arkansas to pursue the
death penalty for both defendants.
In the sentencing phase of their trial, however, Kehoe was sentenced first and spared the death penalty
by the jury. Kehoe, by some accounts, was the leader of the supremacist group. But an assistant to U.S.
Attorney Paula Casey had told the judge that the office felt obligated to drop the death charge against
Lee, according to a transcript of May 19 remarks from Little Rock-based U.S. District Judge G. Thomas
Eisele.
First, Casey said, she had to get Reno's approval. But when she attempted to void the death request for
Lee, Reno wasn't available to make the last-minute call, and Deputy Attorney General Eric Holder Jr.
made the decision instead - denying Casey's request.
Soon thereafter, the jury sentenced Lee to death.
Defense lawyers are now challenging Lee's death sentence and attacking the death penalty protocol.
Judge Eisele has taken the matter under advisement. He noted in open court that he's not sure the Justice
Department's death penalty protocol was properly followed. The rules, he said, state that only the
attorney general has the authority to act on such a request from a U.S. attorney.
Lee's lawyer also has filed a motion asking for a record of the pivotal May 10 meeting with Holder and
members of the review committee. Justice is fighting that request.
"Lee cannot obtain the requested items because they do not exist," wrote Capital Case Unit trial attorney
Lane Liroff on May 25. "No tape recording was made and no minutes prepared. Moreover, even if such
records did exist they would be protected from disclosure because they reflect internal administrative
procedures and deliberative processes which are privileged and not discoverable."
Holder could not be reached for comment.
Judge Eisele has yet to rule on Lee's motion. But at the May 19 hearing, he indicated his concern. "I am
very troubled," he said. "We are dealing basically with what may turn out to be a fatal failure of
communication."
The Arkansas case was not the first time defense counsel have questioned the Justice Department's
capital case review process. And regardless of how Lee's challenge is resolved, it probably won't be the
last.
Next week: The Justice Department's capital case review protocol was set up to help ensure that the
federal death penalty is meted out fairly and consistently. Is it working? Many defense lawyers who
practice before the capital case review committee say the process has flaws.
Copyright ©1999 NLP IP Company -- American Lawyer Media. All rights reserved.
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