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Death penalty foes rap Ashcroft

Seen to be expanding capital punishment

Critics of the federal death penalty have accused US Attorney General John Ashcroft of using the law to target defendants in states like Massachusetts that don't have capital punishment in a bid to "nationalize" the death penalty.

The criticism came this week as it was revealed that federal prosecutors in Boston, with Ashcroft's endorsement, will seek the death penalty for two Dorchester gang members charged with murdering a rival at the city's Caribbean Carnival two years ago. It is the third time the federal death penalty has been sought in Massachusetts, and the second case brought during Ashcroft's tenure.

"It appears to be a strategy to ensure that the federal death penalty is widely applied throughout the country without regard to the attitudes and beliefs and policies of the people in each state," said David Bruck, a South Carolina attorney with the Death Penalty Resource Counsel Project. "I think it reflects a determination to nationalize capital punishment, which has always been treated as a local matter."

Since his appointment in February 2001, Ashcroft has authorized the federal death penalty for 93 defendants, including 37 cases in which local federal prosecutors had recommended against it, according to the Death Penalty Resource Counsel. Seven of those cases were in states that don't have the death penalty.

By contrast, his predecessor, Janet Reno, overruled federal prosecutors in states that don't have the federal death penalty six times in five years.

Ashcroft agreed with prosecutors in declining to seek the death penalty in 258 cases, according to the Resource Counsel.

Ashcroft also dropped regulations enacted by Reno, which had prohibited federal prosecutors from seeking the federal death penalty solely because the state where a crime occurred didn't have the death penalty.

Donald K. Stern, former US attorney for Massachusetts under Bill Clinton, said the message from Reno had been, "Don't come to us where the only justification for seeking the death penalty was because if the case was tried in the state courts it would mean life in prison."

By dropping that regulation, according to Stern, Ashcroft has signaled prosecutors that it's "fair game" to pull a state case into federal court in a bid to win a death sentence.

"My sense is he seems more intent in evening out the geographical statistics and also taking a very close look at the recommendations of US attorneys in states that have no death penalty," said Stern, who now practices at the Boston law firm of Bingham McCutchen.

A study in 2000 criticized the US Department of Justice under the Clinton administration for its "geographical lumpiness" because many of the federal death penalty cases originated in states, such as Texas and Oklahoma, where most state death penalty cases are tried, said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

Since taking over as attorney general, Ashcroft has authorized the federal death penalty against 12 defendants in states that don't have a state death penalty: three in Massachusetts, one in Vermont, six in Michigan, one in Iowa, and one in West Virginia. In seven of those cases -- in Vermont and Michigan -- Ashcroft overruled federal prosecutors who recommended against the death penalty, according to statistics compiled by the Resource Counsel.

Ashcroft also overruled federal prosecutors in New York -- a state which has rarely used the state death penalty -- in 10 out of 12 cases in which he sought the federal death penalty, according to the Resource Counsel.

Officials could not be reached yesterday at the US Department of Justice, which remained closed because of Hurricane Isabel.

Michael J. Sullivan, the US attorney for Massachusetts and a death penalty proponent, yesterday refused to discuss the federal death penalty and would not say whether he had recommended to Ashcroft that the death penalty be sought in the Dorchester gang case.

But Sullivan has publicly supported the death penalty for Gary Lee Sampson, who pleaded guilty to killing two men during a carjacking spree in July 2001. Jury selection began this week in federal court for a trial on whether Sampson should be executed or sentenced to life in prison.

In the same courthouse yesterday, Darryl Green, 26, and Branden Morris, 20, pleaded not guilty to charges of murder in aid of racketeering.

The pair, alleged members of the Esmond Street Crew in Dorchester, are charged with killing 23-year-old Terrell Gethers to protect their crack cocaine and marijuana ring. Three other men charged in the case but not facing the death penalty, Jonathan Hart, Edward Washington, and Torrance Green, pleaded not guilty to charges that they engaged in violence to protect their drug-dealing business from rival gang members.

Lawyers for the defendants who are facing the death penalty asked that their Jan. 12 trial be postponed.

"This caught a lot of us flat-footed," David Hoose, who represents Morris, told the judge. Hoose represented nurse Kristen Gilbert in the state's only other death penalty prosecution. Gilbert was convicted in 2001 of murdering four patients in a Northampton veteran's hospital and was sentenced to life in prison, rather than death, in a case that predates Ashcroft.

After yesterday's arraignment, Melvin Norris, another lawyer representing Morris, criticized prosecutors for their hard stance. "A 20-year-old kid facing the death sentence," he said. "It's obscene."

Hart, the only defendant not in custody, said he was fearful for his codefendants facing the possibility of death. "I just pray for them and hope everything turns out good," he said.

The federal Death Penalty Act, which was enacted in 1988, authorized capital punishment for murders that were committed in the course of a drug conspiracy. In 1994, the law was expanded to allow federal prosecutors to seek the death penalty for some 60 offenses, including murder in aid of racketeering and murder during a carjacking.

To date, three people, including Oklahoma City bomber Timothy McVeigh, have been executed as a result of the law and 24 inmates are now on federal death row, including one from a state that doesn't have the death penalty, Michigan.

While local federal prosecutors make recommendations to the attorney general on whether to seek the death penalty, defense lawyers are given a chance to argue against it. Ultimately, Ashcroft decides whether to seek the death penalty.

Ashcroft has also enacted a policy requiring federal prosecutors to get his approval before entering into plea negotiations that would allow defendants to avoid the federal death penalty. In February, Ashcroft voided a plea deal in New York that allowed a murder suspect to avoid the death penalty in exchange for his cooperation against others.

Seeking the death penalty is one thing; getting a jury to impose it is something else entirely, according to statistics. Of the last 21 federal death penalty cases, jurors refused to impose the death penalty in 20 of them.

Andrea Estes of the Globe staff contributed to this report.

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