Metropolitan News-Enterprise


Wednesday, February 4, 2009


Page 1


Judges Question Whether Death Penalty Appeal Is Premature




A panel of Ninth U.S. Circuit Court of Appeals judges voiced uncertainty yesterday as to whether it could hear an appeal by two defendants who claim they were not given sufficient notice of the prosecution’s intent to seek the death penalty.

Michael Dennis Williams and Antoine Lamont Johnson are challenging the decision of then-Attorney General Michel Mukasey to seek the death penalty in connection with an armored car robbery in which they allegedly shot and killed a guard.

Evelio Suarez Jr., 61, was killed March 1, 2004 after the robbers fired more than 50 shots as he made a cash delivery behind a Bank of America branch in South Los Angeles. Police said at the time that they suspected at least eight people were involved in a sophisticated plot to rob the armored car.

An indictment brought in 2005 alleges that Williams, Johnson, and Patrick Holifield were among the shooters and that Larry Jordan drove the getaway van.

The defense argues that the government deprived Williams and Johnson of due process  by waiting until 75 days before their scheduled trial date to notify them that it was seeking the death penalty.

The prosecution counters that the defense should have realized that there was “a high probability” that the death penalty would be sought, that counsel has had 32 months from the time of appointment to get ready, and that the trial in any event has been continued and will not take place until next month, a year after the death penalty notice was given. 

But in order to reach that issue, the panel must first rule that it has jurisdiction over the appeal from Senior U.S. District Judge Ronald S.W. Lew’s denial of the defendants’ motion to remove the death penalty from the case.

Defense attorney Amy Jacks, who represents Johnson, told the panel yesterday that Lew’s order falls under the “collateral order” exception to the general rule barring interlocutory appeals in federal criminal cases. Requiring defendants in her client’s situation to choose between the right to speedy trial in the guilt phase and the need for counsel to be prepared for a possible penalty phase would practically eviscerate the speedy trial right, Jacks argued.

But prosecutor Tamara Phipps said the order is not appealable because the issue will be fully reviewable on appeal if the death sentence is imposed, and that even if the order was erroneous, it would not be considered structural error, which might trigger the collateral order exception. She also defended the lengthy process that the Justice Department went through before deciding to seek the death penalty—including allowing the defense to make written and oral submissions both to prosecutors here and to department officials in Washington, D.C.—as reasoned and deliberative.

Phipps agreed with Judge Consuelo Callahan’s suggestion that while the most efficient use of the court’s resources would be to address the merits, “this pesky thing called the law” might not permit it.

Judge Barry Silverman suggested that if the court finds it lacks appellate jurisdiction, it could still treat the appeal as a mandamus petition and reach the merits that way. Jacks said she’d have to give the issue “some thought,” while Phipps said the court could proceed in that manner, but noted that “the standard for granting relief is higher” than on direct appeal.

Joining Callahan and Silverman on the panel is Senior U.S. District Judge Richard Mills of the Central District of Illinois. Mills, who is based in Springfield, Ill., was appointed to the federal bench by then-President Reagan in 1985 and has been a state and federal judge for 40 years.


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