District Judge

District Judge: Lawyer Is Required for DOJ Review Process
Court expands rights in federal capital cases

Sam Skolnik

Legal Times

August 10, 1999

A recent decision by a federal judge has bolstered the rights of defendants in federal death penalty cases.

For the first time, a U.S. district judge has ruled that defendants who are eligible for the federal death penalty have a constitutional right to a lawyer during the pivotal Justice Department hearing.

And in another part of the opinion codifying the generally murky rights of federal death penalty defendants, Judge José Antonio Fusté of Puerto Rico also ruled that a second, "learned" attorney - so called because of his expertise in death penalty cases - must be appointed to join local defense counsel in preparing for the DOJ capital case hearing.

Fusté's July 7 order reversed Attorney General Janet Reno's decision last year to pursue Puerto Rican murder defendant Nicholas Peña-Gonzalez for the death penalty. The judge found that the DOJ's procedures for reviewing death penalty cases violated Peña-Gonzalez's Fifth and Sixth Amendment rights to due process and assistance of counsel.

"Capital punishment certification is undoubtedly a pivotal and enormously important moment in any criminal prosecution. The hearing can literally lead to a determination of life or death," wrote Fusté. "The inescapable reality of the situation is that Defendant was denied his right to counsel at a critical' stage of his criminal prosecution."

William Matthewman, the lawyer for Peña-Gonzalez, called Judge Fusté's action "a very due-process-based order issued by a very courageous judge. "The right decision was reached," added Matthewman, a name partner in Boca Raton, Fla.'s Seiden, Alder, Rothman, Petosa & Matthewman.

David Ruhnke, a veteran federal death penalty defense lawyer, calls Fusté's decision "pretty extraordinary."

Ruhnke, a name partner in the Montclair, N.J., firm of Ruhnke & Barrett, predicts that the Justice Department will "have to take this very seriously."

The Justice Department appealed Fusté's decision late last week. DOJ spokesman Myron Marlin declines comment on the matter, noting that it is pending.

The circumstances in the case of Peña-Gonzalez are not typical, but neither are they unique. Most federal defendants eligible for the death penalty are promptly afforded a second, expert counsel as mandated by law. Most are represented by one or both of their attorneys before the DOJ's review committee.

But within the last year, in cases in Kansas and Florida, federal judges delayed or outright denied defendants' requests for a second counsel. As in Peña-Gonzalez's case, Reno certified them as capital cases despite recommendations by the respective U.S. attorneys that the attorney general not pursue the death penalty.

Peña-Gonzalez, charged along with three other men in the murder of a drug-dealing associate and another person who had witnessed the crime, is one of the scores of defendants who have gone through the Justice Department's capital case review process in the last five years. The number of such defendants grew exponentially after the passage of the 1994 Federal Death Penalty Act.

In response, the Justice Department has set up procedures in an attempt to make the system more consistent and fair for the defendants.

In early 1995, Reno established the Capital Case Review Committee, a small, elite panel that hears from defense counsel and local U.S. attorneys who are prosecuting the cases and then recommends to Reno whether a defendant should be prosecuted for the death penalty. The final decision is Reno's alone, although several current and former review committee members say Reno places great stock in the committee's recommendation.

The DOJ process has come under increasing criticism in recent years. Defense lawyers have claimed, among other things, that race plays a factor in who gets prosecuted for the death penalty; that prosecutors sometimes use the arguments defense counsel give before the review committee in trial and pre-trial motions; and that cases go before the review committee without defense counsel present, even though federal law and internal DOJ rules suggest that defendants are entitled to two counsel, one of whom is expert in death penalty law.

Peña-Gonzalez's case went before the review committee with no defense lawyer at all. Three days after he was appointed to the case, in July 1998, Peña-Gonzalez's first local attorney, Puerto Rico solo practitioner Thomas Lincoln, filed a motion for a learned counsel to be appointed, because the crime his client was accused of was clearly death-eligible and Lincoln was a novice in such cases. But the motion was denied by Judge Fusté, in part as a cost-saving measure and in part because the U.S. attorney in Puerto Rico had recommended to Reno that Peña-Gonzalez not be certified for death.

The review committee met on Dec. 4, despite the fact that Lincoln had written to them explaining that he didn't feel able to properly represent his client before the review committee, and that his request for learned counsel had been denied. On Dec. 17, Reno overrode the recommendation of the U.S. attorney and certified Peña-Gonzalez for the death penalty.

A few weeks later, Fusté appointed Matthewman, an expert in federal death penalty law, to represent Peña-Gonzalez. In April, Matthewman filed an appeal of the death penalty certification, claiming that his client was denied due process.

The U.S. attorney in the case, Guillermo Gil, argued that defendants aren't entitled to representation before the review committee, and that the decision to pursue the death penalty is strictly an exercise of prosecutorial discretion. Gil, and others within the DOJ, have also argued that any damage that may have occurred because Peña-Gonzalez was not represented at the review committee hearing was not irreparable because defendants can always ask the attorney general to reconsider.

Judge Fusté agreed with Matthewman and decertified the case as a capital matter.

In what veteran death penalty defense attorneys say is a first-of-its-kind decision, Fusté ruled that learned counsel "must be appointed" to join local counsel at the earliest stages of the Justice Department process. Fusté also noted that statistics from the Judicial Conference of the United States show that defendants have only a slim chance of having their cases decertified during a reconsideration hearing with the attorney general.

But the issue is not settled. In an Aug. 3 decision in a similar case in which a learned counsel was not appointed and the defendant was certified for the death penalty anyway, another Puerto Rico federal judge came to a starkly different conclusion. U.S. District Judge Juan Perez-Gimenez ruled that learned counsel is not necessary until after a defendant is certified for the death penalty.