Reno, top deputy summoned to LR over Lee directive

Only attorney general had right to set death policy, Kehoe co-defendant says

Attorney General Janet Reno and her top deputy, Eric Holder, have been subpoenaed to appear in a federal courtroom in Little Rock to explain Holder's May 10 directive that local U.S. attorneys continue pursuing the death penalty against Danny Lee.

Lee, 26, of Yukon, Okla., was convicted May 4, along with Chevie Kehoe of Colville, Wash., of three counts of murder in aid of racketeering for the January 1996 suffocation deaths of a Searcy County family.

In separate sentencing phases that followed the men's joint trial on guilt, the same jury handed a life sentence to Kehoe and a death sentence to Lee.

Lee, whom prosecutors called Kehoe's assistant, is now contesting that sentence. He contends that when local U.S. Attorney Paula Casey contacted the Justice Department after Kehoe's life sentence was announced to see if her office could forgo the death penalty against Lee, the decision was Reno's only, not Holder's.

But Holder, acting in Reno's absence, made the decision after talking with members of the attorney general's Death Penalty Review Committee.

Casey and Assistant U.S. Attorney Dan Stripling revealed in a hearing Tuesday that they and other members of the prosecution's team had decided against pursuing the death penalty against Lee after Kehoe was given a life sentence. But they were forced to pursue it anyway at Holder's direction.

Justice Department lawyers contend that both federal law and departmental regulations authorize Holder as Reno's chief deputy to make the decision in Reno's absence.

No one yet has said why Reno was unavailable that day, but Lee's attorneys want to know. They also want to determine if she was "absent" in a legal context. They suggested that the term means "more than merely not present in office" but "absent in the sense that it was impossible for the Attorney General to make the final decision regarding Mr. Lee."

Lee also wants to know how Holder arrived at his decision, and if he accepted or rejected a unanimous or nonunanimous recommendation from the committee. But the Justice Department says that information is part of a "deliberative process privilege" that allows agencies to engage in internal debates without fear of public scrutiny.

"Certainly, the ultimate decision will be public information, but not the process whereby prosecutors are permitted to fully discuss and consider what is one of the most important decisions a prosecutor can make," the government argues in a brief.

The privilege can be set aside, however, if a judge decides a particular need exists that outweighs the reasons for confidentiality.

In court Tuesday attorneys said no one took minutes of the committee's meeting, and it wasn't tape-recorded. But U.S. District Judge G. Thomas Eisele could direct members of the committee, or Holder, to testify about their recollections of the discussions.

The government has filed documents asking Eisele, who presided over Kehoe's and Lee's trial, to quash the subpoenas. The documents direct Reno and Holder to appear before Eisele for a July 29 continuation of the Tuesday hearing.

Eisele on Tuesday told attorneys for both sides to file briefs explaining their positions on the subpoenas, and he said he will probably issue a ruling based on the written arguments.

In its brief filed Tuesday, the Justice Department argues that "courts have long held that, absent extraordinary circumstances, top executive department officials should not be called to testify and provide reasons why they took a particular course of conduct. There are no such circumstances here."

Though the subpoenas had been issued earlier, in anticipation of the hearing Tuesday, they arrived in Washington only on Friday and just Tuesday made it to a "process desk" and thus hadn't been served.

Aside from hoping to hear from Reno and Holder, defense attorney Jack Lassiter took testimony Tuesday from Casey and Stripling, the lead prosecutor in Lee and Kehoe's trial. Lassiter also took testimony from Cathi Compton, Lee's lead defense attorney. She and Lassiter were court-appointed to represent Lee at trial.

Compton testified that on May 10, before the jury delivered its verdict on Kehoe's sentence, the government said it didn't plan to pursue the death penalty against Lee if Kehoe got a sentence of life without release.

Life in prison and death are the only sentences available under the law.

Casey testified that after the verdict on Kehoe's sentence was announced, her office acknowledged to the court that it was considering dropping its pursuit of the death penalty for Lee, but at the same time, her attorneys said they must first consult the Justice Department.

"At that point I thought the option of decertification was mine," Casey said.

She said she later found out that the Justice Department had to make that decision and she immediately alerted the court and defense attorneys.

Compton said that before Casey's telephone conference with the Justice Department, Casey discussed with Compton what Compton thought was a plea agreement that would end the case and allow Lee to get a life sentence.  Compton said she consulted with Lee on that, and he agreed to the possible deal.

But Casey testified that she wasn't trying to arrange a plea bargain.

Instead, she said, "I wanted an acknowledgment on the record from Mr. Lee or his attorneys that the only possibility remaining, if the death penalty was decertified, was life without release."

Eisele said he didn't believe a plea agreement existed, but "I'm going to look at it again."

Stripling testified that in numerous discussions with Casey before the day of Kehoe's sentencing verdict, the two had discussed whether to pursue a death sentence for Lee if Kehoe got life and they decided they wouldn't.

Stripling also acknowledged that First Assistant U.S. Attorney Michael Johnson told him after the Kehoe sentence was announced, that he had polled all members of the prosecution team, and all favored dropping the death penalty for Lee.