Since the 1988 "Drug Kingpin" death penalty enactment and the 1994 "Crime Bill" expansion of the death penalty throughout the federal criminal code, the Resource Counsel Project (RCP) has identified 580 potential federal capital defendants, not all of whom were prosecuted in federal court.  This figure includes a small number of unindicted coconspirators, government witnesses, and potential federal capital cases prosecuted in state courts.

  After the § 94 Act had time to take effect, the number of potential federal capital cases increased dramatically, apparently leveling off at about 150 potential clients per year.  The raw statistics look like this:

RACIAL JUSTICE AND THE FEDERAL DEATH PENALTY

In an election year frenzy in 1988, Congress passed the first effective post-Furman death penalty statute.  At the same time, Congress considered a proposal for a "Racial Justice Act", (RJA) which aimed to modify the Supreme Court's narrow (5 to 4) McCleskey decision rejecting statistical evidence underpining a race-based challenge to Georgia's capital sentencing scheme.

The federal RJA would have permitted consideration of statistical evidence of racial discrimination in capital sentencing.  Congress, instead, substituted a requirement that a   "certificate [be] signed by each juror that [no] consideration of the race, color, religious beliefs, national original, or sex of the defendant or the victim was ... involved ..."  21 U.S.C. § 848(o)(1). 

Since 1988, 26 federal juries have signed this required "no discrimination" certificate.  There were 42 defendants before these 26 juries:  26 African American, 10 White, 4 Hispanic and 2 Asian.  32 of the 42 defendants (76.2%) were minorities.  18 of these defendants were sentenced to death.  Of these, only 5 were white or 27.8%.  So, federal death sentenced inmates, currently 17, are 76.5% non-white.  Of the 51 defendants who have begun a federal capital trial (some solely because federal prosecutors would not permit them to plead guilty), only twelve were white.  Three quarters (76.5%) of those required to stand trial have been black, Hispanic or Asian.  During one span, fourteen defendants in a row who began trial were non-white.

The 1988 legislation required a study by the Comptroller General.  Not surprisingly, the General Accounting Office found race to be a significant factor in the imposition of the death penalty in capital sentencing jurisdictions. 

Nevertheless, when Congress passed the expansive 1994 federal death penalty, Congress included the same boilerplate "precaution to insure against discrimination" in 18 U.S.C. § 3593(f).  Again, this requires that the jury be instructed not to consider race or other ethnic, religious or gender factors in deciding whether or not to recommend a sentence of death.  This statute also requires a signed certificate.  To date, no juror has ever declined to sign the required certificate.  Federal law does not require the United States Attorney, the "Death Penalty Committee" at Main Justice or the Attorney General to sign a similar certificate.  

Since enactment of these statutes in 1988 and 1994, the Bush and Clinton Administrations have approved death penalty prosecutions against 121 defendants.  Of the total of 121  defendants against whom the Attorney General has authorized the government to request the death penalty, 27 have been white, 17 Hispanic, five Asian and 72 African-American. 94 of the 121 defendants, (77.7%), approved for capital prosecution by the Attorney General to date are members of minority groups. 

Unfortunately there is no evidence that the federal "no discrimination certificate" has had any effect limiting the influence of race on who receives the death penalty.  In the federal arena, who gets sentenced to death is largely a function of who is selected for the relatively rare federal capital prosecution and then who is placed  before  the  jury.

Although the federal criminal code does not cover every homicide committed in the country, federal homicide jurisdiction continues to expand.  At the same time, capital prosecutions impact non-whites in numbers grossly disproportionate to their share of the population.  Since non-whites are sentenced to death in approximately the same percentage as those chosen to face the death penalty, it appears that the "no-discrimination" certificate is beside the point.

NEW RESOURCE COUNSEL

With the expanding number of active federal capital prosecutions, the Defender Services Committee has authorized a third Resource Counsel position.  After a nationwide search, Richard H. Burr, of Houston, Texas, having completed his duties as one of Timothy McVeigh's trial counsel, agreed to join David Bruck and Kevin McNally as part-time RCP counsel.  Dick is an experienced capital defense advocate, currently based in Houston, Texas.  He brings a world of talent and experience to the RCP.

HOT ISSUES: FEDERAL CAPITAL SENTENCING INSTRUCTIONS

Not surprisingly, some of the legal issues in flux involve how a federal capital sentencing jury should be instructed.  Some questions the courts wrestle with are:

1.  Must/may the Court instruct in cases tried under the 1994 Federal Death Penalty Act (18 U.S.C. §§ 3591 et seq.) that the jury is never required to impose the death penalty?  Cf. 21 U.S.C. § 848(k).

In a recent case, the government went so far as to suggest a Blystone type "mandatory death penalty" instruction ("You shall sentence the defendant to death ...") if the aggravating circumstances outweigh any mitigating circumstances.  For the most recent defense pleading, see United States v. Billie Allen, No.  4:97-CR-00141-ERW/TCM (E.D. Mo.), Defendant's Suggestions in Opposotion to Prosecution's Requested Mandatory Death Penalty Instruction. 

2.  What should the jury be told about the sentence that will be imposed if the jury deadlocks between death and life-without-release (i.e. where there is no unanimous verdict, but where no juror supports imposition of "some lesser sentence"?).  See United States v. Jones, 132 F.3d 232 (5^th Cir. 1998).

3.  Must the jury be instructed to return written findings on statutory and nonstatutory mitigating factors as they do for aggravating factors?  The large majority of courts require the jury to do so.  But see United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), reh'g denied, 5 F.3d 1501 (1993), cert. denied, 114 S.Ct. 2724, reh'g denied, 115 S.Ct. 23 (1994) (holding that §  848 makes such findings "optional" at the jury's election).  Few district courts have followed Chandler's suggestion the jury be given an "option."

4.  Do the instructions permit the jury to double-count statutory and nonstatutory aggravating factors?  This is a major and recurring constitutional problem.  See United States v. Tipton, 90 F.3d 861 (4^th Cir. 1996), cert. denied 117 S.Ct. 2414 (1997); United States v. McCullah, 76  F.3d 1087 (10^th Cir. 1996),reh'g en banc den., 87 F.3d 1136 (1996) and Jones, supra.

 5.  Is the "substantial planning and premeditation" aggravating circumstance vague?  A recent review by the Project indicates that of 95 notices of intent to give the death penalty, all those available to be reviewed, substantial planning and premeditation was alleged against 83 defendants or 87.3%.  Yet, the courts have thus far rejected such challenges.  See, e.g., Tipton 90 F.3d at 895-96; United States v. Flores, 63 F.3d 1342, 1373-74 (5^th Cir. 1995) ("If further clarification is needed, the defendants can request a jury instruction").

 6. Where the government has charged multiple homicides or a single homicide under several capital statutes, must/may the jury return special findings, and determine whether to impose the death penalty, as to each homicide or duplicative count? In reviewing recent mitigation findings by jurors, the case for life seems to "degrade" the more jurors have to vote and re-vote on identical mitigating factors. Therefore, jurors should be asked to make only one finding on each mitigating factor, unless homicide specific factors present themselves.

THE AUTHORIZATION PROCESS

Federal capital defendants are selected through a three-level review process within the Department of Justice.  This review is governed by protocols issued in January of 1995.  United States Attorneys Manual § 9-10.000.  After seeking input from defense counsel, usually meeting with them, the United States Attorney sends a written recommendation, supported by extensive documentation, to the Attorney General.  USAM § 9-10.000(B)-(C), (F).  Before the Attorney General decides what penalty the government should seek, the U.S. Attorney's materials are reviewed by a high level committee representing various divisions with the Department of Justice.  The "Death Penalty Committee" meets in person with defense counsel and then makes its own recommendation to the Attorney General.  USAM § 9-10.000(C)-(D).  The Attorney General then authorizes the United States Attorney to seek the death penalty in certain cases. 

 What percentage of defendants are authorized for a capital prosecution? It is difficult to say precisely.  Assuming the RCP picks up all potential capital cases in the "authorization pipeline," the numbers look like this:

When compared with the raw RCP caseload numbers discussed above in graph #1, one can tell that not all potential cases have been through the authorization process.  This is due to unindicted coconspirators/government witnesses, plea negotiations early in the case, and, initially at least, the novelty of the process.  One can now make a rough preliminary estimate that approximately 1/3 of the cases considered result in a capital prosecution.  As experience teaches, the statistics tell us that the federal death penalty is driven by local decisions -- with the Attorney General agreeing with the decision of the United States approximately 90% of the time.

MONEY MATTERS

Public Disclosure of CJA Vouchers

Toward the end of 1997, Congress amended a provision of the Criminal Justice Act, 18 U.S.C. § 3006A(d)(4), to specify the way in which the fees paid to counsel appointed under the CJA are to be disclosed to the public.  Prior to this amendment, § 3006A(d)(4) provided simply:  "The amounts paid under this subsection, for representation in any case, shall be made available to the public."  Effective for cases filed on or after January 25, 1998, amended § 3006A(d)(4) directs that "the amounts paid under this subsection for services in any case shall be made available to the public by the court upon the court's approval of the payment."    (Emphasis supplied.)  Having provided this directive, the statute then proceeds to qualify its application depending upon the procedural posture of the case.

• If  a case is in a pretrial or trial posture when a voucher is submitted, the court must "redact any detailed information on the payment voucher provided by defense counsel to justify the expenses to the court," and disclose publicly only the amounts paid to counsel for work done in relation to twelve categories:  arraignments and/or plea, bail and detention hearings, motions, hearings, interviews and conferences, obtaining and reviewing records, legal research and brief writing, travel time, investigative work, experts, trial and appeals, and "other."  § 3006A(d)(4)(B).  If even this level of disclosure threatens "any person's 5^th amendment right against self-incrimination," "the defendant's 6^th amendment rights to effective assistance of counsel," "the defendant's attorney-client privilege," "the work product privilege of the defendant's counsel," "the safety of any person," and/or "any other interest that justice may require," § 3006A(d)(4)(D), the court may determine that no public disclosure of the amounts paid to counsel will be made. 

 

• If a case is in a post-trial posture but an appeal is being pursued when a voucher is submitted, the court must redact the information "provided by defense counsel to justify the expenses," § 3006A(d)(4)(E), and disclose only the amounts of attorneys fees allocated to the twelve categories, unless the court determines that none of the six interests noted in § 3006A(d)(4)(D), supra, will be compromised by full disclosure.  §§ 3006A(d)(4)(E). 

 

• If a case is in a post-trial posture and no appeal is being pursued when a voucher is submitted, the court must make available an "unredacted copy of the expense voucher," unless the six interests noted in § 3006A(d)(4)(D), supra, require the limited disclosure of only the amounts of attorney fees allocated to the twelve categories.   § 3006A(d)(4)(C).

 

• Finally, upon completion of the trial and appeal, all of the previously redacted vouchers "provided by the defense to justify the expenses," shall be released in unredacted form.

 Two other provisions of the amendment to § 3006A(d)(4) are worth noting.  Counsel must be provided "reasonable notice" of any impending disclosure to be able to request redaction or non-disclosure (as permitted, depending upon the posture of the case) based upon the six interests identified in § 3006A(d)(4)(D).  See § 3006A(d)(4)(E).  And, curiously, this amendment expires twenty-four months after its effective date, or on January 25, 2000.

This amendment raises many questions, which require some care and thought in any litigation with respect to it.  In some important ways, the amendment leaves considerable discretion in the courts to protect matters that, if disclosed, could hurt our clients .  In this respect, it could be far more draconian.  With this as a backdrop, the most significant questions that the amendment raises are the following:

 (1)  Will its provisions be applied to vouchers from counsel in capital cases, who are appointed under 21 U.S.C. § 848(q)(4), rather than the Criminal Justice Act?  By its terms, the amendment covers only counsel appointed under 18 U.S.C. § 3006A(d).  Since capital counsel are appointed under § 848(q)(4), they are not covered by the amendment.  However, § 848(q) has its own disclosure provision, which is awkwardly worded but clearly applicable to trials:  "The amounts paid under this paragraph for [attorneys', experts', and investigators'] services in any case shall be disclosed to the public, after the disposition of the petition."  § 848(q)(10)(C).  Courts could be persuaded to use the framework established by § 3006A(d)(4) to determine what this provision means.  The legislative history of the amendment to § 3006A(d)(4) would certainly support this.  From our clients' perspective, it might be better to have this framework than to have one that leaves no guidelines for the courts during a time when there is increasing public and political pressure to disclose amounts paid.

 (2)  Will its provisions be applied to require disclosure of the fees paid to  experts and investigators?  The amendment applies only to disclosure of payments to counsel.  Subsection (d) of § 3006A is titled, and is concerned only with, "Payment for representation."  Subsection (e) is titled and concerned with, "Services other than counsel."  Of course, the same disclosure provision in § 848(q)(10)(C) governs the disclosure of amounts paid to counsel and to those providing "investigative, expert, and other reasonably necessary services."  Thus, if a court decides to use the framework set forth in § 3006A(d)(4) for determining how disclosures will be made pursuant to § 848(q)(10)(C), that framework will also likely apply to investigators and experts.  However, an argument could be made that Congress intended only to compel disclosure of the amounts paid in attorneys' fees.

 (3)  Will the disclosure required under § 3006A(d)(4) require disclosure only of the "face sheet" of the voucher (i.e., only the actual CJA 30) or also disclosure of the worksheets and other backup materials?  This is difficult to determine from the language used in the amendment.  When allowed by the amendment, redactions are of the information "provided by defense counsel to justify the expenses to the court."  See §§ 3006A(d)(4)(B)(i) and (E).  However, the amendment also refers to this information as the "voucher(s)."  Id.  Worksheets and other backup materials, therefore, may not have been intended to be subject to disclosure.  Clearly, the worksheet information is the most likely to touch upon the defendant's "interests" against disclosure set out in § 3006A(d)(4)(D).  It is hard to imagine how the disclosure of this information would not hurt a defendant whose case is not absolutely and unequivocally concluded.

 

As we gain experience in litigating these questions, we will clearly develop a sense of how to strike the right balance for our clients.  We will monitor developments in this area and try to help counsel tailor the best strategy for each case.

Case Budgets

Case budgets are not yet required by legislation or recommended for federal capital trials by  VII Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures, Ch. VI.  However, they may well become recommended or even required, as concern for the cost of capital trial representation increases.  Regardless of whether case budgets are eventually recommended or mandatory, there is an advantage to utilizing them now.

The Antiterrorism and Effective Death Penalty Act of 1996 amended 21 U.S.C. § 848(q)(10) to require district court "certifi[cation]"  and circuit court "approval" when "[f]ees and expenses paid for investigators, experts, and other reasonably necessary services authorized under paragraph [(q)] (9)" exceed a total of $7500.  (Note that attorney fees are not included within this process of review.)  By using budgets, this requirement can be met in a more efficient and meaningful way.  Two budgets can be prepared C a preliminary budget at the beginning of the case, which sets out the need for and estimates the cost of early investigative efforts for both phases of the trial.  Since this budget is likely to exceed $7500 in most cases, district court and circuit court approval can be sought at one time for a variety of investigators, consulting experts, and investigative expenses.  After the initial investigative efforts have been made, a second, more specific, more extensive, and more comprehensive budget can be developed for the remainder of the pretrial and trial proceedings.  This budget, of course, will have to be refined as trial approaches, but once it has been through the certification and approval process its amendment may be effected without repeatedly going through that process.  The budgeting process also has the advantage of helping the courts understand the need for particular services and expenses within a developing holistic view of the case, and for this reason, is more likely to lead to the approval of necessary expenses.

By mid-to-late April, the Project hopes to have developed guidelines and models for the case budgeting process.

Pervasiveness of "Future Dangerousness" Aggravator

One of the most spuriously powerful motivation for juries to condemn convicted murderers to death is the fear that only execution can prevent future violent crimes.   The notorious Texas death-sentencing scheme puts the issue of the defendants' likely "future dangerousness" front and center in the jury's sentencing deliberations: even though jurors' findings of dangerousness are more often wrong than right (remember how dangerous Karla Faye Tucker turned out to be?), Texas' focus on the fear of future violence by the defendant helps explain that state's phenomenally high death sentencing and execution rates.

Perhaps inspired by this record, federal prosecutors in recent years have begun to allege as a nonstatutory aggravating factor in almost every capital case that the defendant will commit further acts of violence unless executed.  The factual basis of such predictions is usually simply the defendant's past criminal record, a record that has almost always been accumulated during the defendant's most violence-prone years between 16 and 25.  Increasingly, government experts have been attempting to bolster such predictions of future violence by using new psychological "constructs," notably the Psychopathy Checklist, which purports to predict violence on the basis of a long list of negative characteristics. 

The most obvious difficulty with such predictions, of course, is that as a practical matter any convicted federal capital  defendant who might be subject to the death penalty will never leave prison if his life is spared.  Thus "dangerousness" means, as a practical matter, dangerousness in federal prison.  And since the rates of homicide in federal prisons are extremely low--much lower, in fact, than in U.S. society as a whole--the real risk of serious future violence by convicted murderers is extremely small. 

Counsel for capital defendants in a number of recent capital cases have sought to meet such "future dangerousness" allegations by producing detailed expert testimony about the low "base rates" of violence in federal prisons, and the characteristics of their clients-such as relatively advanced age, patterns of prior violent conduct, etc.- that further reduce the already low risk of violence in their specific cases. 

In response, government prosecutors in recent cases in Chicago and Richmond have produced BOP officials who in effect assail their own agency's ability to protect inmates and staff from violent offenders.   At the same time, the BOP has so far proven uncooperative with defense experts' efforts to gather reliable data about the relative safety of federal prisons, and the demonstrated low risk of violence by life-term inmates.

Despite the difficulty in obtaining government data and information concerning the records and conditions of long-term confinement in the BOP, several capital cases have seen juries reject government allegations of "future dangerousness" after hearing detailed demonstrations of why, and how, life imprisonment actually protects society just as effectively as the death penalty.  So long as the federal courts continue to provide juries with accurate information about the life-without-parole option in capital sentencing, see Simmons v. South Carolina, 114 S.Ct.  2187 (1994), there is reason to hope that "future dangerousness" scare tactics may be vulnerable to reason and common sense in juries' capital sentencing deliberations.

 

THE GOVERNMENT'S MENTAL HEALTH EXPERT OF CHOICE

 

Prosecution efforts to compel psychiatric evaluations for use in death penalty sentencing hearings have created some contentious and complicated litigation in the last few years.

 Federal statues and rules authorizing evaluations by court-appointed or government mental health experts generally deal only with incompetence to stand trial, or with pleas of legal insanity or other mental health defense.  Despite the lack of any explicit authority to compel such evaluations for sentencing purposes, the trend among federal trial courts, beginning with United States v. Vest, 905 F. Supp. 651 (W.D. Mo. 1995), has been to condition capital defendants' right to present psychiatric evidence in mitigation on their willingness to be evaluated by experts of the government's choosing.  Such orders usually include safeguards intended to keep the prosecution from learning of the defendant's statements concerning the crime until after conviction.  United States v. Beckford, 962 F. Supp. 748 (E.D. Va. 1997).  However, in one Texas case now pending appeal in the Fifth Circuit, the trial court declined to adopt such safeguards, and nevertheless excluded the testimony of a defense psychologist after the defendant refused to submit to a pretrial evaluation by a government's expert.  United States v.  Orlando Hall, No.  96-10178 (5^th Cir.).

Other courts have taken a more cautious view of the government's power to compel a capital defendant to co-operate with prosecution mental health evaluators.  Virtually all court have limited the government's use of such evaluations to rebuttal of defense psychiatric or psychological testimony, and in the most celebrated recent mental health-related federal capital case, that of Theodore Kaczynski, Judge Garland Burrell appeared inclined to permit some defense expert testimony concerning the defendant's mental illness even if Kaczysnki persisted in his refusal to be interviewed by the government's experts. 

Wishing to facilitate access by government mental health evaluators to capital defendants, the Department of Justice in mid-1997 proposed amendments to the Federal Rules of Criminal Procedure that would increase defendants' notice obligations and entitled the government to conduct its own mental health evaluations prior in capital sentencing hearings where the defense provides notice of intent to introduce mental health evidence in mitigation. 

The quality of government mental health evaluations has, to say the least, varied widely, and many have proven to be highly biased.  Many Bureau of Prison staff mental health evaluators are inexperienced in both the assessment of sentencing issues (as opposed to competency and sanity) and in the assessment of homicide defendants generally, and the first few capital case evaluations to come out of BOP facilities have been criticized as superficial and unreliable.  Lack of confidence in BOP staff evaluators were apparently shared by the department of Justice and many federal prosecutors, since between 1994 and 1997 government prosecutors across the country came to rely heavily on a single forensic psychologist, Daniel Martell of Long Beach, California, to rebut defense mental health evidence in federal capital sentencing hearings.  Martell's qualifications for the role of the feds' coast-to-coast death phase mental health expert appear to have centered on his association with Dr. Park Dietz, a forensic psychiatric veteran of countless high profile cases from John Hinckley and Jeffrey Dahmer to Waco and the Clarence Thomas/Anita Hill hearings.  However, Martell's apparent mid-trial breach of court-ordered confidentiality in a New Mexico case in mid-1997 led to a hastily-arranged plea bargain, and he has not testified in any federal case since.

New issues have been arising steadily as government prosecutors move more aggressively to secure evidence from mental health evaluations of capital defendants.  Unsettled issues include:

• the government's right to tape-record or videotape psychiatric interviews with the defendant,

• discovery of defense experts' notes, testing and historical information,

• the length and conditions of government evaluations,

• the selection (and on occasion, disqualification) of government experts, and-most critically-

• the precise uses to which the government may put the results of such court-ordered evaluations. 

Government mental health testimony has already proven devastatingly prejudicial in several capital cases.  The relevant issues in capital sentencing are very broad, and an expert determined to assist the government's case for death can often dehumanize a convicted defendant while maintaining the appearance of medical detachment and bureaucratic objectivity.  Because of the enormous potential for harm from biased and unreliable evaluations, defense counsel must continue to approach government demand for such evaluations with extreme caution.

EARLY DISCOVERY PROVIDED IN DEATH PENALTY CASES

At the dawn of the Republic, and since, Congress has recognized the difference a capital indictment makes.  For example, beginning in 1790 Congress has enacted statutes requiring the appointment of multiple counsel "learned in the law", allowing extra peremptory challenges, and requiring production of a witness list prior to trial in all potentially capital cases.

Given modern criminal practice, the modest "three day" witness list rule needs to be interpreted in light of evolving defense standards for investigation and preparation.  The same is true as to the production of exculpatory (Brady), impeaching (Giglio), witness statements (Jencks) and other discovery.  It appears courts are doing so.

In a number of federal capital cases, the government or the courts have taken a more expansive view of the prosecution's discovery obligation.  Counsel have been receiving more and earlier discovery than in non-capital cases.  For example, see United States v. Chandler, 996 F.2d 1073, 1098-99 (11^th Cir.) (§ 3432 witness list and addresses provided two weeks before trial); United States v. Egorov, 222 F.2d 862, 864 (E.D.N.Y. 1963) (§ 3432 witness list and addresses provided 10 days before trial); United States v. Willis, 33 F.R.D. 510 (S.D.N.Y. 1963) (§ 3432 witness list and addressed provided 30 days before trial).

Some district courts have ordered discovery months in advance of trial.  United States v. Acosta (D. NM No. CR 95-538-MV) (Vasquez, J.) (Government required to provide immediately upon request exculpatory and impeaching information, and to provide Jencks material months before trial), United States v. Tamara Llamas (E.D. NC CR No. 7:97-CR-63-1-H) (Howard) (Brady, Giglio, Jencks and witness list ordered produced 20 days before trial). In other cases, the government has simply agreed to provide it.  See United States v. Alexander Cooper (N.D. IL No. 89-CR-580) (Shadur, J.) (Brady and Jencks material provided several months in advance of two separate trials); United States v. Darryl Johnson (N.D. IL No. 96-CR-379) (Conlon, J.) (Brady and Jencks material provided several months in advance of trial); United States v. Reginald Brown (E.D. MI No. CR-92-81127-2) (Cohn, J.) (Brady and Jencks material provided several months in advance of trial); United States v. McVeigh and Nichols (D. CO No. 96-CR-68-M) (Matsch, J.) (Jencks material provided a year before trial; government voluntarily provided a witness list including penalty phase witnesses with a summary many months before trial of each witness's proposed testimony); United States v. Everett Spivey (D. N.M. No. CR 95-491-LH) (Hansen, J.) (Brady material provided two months before trial, Jencks provided three months before trial).

Penalty related discovery has also been ordered to be produced early.  See United States v. Gonzales, et al. (D. NM CR No. 95-538-MV) (March 13, 1997) (order granting and denying defendant John Acost's motions regarding victim impact evidence; discovery of victim-related information ordered 30 days prior to trial).

One court has required disclosure of essential discovery very early to aid the all-important defense presentation before the Attorney General's death penalty committee. See United States v. Rosado-Rosario, et al. (D. PR CR No. 97-049 (JAF)) (August 1, 1997) (opinion and order at 2 "expansively defin[ing] [a capital] defendant's right to discovery ..."; the district court ordered unredacted statements and transcripts of witness interviews provided during authorization process, well in advance of trial).

Discovery practice is simply different in capital cases and rightly so.  See People v. Arthur, N.Y.L.J. (Vol. 218, No. 98, Nov. 19, 1997, p. 17) (Sup.Ct. 1 Dept.) (Kahn, J.) ("In a capital case, the need for exhaustive investigation and thorough trial preparation by the defense team is of paramount importance, given the potential consequences of the case.