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Hochul puts death penalty to frequent test; U.S. attorney uses federal charge often, unsuccessfully and at a significant cost

It's hard to find a federal prosecutor anywhere in the nation who has filed as many potential death penalty cases as William J. Hochul Jr., the U.S. attorney for Western New York.

So far, none of those cases has led to an execution.

But they have cost taxpayers a bundle of money -- more than $661,000 in the past year.

Since taking office in March 2010, Hochul has filed potential death penalty cases against 24 people. That's more than those filed by federal prosecutors in Los Angeles, Chicago, Detroit, Miami or any city in Texas.

In fact, among the 94 federal prosecutors throughout the land, only two others -- both from New York City-area districts far more populous than Western New York -- have filed as many potential death penalty cases with Washington as Hochul in the past two years.

So far, Washington has not approved any of Hochul's cases for a death penalty prosecution, though a dozen decisions are pending before the U.S. attorney general. But it often takes months from the time a U.S. attorney files a potential death penalty case until the attorney general decides whether to pursue the death penalty. As a result, the Buffalo and Rochester federal courts where Hochul files cases spent more than $661,000 during his first full year in office on lawyers and other defense costs for defendants in the early stages of death penalty-eligible cases.

The $661,000 is more than the combined amount spent by the region's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years. During those 11 years, a total of 12 death penalty-eligible cases were filed. Hochul has filed twice that many in less than two years.

"The numbers in Buffalo are not part of a national trend. It does not appear to be something that is coming out of Washington. It's something that Mr. Hochul does far more often than almost any other federal prosecutor," said James P. Harrington, one of a handful of Buffalo defense lawyers who are certified to handle death penalty-eligible cases.

"It is a colossal waste" of court time, court resources and money, said Harrington, who also opposes the death penalty on moral grounds.

According to death penalty defense lawyer Kevin M. McNally, Hochul is one of a small number of federal prosecutors who file death penalty-eligible charges in cases involving drug gang members who kill other drug gang members. He said juries are rarely willing to pronounce the death penalty in "gangster-on-gangster" cases.

"I seriously doubt whether any of [the Hochul] defendants will actually face the death penalty at trial," said McNally, of Frankfort, Ky., who heads the Federal Death Penalty Resource Counsel Project.

While some defense lawyers say Hochul is overzealous and is wasting taxpayer money, Hochul, 52, defends his record. He said he is enforcing federal law and trying to protect law-abiding people in neighborhoods terrorized by gang violence.

Hochul said his office does elect to file murder and racketeering charges in some gang-murder cases, and it's the murder charge in the context of racketeering that makes the cases death penalty-eligible. But ultimately -- after a review process that usually takes months -- the final decision on whether to pursue the death penalty is made by Attorney General Eric Holder in Washington. And after a death penalty case goes to trial, a jury decides whether the defendant will face execution.

"I often go out and speak to block clubs in the inner city, and people come up to me and tell me they are afraid to go out for a walk in their own neighborhood, or sit in their own backyard," Hochul said. "We will continue to bring these cases against the most violent offenders and leave the ultimate decisions to the attorney general and juries."

Statistically, gang violence in the region has decreased over the past two years, and Hochul contends that prosecutions undertaken by his office with the FBI and other agencies helped. Buffalo Police Commissioner Daniel Derenda and Niagara Falls Police Superintendent John R. Chella agree.

"I would absolutely not want to see the [federal] death penalty taken off the books," said Chella. While such cases rarely lead to executions, they often lead to guilty pleas that put violent criminals in prison for decades, sometimes life, Chella said.

"[Hochul] has helped us to take some very, very dangerous people off the streets," Derenda said.

Harrington agreed Holder makes the final decision on whether to pursue the death penalty, but he said a case only becomes eligible for the death penalty after a local federal prosecutor -- such as Hochul -- proposes a case as potentially worthy of the death penalty. "You can file a federal murder charge without seeking the death penalty," he said.

If any of Hochul's cases do result in federal death sentences, it would be the first time that has happened in Western New York. New York is one of 16 states that do not have a state death penalty.

>3 federal executions

Nationally, the Justice Department has authorized about 500 death penalty prosecutions -- only one in Western New York -- since Congress reinstated federal capital punishment in 1988. And since 1988, only three men in the nation have been federally executed. There have been no federal executions in more than eight years.

Timothy J. McVeigh, the Pendleton native and decorated Gulf War veteran who bombed a federal office building in Oklahoma City and killed 168 people, was put to death by drug injection in June 2001. A few weeks after McVeigh's death, a murderous Texas drug dealer, Juan Raul Garza, was federally executed.

The last federal execution in America was that of Louis Jones Jr., another decorated Gulf War veteran, who kidnapped, raped and murdered a 19-year-old female soldier in Texas. He was executed in March 2003.

Though hundreds of millions of dollars have been spent on such cases since Jones was put to death, no one has been executed under the federal death penalty since. At least 66 federal defendants have been sentenced to death since 1988, but their executions have been held off by legal appeals.

According to court statistics, federal death penalty prosecutions can cost up to eight times as much as a non-death penalty prosecution.

Death penalty experts estimate the Justice Department and the courts spend at least $86 million a year on federal death penalty cases. They can only estimate because the Justice Department declines to say how much of its $28 billion annual budget goes toward death penalty prosecutions.

Hochul said he doesn't worry about how his death penalty numbers stack up against other cities or how much the prosecutions cost. He said enforcing federal laws and protecting the public are his top considerations.

Hochul is filing these cases because "I believe he is an overzealous prosecutor," said Terry Granger, a Buffalo defense lawyer whose clients have included convicted murderer and gang-leader Donald "Sly" Green.

"I do not see how even the staunchest supporter of the death penalty could argue that these prosecutions are an efficient use of taxpayer money," added David Kaczynzki, with New Yorkers for Alternatives to the Death Penalty.

Supporters of the death penalty say it is the kind of tough law enforcement measure that has helped deter violent crime in recent years, and they point to local, state and national crime statistics as proof.

Officials said crime in the state was down 4.4 percent in the first six months of 2011, as compared with 2010. The rates of murder, rape, robbery and assault were all down.

The FBI reported Sept. 19 that the nation's violent crime rate dropped 6 percent in 2010, the fourth straight year in which violent crime went down.

In Buffalo, homicides were down 23 percent, shootings were down 25 percent and violent crime in general was down 18 percent in the first half of this year, Derenda said. Niagara Falls' crime rate is also down.

But Harrington argues that the federal death penalty has nothing to do with those declines. No one has been federally executed since 1954 for a crime committed in New York State, he said.

"There are plenty of other federal charges -- including drug conspiracy charges and operating a continuing criminal conspiracy -- that can be used, and are used, to lock up gang suspects for a very long time," Harrington said. "You don't need to tie up the courts and go through all the expense of using the death penalty laws."

According to federal court records, 24 people in the region have been targeted in potential death penalty cases since Hochul began serving as U.S. attorney. Most were suspected drug gang members charged with murdering people in Buffalo or Rochester.

Half of those people no longer face death penalty-eligible charges, because the Justice Department -- after examining all the circumstances of the crimes for months -- decided not to push for execution. In the other cases, Justice Department officials have not decided yet.

Among those who still face potential death penalty prosecutions are:

*Three men accused of ambushing and murdering Quincy Turner, a race car driver who was a federal witness in a Jamestown drug probe.

*Six people accused of torturing and murdering Francisco Santos, whose body was found on the Seneca Nation's Cattaraugus Territory, and other violence.

*Three alleged members of the Seventh Street gang who are accused of murders, assaults and drug trafficking on Buffalo's West Side.

"We take these decisions very seriously," Hochul said. "We only file capital charges against those defendants who appear to be the worst of the worst."

Once a potential death penalty case is filed, each defendant is assigned two defense attorneys, who are each paid $178 an hour by the federal courts. The usual rate for a court-appointed federal defense attorney is $125 an hour, and -- aside from death penalty-eligible cases -- defendants rarely get more than one.

Because only a few local lawyers are qualified to handle death penalty-eligible cases, lawyers sometimes are brought in from other cities or states to help with the defense. The travel costs are paid by taxpayers.

Other support personnel for the defense attorneys are also hired, including "mitigation experts," who dig into the defendants' backgrounds seeking information that might convince the Justice Department not to pursue the death penalty. Mitigation experts get up to $100 an hour, plus travel expenses. In several local cases, mitigation experts traveled to Puerto Rico to interview friends and families of defendants.

>Costly N.Y. City case

"The federal system is good in that it usually guarantees that each defendant will get highly qualified representation," said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. "But it adds a whole new layer of costs that taxpayers have to pay."

How expensive can a single federal death penalty case become?

According to the Death Penalty Information Center, the Justice Department's recent unsuccessful effort to execute New York City mobster and killer Vincent "Vinnie Gorgeous" Basciano cost taxpayers between $4 million and $10 million.

Basciano was already serving a prison term of life without parole when federal prosecutors from Brooklyn took him to trial earlier this year. A jury convicted him of murder and racketeering, but on May 31 declined to impose the death penalty, deciding instead to again sentence him to life in prison.

Western New York has never had a death penalty case as expensive as Basciano's, but according to District Court Clerk Michael J. Roemer, death penalty cases were by far the most costly in the region last year.

Over the past year, more than $661,000 was spent by the court system on defense-related expenses for 24 death penalty-eligible defendants in the district, said Lisa G. Ball, chief financial officer for the district.

On average, that's more than $25,800 per case, and half of those cases are still pending. During the same time period, about $2.47 million was spent defending at least 230 other defendants who received legal aid. That's about $10,700 per case, and many of those cases have been completed.

Those death penalty expenses are for defense and court costs only. They do not include the costs of investigating, jailing and prosecuting death penalty-eligible defendants, which are kept secret by the government. Dieter said he believes those other costs are at least as high as those spent on defense.

The last time the Justice Department approved a local death penalty case for trial was the 1993 case of Darryl "Reese" Johnson, an enforcer for the LA Boys gang. Johnson was accused of multiple killings, assaults and kidnappings. Hochul handled the case as an assistant U.S. attorney.

Rather than face such a trial, Johnson decided to plead guilty to murder and racketeering. He was sentenced to eight terms of life imprisonment -- believed to be the longest sentence ever handed down in a Buffalo courtroom -- in 1995. Hochul said that case took one of most violent criminals in Buffalo's history off the streets forever.

"Under Justice Department regulations, my duty is to file the highest provable federal charge against a defendant, and that is what we do," Hochul said.

Defense lawyer Harrington sees it differently.

"If nobody ever gets convicted of capital crimes in this district," he said, "how can you call it the highest provable charge?"

email: dherbeck@buffnews.com

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Death as deterrent /Your elected officials' stances

Citing high costs to taxpayers for a very small number of executions, some critics think the Federal Death Penalty should be abolished. According to research by The Buffalo News, the U.S. Justice Department has sought the death penalty against about 500 individuals since the penalty was re-enacted by Congress in 1988. Only three of those defendants have been executed, and none in the past 11 years. Supporters of the federal death penalty say it is part of a tough law enforcement policy that has helped to slow the rate of violent crime in Western New York and nationwide. The Buffalo News asked the region's representatives in Congress whether they support continuation of the federal death penalty.

Sen.Charles E. Schumer, D-NY:

Supports federal death penalty. "There are certain heinous and treasonous crimes where the ultimate penalty is called for and appropriate."

Sen. Kirsten E. Gillibrand, D-NY:

Supports federal death penalty, but also supports "a moratorium on the death penalty in all cases until stricter standards of evidence are in place that will ensure guilt beyond any doubt."

Rep. BrianHiggins, D-Buffalo:

Supports federal death penalty in "very rare" crimes involving "the most extreme, definitive cases."

Rep.Kathleen C. Hochul, D-Amherst:

Supports federal death penalty in "extreme" cases, such as terrorist attacks and in cases in which drug kingpins or other criminals directed murders. She's the wife of U.S. Attorney William J. Hochul Jr.

Rep.Louise M. Slaughter, D-Fairport:

Opposes the death penalty under any circumstances because "I believe it is both immoral and ineffective."

Rep. Tom Reed, R-Corning:

Supports federal death penalty, especially for those who murder federal officials or agents, or in "extreme cases involving intentional murder or espionage."