Agenda trumps fact in recent Chron editorial
The Chronicle ran such a stunningly erroneous and misleading editorial last Tuesday that it's taken a while to prepare an adequate, careful critique.
The editorial and critique are so convoluted as to require something of a special approach. Rather than excerpt problematic sentences and correct them one at a time, I'm going to post the relevant portion of the editorial, with sections that are bolded and numbered (my numbering will be in brackets). I'll follow with numbered comments on each bracketed point below the excerpt.
U.S. District Judge Vanessa Gilmore is guilty of unorthodox methods, but it was not unreasonable of her to ask prosecutors [1] why they are seeking the death penalty against the one black defendant among 14 indicted [2] in a smuggling case that ended with the death of 19 illegal immigrants.
Last week a three-judge panel of the 5th Circuit Court of Appeals slapped down Gilmore's threat to tell jurors that prosecutors had refused her order to say why they were seeking the death penalty against Tyrone Williams [3], the driver of the truck that pulled the sweltering trailer in which the immigrants perished May 14, 2003. Williams is the lone black defendant to be tried in the case [2a].
Prosecutors said they were under no legal obligation to give a reason for singling out Williams [4] among his co-defendants for the death penalty. They stated that Williams, as the truck's driver, was the sole defendant with "the power to release the aliens and possibly save their lives." [5] This reasoning is akin to the uncommon notion that the triggerman is guiltier than the person who hires him -- a notion not recognized by law or custom.
Gilmore then asked for a letter of explanation from U.S. Attorney John Ashcroft, who ignored the request [6].
Gilmore could have dismissed the death penalty as a sanction against the government for not obeying her order [7]. Perhaps she was more interested in bringing attention to the controversial racial disparities in the application of the death penalty. [8]
1) A panel of the Fifth Circuit Court of Appeals issued a sharply worded, 22 page per curiam opinion (pdf link) that it was well beyond Judge Gilmore's discretion to issue the orders she did to prosecutors, and the panel issued the writ of mandamus requested by prosecutors. Anyone who reads that opinion carefully cannot help but conclude their opinion was that her actions were indeed unreasonable. The full Fifth Circuit later declined to revisit that panel's opinion, following request from defense counsel.
Further, prosecutors DID give a reason for asking for the death penalty. They just declined to share internal deliberations on that issue with defendants. More on that below, but it is a significant difference, and it is misleading to conflate the two.
2) Tyrone Williams is not the only black defendant among the 14 indicted in the case, as is made clear in the Fifth Circuit panel's opinion, which the Chronicle editorialists apparently did not read. However, one would think the Chronicle editorialists might be familiar with their newspaper's own coverage of the matter. Clearly, Fatima Holloway, who rode with defendant Williams in the death truck, is African-American. As indicated below the Chronicle photo, Holloway did plead guilty in the case -- so she clearly was indicted. Indeed, the fact the government sought the death penalty for Williams and not for Holloway figured into the Fifth Circuit panel's reasoning in their opinion. The Chronicle's gaffe here was either stunningly inept or deliberately misleading.
2a) See above.
3) Judge Gilmore's order was far more expansive than that, calling into question executive and judicial prerogative. The Fifth Circuit panel ruled that Judge Gilmore clearly exceeded her authority under statute and precedent.
4) That is an erroneous oversimplification of the argument prosecutors made to the Fifth Circuit panel, as reading that panel's opinion should make clear.
5) The Chronicle editorialists previously asserted that prosecutors did not give a reason for seeking the death penalty. Here, they assert that a reason was given, but that they don't much like the reason. Which is it?
Here's an excerpt from the Fifth Circuit panel's opinion, in which the authors recount the facts of the case:
According to the indictment, on or about May 13, 2003, after several co-conspirators loaded seventy-four illegal aliens into an enclosed trailer at or near Harlingen, Texas, Williams and co-defendant Fatima Holloway, the only two African-American participants, drove the tractor-trailer rig to a prearranged destination at or near Victoria, Texas. Williams was the driver and Holloway was sitting in the passenger seat.
As alleged, during the trip, several aliens began to bang on the locked trailer, begging to be released from the oppressive heat inside. As the aliens screamed for mercy, Holloway allegedly told Williams to turn on the refrigeration device in the trailer, or, alternatively, to let the aliens out. Williams allegedly rejected these requests and continued to drive. The government alleges that as a direct result of this decision nineteen of the aliens died from heat exhaustion and/or suffocation (2, emphasis supplied by me).
This seems like a reason the Justice Department might seek the death penalty in this case, whether or not one agrees that it's a sufficient reason.
6) This characterization is misleading. The prosecution contended in its petition to the Fifth Circuit that Judge Gilmore had no authority to compel a written statement from the Attorney General of the United States in this matter. The Fifth Circuit panel concurred, slapping down Judge Gilmore (who, at one point, had appeared to back down from her insistence on said letter) with ridicule in a footnote.
7) Again, the prosecution actually asked Judge Gilmore to dismiss their death penalty request, an action that could have been appealed. She denied that request, which was part of the sequence of events leading to the prosecution's successful petition for a writ of mandamus. Basically, the Fifth Circuit panel ruled she could have dismissed their death-penalty request, or she could have allowed it, but she could not go outside existing precedent and caselaw to create bizarre new jury instructions in such cases.
8) One might say the very same thing about the Chronicle editorial board, that in its zeal to pursue its anti-death-penalty agenda, little things like facts (or, in a judge's case, precedent and statute) need not control.
Just to be clear about the slapdown administered Judge Gilmore by the Fifth Circuit panel, here are some excerpts:
In concluding that Williams had made a prima facie case of selective prosecution, Judge Gilmore ignored Supreme Court precedent and the plain facts as stated by the defendant himself (15). [emphasis in the original]
and
Only Williams, the driver of the truck, was allegedly able to prevent the victims' deaths; for this reason, the Government is pursuing the death penalty against Williams alone. The Notice of Intent to Seek the Death Penalty emphasizes this distinction. Because Williams could not demonstrate that similarly situated, non-African-American co-defendants were treated differently, he could not sustain his burden [under existing precedent] (16-17) [emphasis supplied].
and
A much stronger showing, and more deliberate analysis, is required before a district judge may permit open-ended discovery into a matter that goes to the core of a prosecutor's function and implicates serious separation of powers concerns. Judge Gilmore's misapplication of [precedent] represents clear legal error (17).
and
The court's ever-changing and inspecific orders afforded no boundaries on discovery, and in effect compelled the Government to volunteer information (as opposed to responding to a request by Williams), contrary to [precedent] and to Federal Rule of Criminal Procedure 16.... Based on the minimal showing made by Williams, Judge Gilmore clearly abused her discretion in granting wide-ranging discovery (19).
and
Judge Gilmore's jury instruction appears simultaneously to be preventing the government from enforcing the death penalty against Williams, while prohibiting any ordinary appellate review of the court's determination. This combination of legislating from the bench and acting as a quasi-defense attorney vis-a-vis the jury is unprecedented and ultra vires (20). [footnoted]
and finally, the comments following the footnote indicated above:
We will not devote much effort to Judge Gilmore's demand that the Attorney General of the United States himself sign a letter asserting privilege. This request was obviously inappropriate.
That's a significant repudiation of Judge Gilmore's actions, which seem to be cited with approval by the anti-death-penalty Chronicle editorial board.
I included so much detail to demonstrate the extent to which the Chronicle's editorial was inaccurate and misleading. Since the newspaper's coverage of this issue doesn't even include a link to the per curiam opinion from the Fifth Circuit, most readers will simply assume the Chronicle has its facts right, and may therefore find their editorializing compelling. That would be a mistake.
As I conceded earlier today, the Chronicle editorial board is welcome to whatever position it would like on issues.
However, the editorial page -- in somewhat less than "an ideal state" here -- is not entitled to make up facts to suit the anti-death-penalty agenda of editorial board members (or the editor's wife). Key portions of this editorial were erroneous and misleading, and demand a correction.
UPDATE (01-24-2005): Tom Kirkendall has some thoughts here, which remind me that I should have linked to his earlier posts on Judge Gilmore's behavior here and here. Friend Kirkendall keeps a close eye on such legal happenings and other good stuff at Houston's Clear Thinkers.
Posted by Kevin Whited @ 01/23/05 09:50 PM | Print |
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