Judge Gilmore, presiding over the federal trial against the defendant facing the death penalty for killing several illegal aliens during a smuggling operation, seems to want off the case.

First, she issues an order for the AG to explain why he sought the death penalty and then threatened to instruct the jury against the death penalty when the explanation was not forthcoming. (The 5th Circuit then issued a rare writ of mandamus telling Gilmore she was dead wrong and to back off.)

Now, she has come up with more judicial legislation by ordering the trial to begin with the understanding that a separate jury will be picked later for punishment should the defendant be convicted. Sounds like the death penalty abolitionist' dream judge.

The 5th Circuit has again delayed the trial to hear the prosecutor's appeal. Any bets on how long before the judge is removed from the case?

How about impeachment? Of course, it will never happen but it is nice to dream on a cloudy Tuesday morning.

Has anybody asked Judge Gilmore to explain why she is doing what she is doing? For someone who seems to think she is entitled to know why the prosecutor is seeking his statutorily authorized punishment, she doesn't seem to think much of doing crazy illegal things herself.

Williams prosecutors want judge removed

Request claims Gilmore is unable to put aside her expressed views
By HARVEY RICE

Prosecutors on Wednesday asked an appeals court to remove the judge presiding over the federal trial of a truck driver blamed for the deaths of 19 illegal immigrants in 2003.


U.S. District Judge Vanessa Gilmore should be removed by the 5th U.S. Circuit Court of Appeals because her actions show she has "substantial difficulty in putting aside previously expressed views and opinions that (the appeals court) has determined to be erroneous," the prosecutors' request states.


The request to remove Gilmore was included in the U.S. Attorney's Office appeal to the 5th Circuit of the judge's plan to use two juries in the death-penalty trial of Tyrone Williams.


The trial was to have begun Monday, but a stay by the 5th Circuit to give the prosecution time to file its appeal delayed the start for the fourth time in a continuing battle over how he will be tried.


The request for the removal of a judge from a case by the prosecution is rare, said Charles Baird, former member of the Texas Criminal Court of Appeals and visiting professor at South Texas School of Law.


"I think it's extremely unusual," Baird said. "I can't think of another case where I've ever heard of it."


Baird said prosecutors must show Gilmore is unable to be fair to both sides during the trial.


Neither prosecution nor defense attorneys would comment Wednesday because of a gag order imposed by Gilmore.



Scheduling complaint
One reason prosecutors cited in their request to remove Gilmore from the case was her complaint about scheduling problems.



Gilmore has said that the trial of five former executives from Enron's Internet division, scheduled to begin April 1 and last four months, could interfere with Williams' trial, prosecutors wrote.


Williams, 54, is accused of ignoring the plight of more than 74 illegal immigrants suffering under intense heat and lack of air in a trailer he was towing.


Victoria County deputies discovered Williams' abandoned trailer May 14, 2003, at a Victoria truck stop with 17 bodies inside. Two other immigrants died at a hospital.



Decision on two juries
The latest dispute between prosecutors and the judge stems from Gilmore's announcement last Friday that she would use two juries during Williams' trial ? a "non-death-qualified" one to decide guilt or innocence and a "death-penalty-qualified" one during the punishment phase, if needed.



Prosecutors argue that the plan, suggested by Williams' attorneys, violates federal law on the use of the death penalty.


Baird said that, tactically, using two juries would mean the prosecution would have to try the same case twice if Williams was convicted ? once during the guilt-innocence phase and once during the penalty phase.


Attorney Robert Scardino ? who represented Claudia Carrizales de Villa, indicted with Williams but acquitted by Gilmore in December ? said death-penalty-qualified juries tend to be more prone to convict because they contain people who favor the death penalty.


Williams' attorneys, who claim he was singled out for the death penalty from among 13 other defendants because he is black, argued that using a non-death-penalty jury during the guilt-innocence phase would make it easier to get more blacks on the jury. Blacks tend to oppose the death penalty and are therefore frequently disqualified from death-penalty juries, they said.



Tense relations
The request to remove Gilmore follows months of tense relations between the judge and prosecutors stemming from the government's refusal to comply with her order to show why they sought the death penalty for Williams.



The prosecution argues that only Williams could have prevented the deaths, but Gilmore said prosecutors have failed to address the issues raised by Williams' attorneys.


This is the second time prosecutors have asked the 5th Circuit to overturn an order by Gilmore.


A three-judge panel of the 5th Circuit issued a harshly worded opinion Jan. 12, saying Gilmore overstepped her authority in ordering prosecutors to reveal the facts used to decide to seek the death penalty for Williams.


Williams' attorneys have appealed the 5th Circuit ruling to the U.S. Supreme Court, which is expected to decide whether to hear the appeal when it begins a new session next week.


The appeals court panel also said she was wrong to penalize the prosecution by planning to tell jurors during the punishment phase, if Williams were convicted, that prosecutors had disobeyed her order.

Immigrant death trial judge stays

Appeals court also rules against using two juries in truck driver's case
By HARVEY RICE
Copyright 2005 Houston Chronicle


A federal appeals court Monday refused the prosecution's request to remove the judge presiding over the trial of a truck driver accused in the deaths of 19 illegal immigrants, but overruled the judge's decision to use two juries.



A three-judge panel of the 5th U.S. Circuit Court of Appeals said that "the government had not argued the factors that would justify removing the judge," said Bill Zapalac, counsel for the 5th Circuit clerk.


The panel found no evidence that U.S. District Judge Vanessa Gilmore "acted in other than good faith" and found no evidence that she is unable to be impartial.


Ruling in an appeal by prosecutors seeking the death penalty for Tyrone Williams, 34, a Jamaican immigrant from Schenectady, N.Y., the panel also said the two-jury plan violated the Federal Death Penalty Act.


The panel ordered that Gilmore begin the trial, postponed four times since its original Jan. 5 start date, as soon as possible, Zapalac said.


A gag order imposed by Gilmore prevents the defense and the prosecution from commenting.


The decision is another victory for prosecutors in a battle with Gilmore over how Williams will be tried.


The struggle began when prosecutors defied Gilmore's order to reveal the facts used in deciding to seek the death sentence against Williams and not the 11 others eligible for the death penalty out of 14 indicted in the case.


Williams' attorney, Craig Washington, accused John Ashcroft, who was U.S. attorney general when the decision to seek the death penalty was made, of singling out his client for the death penalty because he is black.


Gilmore, in the face of what she regarded as an unreasonable refusal by the prosecution, has tried to fashion a trial that would take the defense's arguments into account.


Prosecutors have said Gilmore's order infringed on executive prerogatives, saying they singled out Williams for death-penalty prosecution because he was the only defendant who could have prevented the 19 deaths.


In a Jan. 12 ruling, the 5th Circuit Court sided with prosecutors in a strongly worded order.


The defense appealed the decision to the U.S. Supreme Court, which has not decided whether to hear the appeal.


Prosecutors accuse Williams of ignoring the plight of more than 74 immigrants who fought to survive in his sealed trailer as temperatures soared.


Seventeen bodies were found in Williams' abandoned trailer May 14, 2003, at a Victoria truck stop. Two other passengers died at a hospital.


Gilmore had ordered the trial to begin a week ago using a non-death-penalty qualified jury for the guilt-innocence phase and a death-penalty jury for the penalty phase if Williams were convicted.


The 5th Circuit ordered Gilmore to use a death-penalty-qualified jury for the entire trial, Zapalac said.


His defense attorneys said that it would mean more blacks would be chosen for the jury because they are more likely to be disqualified when choosing a death-penalty jury.


To be eligible for a death-penalty trial, jurors cannot be opposed to the death penalty.


The 5th Circuit panel delayed the trial while prosecutors from the U.S. Attorney's Office filed an appeal protesting Gilmore's unusual jury arrangement.


In another unusual move, prosecutors asked that Gilmore, who has had tense relations with the prosecution, be removed as trial judge because of scheduling conflicts and her "difficulty in putting aside previously expressed views and opinions that (the appeals court) has determined to be erroneous."


Zapalac said the 5th Circuit Court panel "was confident" that Gilmore would "entertain a motion to reassign the case" if she had scheduling conflicts.

The 5th Circ. has a lot more confidence in the impartiality of Judge Gilmore than have I. Perhaps they have watched the movie "PolyAnna" too many times.

Or, in fairness, perhaps I'm just too cynical.

I'll let you decide.

[This message was edited by Terry Breen on 02-15-05 at .]

Victoria County DA waits his turn

He's pondering murder charges against the 14 in smuggling case
By HARVEY RICE
Copyright 2005 Houston Chronicle

The Victoria County district attorney says he is considering murder charges against all 14 people accused of being members of a human smuggling operation blamed for the deaths of 19 illegal immigrants.



"I want people to know it's not finished," District Attorney Dexter Eaves said. "When they finish with the federal system, they are going to deal with Victoria, Texas."


Asked if that meant filing murder charges, Eaves said, "You're darn right."


A federal grand jury in Houston indicted the 14 after the May 14, 2003, discovery of 17 bodies in and near an abandoned trailer at a truck stop near Victoria.


Two more immigrants died in a hospital.


Eaves said he can't forget that awful scene.


"Out of the 17 or 18 bodies that were there, I can't even remember but one body in my mind and that was the 5-year-old boy," he said.


Wednesday, a Houston federal jury convicted Tyrone Williams, the driver of the truck who abandoned the trailer, on charges of transporting at least 74 illegal immigrants.


The jury spared him the death penalty but failed to reach a verdict on several charges. U.S. District Judge Vanessa Gilmore declared a mistrial on those charges.



No hugs in Victoria
Referring to Williams' attorney, Craig Washington, Eaves said, "I don't think Mr. Washington is going to be happy with my decision.



"I won't see any hugging going on," he said, referring to the hugs Williams gave after he was spared the death penalty.


Under U.S. law, both state and federal officials can prosecute someone for the same crime.


He said he also would consult with the sheriff, county judge and the families of the 19 victims before deciding. A meeting is scheduled for today with local law enforcement officials to discuss the case.


Eaves said he refused requests by the U.S. Attorney's Office to yield jurisdiction, which would have made it easier for federal prosecutors to bargain for guilty pleas by assuring defendants that they would not be prosecuted on state charges.


Officials at the U.S. Attorney's Office could not be reached for comment late Thursday.


Eaves declined to criticize Gilmore, but said, "My state judges are elected. They don't have lifetime appointments. They follow the law and they don't legislate the law."


"We're not talking about tonnage here, we're talking about human life," Eaves said. "People forget that, but here in Victoria County we haven't forgotten that."