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Originally published in the Houston Chronicle December 18, 2004, Saturday

Copyright 2004 The Houston Chronicle Publishing Company

Government accused of bias in human smuggling case;
Judge wants to know why a black man was singled out for death penalty

By HARVEY RICE

A federal judge on Friday threatened a prosecutor with contempt over the Justice Department's decision to seek the death penalty against the truck driver in a deadly immigrant smuggling case, a decision the driver's lawyer contends was racially motivated.

The allegation is in a document filed by attorneys for Tyrone Williams, 33, of Schenectady, N.Y., accused in the deaths last year of 19 undocumented immigrants who were sealed in a trailer pulled by Williams en route to Houston.

The document asked U.S. District Judge Vanessa Gilmore to find the U.S. Attorney's office in Houston in contempt for failing to produce information showing why the Justice Department decided to seek the death penalty for Williams and not 11 others indicted in the incident who were eligible for the death penalty.

Williams' attorneys say prosecutors have repeatedly failed to heed her order and ask that the judge bar prosecutors from seeking the death penalty.

Williams' attorney, Craig Washington, wrote in his contempt request, "To this date, the purported responses to the discovery order have been meaningless and not at all directed to the request for production or the court's order for production."

On Friday, Gilmore threatened to hold one of the prosecutors in contempt if he failed to get a letter from U.S. Attorney General John Ashcroft by the end of the day stating his refusal to explain why the only death penalty ever sought in an immigrant smuggling case is against a black man.

Gilmore made the threat after Assistant U.S. Attorney Tony Roberts told her the Justice Department was refusing some information on how it determined it would seek the death penalty against Williams.

Roberts told the judge it was doubtful that he could obtain the letter.

The U.S. Attorney's office responded with a request that Gilmore reconsider her order to release the information. Gilmore denied the request, but had not issued an order holding Roberts in contempt by the time she left her office for the day.

Roberts told Gilmore that providing all the information on the death-penalty decision-making process violated the constitutional prerogatives of the executive branch.

Gilmore said, "They are taking the position that they can indict whoever they want to and charge the death penalty and not disclose the reason."

Roberts said the government had not sought the death penalty for the other black person in the case, Fatima Holloway of Cleveland, Ohio, who accompanied Williams on the deadly journey. He insisted that he had done his best to comply with the judge's orders in earlier filings with the court and that some of the information was restricted and could not be made public.

Attorneys at the hearing could not comment because they are under a gag order imposed by Gilmore. Assistant U.S. Attorney Nancy Herrera, spokeswoman for the office, said she could not elaborate on what was said in court. The Justice Department's Washington office did not respond to a request for comment.

The contempt request by Williams' attorneys says the government is seeking the death penalty because of his race.

"The defendant reiterates his allegation that race was the factor in determining that the death penalty should be sought in this case and therefore he was entitled to discovery of the information relating to the government's capital-charging practices," the document filed with the court says.

Washington provided a signed affidavit from Kevin McNally, resource counsel for the Federal Death Penalty Resource Counsel Project.

McNally says in the affidavit Williams is the only person that the U.S. Justice Department has decided to seek the death penalty against out of 68 defendants charged in federal court with immigrant smuggling resulting in death.

Of that number, the government decided not to seek the death penalty in 52 cases; it is in the process of deciding whether to seek the death penalty in 11 cases and two are fugitives.

Sixty-one were Hispanic, three white, two black and two of unknown ethnicity.

Ashcroft has said that there is "no evidence of racial bias" in federal death penalty cases, although a study in New York found that all cases in which Ashcroft ordered prosecutors to seek the death penalty involved blacks or Hispanics.

A survey in the final year of the Clinton administration found 80 percent facing