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Originally published in The Houston Chronicle on January 18, 2005

Copyright 2005 The Houston Chronicle Publishing Company

U.S. District Judge Vanessa Gilmore is guilty of unorthodox methods, but it was not unreasonable of her to ask prosecutors why they are seeking the death penalty against the one black defendant among 14 indicted 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, the driver of the truck that pulled the sweltering trailer in which the immigrants perished May 14, 2003. Williams is the lone African-American defendant to be tried in the case.

Prosecutors said they were under no legal obligation to give a reason for singling out Williams 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." 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.

Gilmore could have dismissed the death penalty as a sanction against the government for not obeying her order. Perhaps she was more interested in bringing attention to the controversial racial disparities in the application of the death penalty.

In 2001, Attorney General Ashcroft released a report showing "no evidence" of racial bias in the federal death penalty system. But the original study, released the previous year by then-Attorney General Janet Reno, showed minorities accounted for 80.4 percent of the 682 federal criminal defendants accused of capital crimes between 1995 and 2000.

Instead of setting aside the possibility of the death penalty, Gilmore decided she would announce to jurors during the punishment portion of Williams' trial - if he were convicted - that prosecutors had not abided by her order to provide a rationale for seeking the death penalty. The judge said she further would allow the defense team to say the prosecution's refusal showed Williams' race had been a motivating factor in the government's decision.

Gilmore can be accused of jumping to a conclusion there. But in the absence of a real reason for seeking the death penalty, prosecutors left the door open for the public to jump to its own conclusions.

The New Orleans-based three-judge panel threw out Gilmore's entire plan. But if the judge accomplished anything, she got the public to think about why prosecutors are so secretive about providing information concerning how and why they choose to subject accused criminals to the ultimate punishment. A competent prosecutor eventually presents that information to the jury, so there is little reason why the public should not know from the start.