Next AG can decide if alleged cop killer faces death penalty, judge says

A decision on whether the Department of Justice will pursue the death penalty for two people charged with killing a federal courthouse officer will not be made until at least February when there is a new attorney general, a federal judge in San Francisco ruled.

U.S. District Judge Yvonne Gonzalez Rogers said she will not impose an "arbitrary deadline" for defendants to submit reasons why federal prosecutors should not seek to have them executed. She cited in her order last week pandemic conditions which have restricted their ability to communicate in person with their attorneys.

"The parties have provided myriad views on the appropriate length of time needed to prepare a proper mitigation response and have shown how an artificial rush may backfire upon appeal," she wrote. "It is certain that a Nov. 12, 2020 deadline given the current pandemic is objectively unreasonable."

U.S. Attorney David Anderson of the Northern District of California has argued that a decision on whether his office will seek the death penalty should be made by the end of the year, according to court filings.

Attorneys for defendants Steven Carrillo and Robert Justus Jr. have maintained that the deadline does provide them with enough time to present information which might bear on the decision whether to seek the death penalty given the complexity of the case and "significant impairments in the defense function that have accompanied the COVID-19 pandemic."

There is a protocol to pursue capital punishment requiring defendants to bring mitigating factors to dissuade the government from pursuing it and for the U.S. attorney general to make a recommendation to the court and sign off on whatever decision is made.

Carrillo and Justus are charged with killing U.S. courthouse officer Dave Patrick Underwood in Oakland on May 29 during Black Lives Matter protests. They are suspected of being associated with the Boogaloo movement -- a far-right, citizen-militia group that calls for violent uprisings against the government. USA v. Carrillo, 20-cr-00265 (N.D. Cal., filed June 25, 2020).

In an order siding with the defense, Rogers found that prosecutors' favored November deadline for Carrillo and Justus to submit mitigating factors is unreasonable.

The government has "not shown how a brief delay in the defendants' presentation of mitigation evidence to the U.S. attorney will hinder its ability to carry out its prosecutorial function," she wrote.

Rogers cited visitation restrictions imposed as a result of the pandemic that have limited defense attorneys' ability to discuss the case face-to-face with their clients. She also pointed to a change in the administration, which would make the final decision on whether to pursue the death penalty.

The ruling orders U.S. marshals to facilitate meetings between defendants and their attorneys as frequently as necessary to ensure the case moves as fast as possible. The accused men are at Alameda County's Santa Rita Jail, which has ceased all contact visits during the pandemic.

The Justice Department would most likely not seek the death penalty against Carrillo and Justus given President-elect Joe Biden's opposition to capital punishment. After authoring a 1994 bill that expanded its use, he has since supported legislation to eliminate it.