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No mediation in death penalty case

ALBUQUERQUE, N.M. — The U.S. Attorney’s Office has rebuffed the offer of a well-regarded senior federal judge to mediate a pre-trial plea agreement in a particularly high profile death penalty case.

That means the expensive and time-consuming trial against John Charles McCluskey, 47, charged with the 2010 carjacking murders of Gary and Linda Haas of Oklahoma, is still on track to begin in late July — a delay from the previously scheduled March trial date.

U.S. District Judge Judith Herrera communicated through her law clerk on Jan. 31 that Senior Judge James A. Parker was willing to conduct a mediation in the case. He would act as a neutral arbiter, not communicating with Herrera or any other judge about the negotiations and not presiding over any hearings in the case.

The government’s response: no thanks.

U.S. Attorney Kenneth Gonzales’ letter to Herrera says the government “deeply understands the logistical and financial burdens that capital prosecutions inflict on the entire U.S. District Court, and particularly the chambers of the assigned judge.”

They are time consuming, intellectually rigorous and inevitably spell delay in many other cases, imposing “an enormous cost on the effective and efficient operation of the court,” the letter said.

Gonzales said, however, that the prospects of success were “so remote” that they made a mediation “unproductive,” despite McCluskey’s desire since early in the case to plead guilty in exchange for “a sentence less than death” — presumably, life without parole.

“There truly is no `middle ground’ in this case,” the Gonzales letter says.

The U.S. attorney general must personally agree to any death penalty prosecution after the U.S. attorney and defense counsel submit materials and make presentations to the Justice Department’s Review Committee on Capital Cases and the committee makes its recommendation.

Defense attorneys Michael Burt of San Diego, Theresa Duncan of Albuquerque and Gary Mitchell of Ruidoso said in a letter in response this week that top decision-makers with authority to resolve the case should be included in any mediation. They also say a mediation deals not just with the respective parties’ positions, but also the assumptions and reasoning behind them — and Parker’s skills as a mediator could help both sides take a fresh look at their cases.

“A capital prosecution inflicts significant burdens on the court. Those burdens have been particularly heavy in this case given events beyond the control of the prosecution and the court…the parties owe it to the court to at least try to resolve this case,” the defense letter says.

McCluskey, an Arizona prison escapee, and codefendants Tracy Allen Province and Cassandra Mae Welch were charged with carjacking the couple from a highway rest stop near Santa Rosa on Aug. 2, 2010, driving them to a remote ranch site and shooting them. Welch and Province have entered guilty pleas.

Richard Dieter, director of the Death Penalty Information Center, said federal death cases are “enormously expensive, which is why in New York and elsewhere judges have said `Why are you doing this? Go back and rethink it.'”

He said prosecution costs are at least as much and likely more than the defense since the government has the burden of proof.

In New York, where like New Mexico the death penalty has been abolished at the state level, U.S. District Judge Nicholas Garaufis wrote the Justice Department a letter in 2010 suggesting it reconsider the death penalty prosecution against a mobster in light of the costs. Before the murder trial of Vincent Basciano had begun, the court had logged almost $4 million in defense costs alone.

A 2010 study by the Administrative Office of the Courts found the average cost range for the defense in a federal death case went from a low of $67,366 to a high of $1.78 million in the period 1998 to 2004. The mean was $620,932.
— This article appeared on page C1 of the Albuquerque Journal