If defendant prevails (doubtful) is there ANY reason to believe the next person will change course and choose not to seek the death penalty or be more amenable to a reasonable plea offer if that is what the defendant is seeking? will a different peerson in office cause theprosecution to be less effective?

    If the defendant loses (quite likely) will this maneuver run the risk of making the prosecution more intractable?

   I have to question whether this is an example of using a client's case to make a political point rather than acting only with the client's best interests in mind.

  Stating a conclusion does not make it so. Do you care to explain how the lawyer's politics and client's interests coalsece?

If Im not mistaken in my characterization of your position, what do you base this conclusion on?

 WHAT REASON IS THERE TO BELIEVE THAT IF THE CURRENT APPOINTEE IS REMOVED THAT THE NEXT WILL NOT BE EQUALLY IN TUNE WITH GONZALES'S POSITION!

  What gain is there to the defendant even if this person is successfully removed?

   Factor in that losing this motion, which calls into question the qualification of the person who is and may well continue to be in charge of the office prosecuting the defendant,  and the unfortunate reality that some prosecutors take things like that pewrsonally and this filing  may create a less favorable position for the defendant.

   In light od that waht is the reason in the DEFENDANT'S best interest for this motion?

  As for your second post you, again, just can't get it. My point is that ANY U.S. Attorney appointed by this administration is likely to pursue the same course, so if the defense counsel can articulate an argument that one different than the current one will less effective THAT would be at least a colorable argument supporting the judgment to file the motion.

So we shouldn't pull out all the stops, file every motion in a d.p. case 'cause we don't want to make the prosecution more "intractable?"  

How do you get more intractable than death?

Are you concerned they'll also try to kick him when he's dead?  

This touches on a great point, for defense lawyers and for Democrats: There are a lot of people who "advocate" that a defense lawyer shouldn't get too uppity else the prosecution get mad and up the ante.  There are times, indeed, when heeding this advice is appropriate, but they're rare.  

Most of the time the defense lawyer's best tactic is to adopt an attacking defense, akin to what is taught at the NCDC in Macon, GA.  This is especially true in a d.p. case, when it's difficult to fathom the pros becoming more intractable, assuming cruel and unusual punishment hasn't, to paraphrase Gonzo, become quaint like his feelings about the Geneva Conventions.  

I admire the tactic and wish more defense lawyers, and Democrats, wouldn't suffer from so much Stockholm Syndrome as to worry about what Big Daddy might do if we exercise our rights and fight against death instead of worrying about appearing intractable to a person whose asking permission to kill to punish killing.  

  Filing motions for "fighting's sake" is not the way to go unless it serves a purpose.

  No one is saying you shouldn't fight and piss off the prosecution. I'm saying that there needs to be a purpose beyond that.

   Perhaps there is in this case, but I and apparently no one else knows what it it might be.

  The way the prosecution can become more intractable is by refusing to consider offering a plea offer  to a lesser sentence when obtaining such an offer would be in your client's best interest.

The answer to your and my questions is of course "it depends."  Only Last Night truly knows whether this tactic is in his client's best interests, but in a d.p. case, why not give him the benefit of the doubt?  After all, perhaps the way to persuade the prosecution to offer a plea to a lesser offense is to counter their d.p. request by showing them that it's not going to be easy.  

I agree that one must pick one's battles and always think of the client but I'm confident Last Night accompanied (or soon will accompany) this motion with a persuasive plea to the prosecution for a better offer for his client to consider.

From the motion, Sect. I:

"The Defendant is charged... with Federal Capital murder...  Defendant is informed by the AUSA that a superceding indictment will be sought against the Defendant in February.  Presumably this indictment will allege an additional aggravating circumstance for the death penalty."

  I'm going to assumethe defense counsel is very experienced because Federal Courts must appoint "learned counsel" in capital cases. to be "first chair" in a capital case you need prior experience and jusdges want to make sure defendants have experienced lawyers both because of "fairness" and because a well qualified lawyer is less likely to provide fodder for later ineffective assistance claims.

  That being so, in a jurisdiction the size of Arkansas, it is a sure bet the U.S. Attorney's office is already well aware of the lawyer's capabilities and approach and there should be no need to file a motion for the sole purpose of impressing the prosecution that you are willing to fight. Everyone also knows that the best fight is not filing motions that serve no good purpose but being very adept at recognizing, presenting and supporting the motions that do serve a good purpose.

  Your second post relies entirely on the assumption that the anticipated superseding indictment adding allegations of additional aggravating circumstances would be less likely to come to pass because of the motion to disqualify the current appointee.

  I see no reason to believe that is so. You are willing to give the defense counsel the benefit of the doubt. I am not without further explanation.

  I can hypothesize a few possible reasons other than grandstanding but I haven't heard them. One is simply delay, delay, delay. Death penalty cases move much slower (for a good reason0 than most federal criminal cases and perhaps the defense is convinced that UNDER ANY REPUBLICAN  the U.S.Attorney's office will go to the mat for the death penalty and that is has a strong case but that if resolution can be delayed until 2009, a demoncrat in the office might be willing to cut a deal, so the goal is to do evereything possible to keep the case from coming to trial for as long as possible.

1. The office of the President is a political office.  What a shocker - there are political acts!

2. Remind me again what Bill Clinton did with the existing US attorneys when he took office in 1993?  

"But Gonzales overrode Stevens' objection and put in Cohen to be U.S. Attorney in Alaska on a temporary basis. As such, the Cohen appointment does not require Senate confirmation"

From the DOJ website:

Key Personnel In United States Attorney's Offices

District: ALASKA
Site Phone Phone Number
Office: (907) 271-5071
Fax: (907) 271-3224
Site Address Type Address
Mailing: Federal Bldg. & U.S. Cthse.
222 W. 7th Ave., #9, Rm 253
Anchorage, AK 99513-7567
Shipping: Federal Bldg. & U.S. Cthse.
222 W. 7th Ave., #9, Rm 253
Anchorage, AK 99513-7567

* Represents Presidentially Appointed United States Attorney

Official Position/Title Name

USA Nelson P. Cohen

http://corporatecrimereporter.com/stevens090706.htm

CORPORATE CRIME REPORTER

Senator Stevens Feuds with Main Justice in DC as FBI Raids Son's Office in Alaska
20 Corporate Crime Reporter 35(1), September 6, 2006

Senator Ted Stevens (R-Alaska) is feuding with the Justice Department.

On August 22, Attorney General Alberto Gonzales appointed Nelson Cohen, head of the white collar crime unit at the U.S. Attorney's office in Pittsburgh, Pennsylvania - to be the interim U.S. Attorney in Alaska - over the objections of Senator Stevens.

Senator Stevens said at the time that he was "furious at the way the Attorney General handled the matter."

According to a transcript provided by Senator Stevens' office to Corporate Crime Reporter, at a press conference on August 28 in Anchorage, Alaska, Senator Stevens was asked by a reporter - "Who do you think should be U.S. Attorney?"

"Well not someone who comes from Pennsylvania, and that's a little problem I have right now, finding out what to do about that," Stevens said. "Because very clearly, I was called three weeks ago now, and told they had someone who they'd like to nominate from outside Alaska. And we said, `No, no. You're not going to do that. You can't do that. You don't do that in any other state. You're not going to do it in this one.'"

But Gonzales overrode Stevens' objection and put in Cohen to be U.S. Attorney in Alaska on a temporary basis. As such, the Cohen appointment does not require Senate confirmation.

In a press release , the Justice Department says that prior to joining the U.S. Attorney's office in Pittsburgh, Cohen practiced law for ten years in Alaska.

"We submitted some names, but Justice had one reason or another that they figured the person had a conflict, but they never really came with anything other than that we should find someone else," Stevens said at the press conference. "We did give them some additional names, but in the meantime they had already taken action on this person. We have to arm wrestle on this one. It is not the thing to do. It has only happened one other time that I can remember. I can remember it happened in Illinois and it caused such an uproar. As a matter of fact, it became a real cause celeb with the Illinois Bar Association."

On August 31 - just three days after Senator Stevens' press conference denouncing the Department of Justice - the FBI raided the offices of a number of state legislators in Juneau including that of Senator Stevens son - Alaska Senate President Ben Stevens.

FBI agents reportedly left Ben Stevens Capitol offices with 12 boxes of documents labeled "evidence."

Federal officials are reportedly investigating payments from oil service giant VECO to a number of public officials in exchange for their support for a new production tax law and the construction of a natural gas pipeline in Alaska.
The Anchorage Daily News reported last week that "in disclosures he was required to file as a legislator, [Ben] Stevens said he was paid $243,000 over the last five years as a `consultant' to VECO. Whenever he was asked to describe what he did for the money, Stevens refused to answer. The company also refused to say."

In addition to computer hard drives and hard paper records linking the legislators to VECO, FBI agents were reportedly seeking hats emblazoned with the logo - "Corrupt Bastards Club" or "Corrupt Bastards Caucus."
In March, in an op-ed piece run in the state's major papers, Lori Backes, executive director of the All Alaska Alliance - a group that has supported an alternative gas pipeline route - had charged eleven lawmakers - including Senator Ben Stevens - with taking money from VECO.

The lawmakers reportedly started referring to themselves as the "Corrupt Bastards Club" or the "Corrupt Bastards Caucus" - and had hats printed with the CBC logo.

Aaron Saunders, a spokesman for Senator Ted Stevens, would not discuss anything having to do with the FBI raid in Alaska.

Nor would he say why Senator Stevens was "furious" with Attorney General Gonzales.

Could it be that the Justice Department was not going to give Senator Stevens his choice of a U.S. Attorney when the Stevens family was caught in the middle of a public corruption probe?

No comment, Saunders said.

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