Prosecutorial Discretion in Capital Punishment Cases

Although this posting is on a capital punishment case, I am interested generally in the discretion of prosecutors to pick and choose what charges to bring and against whom because this discretion also plays out in the indictment of white-collar criminals. However, a good Texas law blog, Houston's Clear Thinkers, has been posting on developments in a federal case in the S.D. Tex. in which the defendants are charged with the deaths of illegal immigrants who died while being smuggled into the country. Apparently, the U.S. Attorneys chose to charge one of three defendants with capital murder, but not the others. In addition, this is the only capital charge made in one of 70 illegal smuggling cases. Judge Vanessa Gilmore ordered the U.S. Attorney to produce a letter from AG John Ashcroft explaining why there were grounds for charging one defendant with capital murder, but not the others. The U.S. Attorney refused, and so Judge Gilmore has said that she will instruct the jury about both the order and the refusal. The unlucky defendant is African-American, but the post explains that so was one other defendant. The U.S. Attorney is taking the position that the decision to ask for the death penalty is subject to executive privilege. If raised on appeal, this case would be in the Fifth Circuit, so it should be interesting to watch.