- The Washington Times - Sunday, February 13, 2005

HOUSTON — Prosecutors want the judge handling the case of the truck driver charged with the deaths of 19 illegal immigrants removed from the case, saying she is biased and has made illegal demands of government lawyers.

Last week, following several caustic exchanges and two seminal rulings by U.S. District Judge Vanessa Gilmore, the U.S. Attorney’s Office here filed an unusual request to the 5th U.S. Circuit Court of Appeals, asking for a new judge to oversee the trial.

The prosecutors’ appeal says Judge Gilmore “has substantial difficulty in putting side previously expressed views and opinions that [the appeals court] has determined to be erroneous.”

A gag order forbids either side from commenting publicly, but a source familiar with the case said: “You can put this in your memory bank. It’s been bitter at times in that courtroom.”

Tyrone Williams, 54, a Jamaican immigrant from Schenectady, N.Y., is accused of ignoring the screams and moans of scores of illegals as they suffered in a locked refrigerator trailer as he secretly hauled them from a pickup point near Harlingen to Victoria, Texas, on May 13, 2003.

The animosity began in pretrial motions when Judge Gilmore, who has spent 10 years on the bench and is a native of Silver Spring, Md., asked prosecutors why the government had demanded the death penalty charge (among 58 specific counts the government has brought against him) only for Mr. Williams and not for those who masterminded the deal.

The prosecutors refused to explain. The judge told them that if they didn’t, she would explain to the jury during Mr. Williams’ sentencing phase that the attorneys had disobeyed her demand.

The district attorney’s office here quickly appealed and a three-judge panel from the 5th Circuit ruled that Judge Gilmore had overstepped her authority in so threatening and had illegally infringed upon the executive branch’s prerogative.

Mr. Williams’ chief defense attorney, Craig Washington, contended the only reason the government demanded the death penalty was because Mr. Williams is black. “How come none of the other 12 people indicted face death? ” he asked.

Prosecutors say Mr. Williams was pinpointed because he could have saved the immigrants’ lives had he let them out of the vehicle before many were overcome with heat exhaustion or suffocated. They acknowledge that 12 others could have faced the death penalty, but were charged with lesser crimes. Four of the indicted fled to Mexico and later had their charges dropped by a Mexican judge on “technicalities.”

As for removal of the judge, some of the trial watchers say the prosecution’s request, if granted, would be a rare occurrence.

“For every 100 times a defense lawyer files a [motion to remove the judge], you might have the government making one such motion,” the source familiar with the case said.

“I won’t say it hasn’t happened before, but I will say I can’t recall it,” said Charles W. “Rocky” Rhodes, a professor at Houston’s South Texas School of Law.

Charles Baird, former member of the Texas Criminal Court of Appeals and a visiting professor at the local law school, agreed. “I can’t think of another case where I’ve ever heard of it,” he said.

Mr. Washington appealed the 5th Circuit’s admonition of the judge to the U.S. Supreme Court. Then he filed an unusual new motion — one that fomented an even greater rift.

He moved that if his client were found guilty, the punishment phase should be handled by a second jury — one that could consider a full range of punishment, including the death penalty.

Mr. Washington reasoned that using a second jury to determine punishment if there is a conviction would be fairer for his client because many blacks oppose the death penalty and for that reason seldom are chosen for capital case jury duty.

Judge Gilmore ruled in favor of the defense on that motion Feb. 4, causing a bit of turmoil and heated exchanges in the usually quiet courtroom after the judge had exited.

Last week, the U.S. Attorney’s Office appealed that decision along with its motion to excuse Judge Gilmore from the trial. A quick decision is expected.

And if the 5th Circuit rules as expected, for the prosecution and against the judge, Mr. Washington says he will then appeal that to the U.S. Supreme Court.

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