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Prosecutors may be hard-pressed to win death sentences in prison gang case

Associated Press Writer

SANTA ANA, Calif.- Federal prosecutors could be hard-pressed to win death sentences when one of the biggest capital cases in U.S. history _ an attempt by the government to take down the Aryan Brotherhood prison gang _ gets under way this week.

Twenty members of the white supremacist gang will be brought to trial in groups in the coming months, beginning with four defendants on Tuesday. Altogether, the case involves 32 murders and attempted murders allegedly orchestrated by the gang's leaders.

However, many of the 16 defendants who could face the death penalty are already serving long prison terms. Nearly all of the victims were themselves dangerous thugs. And the prosecution's witnesses are likely to be jailhouse informants who could be despicable characters themselves.

Given the circumstances, jurors could be satisfied with a sentence of life without parole if the men are convicted, said William McGuigan, a defense attorney who has worked on cases targeting members of the Mexican Mafia, another prison gang.

"The dynamics could not be as good for prosecutors as they think they are," he said.

Authorities arrested 40 Aryan Brotherhood members in 2002 after a six-year investigation intended to dismantle the gang's leadership under a federal racketeering law originally aimed at the Mafia. Crimes detailed in the indictment span 30 years and occurred in prisons around the nation. Nineteen defendants struck plea bargains and one has died.

Prosecutors declined to be interviewed.

Michael Radelet, a sociology professor and death penalty expert at the University of Colorado at Boulder, said juries are less likely to vote for death if they know a defendant is already serving a life sentence.

That is the case with many of the Aryan Brotherhood defendants. Barry "The Baron" Mills is serving two life terms for murder after nearly decapitating an inmate in 1979. In the upcoming trial, he faces a possible death sentence for allegedly orchestrating the 1997 killings of two black inmates serving time for rape at a prison in Lewisburg, Pa.

"If the person is already doing a life term and is having problems in prison, that in some ways shows a failure of the criminal justice system," Radelet said. "The fact that justice systems are imperfect is an anti-death penalty argument. It's not a pro-death penalty argument."

Radelet also questioned whether a death sentence for the gang ringleaders would serve as a deterrent, as prosecutors hope.

"A fair number of people doing life without parole would prefer death," he said. "When people get executed, they become heroes" to other inmates.

Laurie Levenson, a law professor at Loyola Marymount University and a former federal prosecutor, said it is also difficult for prosecutors to win death sentences when the victims themselves were serving time for violent crimes. A case built around jailhouse informants can compound the problem, she said.

"It's a much dirtier case when you have to use informants," Levenson said. "If the jurors hate the informant, they're not going to vote for the death penalty."

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