The Boulder Boys Must Die

When federal prosecutors seek the death penalty in drug-related murders, the defendants are almost always black. Why should Miami's first "kingpin" case be any exception?

Officials from the U.S. Department of Justice maintain that the law was conceived to go after anyone at any level of a drug enterprise. "From kingpin to foot soldier," is the way spokesman John Russell puts it. "Anybody who works in furtherance of a continuing criminal enterprise."

Yet startlingly, the statute is nearly always invoked against minorities, particularly blacks. Of the 54 defendants the government has sought to kill as kingpins since 1988, only nine are white. Five are Hispanic, two are Asian. Thirty-eight are black.

Justice Department officials assert that race plays no role in their decisions. But despite repeated requests from Congress, they have refused to discuss their decision-making process or the criteria by which they determine whether the statute should be applied.

Last year a congressional subcommittee released a report about the racial imbalance among defendants. "Racial minorities are being prosecuted under federal death penalty law far beyond their proportion in the general population or the population of criminal offenders," the investigators noted. "This pattern of inequality adds to the mounting evidence that race continues to play an unacceptable part in the application of capital punishment in America today."

Shortly after the report was published, a judge presiding over a federal death penalty case in Harrisburg, Pennsylvania, ordered the Justice Department to explain why it wished to execute the defendant, who was black. The order, made in response to defense requests, sought access to hitherto confidential documents, marking the first time a federal judge had tried to pull back the Justice Department's self-imposed veil of secrecy. After privately reviewing the paperwork, the judge declared that she was "troubled by the skewed statistics revealing that most [capital] defendants...[are] black." She ruled, however, that she had found no evidence of racial bias infecting the process by which federal prosecutors choose which defendants they desire to be put to death.

Defense attorneys in the Boulder Boys case have undertaken a similar gambit, filing a motion to throw out the death penalty because they say it is applied in a racially discriminatory manner. They cited about 50 federal cases nationwide in which nonblack defendants could have faced the death penalty under the kingpin law but did not. Among the cases mentioned in the motion is that of Fredric Tokars, a prominent Atlanta tax lawyer convicted last year of racketeering, conspiracy, cocaine possession and distribution, money laundering, and using interstate telephone calls to arrange the murder of his wife in order to ensure her silence about his drug trafficking. (The murder was carried out in front of the couple's two children.) Tokars, who is white, was sentenced to life in prison. The list also included a 1994 case involving a large Hispanic drug gang in Brooklyn that reportedly took in ten million dollars per month peddling heroin and cocaine in the borough's poorest neighborhoods. Defendants were accused of kidnappings, beatings, and torture (including tooth extractions and a finger amputation), as well as five homicides, but were not tried under the kingpin statute.

Early this month U.S. District Judge Ursula Ungaro-Benages denied the defense request, thereby rendering the "race issue," as the defense attorneys have come to call it, moot.

So far the legal proceedings have unfolded in an atmosphere of tension and profound seriousness. Amid the swirl of race and murder and justice, at a time when crime is at the top of every politician's agenda, both sides are treading carefully, sometimes laboriously so. While observers say no careers are going to be made on the basis of the Boulder Boys case, some reputations could be fumbled. And, of course, lives are at stake.

The lead prosecutor, Assistant U.S. Attorney Luis Perez, is an earnest, stocky man, a 35-year-old former state prosecutor who now works in the narcotics division of the U.S. Attorney's Office. On the other side are a pair of federal public defenders and a covey of defense attorneys from the private sector. Nine in number (death-penalty defendants are entitled by law to two attorneys apiece), they include Steve Potolosky and Jayne Weintraub, both of whom defended cult leader Yahweh Ben Yahweh in his 1992 murder trial, and William Matthewman, who defended one of six Miami cops accused of covering up the 1988 beating death of Leonardo Mercado (Matthewman's client was acquitted). Presiding over the case is Ursula Ungaro-Benages, an ambitious jurist who in 1987 became a Dade circuit judge at age 36, and in 1992 became the second woman ever to have been appointed to the federal bench in the Southern District of Florida.

Recent pretrial hearings have been palpably tense, with tempers flaring between defense and prosecution, and also between the defense and the judge. On one occasion, a defense attorney apologized to the court for an irascible outburst, citing the twelve- to fourteen-hour days they had been devoting to the case.

Over the summer, the prosecution requested a gag order to keep defense attorneys from airing their views in the press. American Civil Liberties Union (ACLU) chairman Benjamin Waxman, who promptly filed a challenge to the motion, says the effort amounts to a coverup. "I think part of their motivation was that they don't want aired in the press this contention that the death penalty was being sought discriminatorily based on race," says Waxman. Judge Ungaro-Benages denied the motion but warned both sides that she would hold them in contempt if they strayed outside the rigid guidelines of the local rules of the Southern District of Florida, which prohibit attorneys from making subjective observations about a case.

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