Pubdate: Sun,  7 Dec 2003
Source: Roanoke Times (VA)
Copyright: 2003 Roanoke Times
Contact:  http://www.roanoke.com/roatimes/
Details: http://www.mapinc.org/media/368
Author: Jen McCaffery

ON THE OFFENSIVE

U.S. Attorney John Brownlee said he won't shy away from difficult prosecutions.

The first rule of prosecuting: if you're not losing sometimes, you're not 
going after the hard cases.

That's U.S. Attorney John Brownlee's assessment in the wake of several 
high-profile cases over the past year in which his prosecutors did not win 
a single conviction against a defendant.

Just more than two years into his tenure as U.S. attorney for the Western 
District of Virginia, Brownlee has established himself as an aggressive 
prosecutor who counts among his successes a conviction rate ranging from 91 
percent to 93 percent of the cases his office has prosecuted.

A media-accessible U.S. attorney, Brownlee has put himself in the public 
eye more than his predecessor, Bob Crouch. Those efforts have ranged from 
national issues to local ones, from defending the Patriot Act in forums on 
radio and television to speaking out about a proposed methadone clinic in 
Southwest Roanoke County.

Stephen Smith, a law professor at the University of Virginia who 
specializes in federal criminal law, said being political is intrinsic to 
the appointed office.

"U.S. attorneys are political animals," he said. "There's definitely a 
political calculus that goes along with these law enforcement decisions."

A handful of cases pursued by Brownlee's office has also raised questions 
about fairness, the use of resources and the strength of the evidence.

Prosecutors in his office have failed to win convictions in four 
high-profile cases since Brownlee took over. Those cases include two in 
which defendants are facing the death penalty: Walter LeFight "Pete" Church 
and Darrell David Rice.

The trial of Church, who is charged with capital murder in connection with 
the 1989 slayings of three members of a Tazewell County family, ended in a 
hung jury. Rice is charged with capital murder in connection with the 1996 
slayings of two female hikers in Shenandoah National Park. Federal 
prosecutors asked that his trial be postponed on the eve of his trial, 
based on new forensic evidence.

Brownlee's office also did not win convictions in cases against Roanoke 
pain specialist Cecil Byron Knox, his practice and two associates, or 
against former National D-Day Memorial Foundation president Richard Burrow.

"I really think John's a good guy," said Roanoke lawyer Jonathan Rogers, 
who has also worked as a state prosecutor. "I just really think he's taken 
on some challenges that are questionable."

Brownlee's take on those cases is different.

"We certainly concede that some cases are tougher than others," Brownlee 
said recently. "But that doesn't make them any less important."

When Brownlee was sworn in as U.S. attorney in November 2001, he had 
practiced law for about a year in the Western District of Virginia. But the 
list of people Brownlee thanked when he took over as top prosecutor showed 
how connected he is.

Brownlee expressed his admiration for his father, Les Brownlee, who was 
named Undersecretary of the U.S. Army shortly after Brownlee was sworn in.

Brownlee also thanked Republican Sens. John Warner and George Allen and 
President Bush for supporting his candidacy.

Then Chief U.S. District Judge Samuel Wilson, for whom Brownlee clerked for 
two years, administered the oath of office. The two maintain a close 
friendship. Wilson would not comment for this story.

After working as a federal prosecutor in Washington, D.C., for about four 
years, Brownlee took over a position that former U.S. Attorney John Edwards 
- - now a state senator - said "has enormous power and enormous discretion" 
in deciding what to investigate and what to charge. Edwards was appointed 
by President Carter and served as U.S. attorney from 1980 to 1981.

Edwards said he has the impression that Attorney General John Ashcroft is 
pushing prosecutors to be more aggressive. But he declined to comment 
specifically on the performance of the U.S. Attorney's Office under Brownlee.

At Brownlee's first news conference in December 2001, he outlined the 
Justice Department's new mission in the wake of the Sept. 11 terrorist 
attacks: to "prevent first and prosecute second."

"Every moment of the investigation, we're going to ask whether we should go 
ahead and prosecute on what we have," Brownlee said at that time. He cited 
the prosecutions of three members of a Muslim community in Charlotte County 
as evidence of his office's efforts in the war against terrorism.

Two of those defendants, Vicente Pierre and Traci Upshur, were convicted of 
conspiracy and making false statements. But federal prosecutors quietly 
dropped firearms charges against a third defendant, Bilal Benu, after he 
pointed out a legal flaw in the case against him. Their prosecutions are 
the only ones that have resulted from the war on terrorism under Brownlee's 
watch, he said.

But Brownlee's prosecutorial philosophy hasn't changed, he said recently.

"The attorney general wants us to firmly but fairly enforce the law," he said.

Prosecutions are up 20 percent to 25 percent in the past two years, 
Brownlee said. Wilson, in fact, has ordered that more federal grand juries 
be convened in the Western District because of the increase in criminal 
investigations. Brownlee said his office has worked with federal, state and 
local authorities to get violent criminals off the streets. Because of 
tough federal laws, many of those prosecutions have resulted in long prison 
terms.

Brownlee's office has also recently stepped up its prosecution of firearms 
cases, and many have resulted in long sentences because of federal 
mandatory minimum sentencing requirements.

Smith, the UVa law professor, said there is a political incentive for 
federal prosecutors across the nation to focus on drugs and violent crime 
because "that's what the public thinks of when they think of crime."

"It makes sense for political reasons because it shows the attorney general 
is getting tough on crime," Smith said.

And aggressive federal prosecutors can parlay a tough reputation into a 
political career, as former U.S. attorney-turned-New York City mayor 
Rudolph Giuliani did, Smith said.

But many of the cases federal prosecutors have pursued, including the 
prosecution of Knox, could have also been handled at the state level, Smith 
argued. While the prosecutions may make sense politically, they leave areas 
that federal law enforcement officers alone should handle - such as 
investigating civil rights violations - at a lower priority, Smith said.

One thing no one has disputed is that most of the cases Brownlee's office 
has prosecuted have resulted in convictions.

Senior U.S. District Judge James Turk said he's aware of the high-profile 
cases that resulted in hung juries or acquittals.

"But other than those, they get convictions in most cases, I believe," Turk 
said.

U.S. District Judge James Jones said he has found Brownlee "competent, 
friendly and outgoing in his dealings with me.

"By and large, I've found the staff of the U.S. Attorney's Office, both 
during Mr. Brownlee's tenure and his predecessor's tenure, to be highly 
professional trial lawyers who have done a generally good job in 
representing the interests of the government," Jones added.

Roanoke lawyer Chris Kowalczuk, who has defended clients against Brownlee, 
commended him for prosecuting some of his own cases.

"John is obviously a more hands-on U.S. attorney than his predecessor, and 
I think that's a good thing," Kowalczuk said. "Having the captain of the 
ship in the trenches ensures that he maintains his perspective with regard 
to the culture and the practice and the administration of justice in the 
Western District."

He added that most of the prosecutors under Brownlee were skilled veterans 
and that he didn't see much difference in how cases were being handled 
under Brownlee. Kowalczuk also pointed out that Congress vests U.S. 
attorneys with their discretionary power.

But others have questioned some of the cases Brownlee's office has pursued.

Richard Amstutz of Eagle Rock said he was troubled by a recent experience 
serving on a federal jury in Roanoke.

A Franklin County man was on trial on charges that he possessed a firearm 
as a convicted felon. But Amstutz said the prosecutor in the case referred 
to an incriminating videotape, then failed to produce it.

Amstutz also said he thought the prosecutor's argument that the Franklin 
County man actually possessed a firearm was weak. In the end, the jury 
acquitted the man on all charges.

Others have also raised questions about the most complex cases Brownlee's 
office has pursued.

Roanoke lawyer Jonathan Rogers specifically questioned the prosecutions of 
Burrow and Knox.

"These are individuals I think most people don't view as criminals," Rogers 
said of Burrow and Knox, though he acknowledged that mistakes may have been 
made by the defendants in each case.

"What bothers a lot of people in the legal community is that it's not just 
that they're being prosecuted," Rogers added. "To a lot of people, it's an 
overreaching and a waste of resources."

Rogers, who briefly represented Kathleen O'Gee, an associate of Knox , also 
questioned how Knox and the other defendants in the case were arrested. 
Rogers argued that federal agents staged an "almost storm-trooperish" show 
of arresting the defendants , when defense attorneys had already agreed 
with federal authorities that their clients would turn themselves in.

"That type of rough treatment is troublesome to everyone," Rogers said.

Wilson, the U.S. District judge, did raise concerns before the Knox case 
went to trial about how prosecutors returned to the federal grand jury 
repeatedly to seek more charges against defendants in the case. Wilson also 
dropped all charges against O'Gee, mostly because of lack of evidence.

Brownlee responded to criticism of his office's handling of the Burrow and 
Knox cases by asking if the critics had actually heard the evidence in the 
cases.

"It's fair to say every time an indictment is returned, somebody gets 
upset," Brownlee said. "It's the nature of things."

He said his office does not calculate the costs of each prosecution or 
budget specifically for them. An estimate of how much the Knox case has 
cost, for example, should include the time federal prosecutors and agents 
spent on the more than two-year investigation, the amount they paid experts 
to appear at trial and their expenses, the costs of photocopying Knox's 
medical records, and other prosecution costs.

Smith also questioned the resources spent in the prosecution of Darrell 
David Rice, who is charged in the 1996 slaying of two female hikers in 
Shenandoah National Park.

"It's an incredibly sloppy prosecution, so sloppy that I was surprised that 
the U.S. Attorney's Office would" go ahead with the prosecution against 
Rice, when the government's own forensic evidence seems to point to someone 
other than the person they've charged, Smith argued.

But Brownlee argued that while some cases make prosecutors look like 
heroes, they should still pursue the ones that don't.

"There are days when cases come in that door that are not necessarily easy, 
but make life easy," Brownlee said.

He pointed out the August capture of convicted child molester Mario "Tony" 
Leyva in Haiti. It was the kind of case where people came up to him in the 
street and patted him on the back, Brownlee said.

"There are other cases where defendants are popular in the community, and 
have friends in high places," Brownlee said. "And so we might not get to 
wear the white hats in those cases. But our obligation is greater than that."

Brownlee said his job is to assess cases on the evidence and on the law.

"It would be inappropriate for me to be influenced by popularity or 
editorials," Brownlee added, referring to criticism by The Roanoke Times' 
editorial page. In October, an editorial called Brownlee "Roanoke's 
political U.S. Attorney." The editorial questioned some of the cases 
Brownlee's office has pursued and his decision to speak out about a 
proposed methadone clinic in Roanoke County.

Brownlee said that Roanoke County Administrator Elmer Hodge invited him and 
another prosecutor to speak on the potential impact of a methadone clinic. 
Brownlee said he thought it was appropriate to comment on the issue.

"This office sees the effect of heroin dealers routinely," Brownlee said.

Brownlee also said that at this point he has no plans to seek political office.

"Public service is very important," he said. "But I think that my passion 
is the law."
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