Furrow Bid for Memo on Death Penalty Fails

A Los Angeles federal judge Monday denied Buford O’Neal Furrow Jr. access to a prosecution memo recommending whether he should face a death penalty trial.

Furrow, an avowed white supremacist, is accused of murdering a Filipino American mail carrier, a capital offense, after wounding five people last August at the North Valley Jewish Community Center in Granada Hills.

The final decision on whether to seek the death penalty is up to U.S. Atty. Gen. Janet Reno. She has until next Tuesday to make that call.

Under Justice Department protocol, before any decision is made, a defendant is allowed to present mitigating evidence to local prosecutors and to a special death penalty committee at the Justice Department in Washington.

Reno has the final word, however, and can ignore her subordinates’ recommendations.

One of Furrow’s public defenders argued unsuccessfully Monday before U.S. District Judge Richard A. Paez that without access to the Los Angeles prosecutor’s memo, they could not effectively argue their case before Justice Department higher-ups in Washington.

Furrow’s defense team appeared before the department’s death penalty committee on Jan. 31. Federal public defender Judy Clarke told Paez that the session was devoid of any meaningful dialogue because the defense did not know what issues it needed to address.

“You are led to believe that you have some role” in the decision-making process, she said, but the defense is shut out. “That really is where the rub is here.”

Clarke, who represented Theodore Kaczynski, the so-called Unabomber, said the defense was not asking that prosecutors be forced to reveal their own deliberations, but simply the facts and evidence they considered in drafting the memo.

Michael J. Gennaco, chief of the U.S. attorney’s civil rights section in Los Angeles, argued that Furrow had no legal right to the prosecution’s internal memo.

Any order requiring the prosecution to hand it over, he said, would have a “tremendously chilling effect on frank, informed discussion and analysis” among prosecutors.

He also contended that all of the information contained in the sought-after memo has already been turned over to the defense in accord with required pretrial disclosures.

Gennaco did not reveal whether his office had recommended seeking the death penalty against Furrow.

Paez denied the defense motion, saying that Furrow had no constitutional right to see it. He said he would explain his reasoning in a written opinion.

Furrow, who sat manacled at the defense table, was arraigned by Paez on a superseding indictment charging him with hate crimes in the wounding of three boys, a teen-age girl and a receptionist at the North Valley Jewish Community Center in Granada Hills and the killing of letter carrier Joseph Ileto.