ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, April 15, 1996 TAG: 9604150069
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
THE U.S. JUSTICE DEPARTMENT wouldn't let federal prosecutors in Roanoke seek the death penalty against three men charged with killing an alleged crack dealer in Waynesboro. That decision may have spared the life of the defendant in another murder case.
Omar DesAnges took his opportunity where he saw it. He was headed home to Maryland for the holidays, his car loaded with Christmas presents, when he spotted one of his crack cocaine customers - a man who had become a police informant.
DesAnges pulled on a ski mask, snuck around the back of Sanford Datcher's car in a rural area of Clarke County, and opened fire. He pumped 11 hollow-point bullets into Datcher as the victim scrambled across the front seat, trying to climb over his girlfriend to reach the door. She was hit once.
DesAnges had made plans to kill Datcher earlier in the month, a prosecutor said, but it hadn't worked out. He succeeded the day before Christmas Eve 1994.
The trial of the 23-year-old crack dealer was scheduled to start today in federal court in Harrisonburg. It would have been the first federal death-penalty case in the Western District of Virginia since Congress reinstated capital punishment in 1988 for federal crimes.
But at a hearing late last month, the U.S. attorney's office said it would not seek the death penalty. And after conferring with his attorneys, DesAnges decided to plead guilty to first-degree murder.
With related firearm and drug charges, he faces a mandatory sentence of at least 25 years. The government will argue for life imprisonment at his sentencing in July.
The U.S. attorney's office in Roanoke thought its prosecutors would be trying two death-penalty cases this spring. But they decided not to seek the death penalty against DesAnges after the U.S. Justice Department denied them permission to do so in another murder case, one local prosecutors believed was more deserving of capital punishment.
In that case, three men are charged with killing an alleged fellow crack dealer in Waynesboro in a dispute about money. According to an indictment, Ian Byron-Cox and his girlfriend were bound and blindfolded with duct tape in March 1995, and Cox was severely beaten and robbed. Both were then stretched out on a bed, and Cox was shot three times in the back. The woman was allowed to live and went to police.
DesAnges' attorney, Lloyd Snook III of Charlottesville, said Assistant U.S. Attorney Tom Bondurant called him last month and told him the Justice Department wouldn't let prosecutors seek the death penalty in Cox's slaying.
Because of that, Bondurant said, he wouldn't feel right arguing for death in DesAnges' case and wanted "to work something out," according to Snook.
"I completely applaud, and I'm pleased with, the discretion and common sense and fairness the U.S. attorney's office used," Snook said. "It's up to them to ensure justice is administered fairly in the Western District of Virginia."
Bondurant declined to discuss any connection between the two cases. But he said DesAnges' prosecution "didn't seem like an appropriate case" for the death penalty after comparing it with other cases. Despite prosecutors' concerns that DesAnges killed a police informant, other aggravating factors weren't there. There was little evidence he was a future danger to society, and he had no prior record, Bondurant said.
Assistant U.S. Attorney Tony Giorno, who is trying both cases with Bondurant, said the plea agreement with DesAnges was fair. He said the Justice Department's decision in the Cox case was a factor in not seeking the death penalty against DesAnges, but so was DesAnges' clean record and the largely circumstantial evidence.
"This was a heinous crime, but in a death-penalty case, what you have to look at, No.1, is the crime, and No.2, the defendant," said Giorno, who as the former Patrick County commonwealth's attorney has the only death-penalty experience in the U.S. attorney's office.
"When you go up and ask a jury to sentence a man to death, it's an awesome responsibility," he said. "When you do that, you have to make sure what you're doing is the right thing."
In 1988, Congress approved the death penalty for "drug kingpins" who commit murder during a drug crime. More recent crime bills expanded it to apply to hijacking, kidnapping involving a death, and other crimes, a Justice Department spokesman said. Federal prosecutors must get authorization from the U.S. attorney general's office before seeking the punishment.
A rotating committee of two or three deputy attorneys general review the prosecutors' applications, spokesman John Russell said. The committee hears arguments from prosecutors and defense attorneys before deciding whether to grant approval. Attorney General Janet Reno formed the committee in order to establish a Justice Department standard for when to seek the death penalty, he said.
When Roanoke federal prosecutors went to Washington to argue for a death sentence in DesAnges' case, it was approved. They said they expected the same in the Cox case, in which a career offender and two others are charged.
One of the three defendants in that case, 32-year-old Gregory Milton, has two felony convictions for violence or drugs, making him a "career offender." Because of that, he faces a mandatory life sentence just on the drug charges against him.
Milton, Cox and others are accused of running a crack cocaine "team" bringing the drug from New York to Waynesboro to sell. A dispute arose over a drug debt, and Milton and the others killed Cox to maintain respect among the team, the indictment says. Their trial begins June10.
Milton's attorney, David Baugh of Richmond, would not discuss how he persuaded the attorney general's committee not to approve the death penalty. Neither would prosecutors.
Both DesAnges and Milton are black.
When defense lawyer Snook went before the attorney general's committee in DesAnges' case, he argued unsuccessfully that the death penalty is unfairly imposed on blacks, that the government engages in "selective prosecution." He made the same argument to U.S. District Judge Samuel Wilson when it looked as if DesAnges would be going to trial, and Wilson ruled against him.
The defendants' race had nothing to do with the prosecution of the two cases, Giorno said.
"Race at no time was ever mentioned in our office," he said.
Since 1990, the U.S. attorney general's office has authorized federal prosecutors to seek the death penalty 65 times, spokesman Russell said.
In two-thirds of those cases, Snook said, the defendants are black. He also argued that most people prosecuted for crack cocaine offenses are black. He asked Wilson to dismiss the indictment on the grounds that prosecutors cannot selectively enforce laws against particular races.
The judge responded in a written opinion: "It is not sufficient to prove discriminatory effect alone. Rather, the defendant must prove discriminatory purpose. ... The court assumes from its own observations that the majority of those prosecuted for crack cocaine related offenses are indeed black as DesAnges alleges. But there is no evidence to support DesAnges' allegation that the government is prosecuting him because he is black.''
Of the 65 death-penalty cases, seven men have received death sentences so far. Three are black, two are white and one is Latino. The race of the seventh could not be determined.
The three black men are from Richmond. The gang members were convicted and sentenced together in one trial held in February 1993.
Nationally, 48 percent of death row inmates are black, and 41 percent are white.
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