Federal prosecutors say any effort to seek the death penalty if two convicted Wicked Town street-gang members get a new trial amounts not to “vindictive prosecution,” but a policy change reflecting the longtime campaign promises of President Donald Trump.
Defense attorneys for Donald “Lil’ Don” Lee and Torance “Blackie” Benson first raised the issue more than a month ago, complicating a case already troubled by claims that a prosecutor made undisclosed promises to witnesses.
Now the feds have responded, insisting that the Justice Department’s revival of the death penalty under Trump is not an effort to punish Lee and Benson for seeking a new trial. Rather, they said it’s “the product of a yearslong, nationwide campaign to strengthen the federal death penalty and expand its use.”
“While campaigning for office, Donald J. Trump made frequent reference to his plans to expand the death penalty for a variety of offenders, including drug dealers, if elected,” Assistant U.S. Attorney Jimmy Arce wrote in a 24-page court filing Monday.
Before leaving office, former Democratic President Joe Biden commuted the sentences of most people on federal death row to life in prison. Trump, a Republican, condemned the move and issued an executive order on his first day in office “restoring the death penalty and protecting public safety.”
In a separate memo Feb. 5, Attorney General Pam Bondi called for a review of all pending cases that are eligible for the death penalty charged during the Biden Administration.
Prosecutors filed the charges against Lee and Benson during Biden’s four years in office but did not seek the death penalty then. A federal jury found the two men guilty in November 2022 of a racketeering conspiracy. The jury held Lee responsible for six murders and Benson responsible for one.
But sentencing preparations in 2024 led to the discovery of a May 2022 email from then-Assistant U.S. Attorney John Mitchell, records show. In it, Mitchell allegedly relayed a previously undisclosed expectation that, “if the sentencing were tomorrow,” the feds would recommend a 30-year sentence for Deshawn Morgan, a Wicked Town associate who pleaded guilty and testified against Lee and Benson.
Morgan was ultimately sentenced to 32 years in prison last August.
Defense attorneys allege that Mitchell also made similar undisclosed comments to others who testified against Lee and Benson. Prosecutors insisted Monday that Mitchell “did not convey any undisclosed promises to the cooperating defendants, and the attorneys for the cooperating defendants did not interpret the communications by Mitchell as promises.”
Still, U.S. District Judge Thomas Durkin is considering whether Lee and Benson deserve a new trial. He’s even scheduled the proceeding for Aug. 25.
But prosecutors told the judge in February that a new trial could put the death penalty back on the table, given the position of the Trump Administration. A defense attorney called that “textbook vindictive prosecution.”
Durkin initially said he wanted to rule on the motion for a new trial before considering the argument. But days later, he ordered briefs from both sides on the question.
Prosecutors can only seek the death penalty if authorized by the attorney general, Arce noted in his filing Monday. He also said there appears to be no precedent pointing to whether Bondi could lawfully revisit a prior death penalty decision in advance of a retrial.
Still, he said any effort to do so would not be to punish Lee and Benson. Rather, Arce said Trump’s executive order and Bondi’s memo “reflect a change in penological philosophy related to the death penalty.”
Indeed, Bondi directed federal prosecutors in New York on Tuesday to seek the death penalty in the separate case of Luigi Mangione, the man accused in the December murder of UnitedHealthcare executive Brian Thompson outside a Manhattan hotel.
“The 2024 presidential election led to a shift in [Justice Department] policy toward a renewed emphasis on the death penalty as an appropriate punishment for the most severe crimes,” Arce wrote in his filing in the Chicago Wicked Town case.
The prosecutor insisted, “There is zero evidence of personal animus of any kind against the defendants.”
“Defendants do not and cannot point to evidence of personal animus against them by any of the former or current prosecutors in the U.S. attorney’s office,” he wrote.