Making a federal case

Prosecutors in the Derwin Brown murder case have a possible ace up their sleeve that no one's talking about. Its name is Uncle Sam.

Last week's stunning acquittals of Melvin Walker and David Ramsey — combined with immunity agreements already in place for admitted co-conspirators Patrick Cuffy and Paul Skyers — left many shocked Atlantans concerned that the upcoming trial of former DeKalb Sheriff Sidney Dorsey offers the last remaining hope of preventing Brown's killers from getting away with murder.

Not so, say local attorneys familiar with federal civil rights statutes. Despite the recent not-guilty verdicts and existing plea deals, all five of the men whom police believe took part in sheriff-elect Brown's Dec. 15, 2000, assassination would seem to be ripe candidates to be prosecuted for the crime under federal charges.

The idea is that, even though Walker and Ramsey beat a state murder rap, they could face re-trial in federal court. And, although Cuffy sang on cue, if unconvincingly, for DeKalb District Attorney J. Tom Morgan, his and Skyers' deals with the state wouldn't protect them against future charges brought by the U.S. Department of Justice.

"If I were Mrs. Brown [the victim's widow], I would be headed straight over to Justice to see if they would pick up the case," says former U.S. Attorney Kent Alexander, now general counsel for Emory University.

Phyllis Brown, who felt blindsided by the verdict in favor of Walker and Ramsey, says she wasn't aware of the possibility that the two could be re-prosecuted under federal charges until it was mentioned to her after that trial. "My family and I have talked about it," she says.

She says she's certainly open to pursuing that route, but has no plans to approach the feds until after Dorsey's trial, planned for June in DeKalb Superior Court. It's understandable that she wouldn't want to seem to undermine confidence in Morgan's authority until all other options had been exhausted.

Although re-trying acquitted defendants may not sound kosher, the rule against double-jeopardy simply doesn't apply when you jump from state charges to federal, explains noted Atlanta defense attorney Jack Martin.

Certainly, however, re-prosecution is a rare occurrence and a risky political gamble for prosecutors; it's typically invoked only in high-profile cases when a perceived miscarriage of justice brings about an overwhelming public outcry.

In the best-known precedent, after four LAPD officers were acquitted in California state court in the Rodney King beating case — an unexpected verdict that touched off nationwide rioting — they were quickly indicted under federal law for violating King's civil rights. Two of the cops were eventually convicted in federal court.

On the other hand, re-prosecution to many seems like legalized revenge.

"It does smell of overreaching, punishing someone because they got acquitted," Martin says.

Says Alexander: "My gut reaction is that any U.S. attorney's office would be reluctant to bring a case against a defendant who'd already been fully tried. Despite the outcome [of the Walker and Ramsey case], J. Tom is an excellent attorney, so you can't say prosecutors didn't give it their best shot."

Some local attorneys have quietly wondered why Dorsey, a public official accused of arranging the murder of another public official, wasn't charged under federal law in the first place.

According to U.S. Attorney spokesman Patrick Crosby, Morgan has sought and received federal input and assistance of a fairly routine nature in the Brown murder case. But neither the feds nor the DeKalb DA's office — which was under a judge's gag order — will publicly comment on admittedly far-fetched rumors that Morgan had asked Justice to take over the prosecution early on. Crosby likewise wouldn't say if the U.S. Attorney's Office is planning to file federal charges against anyone in Brown's murder.

Typically, the Justice Department doesn't intervene in a state murder case unless at the invitation of the local jurisdiction or unless the case is of an exceptional magnitude — such as the Oklahoma City bombing case, in which McVeigh was convicted only in the deaths of eight federal agents, not the other 160 people killed.

Or, they'll wait until the state has failed to nail down convictions, as in the case of two black men acquitted in New York for the stabbing death of a Hasidic Jew during Brooklyn's Crown Heights riots a decade ago. The defendants were later convicted on federal civil rights charges, although an appeals court called for a new trial just this past January.

Isn't it heartwarming to imagine that we could still be dealing with the Brown murder case fiasco 10 years from now???