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May 11, 2005

Prosecutors want truck driver retried on all charges

By JUAN A. LOZANO Associated Press Writer The Associated Press

HOUSTON -- Prosecutors want to retry a truck driver on all 58 counts he faced for his role in the nation's deadliest human smuggling attempt, even though a jury has already convicted him on 38 of the charges.

U.S. District Judge Vanessa Gilmore says she hasn't yet ruled on their request, which would give prosecutors a second chance at securing a death sentence for Tyrone Williams. But prosecutors have announced she's refused their request and they plan to appeal.

The confusion is the latest legal disagreement between prosecutors and Gilmore in the case.

Williams in May 2003 drove an airtight tractor-trailer packed with more than 70 illegal immigrants from Harlingen to Houston for a smuggling ring. He abandoned the trailer at a truck stop near Victoria, about 100 miles southwest of Houston.

Seventeen people died inside the trailer of dehydration, overheating and suffocation. Two died later.

Williams was convicted in March of 38 counts of transporting illegal immigrants. But Gilmore took capital punishment off the table for 19 of the transporting counts that were eligible for the death penalty because the jury could not agree on whether he bore direct responsibility for the immigrants' deaths.

The judge also declared a mistrial on 20 counts the jury deadlocked on _ one count of conspiracy, a death-penalty eligible charge, and 19 harboring counts.

Last month, prosecutors filed a motion outlining their reasons for retrying Williams on all the counts, particularly the 38 transporting counts he was convicted of by a jury.

While jurors agreed Williams was guilty of the 38 transporting counts, they could not agree on the required questions related to those counts, such as whether the survivors were caused serious bodily injury or whether the victims died as a result of his actions.

Gilmore said the jury did not have to answer these questions to render a verdict because they were factors for sentencing.

Prosecutors argued in their motion they weren't sentencing factors but "elements of greater offenses over which the jury deadlocked."

"A jury's finding of guilt on a lesser included offense does not preclude retrial on a greater offense if the record clearly demonstrates that the jury was 'unable to reach a verdict' on the greater offense," prosecutors said.

Douglas McNabb, a Houston attorney who specializes in federal criminal defense, said while prosecutors are not making "a frivolous argument," it is a weak one and won't work because it's contrary to the constitutional protection against double jeopardy.

On Monday, prosecutors filed notice they are taking their case to the 5th U.S. Circuit Court of Appeals because Gilmore had refused during a court hearing April 11 to permit them to retry Williams on the "greater offenses" of the 38 transporting counts.

Gilmore wrote in an order last week that during that hearing, in which she set either an October or December retrial date for Williams on the conspiracy count, "no order was issued by the Court" on prosecutors' request and she would make her decision by May 23.

Prosecutors and Gilmore have had a contentious relationship throughout the case.

Gilmore threatened in December to hold one of the prosecutors in contempt if he didn't provide a letter from then-U.S. Attorney General John Ashcroft explaining why Williams is the only defendant in the case facing the death penalty.

Prosecutors refused to provide specific details and Gilmore threatened to relate this in a jury instruction. She was ordered by the 5th Circuit to drop her demand and accused by the appeals court of "legislating from the bench and acting as a quasi-defense attorney."

Prosecutors have also asked the 5th Circuit to remove Gilmore from the case. The request was denied.

The latest appeal to the 5th Circuit is "going to add more fuel to the fire," McNabb said.


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