Court denies advance notice of witnesses in alleged 'Down Below Gang' trial

The U.S. Supreme Court today turned down a bid for advance notice of witnesses by two alleged gang members who face a possible death penalty in a federal criminal case pending in San Francisco. The high court declined to review a ruling by the 9th U.S. Circuit Court of Appeals that held the prosecutors don't have to turn over the names until shortly before trial.

The unsuccessful appeal to the Supreme Court was filed by Emile Fort, 27, and Edgar Diaz, 23. Both are alleged members of a gang known as the Down Below Gang that according to prosecutors sold drugs in the Visitacion Valley district of San Francisco and protected its turf with violence and murder.

Fort and Diaz are each accused of three separate murders as well as racketeering and drug dealing and could face a rare federal death penalty if convicted.

Their trial is scheduled in the court of U.S. District Judge William Alsup in San Francisco in November 2008.

The witness names sought by the two men were contained in San Francisco police reports that local authorities gave to federal prosecutors.

Prosecutors gave defense attorneys parts of the reports, but blacked out the names of possible witnesses. Prosecutors, who say the witnesses could be endangered if their names are revealed, plan to disclose the names a few days before the witnesses testify.

In January, the 9th Circuit in San Francisco ruled in favor of the prosecutors, saying that the reports were covered by a federal court rule protecting the work of government agents. The court said the local police qualified as government agents even though they weren't federal employees.

Michael Burt, a lawyer for Diaz, said he was disappointed in the ruling. He said, “It makes a huge difference to the fairness of the trial process when defense attorneys can't get access to these people during preparation for trial.”

Alsup is scheduled to hold a hearing on Oct. 18 on a request by Fort and Diaz that he bar prosecutors from seeking a death penalty.

The gang members were indicted in 2005. Eight others have pleaded guilty to various charges.

— Bay City News

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