ON THE OFFENSIVE

U.S. Attorney John Brownlee said he won't shy away from difficult prosecutions.

The first rule of prosecuting: if you're not losing sometimes, you're not
going after the hard cases.

That's U.S. Attorney John Brownlee's assessment in the wake of several
high-profile cases over the past year in which his prosecutors did not win
a single conviction against a defendant.

Just more than two years into his tenure as U.S. attorney for the Western
District of Virginia, Brownlee has established himself as an aggressive
prosecutor who counts among his successes a conviction rate ranging from 91
percent to 93 percent of the cases his office has prosecuted.

A media-accessible U.S. attorney, Brownlee has put himself in the public
eye more than his predecessor, Bob Crouch. Those efforts have ranged from
national issues to local ones, from defending the Patriot Act in forums on
radio and television to speaking out about a proposed methadone clinic in
Southwest Roanoke County.

Stephen Smith, a law professor at the University of Virginia who
specializes in federal criminal law, said being political is intrinsic to
the appointed office.

"U.S. attorneys are political animals," he said. "There's definitely a
political calculus that goes along with these law enforcement decisions."

A handful of cases pursued by Brownlee's office has also raised questions
about fairness, the use of resources and the strength of the evidence.

Prosecutors in his office have failed to win convictions in four
high-profile cases since Brownlee took over. Those cases include two in
which defendants are facing the death penalty: Walter LeFight "Pete" Church
and Darrell David Rice.

The trial of Church, who is charged with capital murder in connection with
the 1989 slayings of three members of a Tazewell County family, ended in a
hung jury. Rice is charged with capital murder in connection with the 1996
slayings of two female hikers in Shenandoah National Park. Federal
prosecutors asked that his trial be postponed on the eve of his trial,
based on new forensic evidence.

Brownlee's office also did not win convictions in cases against Roanoke
pain specialist Cecil Byron Knox, his practice and two associates, or
against former National D-Day Memorial Foundation president Richard Burrow.

"I really think John's a good guy," said Roanoke lawyer Jonathan Rogers,
who has also worked as a state prosecutor. "I just really think he's taken
on some challenges that are questionable."

Brownlee's take on those cases is different.

"We certainly concede that some cases are tougher than others," Brownlee
said recently. "But that doesn't make them any less important."

When Brownlee was sworn in as U.S. attorney in November 2001, he had
practiced law for about a year in the Western District of Virginia. But the
list of people Brownlee thanked when he took over as top prosecutor showed
how connected he is.

Brownlee expressed his admiration for his father, Les Brownlee, who was
named Undersecretary of the U.S. Army shortly after Brownlee was sworn in.

Brownlee also thanked Republican Sens. John Warner and George Allen and
President Bush for supporting his candidacy.

Then Chief U.S. District Judge Samuel Wilson, for whom Brownlee clerked for
two years, administered the oath of office. The two maintain a close
friendship. Wilson would not comment for this story.

After working as a federal prosecutor in Washington, D.C., for about four
years, Brownlee took over a position that former U.S. Attorney John Edwards
- - now a state senator - said "has enormous power and enormous discretion"
in deciding what to investigate and what to charge. Edwards was appointed
by President Carter and served as U.S. attorney from 1980 to 1981.

Edwards said he has the impression that Attorney General John Ashcroft is
pushing prosecutors to be more aggressive. But he declined to comment
specifically on the performance of the U.S. Attorney's Office under Brownlee.

At Brownlee's first news conference in December 2001, he outlined the
Justice Department's new mission in the wake of the Sept. 11 terrorist
attacks: to "prevent first and prosecute second."

"Every moment of the investigation, we're going to ask whether we should go
ahead and prosecute on what we have," Brownlee said at that time. He cited
the prosecutions of three members of a Muslim community in Charlotte County
as evidence of his office's efforts in the war against terrorism.

Two of those defendants, Vicente Pierre and Traci Upshur, were convicted of
conspiracy and making false statements. But federal prosecutors quietly
dropped firearms charges against a third defendant, Bilal Benu, after he
pointed out a legal flaw in the case against him. Their prosecutions are
the only ones that have resulted from the war on terrorism under Brownlee's
watch, he said.

But Brownlee's prosecutorial philosophy hasn't changed, he said recently.

"The attorney general wants us to firmly but fairly enforce the law," he said.

Prosecutions are up 20 percent to 25 percent in the past two years,
Brownlee said. Wilson, in fact, has ordered that more federal grand juries
be convened in the Western District because of the increase in criminal
investigations. Brownlee said his office has worked with federal, state and
local authorities to get violent criminals off the streets. Because of
tough federal laws, many of those prosecutions have resulted in long prison
terms.

Brownlee's office has also recently stepped up its prosecution of firearms
cases, and many have resulted in long sentences because of federal
mandatory minimum sentencing requirements.

Smith, the UVa law professor, said there is a political incentive for
federal prosecutors across the nation to focus on drugs and violent crime
because "that's what the public thinks of when they think of crime."

"It makes sense for political reasons because it shows the attorney general
is getting tough on crime," Smith said.

And aggressive federal prosecutors can parlay a tough reputation into a
political career, as former U.S. attorney-turned-New York City mayor
Rudolph Giuliani did, Smith said.

But many of the cases federal prosecutors have pursued, including the
prosecution of Knox, could have also been handled at the state level, Smith
argued. While the prosecutions may make sense politically, they leave areas
that federal law enforcement officers alone should handle - such as
investigating civil rights violations - at a lower priority, Smith said.

One thing no one has disputed is that most of the cases Brownlee's office
has prosecuted have resulted in convictions.

Senior U.S. District Judge James Turk said he's aware of the high-profile
cases that resulted in hung juries or acquittals.

"But other than those, they get convictions in most cases, I believe," Turk
said.

U.S. District Judge James Jones said he has found Brownlee "competent,
friendly and outgoing in his dealings with me.

"By and large, I've found the staff of the U.S. Attorney's Office, both
during Mr. Brownlee's tenure and his predecessor's tenure, to be highly
professional trial lawyers who have done a generally good job in
representing the interests of the government," Jones added.

Roanoke lawyer Chris Kowalczuk, who has defended clients against Brownlee,
commended him for prosecuting some of his own cases.

"John is obviously a more hands-on U.S. attorney than his predecessor, and
I think that's a good thing," Kowalczuk said. "Having the captain of the
ship in the trenches ensures that he maintains his perspective with regard
to the culture and the practice and the administration of justice in the
Western District."

He added that most of the prosecutors under Brownlee were skilled veterans
and that he didn't see much difference in how cases were being handled
under Brownlee. Kowalczuk also pointed out that Congress vests U.S.
attorneys with their discretionary power.

But others have questioned some of the cases Brownlee's office has pursued.

Richard Amstutz of Eagle Rock said he was troubled by a recent experience
serving on a federal jury in Roanoke.

A Franklin County man was on trial on charges that he possessed a firearm
as a convicted felon. But Amstutz said the prosecutor in the case referred
to an incriminating videotape, then failed to produce it.

Amstutz also said he thought the prosecutor's argument that the Franklin
County man actually possessed a firearm was weak. In the end, the jury
acquitted the man on all charges.

Others have also raised questions about the most complex cases Brownlee's
office has pursued.

Roanoke lawyer Jonathan Rogers specifically questioned the prosecutions of
Burrow and Knox.

"These are individuals I think most people don't view as criminals," Rogers
said of Burrow and Knox, though he acknowledged that mistakes may have been
made by the defendants in each case.

"What bothers a lot of people in the legal community is that it's not just
that they're being prosecuted," Rogers added. "To a lot of people, it's an
overreaching and a waste of resources."

Rogers, who briefly represented Kathleen O'Gee, an associate of Knox , also
questioned how Knox and the other defendants in the case were arrested.
Rogers argued that federal agents staged an "almost storm-trooperish" show
of arresting the defendants , when defense attorneys had already agreed
with federal authorities that their clients would turn themselves in.

"That type of rough treatment is troublesome to everyone," Rogers said.

Wilson, the U.S. District judge, did raise concerns before the Knox case
went to trial about how prosecutors returned to the federal grand jury
repeatedly to seek more charges against defendants in the case. Wilson also
dropped all charges against O'Gee, mostly because of lack of evidence.

Brownlee responded to criticism of his office's handling of the Burrow and
Knox cases by asking if the critics had actually heard the evidence in the
cases.

"It's fair to say every time an indictment is returned, somebody gets
upset," Brownlee said. "It's the nature of things."

He said his office does not calculate the costs of each prosecution or
budget specifically for them. An estimate of how much the Knox case has
cost, for example, should include the time federal prosecutors and agents
spent on the more than two-year investigation, the amount they paid experts
to appear at trial and their expenses, the costs of photocopying Knox's
medical records, and other prosecution costs.

Smith also questioned the resources spent in the prosecution of Darrell
David Rice, who is charged in the 1996 slaying of two female hikers in
Shenandoah National Park.

"It's an incredibly sloppy prosecution, so sloppy that I was surprised that
the U.S. Attorney's Office would" go ahead with the prosecution against
Rice, when the government's own forensic evidence seems to point to someone
other than the person they've charged, Smith argued.

But Brownlee argued that while some cases make prosecutors look like
heroes, they should still pursue the ones that don't.

"There are days when cases come in that door that are not necessarily easy,
but make life easy," Brownlee said.

He pointed out the August capture of convicted child molester Mario "Tony"
Leyva in Haiti. It was the kind of case where people came up to him in the
street and patted him on the back, Brownlee said.

"There are other cases where defendants are popular in the community, and
have friends in high places," Brownlee said. "And so we might not get to
wear the white hats in those cases. But our obligation is greater than that."

Brownlee said his job is to assess cases on the evidence and on the law.

"It would be inappropriate for me to be influenced by popularity or
editorials," Brownlee added, referring to criticism by The Roanoke Times'
editorial page. In October, an editorial called Brownlee "Roanoke's
political U.S. Attorney." The editorial questioned some of the cases
Brownlee's office has pursued and his decision to speak out about a
proposed methadone clinic in Roanoke County.

Brownlee said that Roanoke County Administrator Elmer Hodge invited him and
another prosecutor to speak on the potential impact of a methadone clinic.
Brownlee said he thought it was appropriate to comment on the issue.

"This office sees the effect of heroin dealers routinely," Brownlee said.

Brownlee also said that at this point he has no plans to seek political office.

"Public service is very important," he said. "But I think that my passion
is the law."