ASHCROFT'S PUSH FOR EXECUTION VOIDS PLEA DEAL

CENTRAL ISLIP, N.Y., Jan. 31 - Attorney General John Ashcroft has ordered
federal prosecutors to seek the death penalty for a murder suspect, even
though he had agreed to testify against others tied to a deadly Colombian
drug ring in exchange for a life sentence.

A Justice Department spokeswoman, while declining to comment specifically
on the case, said that the department's decisions on capital cases were
intended to assure consistency in the application of the federal death penalty.

Lawyers said it appeared to be the first case nationally in which Mr.
Ashcroft had insisted on seeking the execution of a defendant who had
secured a promise of life in exchange for information. Some lawyers said
his decision here could hamstring federal prosecutors in the toughest cases
because it would shake defendants' confidence that a federal prosecutor at
the local level could deliver on a proposed deal in a death penalty case.

Mr. Ashcroft has stirred a controversy in federal prosecutors' offices
nationally in recent months by insisting that they seek executions in some
cases in which they had recommended against it. Under Justice Department
rules, local federal prosecutors can only recommend whether to seek the
death penalty; the final decision is up to the attorney general.

Defense lawyers, and some current and former prosecutors, said the case
here has taken that controversy to a new level because the previous cases
had not involved potential cooperators. The decision in the case, they
said, could have repercussions far beyond the death penalty in its effect
on negotiations between prosecutors and lawyers.

But critics claim Mr. Ashcroft's decisions are a method of importing the
death penalty to areas of the country where few or no executions have been
carried out, like New York.

In United States District Court here today, the charged nature of the plea
negotiations was on full display. Chagrined federal prosecutors
acknowledged to a judge that the defendant, Jairo Zapata, who had agreed to
cooperate, would now face a trial in which the death penalty could be imposed.

"This was a surprise to all of us," Bonnie S. Klapper, one of the
prosecutors who had negotiated the deal, told Judge Joanna Seybert. A
defense lawyer, Peter J. Tomao, asked that the terms of Mr. Zapata's
aborted deal be sealed because its disclosure could jeopardize his safety.

Federal prosecutors say Mr. Zapata was involved in two killings with others
tied to the drug ring in Queens. Judge Seybert asked federal marshals to
make special security arrangements for Mr. Zapata in prison while he awaits
trial.

It appeared that Mr. Zapata's lawyers had obtained a written and signed
agreement in which he had offered to testify. Line prosecutors typically
sign such deals and have them approved by their supervisors.

In court today, the prosecutors said they had always made it clear that the
agreement would be contingent on approval in Washington.

Other lawyers said the case could lead to major changes in federal cases
across the country. Jim Walden, a former senior federal prosecutor in
Brooklyn, said it was "a remarkably bad decision" to superimpose national
death penalty policy over local federal prosecutors' judgments about
cooperating witnesses. "It will likely result in fewer murders being solved
because fewer defendants will choose to cooperate," Mr. Walden said.

The federal prosecutor's office in Brooklyn, where Roslynn R. Mauskopf is
the United States attorney, is the headquarters for federal prosecutors
handling cases on Long Island, including the Zapata case.

This is the second case in the last year in which Mr. Ashcroft rejected a
recommendation against the death penalty from the Brooklyn federal
prosecutors. The other case also involved allegations of a killing by
people involved in the drug trade.

When asked about the decision in the Zapata case, Ms. Mauskopf issued a
statement through a spokesman. It backed Mr. Ashcroft's decision, saying
Mr. Zapata's violent history and his implication in two murders "warrant
seeking the death penalty in this case."

Barbara Comstock, the Justice Department's director of public affairs,
declined to comment on the Zapata case. But a statement said the people
involved in reviewing death penalty decisions at the Justice Department in
Washington "have the benefit of seeing the landscape of these cases
nationwide, thereby ensuring consistency."

The statement continued, "We believe the process is designed to do exactly
what Congress intended: guarantee the fair implementation of the death
penalty." The attorney general has the authority to countermand virtually
all decisions made by federal prosecutors. That has long been clear with
regard to death penalty decisions.

But Kevin McNally, a death penalty defense lawyer based in Kentucky, said
the Justice Department practice in previous administrations generally
permitted federal prosecutors to make plea deals that would avert
execution. Mr. Ashcroft changed that practice, he said.

Mr. McNally said his national group, the Federal Death Penalty Resource
Counsel Project, which provides information to defense lawyers fighting
capital cases, has studied Mr. Ashcroft's death penalty decisions. Mr.
Ashcroft, he said, has rebuffed local federal prosecutors in 21 cases in
which they recommended against the death penalty. He said that although Mr.
Ashcroft's predecessor, Janet Reno, had also rejected recommendations
against the death penalty, she did so at a far slower pace. He said one
study found that during a five-year period, she insisted on the death
penalty in 26 cases.

Mr. McNally said that in the cases in which Mr. Ashcroft had rejected
recommendations against the death penalty, he knew of none involving
cooperation agreements until the decision in the Long Island case.

Mr. Ashcroft's decisions rejecting no-death-penalty recommendations are
often awkward for United States attorneys who must then seek execution even
though they or their assistants had opposed it. Few federal prosecutors
have openly expressed disagreement with Mr. Ashcroft when he rejected their
recommendations to spare a defendant's life.

But, as some lawyers noted today, the issue is particularly sensitive for
Ms. Mauskopf. Her main sponsor in winning the United States attorney's
position was New York's Republican governor, George E. Pataki, who made
restoration of the death penalty a major issue in his first campaign for
governor.