Defense lawyers to argue MS-13 leaders accused of murders shouldn't face death penalty

Defense attorneys for two leaders of the MS-13 street gang accused of six murders on Long Island, including that of Brentwood High School teenagers Kayla Cuevas and Nisa Mickens, are scheduled to meet with the U.S. attorney for the Eastern District of New York in the next several weeks to argue that their clients should not face the death penalty if convicted.

The arguments against imposing the death penalty on the two leaders of the Brentwood Sailors clique of the gang — brothers Alexi and Jairo Saenz — come at a time when the federal government has ended a moratorium on executions for the first time in more than 15 years.

In July, U.S. Attorney General William Barr announced that the Bureau of Prisons will begin executing convicted killers in December.

“The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,” Barr was quoted as saying.

While public opinion in recent years has decreased in support for the death penalty, President Donald Trump has long favored its imposition.

The planned meeting between Eastern District U.S. Attorney Richard Donoghue and the defense attorneys for the Saenz’ brothers was revealed at a routine status conference Friday in the brothers‘ case at the federal court in Central Islip. No trial date has yet been set.

Alexi Saenz, who uses the street name “Blasty” was the leader of the Brentwood Sailors clique of MS-13, and his brother Jairo Saenz, who uses the gang nickname “Funny,” was the No. 2 in the clique, according to officials. Both are from Brentwood and in their early 20s.  

Defense attorneys for the brothers said in court that they already had filed memoranda to the Eastern District U.S. attorney’s office based in Brooklyn on why their clients should not face capital punishment if convicted. These so-called mitigating circumstances usually involve personal issues, role in the crime, and the nature of the victims. The memoranda and the proceedings in general are confidential.

The memoranda are part of a lengthy, complicated process through which the Justice Department reaches a decision on whether to seek capital punishment.

After hearing arguments from defense attorneys, local federal prosecutors make a recommendation, which is forwarded to the Justice Department‘s main headquarters in Washington. A panel of prosecutors there reviews the recommendation and makes its own determination. That determination is then passed on to the attorney general for a final decision on whether to seek the death penalty.

It is not unusual, that before the local U.S. attorney makes a recommendation, for defense attorneys to meet personally with local Justice Department officials to argue that their clients should not face a death penalty.

An actual date for the meeting with Donoghue has not been set, prosecutors and defense attorneys said. Donoghue’s spokesman John Marzulli declined to comment.

Other members of MS-13 are charged with taking part in some of the six murders, and their cases are at various stages in the court system, according to officials.

Cuevas, 16, had had disputes with MS-13 members, according to officials. She was with her close friend Mickens, 15, when the two were viciously set upon by MS-13 members using bats and machetes, according to prosecutors.

In addition to the brutal murders of the two teenage girls in September 2016, the Saenz brothers are charged with the killings of three people believed to belong to the rival 18th Street gang: Oscar Acosta in April 2016; Javier Castillo in October 2016; and Esteban Alvarado-Bonilla in January 2017; and in addition, Dewann Stacks in October 2016, believed to belong to an unnamed rival gang. 

Mickens' mother, Elizabeth Alvarado, who was in the courtroom during the hearing Friday, declined to comment afterward.

David Ruhnke, a lawyer for Alexi Saenz, also declined to comment afterward, as did a lawyer for Jairo Saenz, Gary Villanueva, as well as the three federal prosecutors in the case, Paul Scotti, Justina Geraci, and John Durham.       

In 2016, a federal judge in Brooklyn overturned a jury verdict that a person who had murdered two undercover police officers should face the death penalty.

The judge ruled that Ronell Wilson had such a limited intellectual capacity that he should not be eligible for the death penalty. Wilson had been the first person in New York to get the federal death penalty in 50 years.

The last execution of a federal prisoner in New York occurred in 1954, when Gerhard Puff of Milwaukee, who murdered an FBI agent during a Manhattan bank robbery, was put to death, according to records.

By Robert E. Kessler

Robert.Kessler@newsday.com

Bob Kessler covers federal law, including law enforcement agencies such as the FBI, DEA, IRS and ATF, as well as the federal courts.