How Trump’s death penalty push is straining legal defense teams
Days after Attorney General Pam Bondi ordered Justice Department officials to pursue capital punishment more broadly, Mairead Burke got an email about a potential new client in D.C.
A lawyer wanted to know if Burke, a mitigation specialist whose job is to look into the personal histories of defendants, could dive into the client’s background after the defense team learned the prosecution was now considering seeking the death penalty in his case.
Cedae Hardy was 18 when he went on a months-long carjacking spree in 2023, prosecutors say. He shot a Lyft driver in the abdomen and, with a partner, left another victim collapsed and dying in a parking lot, according to federal authorities.
During the Biden administration, Justice Department officials decided not to seek capital punishment in Hardy’s case. But under President Donald Trump, officials said all such decisions are being reevaluated, and recently Trump directed top prosecutors to pursue the death penalty “in all appropriate cases” in D.C.
The attorney general makes the final decision on whether to seek capital punishment, according to Justice Department policy. Nationwide, Bondi has authorized prosecutors to pursue the death penalty in 20 cases, a sharp increase from recent years, according to court filings compiled by the Federal Capital Trial Project, which aids court-appointed lawyers.
The project advised attorneys that Justice Department officials are setting earlier deadlines as they weigh whether to seek the death penalty, leaving lawyers less time to try to build their cases against it.
Burke has been a mitigation specialist for 18 years, first in New Orleans and later in the Washington area. She uses medical and school records and family interviews to understand her clients’ possible trauma and behavioral health issues. Her exhaustive inquiries into their pasts have unearthed information that has helped lead to less severe sentences.
“Normally, we’d have maybe like a year or so to do that sort of investigation,” Burke said. In Hardy’s case, she said, she had to operate on a “superspeed timeline” of about two months before a key defense presentation. She also said she hasn’t received the bulk of her payment for that work, which is ongoing, or payment for work in other cases.
“This is really unlike anything I’ve ever experienced before,” Burke said.
Trump signed an executive order on the day he was sworn back into office seeking to increase the use of capital punishment nationwide. His administration’s push to advance what he has called an “essential tool” for punishment and deterrence comes at a time when legal teams are facing a severe shortfall in federal funding for poor defendants nationwide, putting them under additional strain, they have argued in court filings.
Congressional funds for court-appointed attorneys—as well as investigators, interpreters and other defense experts like Burke—ran out in early July. Court officials said they found money to make one batch of payments on Sept. 18, but funds had otherwise dried up.
The government shutdown that began Oct. 1 is compounding the problem, with payments that were finally ready to resume that day facing added delays until a budget deal is passed and signed by Trump. Lawyers for a murder suspect in New Mexico filed an emergency motion that same day for an immediate stay of his capital prosecution, arguing that Congress’s failure to fund the defense “means a deprivation of his right to counsel while the government seeks his death.” Federal prosecutors rejected the attorneys’ “bootstrapped ‘emergency’” and “strained reasoning,” saying there is no right to regular pay and that compensation would come.
Death penalty prosecutions are complex and arduous. A defendant must first be found guilty, then a second trial determines if the penalty should be death. But a key decision comes earlier: whether the government should seek death at all.
Justice Department policy sets out a process for making that decision. It calls for weighing aggravating factors—such as premeditation and how “heinous, cruel, or depraved” the alleged crime was—against mitigating ones, including a defendant’s background and whether they acted under severe “emotional disturbance.” The defense shall be given a “reasonable opportunity” to present its side, according to the policy.
Federal judges have struck down the formal “notices of intent” seven times after Bondi decided to seek the death penalty, according to the Federal Capital Trial Project, with some ruling that the shift in the government’s position came too late in the process.
A spokesman for Bondi did not respond to a request for comment.
Outside of the Capital Jewish Museum on May 29, ahead of the reopening. (Allison Robbert/For The Washington Post)
The pressures on defense teams are particularly complex in D.C., where a surge of cases of varying complexity stemming from Trump’s declaration of a crime emergency over the summer and the ongoing federal law enforcement presence in the city continue working their way through the system.
“Our office is completely overwhelmed and the CJA lawyers are also overwhelmed—and they’re not getting paid,” said A.J. Kramer, the federal public defender for the District, using an acronym for the Criminal Justice Act of 1964, which set up the system for compensating private attorneys to represent poor clients.
Kramer has served atop the organization that provides federal criminal defense services in the District since the early 1990s. There are 10 assistant federal defenders working at the trial level with clients who can’t afford counsel, plus other staff specializing in appeals and investigations. They have for decades relied on outside, private lawyers to take on some of the cases. While the federal public defenders have continued to be paid in recent months, the private attorneys have not.
Such resource pressures have recently been noted in court in the case of Elias Rodriguez, the Chicago man charged with first-degree murder and hate crimes resulting in death after prosecutors said he shot two Israeli embassy employees outside D.C.’s Capital Jewish Museum in May. His lawyers filed a motion last month seeking a five-month extension to submit a written mitigation report detailing why Rodriguez should not face the death penalty.
Rodriguez’s lawyers said the government’s Oct. 20 deadline for the submission puts them on a dramatically tighter schedule than is typical in such potential capital cases, and if they must follow it they will be forced to make an “inherently deficient presentation” to the Justice Department, depriving him of his constitutional rights.
Two of his lawyers are assistant federal public defenders “who must balance their work on this case against an unprecedented onslaught of new prosecutions tied to increased federal law enforcement” in D.C., they wrote. An outside attorney with death penalty expertise hasn’t been paid for his work on the case because of the budget shortfall, which affects his ability to devote all of his time to it before the deadline, they said.
U.S. Attorney for the District Jeanine Pirro has said there will be a “rigorous process” for considering the “weighty decision” of whether to pursue it as a capital case.
The victims in the shooting, young couple Yaron Lischinsky and Sarah Milgrim, collapsed to the ground after Rodriguez opened fire on them, according to an affidavit from an FBI agent filed in court. As Milgrim tried to crawl away, Rodriguez followed her and continued shooting before stopping to reload, authorities say, and when she sat up Rodriguez fired again repeatedly.
In arguing against the defense team’s proposed extension, prosecutors revealed in a court filing that before Rodriguez traveled from Chicago he ordered a body camera to be delivered to his D.C. hotel, a purchase they said showed the premeditated nature of the crime. With it, the suspect recorded video and audio of himself committing the double murder, authorities said.
Prosecutors said that the defense has sufficient time to make their case, arguing that “historic practice does not equate to reasonableness.” The judge denied the motion for the extension.
Amy J. St. Eve, a U.S. Court of Appeals judge nominated by Trump, told Congress earlier this year that the Trump administration’s push for prosecutors nationwide to charge defendants with the “most serious” provable offense and to pursue more death penalty cases “could generate substantial new workload and caseload for the courts and federal defender organizations.”
St. Eve added that “there is anecdotal evidence of this increased workload already, but it is not yet accounted for in our budget request.”
A House subcommittee vote on court funding earlier this year would increase spending for the Defender Services program—which includes funds for federal public defenders as well as court-appointed attorneys and experts—but would still fall $196 million short of the 2026 request, according to the Administrative Office of the U.S. Courts. That would require reducing 600 positions in the program or halting payments to court-appointed attorneys in mid-June next year, according to the administrative office.
“Reductions of this magnitude would inhibit the Defender Services program from meeting its constitutionally mandated mission,” according to the administrative office.
In Maryland, a federal judge in June rejected a Justice Department effort to put the death penalty back on the table for three alleged members of the MS-13 gang less than four months from their trial. Prosecutors said the men, in the U.S. illegally, were responsible for two murders and other acts of violence as part of a racketeering conspiracy.
“The government has proceeded hastily in this case, and in doing so has leapfrogged important constitutional and statutory rights,” wrote U.S. District Judge Stephanie A. Gallagher. “That is unacceptable.”
A jury found the three guilty on Sept. 19, and they could face life in prison.
Death penalty experts have raised concerns about the case involving Hardy and Keyonte Rice, his alleged partner in the carjacking that prosecutors say turned deadly. Justice Department officials told their lawyers in February that a death penalty prosecution was now back under consideration for their clients, who had each turned 18 just before their alleged crime.
It has been nearly 17 years since a defendant who was that age at the time of the crime was sentenced to death in the United States at the federal level, according to the Death Penalty Information Center, a nonprofit that tracks capital punishment. Experts said even the harshest interpretation of what the D.C. defendants are accused of doing would not put them on par with previous federal capital defendants convicted of crimes that involved intricately planning homicides, torturing victims or committing multiple murders. “The death penalty is supposed to be for the worst of the worst,” said Brandon L. Garrett, a Duke University law professor and death penalty expert.
A spokesman for Pirro did not respond to a request for comment on Hardy’s case.
Two decades ago, the Supreme Court ruled that 16 and 17-year-olds could no longer face the death penalty. The court cited the comparative immaturity and irresponsibility of juveniles, arguing that they are more vulnerable “to negative influences and outside pressures.”
In a friend of the court brief, the American Psychological Association noted “adolescents show differences from adults with respect to risk-taking, planning, inhibiting impulses, and generating alternatives.” In 2022, the association passed a resolution saying the government should also stop sentencing 18, 19 and 20-year-olds to death, since their brains are still not fully mature at that age.
States have sentenced dozens of people who were 18 at the time of their crimes to death since 2000, though that has “slowed to a trickle” in recent years, according to the Death Penalty Information Center.
On New Year’s Day in 2023, authorities say Hardy and Rice drove up to a silver Infiniti parked near a Chinese takeout spot close to the Capital Beltway in Maryland. When the driver got back into his car, Hardy entered the passenger side and pressed a gun to his head, federal prosecutors say. After the man stepped out, they say, Hardy drove away in the man’s Infiniti, headed home to the District, with Rice following behind.
A few days later, Hardy and Rice approached Melvin Mayorga Hernandez as he was sitting in his Camry in Hyattsville, Maryland, when one of them fired at Mayorga Hernandez, who “collapsed in the parking lot and was later pronounced dead,” according to an indictment issued in federal court in D.C.
Prosecutors said the two men, and others, would continue a sprawling carjacking conspiracy.
Mayorga Hernandez’s family, meanwhile, would gather to mourn the loss of a father and husband. Days after his death, his children tearfully told a Telemundo reporter of their devastation. “He was a great man, a great father to me,” his daughter said, her voice cracking. “I just want to hug him one more time, say my last goodbyes,” his son said.
While many of the crimes occurred in Maryland, some also took place in the District, where prosecutors said an operation for selling the stolen vehicles was based and where authorities in 2023 were battling soaring numbers of homicides and carjackings.
Last month, lawyers for each of the men appeared before U.S. District Judge Richard J. Leon in D.C. Hardy and Rice sat with two other defendants charged as part of a 76-count indictment for an armed carjacking conspiracy that was unsealed last year. Attorneys representing Hardy and Rice had met separately with Justice Department officials earlier this year to try to convince them not to pursue capital cases against the two.
Leon pressed assistant U.S. attorney Benjamin Helfand about what the government is doing.
“They’ve had months to make a decision. What’s going on?” Leon asked.
Helfand said he did not know, and that he had not been provided a timeline. Leon ordered a Justice Department official to appear in November to offer an update on where the process stands.
Mark Rollins, one of Hardy’s lawyers, and Michael Lawlor, an attorney for Rice, declined to discuss the cases.
Hardy and Rice are not in identical circumstances. Hardy faces more federal carjacking counts than Rice, including one in which the victim was 90 and another that led to serious bodily injury. Prosecutors said Hardy shot a Lyft driver in Maryland. The driver tried to push him out of the car, and Hardy shot him multiple times, according to the indictment.
In court filings, advocates for Hardy said he had no prior history of convictions, though prosecutors said he had been under pretrial supervision at the time of some of the alleged carjackings in connection with firearms charges.
Before prosecutors added the shooting-death charge to the case against him, and before Trump officials moved to consider a death penalty prosecution, Hardy’s family sent a letter to the court seeking mercy and compassion. They said Hardy had won a $1,000 leadership award in 2022 after successfully graduating from a program for at-risk youth. The weight of losing his grandfather and brother in recent years and “his desire for a stronger connection with his father have begun to overwhelm Cedae,” his family wrote. Therapy helped, but after it was over, “his progress diminished.”
The last time a man who was 18 at the time of his crime was executed at the federal level was in 2020, shortly before Trump ended his first term in office, according to the Death Penalty Information Center. Brandon Bernard had been convicted in 2000 for his role in the abduction and murder of two youth ministers in Texas. One was shot and, while still breathing, left to die in a burning car lit by Bernard, the Justice Department said.
While Burke said she could not speak about her investigation into Hardy’s past, she said through her mitigation work she has seen recurring themes among defendants. Many, she said, have faced generational poverty and trauma or were themselves victims of abuse.
Seeing the intense pressures many specialists working on capital defense cases have been under, Burke said she thinks about the lawyers who will take over the advocacy for those who are sentenced to death now.
“All those future teams are going to be looking back and saying, ‘Why weren’t these things done? Why weren’t they done adequately?’” Burke said. “And it’s going to be clear to me why things weren’t done.”
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