The government’s sudden decision to consider the death penalty against Richardson Dangleben Jr. after waiving that right more than a year ago is based on improper political considerations, making the attempted reversal arbitrary and capricious, according to a brief his attorney filed in V.I. District Court.

The Justice Department contends that far from a “bait-and-switch” tactic, this is simply a case where the administration of President Donald Trump decided to review all previous no-seek decisions made by the outgoing administration.

Dangleben faces first-degree murder, assault and gun charges in the July 4, 2023, shooting death of V.I. Police Detective Delberth Phipps Jr. in Hospital Ground on St. Thomas. He has pleaded not guilty, and federal prosecutors signaled last February that they would not seek the death penalty.

However, following a Jan. 20 executive order by Trump entitled “Restoring the Death Penalty and Protecting Public Safety,” U.S. Attorney General Pam Bondi notified all Justice Department employees that a Capital Review Committee would be evaluating all decisions to not seek such punishment in eligible cases charged between Jan. 20, 2021 and Jan. 19, 2025 that have not yet resulted in a conviction.

The V.I. Justice Department subsequently asked for a stay of all proceedings for 120 days, which Dangleben’s attorney, Public Defender Matthew Campbell, opposed, prompting U.S. Magistrate Judge G. Alan Teague to order the defense to file a supplemental brief addressing the issues of judicial estoppel/laches by March 20, and the government to file its response by Friday.

As the Cornell Law Review explains, judicial estoppel “prevents a party from asserting a position in one legal proceeding that directly contradicts a position taken by that same party in an earlier proceeding,” while laches — derived from the Old French laschesse, meaning “remissness” or “dilatoriness” — concerns an unreasonable delay in pursuing a legal claim, to the detriment of the opposing party.

Considering the death penalty against Dangleben a year after saying it would not has served to “pull the rug out from under him based on a whim,” according to Campbell’s brief. Had he known the government might reverse course, Dangleben would never have requested a continuance when he was set to go to trial last October and the matter would now be moot, it says.

“The Government now seeks to ‘profit’ from that continuance by reversing its position with a spurious claim that the continuance ‘vitiated’ the Court’s prior order that any notice of intent to seek the death penalty be filed by February 12, 2024,” the brief states.

Moreover, “the Government now seeks to ‘legitimize’ its reversal by inviting Mr. Dangleben’s team to make a mitigation presentation” to the review committee in Washington, D.C., it says.

While a “learned counsel” — an attorney expert in death penalty cases — was appointed to Dangleben’s defense team on Feb. 24, he does not have a mitigation specialist to present to the committee because there was no reason to retain one, given the government’s no-seek notice more than a year ago, the brief states.

“The Government’s attempted reversal, if successful, would inject an unprecedented level of chaos, uncertainty, and delay into this case while flouting this Court’s unquestioned authority to set and enforce deadlines, orders, and the rules of procedure,” it says.

In fact, the Trump administration’s order to reevaluate the capital cases of the Biden administration is unprecedented, according to the brief.

“While the issue of the death penalty was discussed during the run-up to and aftermath of the presidential election, it is nonetheless instructive that in the history of the federal death penalty, no incoming President has sought a reevaluation of the prior administration’s no-seeks. There are no examples of an incoming President reversing a no-seek based on a disagreement with the prior decision, nor is there any mention of such a procedure in the Justice Manual. The Government’s desire to reevaluate no-seeks pursued under the Biden Administration is truly unprecedented, and counsel’s reliance on the prior no-seek notice was reasonable,” it says.

“To now invite Mr. Dangleben to attempt to persuade a Committee not to seek the death penalty in his case — something that was a foregone conclusion for more than a year — without the benefit of capital experts renders Mr. Dangleben’s ability to deliver a meaningful mitigation presentation to the Committee an impossibility,” the brief alleges.

The government argues in its eight-page reply filed Friday that because the trial date was continued and a March 11 omnibus hearing was canceled, “the parties are both merely presenting their positions regarding the appropriate date and time when the omnibus hearing and trial should be scheduled. Framed this way, it is far from clear whether the Court should even address whether the Government is in some way estopped from changing its position on the death penalty.”

Further, defense counsel have agreed to appear before the D.C. committee on April 28, allowing the government’s death penalty review to proceed expeditiously, it says.

Moreover, the Justice Department contends that it is not estopped from changing its position on the death penalty in Dangleben’s case, “and laches does not apply” because it is unavailable against the United States proceeding in its sovereign capacity. “Few acts are more quintessentially sovereign than the prosecution of violent crime,” it says.

The government alleges that those legal doctrines are sanctions reserved for parties who have acted in bad faith or engaged in misconduct, and it has done neither.

Just as there is “no basis to conclude that the notice not to seek the death penalty was anything but a genuine expression of the Government’s intention at the time of filing,” there is now “no reason to conclude that the decision to review all previous no-seek cases was made in bad faith,” it says.

Far from a “bait-and-switch” tactic, this is simply a case where the incoming administration decided to review all previous no-seek decisions made by the outgoing administration. “There is no bad faith or misconduct,” the Justice Department says.

As for the reversal being detrimental to Dangleben, that argument is premature since the government has not decided whether it will in fact seek the death penalty against him, it says.

“But even if the Government does determine that it will pursue the death penalty, the defendant’s claims of prejudice are unavailing,” the response argues. The Capital Case Review Committee “is an internal process governed by the Justice Manual” that provides guidance but may not be relied upon “‘to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal.’ So, the defendant has no right, enforceable by this Court, involving the Case Review Committee.”

The defense also was on notice since Feb. 5, when Bondi announced the decision to review death-eligible cases, that the government was reevaluating its decision and could have commenced a mitigation investigation at that point but did not, it says.

“But the opportunity for the defendant to prepare a mitigation case has not passed. This matter remains in its preliminary stages. No evidentiary hearing on pending motions is scheduled, and no substantive motions have been decided. Most importantly, a trial date has not yet been scheduled. Any claim of prejudice can be cured by setting a trial date that will provide the defendant an opportunity to investigate mitigation,” the Justice Department states.

As for the argument that had they known the no-seek decision could be reversed, the defense would not have continued the October trial date, “counsel is operating in hindsight, and the Government does not believe the Court should credit his assertion,” it says.

The Justice Department also said in a footnote regarding various assertions by Campbell — including that the government’s actions “are based on improper political considerations” – that it was limited in its response to only addressing judicial estoppel and laches and so will “respectfully note its objection to the Court granting any relief premised on those arguments without providing the Government an opportunity to respond to them, either orally or in writing.”