The U.S. Justice Department said in a filing Wednesday that it does have the right to pursue an interlocutory appeal of a V.I. District Court order striking the death penalty in the murder case of Richardson Dangleben Jr., which the defense has argued the Third Circuit Court of Appeals should dismiss on jurisdictional and other grounds.

Barring dismissal, V.I. Public Defender Matthew Campbell asked in an emergency motion filed Friday that the appeal be expedited, given that Dangleben is set to stand trial starting Oct. 6 for the murder of V.I. Police Detective Delberth Phipps Jr. in July 2023 on St. Thomas.

The V.I. Justice Department initially filed a “no-seek” notice in February 2024, but reversed course in May after the Trump administration issued an executive order saying it would review all decisions not to seek the death penalty in eligible cases charged during the Biden administration, including Dangleben’s.

Campbell opposed the sudden about-face and, after briefing by both sides, V.I. District Court Chief Judge Robert Molloy struck the government’s notice of intent to seek the death penalty from the record in August, ordering that the case proceed as a non-capital case. In a Sept. 15 memorandum opinion explaining his decision, he cited a number of concerns, including the fact that the DOJ’s notice came more than a year after it said it would not seek capital punishment, was not based on new information not previously available to the government, was filed 22 months after Dangleben’s initial arrest, 19 months after his first indictment, and less than five months before trial.

Adam Sleeper, acting U.S. Attorney for the District of the Virgin Islands, filed a notice of appeal the same day and on Sept. 18, Third Circuit Clerk Patricia S. Dodszuweit advised that the case was listed for possible dismissal “due to jurisdictional defect” and gave the government until noon Wednesday to respond to Campbell’s emergency motion.

William A. Glaser of the DOJ’s Criminal Division in Washington, D.C., complied with that order, arguing in a response filed at 8:42 a.m. that the Third Circuit does have jurisdiction and that the appeal needn’t be expedited because it is unlikely Dangleben’s trial is going to start Oct. 6 anyway as the government’s notice of appeal from a Sept. 9 oral order dismissing two non-capital counts of the indictment is not due until Oct. 9, or three days after the trial is set to start.

“Dangleben argues that this Court lacks jurisdiction over the government’s noticed appeal. He is incorrect. Should the Solicitor General choose to pursue an appeal in this case, this Court has jurisdiction over this appeal under 18 U.S.C. § 3731 or, in the alternative, 28 U.S.C. § 1291 and the collateral order doctrine,” Glaser wrote in his 15-page response to Campbell’s emergency motion.

Five courts of appeal to consider the question have held that § 3731 — which governs appellate reviews of decisions in federal criminal cases — authorizes a government appeal from an order striking a notice of intent to seek the death penalty, said Glaser. “Contrary to Dangleben’s contention, it does not matter that § 3731 does not specifically mention ‘a Government appeal from a pre-trial order striking a notice of intent to seek death.’ … Striking a death notice is indistinguishable from ‘dismissing an indictment’ as to ‘one or more counts, or any part thereof.’”

By striking the government’s notice of intent to seek the death penalty on Count One, “the district court dismissed from the indictment the offense of capital using and carrying a firearm during a crime of violence resulting in death … while leaving the non-capital version of that offense in place,” he said.

Moreover, an appeal while the case has not concluded, which Campbell framed as highly unusual, is the government’s only remedy, said Glaser.

“The government likely could not challenge the order striking the death-penalty notice in an appeal from a final judgment. If the case proceeded to a non-capital trial and Dangleben is convicted, the Double Jeopardy Clause ordinarily would bar the government from retrying Dangleben for the capital version of the same crimes in a second trial,” he said.

Only if Dangleben himself obtained reversal of his (non-capital) convictions on grounds other than sufficiency of the evidence could the government seek to retry him for a capital offense, said Glaser, citing Burks v. United States. “Thus, absent a successful appeal by Dangleben himself, the government could not obtain any relief on appeal from a final judgment. This Court should follow the lead of five other circuits in determining that an order striking a death-penalty notice is appealable under § 3731.”

However, even if the court lacked jurisdiction under § 3731, the order would still be appealable under § 1291 and the collateral order doctrine, he said. The Supreme Court has recognized “a ‘small class’ of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final,’” which is the case here, he said.

As for expediting the appeal, the case is complex and would “ordinarily prompt extension requests from both sides,” he said, but the defense has indicated that it stands by the proposed schedule set forth in its emergency motion and will be ready for trial Oct. 6.

“Because the parties are unable to reach agreement, the United States proposes that briefing proceed with the ordinary deadlines applicable to criminal cases, with the opening brief due 30 days after the record is complete, the response brief due 21 days after service of the opening brief, and any reply brief due 21 days after service of the response brief,” Glaser wrote.

As for Dangleben’s contention that expedited review is necessary based on his speedy-trial rights and the psychological anguish of the uncertainty surrounding his punishment if he is convicted, this “is a serious criminal case involving the discharge of a firearm during a crime of violence resulting in death that, until the district court’s order, was noticed as a death-penalty case. Cases of this type ordinarily take time and are not well-served by hasty deadlines, especially the days-long deadlines that Dangleben requests,” said Glaser.