DOJ officials weighing death penalty for Wynter Cole-Smith's accused killer

GRAND RAPIDS — Top Department of Justice officials in Washington, D.C., are reviewing a memo about whether the death penalty should be in play in the case against Rashad Trice, the man charged in the kidnapping and killing of a Lansing toddler earlier this year.

Trice, 27, faces charges in multiple jurisdictions connected to a statewide search over the Fourth of July holiday that ended when police found 2-year-old Wynter Cole-Smith dead in Detroit.

Trice faces 20 charges in state court, with the Michigan Attorney General's Office having consolidated three separate cases that had been filed by prosecuting attorneys in Ingham, Macomb and Wayne counties.

He's charged with murder, kidnapping and assault, among other charges, and faces up to life in prison without the possibility of parole if convicted of murder in a Michigan court.

However, federal prosecutors in Grand Rapids brought charges of their own — kidnapping resulting in death and kidnapping a minor — and that case carries a potential sentence of the death penalty.

The ultimate decision on whether Trice will face the possibility of the death penalty should he be convicted on the federal charges will be made in Washington, D.C., by Attorney General Merrick Garland.

But it's unlikely that Garland will direct Mark Totten, the U.S. Attorney for the Western District of Michigan, to seek the death penalty for Trice, said Matthew Schneider, a former federal prosecutor in Detroit.

Tiffany Brown, a spokesperson for Totten's office, declined to comment, saying the process is confidential prior to the Department of Justice's final decision.

A message was left seeking comment from Scott Graham, one of Trice's attorneys.

Why the death penalty is unlikely

In July 2021, Garland ordered a moratorium on federal executions to allow for a Justice Department review of death penalty policy. He was appointed by President Joe Biden in March of that year.

The department has also withdrawn permission for death sentences in 24 out of 29 cases authorized by prior administrations, the Associated Press reported in July. It also hasn’t authorized the penalty for any of around 400 new indictments that carried possible capital sentences during Biden’s nearly three years in office.

Schneider pointed to the moratorium in explaining to the State Journal why he thought it was unlikely that Totten's office would pursue the death penalty.

Death penalty cases in either of Michigan's federal districts were already rare, said Schneider, who added that there might be one eligible case every few years.

As prosecutors weigh the decision on whether to seek the death penalty, they must consider the resources needed for such cases, which Schneider said can span 10 years, including trials and appeals, and require more than one prosecutor.

"That's another reason why prosecutors have to carefully think about this," he said. "If you decide to take one of these cases, you've taken two (assistant prosecutors) in your office and you've tied them up for the next decade."

And before the long appeals process begins, there are, in essence, two trials.

The first would determine whether Trice was guilty or innocent of the charges. And if convicted on a death penalty eligible charge, a second trial would then determine whether he's sentenced to death or a prison term, a decision that falls to the jury.

By contrast, a case not involving the death penalty would be resolved quicker, he said.

What goes into the AG's decision on death penalty

Schneider said U.S. attorneys have wide authority to prosecute cases in their district as they see appropriate, but when it comes to some areas they almost always seek guidance from the attorney general in D.C.

Those topics, he said, include immigration, marijuana policy, national security issues and the death penalty.

If federal statue says that the death penalty is a possible sentence for the charges in a case, the U.S. attorney in the district will send a memo to a Department of Justice committee for review.

Schneider said the federal prosecutor will provide their view on matter, but the AG, or Garland in this instance, will be the one who makes the final decision.

If the death penalty is a possibility, the defendant will also be appointed an attorney with experience in death penalty cases. Defense attorneys have the opportunity to provide input during the review process, Schneider added, likely presenting information about the defendant's childhood and other circumstances they believe make the death penalty inappropriate for the specific defendant and case.

The review process typically takes months, Schneider said. He added that a decision in the Trice case could come sooner due to the moratorium, but that these are complex cases and reviews.

Schneider recalled a case from his time as the top federal prosecutor in Detroit, during the Trump administration.

There was a gang-related case that included charges eligible for the death penalty. He submitted a memo to then Attorney General Jeff Sessions with the recommendation that they not seek the death penalty. The review came back, Schneider said, and Sessions directed him to seek the death penalty.

Later, after Bill Barr had been appointed as the new AG after Trump fired Sessions, Schneider said he submitted the memo again, with his same recommendation not to purse the death penalty.

Barr, Schneider said, agreed with his recommendation and the death penalty was not sought.

According to a joint status report filed on Sept. 6 in Trice's federal case, the government "does not have a firm anticipated date" for the review to be completed.

However, the preliminary hearing in his state case is set to begin on Oct. 31. That hearing will determine if there's enough evidence for the case to proceed to Circuit Court.

Trice is accused of stabbing and assaulting Wynter's mother, with whom he had a previous relationship, July 2 at her Lansing home, kidnapping Wynter and fleeing in a car police said he stole. Trice was arrested July 3 in St. Clair Shores after a chase in which he crashed into an officer's car.

Wynter was not in the car, and her body was found on July 5 near Coleman A. Young International Airport in Detroit.

Reporter Ken Palmer contributed to this story.

Contact reporter Matt Mencarini at 517-377-1026 or mjmencarini@lsj.com. Follow him on Twitter @MattMencarini.

This article originally appeared on Lansing State Journal: DOJ officials weighing death penalty for Wynter Cole-Smith's accused killer