A federal judge in Maryland has rebuffed the U.S. Justice Department’s 11th-hour attempt to pursue the death penalty in a Maryland MS-13 gang case headed to trial this fall.

In an opinion issued Wednesday evening, U.S. District Judge Stephanie A. Gallagher said the federal prosecutors could not “play ‘fast and loose’ with decisions involving life and death” in deciding last month to seek the death penalty in the case. The prosecution, which has been pending since 2022, changed its approach after a directive by President Donald Trump to more often pursue death when applicable.

“The government has proceeded hastily in this case, and in doing so has leapfrogged important constitutional and statutory rights. That is unacceptable,” wrote Gallagher, who was appointed in 2019 to the federal bench by Trump during his first term. “The death notices in this case are untimely and incurably defective.”

It was immediately unclear whether prosecutors will appeal the ruling.

Attorney Brent Newton, who represents lead defendant Wilson Arturo Constanza-Galdomez and who filed motions against the death penalty on behalf of all the defendants, declined to comment on the ruling.

The men charged are Constanza-Galdomez, Edis Omar Valenzuela-Rodriguez and Jonathan Pesquera-Puerto. The indictment alleges that the men are MS-13 members who from June 2019 through at least October 2021 participated in gang-related racketeering activities, including two murders, four attempted murders, drug trafficking offenses, and witness tampering.

The decision to seek the death penalty in the federal system triggers a more complex process than in a typical case, including the appointment of defense attorneys specifically experienced in handling such cases. The government had at least twice previously assured the defense counsel that they would not be seeking the death penalty. (Maryland law bars the death penalty in state cases.)

That changed earlier this year. Trump issued an executive order in January, directing the U.S. attorney general and the department’s prosecutors to seek the death penalty “for all crimes of a severity demanding its use,” including mandating that it be sought for all cases involving the killing of a law enforcement officer or those committed by undocumented immigrants. The Capital Case Review took up the Maryland MS-13 case as well as a separate case involving convicted murderer Matthew Hightower, choosing not to pursue the latter. Hightower has since pleaded guilty.

Gallagher said the extra steps involved in death penalty cases were not to be taken lightly.

“These stringent procedures are not hollow gestures designed to manufacture the appearance of justice; they are there to ensure our justice system gets it right where the government is seeking a drastic and final penalty,” she wrote in her opinion. “The question before this Court is whether the government’s belated notices of its intent to seek the death penalty comport with Defendants’ constitutional and statutory rights. The answer is emphatically no.”

In arguing that they should be able to seek the death penalty, prosecutors wrote in a 17-page memorandum earlier this month that the facts of the case hadn’t changed.

“Because the Defendants have been preparing to defend themselves against these murder allegations for the past 2.5-plus years, the nature of the charges, which have largely stayed the same, weighs in favor of concluding that the notices are reasonably timely,” wrote Assistant U.S. Attorney Alex Kalim.

Kalim said the attorney general “has simply reconsidered an earlier decision, which it is her prerogative to do” and “at no point did the Government make an enforceable promise.”

“Deciding not to seek certain charges is not a promise not to do so,” he wrote.

The defense had called the government’s move unprecedented and a violation of the Constitution, and noted that the average time between the authorization of a capital prosecution by the attorney general and the start of a capital trial has grown to 28 months.