Today’s Must ReadNo other agency in the government has as much power over the lives of citizens as the Justice Department. That’s what has made the U.S. attorney firings scandal so urgent.
And time and time again, the scandal has provided dispiriting glimpses of how the Department under Alberto Gonzales has handled that power. The latest came yesterday via Paul Charlton, the former U.S. attorney for Arizona — who was among the eight fired last December.
One of the reasons that Charlton was fired, according to Justice Department officials, was “repeated instances of insubordination.” There had been “multiple failures to follow [the attorney general’s] instruction on death penalties,” according to a chart officials prepared to justify the firings.
Yesterday, Charlton testified during a Senate committee hearing on the Department’s implementation of the death penalty. Charlton is not anti-death penalty. He only believes, he explains, that “of all of the decisions that a prosecutor will make in his or her career, none will be more important than the whether to seek the death penalty.” He takes the decision seriously.
So here’s what counts as insubordination in Gonzales’ Justice Department.
Last year, Charlton’s office convicted Jose Rios Rico, a methamphetamine dealer who was charged with slaying his supplier. They decided against seeking the death penalty according to a simple rule: while the evidence had been sufficient to convince a jury that Rico was guilty beyond a reasonable doubt, it was not sufficient to be sure beyond all doubt. Rico had been convicted based on the testimony of cooperating witnesses, despite the lack of forensic evidence (there was no body). Charlton explained:
This paucity of forensic evidence, evidence that doesn’t forget and cannot lie, means, in my opinion, that Rios Rico should not be a death penalty case. If a government seeks to take another person’s life it should do so on only the best of evidence.
It’s not that prosecutors didn’t know where Rico’s body was — it’s in a landfill. But it would cost $500,0000 to $1 million to retrieve the body. When Charlton requested that money, the Department refused.
The attorney general’s Death Penalty Committee makes the final recommendations in such cases, and so Charlton and his assistant U.S. attorneys sought to convince the committee that a life sentence was more appropriate for Rico. The committee decided against them. Instead, Charlton received a letter from the attorney general “authorizing” (read: ordering) him to seek the death penalty. Under John Ashcroft, Charlton says, he would have received notification of the disagreement before receiving such an “authorization.”
The pattern was to continue. Charlton sought a reconsideration of the committee’s decision. And here things went downhill:
My most memorable discussion took place with Deputy Attorney General Paul McNulty. After speaking with McNulty, I received a call from his chief of staff, Mike Elston. Elston indicated that McNulty had spoken to the Attorney General and that McNulty wanted me to be aware of two things. First, that McNulty had spent a significant amount of time on this issue with the Attorney General, perhaps as much as 5 to 10 minutes. Second, McNulty wanted me to know that in presenting my view, he, McNulty, had remained neutral, neither supporting nor opposing my position. I was struck that on an issue as important as whether to execute someone, so little time would be devoted to the topic and that the Deputy Attorney General would maintain a neutral position. Elston reported that the Attorney General remained in favor of seeking the death penalty.
Charlton asked Elston if he could speak directly with the attorney general, a request memorialized in an email, dated August 15, 2006. It’s from Elston to Kyle Sampson, Gonzales’ chief of staff:
In the âyou wonât believe this category,â Paul Charlton would like a few minutes of the AGâs time. I explained that he had already been given extensive, unusual process and that I did not think that it was a good idea for him to press this, but he insisted on me making the request.
Your thoughts?
Sampson’s reply was to the point: “Denied.”
As in so many other instances, former Deputy Attorney General James Comey provided a striking contrast to the current leadership when he testified before the House Judiciary Committee on this question earlier this year.
From that testimony:
There wasn’t much — in fact, I don’t think there was anything more important that I did as deputy attorney general than make recommendations on death penalty cases, whether to seek the ultimate sanction for somebody. I always welcomed U.S. attorneys talking to me about it, giving me input.
I remember — and I can’t remember all the details — Mr. Charlton once calling me to talk to me about a case to give me input that wasn’t in the papers that I had seen. And he turned me around on a particular case and how to approach a case, as I recall, when Attorney General Ashcroft was there.
Paul Charlton was a very experienced — still is — very smart, very honest and able person. And I respected him a great deal and would always listen to what he had to say….
I think it was a case where we had sought the death penalty, and the defendant wanted to plead guilty to life without parole.
I think in the first instance we had rejected that. And, as I recall, Mr. Charlton called me and talked to me and said, “I’ve got to get you to take another look at that, let me explain why” and made a very convincing case.
And my recollection is that he turned me around on it. And I concluded that — and I think his concern was particularly for the victim’s family, and that he was concerned they would be traumatized again….
I would never not only not discourage that kind of thing, I would encourage it. Because I needed to hear from the people in the field who knew these cases, because I’m trying to make these decisions off a notebook in Washington, D.C., and I can’t feel the pain of the victim’s families. And he can. And you always want that input.
The entirety of Charlton’s opening statement yesterday is below:
Chairman Feingold, Ranking Member Brownback, and distinguished Members of the Committee, thank you for inviting me to testify about the death penalty and my experience with its implementation during my time as U.S. Attorney for the District of Arizona.
Prior to leaving my position as U.S. Attorney, I served as a career prosecutor with over 16 years of experience. I loved the job of prosecutor. It is a profession that allows you to get up each morning with the single goal of doing what is right, and affords you the opportunity to go to bed each night knowing that you have contributed in some way to the betterment of society.
While there are surely a number of professions that can provide the same rewards, few carry the enormous responsibility and power that a prosecutor possesses. The decisions a prosecutor makes may alter or destroy reputations and careers. Where appropriate, a prosecutor will bring charges in order to deprive a criminal of his liberty interest.
But it is the ultimate penalty that marks the profession of prosecutor as unique . Federal law allows a prosecutor to seek to take another persons life, and to do so methodically and intentionally. Of all of the decisions that a prosecutor will make in his or her career, none will be more important than the whether to seek the death penalty.
In all cases it is important that prosecutors strive to do right as well as be right about the cases they bring. Before a case is presented to a grand jury, and long before a case makes its way to a petit jury, it is the prosecutor’s responsibility to weigh the evidence of a prospective case. In order to assure that a prosecutor correctly decides to seek the death penalty, that prosecutor must carefully look at all of the evidence and take into consideration the opinions of all who have special knowledge of the case and facts.
To illustrate this point, I wish to share my experience with you on a case which is currently set for trial. In that case, United States v. Rios Rico, the Attorney General ordered that the Arizona U.S. Attorney’s office seek the death penalty. I disagree with the Attorney General’s decision in Rios Rico. I understand, however, that it is a decision for the Attorney General, not me, to make.
The object of my testimony is not argue with the ultimate decision of the Attorney General, though, as I say, it is one with which I disagree. My goal, instead, is to illuminate the process, or lack thereof, that went into supporting the decision of the Attorney General to seek the death penalty. In arriving at its decision to seek the death penalty in Rios Rico, I believe that the Department of Justice erred in two ways. First, the Department failed to consider the quality of
the evidence underlying the charges in the case. Second, the Department did not adequately take into consideration the opinions of the U.S. Attorney or the line prosecutors. Failing to consider these issues raises the risk that we will execute someone who is not deserving ofthe death penalty, and that is a mistake that we as a society cannot make.The facts underlying the case of United States v. Rios Rico allege that the defendant, a methamphetamine dealer, murdered his supplier. The majority of the government’s case relies on the testimony of cooperating witness, witnesses who have pleaded guilty to a charge and agreed to testify against the defendant. This evidence justifies, in my opinion, bringing a case against the defendant and, in the event of a conviction, seeking a term of prison for a term of years or life.
What removes Rios Rico from the realm of a death penalty case is the lack of forensic evidence directly linking the defendant to the victim’s death. That means, for example, that there is no gun, no ballistics, no victim’s DNA on the defendant. In fact, there is no body.
This paucity of forensic evidence, evidence that doesn’t forget and cannot lie, means, in my opinion, that Rios Rico should not be a death penalty case. If a government seeks to take another person’s life it should do so on only the best of evidence. I argue, therefore, that it is right to consider not just that the government is likely to win a prosecution, here I believe that there is a great likelihood of success, I argue that it is right to consider the quality of the evidence before seeking death. Where the evidence is largely testimonial, and forensic evidence is lacking, the risk that we are wrong, that we might convict and execute the wrong man, however slight, is too high.
Just as compelling though, is this additional fact: the government knows where the body lies. The victim is buried in a landfill in Mobile, Arizona. For the price of between $500,000 to $1,000,000, the government can exhume the body. While I served as the U.S. Attorney, we asked DOJ to pay for the exhumation. DOJ refused.
The body of the victim, were it recovered, might provide the forensic evidence that would ensure sufficient evidence to allow the government to seek the death penalty in good conscience. The body might, on the other hand, provide evidence that exculpates the defendant in some manner. Either way, it is wrong for the government to both seek the death penalty and at the same time refuse to provide funds to obtain evidence that could prove a vital link in supporting or negating its position.
With this in mind, I sought to convince the Death Penalty Committee not to recommend death in this case. The line Assistant U.S. Attorney’s, the prosecutors assigned to the case, made their arguments to the Death Penalty Committee in person and we submitted a written memorandum setting out the reasons in support of my view that the death penalty was not appropriate.Under the previous Attorney General , when the Death Penalty Committee disagreed with my decision, I was notified of that disagreement. Here, the Death Penalty Committee rejected my position and that of the line Assistants. I received no word of their disagreement until I received a letter from Attorney General Gonzales “authorizing” me to seek the death penalty. No one had sought my opinion or provided me with an opportunity to give additional input after our initial presentation to the Death Penalty Committee.
Once I received the Attorney General’s letter, I asked to have the decision reconsidered. In so doing I spoke with a number of individuals, including people within the Office of the Attorney General and the Assistant Attorney General for the Criminal Division. My most memorable discussion took place with Deputy Attorney General Paul McNulty. After speaking with McNulty, I received a call from his chief of staff, Mike Elston. Elston indicated that McNulty had spoken to the Attorney General and that McNulty wanted me to be aware of two things. First, that McNulty had spent a significant amount of time on this issue with the Attorney General, perhaps as much as 5 to 10 minutes. Second, McNulty wanted me to know that in presenting my view, he, McNulty, had remained neutral, neither supporting nor opposing my position. I was struck that on an issue as important as whether to execute someone, so little time would be devoted to the topic and that the Deputy Attorney General would maintain a neutral position. Elston reported that the Attorney General remained in favor of seeking the death penalty.
When I asked to speak with the Attorney General personally on this issue, he denied my request.
The Rios Rico case is instructive for a number of reasons. The Department should consider the quality of the evidence before determining whether to seek the death penalty. That did not happen here. The Department should give great weight to the opinions of the line prosecutors who are prosecuting the case. That did not happen here. The Attorney General should provide the U.S. Attorney with the opportunity to speak with the Attorney General personally on the issue of whether to seek the death penalty. That did not happen here.
These issues are not so unique that they cannot be repeated. My hope is that my testimony will provide this Subcommittee and the Department with an opportunity to reflect on the current process for deciding which cases merit seeking the death penalty and to make changes where appropriate.
Thank you again for the opportunity and privilege of testifying before you.
