Three fired U.S. attorneys balked at seeking death penalty

As a U.S. attorney in Grand Rapids, Mich., Margaret Chiara, who once studied to become a nun, appealed several times to the Justice Department against having to seek the death penalty. In hindsight, for her it was a risky business.

No prisoner has been executed in a Michigan case since 1938, but the Bush administration seemed determined to change that. Under Attys. Gen. John Ashcroft and Alberto R. Gonzales, far more federal defendants have been dispatched to death row than under the Clinton administration. And any prosecutors wishing to seek other punishment often find themselves overruled.

Chiara was not the only one to run afoul of the administration's death penalty stance.

In San Francisco, U.S. Atty. Kevin Ryan was ordered by Ashcroft to conduct a capital trial for a Californian charged with killing a man with a booby-trapped mail bomb. Ryan persuaded Ashcroft's successor, Gonzales, to drop the death charge; last month the defendant, David Lin, was acquitted in San Jose.

In Phoenix, prosecutor Paul Charlton was told repeatedly, despite his resistance, to file capital murder charges in a case where the victim's body has not been recovered. The woman's remains are believed buried deep in an Arizona landfill, but the Justice Department refused Charlton's request to shoulder the cost -- up to $1 million -- to retrieve the corpse.

Little patience

The three prosecutors are among eight U.S. attorneys terminated last year in a housecleaning by the Justice Department. Their hesitation over the death penalty was not cited as a reason for their dismissals, but Washington officials have made it clear they have little patience for prosecutors who are not with the program.

Data from the Death Penalty Information Center in Washington, which opposes capital punishment, show that there have been 95 federal death penalty trials in the last six years under Ashcroft and Gonzales, compared with 55 during the eight years under the Clinton administration's Atty. Gen. Janet Reno.

Richard Dieter, executive director of the center, said that when Bush came to Washington in 2001, his administration seemed determined not only to toughen the federal death penalty statute but to seek it across the nation -- including in places where state laws forbid it, such as Michigan.

As a result, he said, "you see a lot more [capital] cases going to trial, unlike what was happening before, where U.S. attorneys were given some leeway to settle cases or take plea bargains."

Dieter said: "Bush certainly believes in the death penalty, Ashcroft was a fervent believer, and Gonzales was Bush's advisor in Texas, denying all those clemency requests." [full text]

Speaking of all those clemency requests, consider the following damning and disturbing piece by Alan Berlow, dug up from the July/August 2003 issue of the Atlantic Monthly:

The Texas Clemency Memos

On the morning of May 6, 1997, Governor George W. Bush signed his name to a confidential three-page memorandum from his legal counsel, Alberto R. Gonzales, and placed a bold black check mark next to a single word: DENY. It was the twenty-ninth time a death-row inmate's plea for clemency had been denied in the twenty-eight months since Bush had been sworn in. In this case Bush's signature led, shortly after 6:00 P.M. on the very same day, to the execution of Terry Washington, a mentally retarded thirty-three-year-old man with the communication skills of a seven-year-old.

Washington's death was barely noted by the media, and the governor's office issued no statement about it. But the execution and the three-page memo that sealed Washington's fate--along with dozens of similar memoranda prepared for Bush--speak volumes about the way the clemency process was approached both by Bush and by Gonzales....

During Bush's six years as governor 150 men and two women were executed in Texas--a record unmatched by any other governor in modern American history. Each time a person was sentenced to death, Bush received from his legal counsel a document summarizing the facts of the case, usually on the morning of the day scheduled for the execution, and was then briefed on those facts by his counsel; based on this information Bush allowed the execution to proceed in all cases but one. The first fifty-seven of these summaries were prepared by Gonzales....

Gonzales never intended his summaries to be made public. Almost all are marked CONFIDENTIAL and state, "The privileges claimed include, but are not limited to, claims of Attorney-Client Privilege, Attorney Work-Product Privilege, and the Internal Memorandum exception to the Texas Public Information Act." I obtained the summaries and related documents, which have never been published, after the Texas attorney general ruled that they were not exempt from the disclosure requirements of the Public Information Act.

Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die. Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history. Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes.

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence. [full text]

There is a disturbing pattern of behavior evident here, one that paints a portrait of a studiously uninvolved chief executive colluding with his amoral legal counsel to avoid even cursory intervention in death penalty cases, other than to ensure that Old Testament justice would prevail.  And woe to those who would not embrace their lust for blood.