Three Fired U.S. Attorneys Balked At Seeking Death Penalty

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The Los Angeles Times

Three Fired U.S. Attorneys Balked At Seeking Death Penalty

Prosecutors in California, Michigan and Arizona Share a Reluctance to Pursue The Ultimate Punishment.

Richard A. Serrano, Tom Hamburger and Ralph Vartabedian

WASHINGTON — 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."

'She caught a lot of flak'

When Chiara was appointed to be the top prosecutor in Grand Rapids in November 2001, she told reporters she was opposed to the death penalty. But, she added, her personal views would not affect her performance.

Nevertheless, said her predecessor, Mike Dettmer: "She did not pass the Bush loyalty test on her concerns over the death penalty" and "she caught a lot of flak for it."

Two years into her term, she filed capital charges against Michael and Robert Ostrander — brothers from Cadillac, Mich. — in the slaying and robbery of an alleged fellow drug dealer. The decision to pursue the death penalty was made by Ashcroft after Chiara and a deputy, Phil Green, flew to Washington and tried to persuade him otherwise, Dettmer said.

Paul Mitchell, who represented one brother, said the state law against execution in Michigan was bypassed when Washington made it a federal case based on the fact that a firearm was used in a drug-related offense.

Police said the brothers met another alleged drug dealer, Hansle Andrews, and invited him to go with them to purchase drugs in Grand Rapids. Instead they drove to a remote area outside Cadillac, shot Andrews, robbed him and buried the body in a pre-dug grave.

They were convicted of murder but were spared death, receiving life sentences instead.

Chiara also faced the death penalty issue shortly after she took office. The case involved evidence that Marvin Gabrion had drowned a young woman, Rachel Timmerman, in a lake in Michigan's Manistee National Forest. Timmerman's body, chained to cement blocks, was found in 1997; because the crime occurred on federal property, the U.S. attorney's office took it on.

Ashcroft, taking over as attorney general in 2001, overruled a Clinton administration decision not to seek the death penalty, and the case was tried by attorneys from Chiara's office in 2002. Though she had not personally sought capital punishment, she went along with Ashcroft's decision. Gabrion was convicted and sentenced to death.

In firing Chiara, the Justice Department did not mention the death penalty but did say officials felt they had "no assurance that DOJ priorities/policies [were] being carried out" in Grand Rapids.

E-mails released by the Justice Department show that officials planned to avoid publicly discussing reasons for Chiara's departure because she had agreed to remain silent about the matter.

"We'd only say that this office presented some management issues," said one of the internal e-mails prepared in advance of a March 6 Senate hearing. But "if pushed," the memo said, officials should say "the office has become fractured, morale has fallen," and "the problems here have required an on-site visit by management experts."

'Please file the notice'

In San Francisco, federal public defender Barry J. Portman said he wondered whether Ryan's reluctance to seek the death penalty might have hurt his standing with Washington. He cited the Lin case, and Ryan's success in persuading Gonzales to reverse Ashcroft's decision to raise it to a capital level.

"Most defense attorneys felt Ryan was not eager to seek the death penalty," Portman said.

On Feb. 23 Lin was acquitted of mailing a robot dog containing a bomb that killed Patrick Hsu, 18, of San Jose.

Ryan was fired for a number of reasons, according to Justice documents, including complaints that his office was the most fractured in the country.

Charlton in Phoenix was let go for "repeated instances of insubordination, actions taken contrary to instructions, and actions taken that were clearly unauthorized."

The documents also include a chain of e-mails from August 2006 in which Charlton tried to reach Gonzales to persuade him the death penalty was inappropriate for the case without the body.

On Aug. 16, Michael Elston in the deputy attorney general's office told him: "The AG has denied your invitation to speak further about the case. Please file the notice." Later that day Charlton's office advised the federal court in Phoenix that it would seek death for Jose Rios Rico in the 2003 drug slaying of Angela Pinkerton.

It was the second time Charlton had tangled with superiors in Justice over whether to seek the death penalty. Charlton also did not want to execute a Navajo, deferring to a long-standing informal policy based on the tribe's opposition to the death penalty.

But Justice officials ordered him to seek a death sentence in the slayings of two women in a carjacking.

No body

In the Rios Rico case, the dispute centered on the Justice Department's refusal to look for Pinkerton's body, according to people familiar with the matter. Informants, who apparently were granted plea deals in the case, had tipped federal prosecutors that her body was buried in a Waste Management Inc. landfill in Mobile, Ariz. It would cost $500,000 to $1 million to find it, however.

Federal prosecutors "told us they knew where she was buried," said Annette Grzybowski, Pinkerton's sister. But she said Washington officials would not approve the expenditure. "I was extremely upset," Grzybowski said.

"It all took too long. It's been four years and we still haven't had a trial."

Grzybowski's account was confirmed by an attorney knowledgeable about the details of the case.

"As a matter of policy, we don't comment on pending litigation," said Erik Ablin, a Justice spokesman.

Rios Rico's defense lawyer, Thomas Gorman, said: "If this woman's death merits a death prosecution, then her body should be found and returned to her family. The idea that they could leave it in a garbage dump is pretty disturbing."

Copyright 2007 Los Angeles Times

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