Former US Attorney Wary of Gonzales's New Powers

Paul Charlton, former US attorney for Arizona, told Truthout on Tuesday that a new law authorizing Attorney General Alberto Gonzales to fast-track executions is ill-conceived because it gives power to an official who has little regard for capital punishment cases. Charlton was fired last year for refusing Justice Department orders to seek the death penalty in a drug-related murder case.

"In my own personal experience with the AG, and having watched his testimony regarding my dealings with him, I know that the AG reflects little on the issue of the death penalty," Charlton said in an interview on Tuesday. "What gives me to pause is not the need for the law, but that the individual who will be deciding if the states merit such a change will be the attorney general."

The Los Angeles Times reported on Tuesday that the DOJ is finalizing new rules that would allow Gonzales to cut the time death row inmates have to appeal their convictions in federal courts and speed up executions. The Times reported that the new provision, tucked away in the reauthorization of the Patriot Act, comes "at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence of more than a dozen death row inmates in recent years."

"A number of states, including my own, have called for such a change in the law," Charlton said. "As I understand the new rules, they will only affect state prosecutions. The rules will do so by limiting the amount of time allowed to the federal courts as they review the state courts' decisions to execute an individual. For me, it is not, I should be clear, an issue of whether to seek death or to accelerate the process that leads to the ultimate penalty. Those are issues which reasonable people may disagree. What all should agree upon is the idea that the position of attorney general demands an individual who thoughtfully weighs those issues before coming to a conclusion."

In an exclusive interview with Truthout in July, Charlton said Gonzales and senior DOJ officials "ordered" him to pursue the death penalty against Rios Rico, a methamphetamine dealer accused of murdering his supplier, despite the fact his office did not obtain a murder weapon or the victim's body. Charlton said he advised the DOJ that pursuing the death penalty in this particular case was unwarranted due to the absence of forensic evidence but was rebuffed by Gonzales.

"The lack of forensic evidence, the quality of the evidence means you should not seek the death penalty," Charlton said. "The first I heard that my recommendation had been ignored was when I received a letter from the attorney general, and they use this very euphemistic term: They say you're now 'authorized' to seek the death penalty, which in reality is an 'order' to seek the death penalty. I contacted the office of the attorney general, the office of the deputy attorney general [Paul McNulty] ... to try to reverse that decision and I was unsuccessful in the end."

Charlton said his office knew where the body was located and requested the DOJ spend $500,000 to $1 million to recover the body from a landfill which would have either strengthened the prosecution's case, and therefore provided the DNA evidence to justify his pursuit of to death penalty, or, it would have determined that the suspect wasn't responsible for the murder. Charlton said the DOJ denied his request. The victim's body remains buried in a landfill in Arizona.

The former federal prosecutor, now in private practice in Phoenix working on Native American issues, said he had "a memorable conversation" with McNulty's Chief of Staff Michael Elston who told Charlton that McNulty and Gonzales spent a "significant amount of time" discussing Charlton's concerns about executing the defendant - about five to ten minutes - before ordering Charlton should seek the death penalty.

"McNulty wanted me to understand that during his conversation with the attorney general he remained completely neutral," Charlton said, a fact he found to be troubling. "He said he neither supported nor critiqued my position. That surprised me because on this decision whether you should intentionally and methodically seek to take another person's life neutrality has no place. I would have preferred that he had said 'I don't agree with Charlton, we should seek the death penalty' in place of someone who has taken no position at all."

One day before Charlton's interview with Truthout, he testified before the Senate Judiciary Committee about problems he saw associated with oversight of the federal death penalty and he raised specific concerns he had with the way Gonzales, and the DOJ weighed in on the case he was prosecuting: United States vs. Rios Rico.

"In arriving at its decision to seek the death penalty in Rios Rico, I believe that the Department of Justice erred in two ways." Charlton testified. "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 US attorney or the line prosecutors. Failing to consider these issues raises the risk that we will execute someone who is not deserving of the death penalty, and that is a mistake that we as a society cannot make."

The DOJ "should consider the quality of the evidence before determining whether to seek the death penalty." Charlton added. "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 US 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."

Charlton said in an interview with Truthout that it was unusual for the DOJ to "order" him to seek the death penalty without first discussing it with him.

"Under Attorney General [John] Ashcroft, I had the opportunity to speak with him on a death penalty case when I had a disagreement with him," Charlton said, adding the lack of prosecutorial experience at the senior level of the DOJ is what Charlton believes led Gonzales and his underlings to make unilateral legal decisions without first consulting with career prosecutors like him.

DOJ officials claim Charlton was fired, along with eight other US attorneys, because he protested Gonzales's directive. Charlton said he has doubts that is the main reason and has acknowledged he was investigating public corruption cases involving Republicans, although he declined to speculate as to whether partisan politics played a role in his dismissal.

"I've come to the conclusion that I'm uncertain if those are the reasons," Charlton told me. "I'm not certain myself whether those are the genuine reasons or they are reasons more of convenience."

Jason Leopold is senior editor and reporter for Truthout. He received a Project Censored award in 2007 for his story on Halliburton's work in Iran.

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