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Fired Prosecutor Says Gonzales Pushed Death Penalty
Figures Show Attorney General Often Overrules U.S. Attorneys' Arguments Against Capital Charges

By Amy Goldstein
Washington Post Staff Writer
Thursday, June 28, 2007

Paul K. Charlton, one of nine U.S. attorneys fired last year, told members of Congress yesterday that Attorney General Alberto R. Gonzales has been overzealous in ordering federal prosecutors to seek the death penalty, including in an Arizona murder case in which no body had been recovered.

Justice Department officials had branded Charlton, the former U.S. attorney in Phoenix, disloyal because he opposed the death penalty in that case. But Charlton testified yesterday that Gonzales has been so eager to expand the use of capital punishment that the attorney general has been inattentive to the quality of evidence in some cases -- or the views of the prosecutors most familiar with them.

"No decision is more important for a prosecutor than whether or not to . . . deliberately and methodically take a life," Charlton said. "And that holds true for the attorney general."

His testimony before a Senate Judiciary subcommittee reviewing the use of the federal death penalty provided the most detailed account to date of Charlton's interactions with Gonzales's aides about the murder case that contributed to his dismissal. It also was one of the most pointed critiques of Gonzales by any of the fired federal prosecutors, whose removal touched off a furor on Capitol Hill.

Justice Department data presented at the hearing demonstrated that the administration's death penalty dispute with Charlton was not unique. The Bush administration has so far overruled prosecutors' recommendations against its use more frequently than the Clinton administration did. The pace of overrulings picked up under Gonzales's predecessor, Attorney General John D. Ashcroft, and spiked in 2006, when the number of times Gonzales ordered prosecutors to seek the death penalty against their advice jumped to 21, from three in 2005.

Barry M. Sabin, deputy assistant attorney general for the department's criminal division, testified, "I don't know and haven't evaluated the circumstances of the numbers." He added: "There should be great respect for those who are most familiar with the facts of the case, the co-defendants and the local community." But by law, the attorney general has final say over whether capital charges are filed.

According to Charlton, the case on which he clashed with Gonzales involved a methamphetamine dealer named Jose Rios Rico, who was charged with slaying his drug supplier. Charlton said he believed the case, which has not yet gone to trial, did not warrant the death penalty because police and prosecutors lacked forensic evidence -- including a gun, DNA or the victim's body. He said that the body was evidently buried in a landfill and that he asked Justice Department officials to pay $500,000 to $1 million for its exhumation.

The department refused, Charlton said. And without such evidence, he testified, the risk of putting the wrong person to death was too high.

Charlton said that in prior cases, Ashcroft's aides had given him the chance to discuss his recommendations against the death penalty, but that Gonzales's staff did not offer that opportunity. He instead received a letter, dated May 31, 2006, from Gonzales, simply directing him to seek the death penalty.

Charlton testified that he asked Justice officials to reconsider and had what he called a "memorable" conversation with Deputy Attorney General Paul J. McNulty. Michael J. Elston, then McNulty's chief of staff, called Charlton to relay that the deputy had spent "a significant amount of time on this issue with the attorney general, perhaps as much as five to 10 minutes," and that Gonzales had not changed his mind. Charlton said he then asked to speak directly with Gonzales and was denied.

Last August, D. Kyle Sampson, then Gonzales's chief of staff, sent Elston a dismissive e-mail about the episode that said: "In the 'you won't believe this category,' Paul Charlton would like a few minutes of the AG's time." The next month, Charlton's name appeared on a list of prosecutors who should be fired, which Sampson sent to the White House.

In April, Gonzales testified in Congress that Charlton had used "poor judgment in pushing forward a recommendation on a death penalty case." An internal Justice Department memo, laying out the reasons each prosecutor had been fired, said Charlton had shown "repeated instances of defiance, insubordination."

At least one former Justice Department official has expressed a different view. James B. Comey, deputy attorney general under Ashcroft, testified last month that Charlton once had persuaded him not to pursue the death penalty. "Paul Charlton was a very experienced -- still is very smart, very honest and able person," Comey told lawmakers. "And I respected him a great deal and would always listen to what he had to say."

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