Tensions at Justice come to light
The corpse was never found. Nor could police in Phoenix turn up the gun. They did have a suspect, but the evidence against Jose Rios Rico for shooting Angela Pinkerton came mostly from addicts and drug dealers.
U.S. Atty. Paul Charlton didn’t think the case merited the death penalty. But his superiors in Washington overruled him in August -- they wanted the ultimate punishment.
Charlton is one of eight U.S. attorneys recently fired by the Bush administration. Their departures, which normally might have gone unnoticed, have sparked political outrage on Capitol Hill, where Democrats are charging that the Republican-led Justice Department removed competent prosecutors for political reasons, including two instances in which prosecutors did not bring charges that might have helped Republican candidates.
The growing dispute is beaming a spotlight on the inner workings of federal law enforcement and its linchpin U.S. attorneys system. It is a system whose dynamics are rarely in public view and whose tensions have often played out in the West: the tug and play between prosecutors in the field and top Justice officials in Washington; the efforts by regional offices, where cases are tried, to set their own priorities and guard their autonomy; the clashes that occur when those local decisions run into the dictates of Washington.
The cold war between the Justice Department and the 94 districts can be more strained the farther they are from Washington. Indeed, the eight fired prosecutors included two from San Diego and one each from Washington state, Arizona, Nevada and New Mexico.
In Seattle, John McKay had followed his older brother into the top spot at the U.S. attorney’s office. He also had an eye on a federal judgeship someday. Instead, he got bounced, he said, after senior White House officials became displeased over his inaction during a 2004 recount in a razor-thin governor’s race, which a Democrat ultimately won.
In Little Rock, Ark., H.E. “Bud” Cummins III was pushed aside, he was told, to make room for a GOP operative for White House political guru Karl Rove.
In San Diego, Carol Lam notched her belt with the conviction of Republican Rep. Randy “Duke” Cunningham of Rancho Santa Fe, only to become embroiled in a political spat with Washington over illegal immigration. She too was let go.
Also shown the door was David C. Iglesias of Albuquerque. Democrats charge that his departure is linked to veiled attempts by two Republican lawmakers to speed up action on a Democratic corruption scandal before last year’s midterm election.
U.S. attorneys are appointed by the president and serve at his pleasure. They can be fired at his whim. But what has made these dismissals remarkable is that most of them were done the same day, Dec. 7. The firings were followed by a strong hint from Washington that the group should not make any noise in the media or before Congress.
As originally structured, the system gave prosecutors leeway to decide which cases to take, when to serve subpoenas and whom to target with indictments. Washington has tended to serve a supporting role, providing resources and expertise to carry out investigations and trials, and prodding the district offices on the president’s top priorities, such as immigration and drugs.
More recently, especially since Sept. 11, 2001, Washington seems to be taking a greater role in overseeing cases.
Daniel G. Bogden, U.S. attorney in Las Vegas until his recent firing, felt the tension of competing priorities. The Justice Department, he said, wanted him to stay vigilant on a raft of issues, particularly terrorism, violent crime and drug enforcement. At the same time, being in a Western state where gambling is legal, he tried to concentrate on public corruption, money laundering and fraud.
“I felt I was doing my job,” he said in an interview Saturday.
That made it all the more baffling when he was fired and was not afforded a reasonable answer for his dismissal, he said. First, Justice Department officials cited unspecified performance issues. Next, it was policy issues, he said. This past week he learned he was replaced to make room for “new blood.”
“I don’t know what to think,” he said. “I’m just trying to get away from all this.”
Carl Tobias, a law school professor at the University of Richmond in Virginia, said there had always been tension, “especially for those in the West.” He said that U.S. attorneys know the local legal culture, including local law enforcement, judges and juries, and want the autonomy.
Mary Jo White, who was one of the longest-serving U.S. attorneys, running the Manhattan office from 1993 to 2002, said that each region was different, and that Washington should not be so unbending as to refuse to acknowledge special needs in various cities. “One size doesn’t fit all,” she said.
And that, she said, makes the lump firing of eight prosecutors more suspicious.
“They’re very troubling,” she said of the firings. “If you gratuitously make changes, it invariably causes disruption, distractions, and you lose traction on cases. Assistant prosecutors are left wondering who’s coming in. All of that can weaken the office and the work being performed.”
An appointee of former President Clinton, White stopped short of calling the recent firings political. “My view is that what’s happened has been quite surprising,” she said. “Whatever the facts were, whatever the motivation was, this has been unprecedented.”
Charles G. LaBella, another U.S. attorney under Clinton who served for two years in San Diego, warned that the fallout could unsettle future applicants. “The net result is that people now might view these as political slots,” he said.
At the Justice Department, William E. Moschella, principal deputy attorney general, said that each of the dismissed prosecutors was a “talented lawyer.” He said the firings could have been handled better too, but sharply denied anyone was pink-slipped out of retaliation or for base political motives.
But he also emphasized that Washington was the boss. As he told a House judiciary subcommittee last week: “If a judgment is made that they are not executing their responsibilities in a manner that furthers the management and policy goals of departmental leadership, then it is appropriate that they be asked to resign so they can be replaced by other individuals who will.”
That appears to have been the rub with Charlton in Phoenix. He was highly regarded by federal agents and defense lawyers. “It is hard to imagine a more respected, fair U.S. attorney,” said Phillip Noland, a Phoenix lawyer.
But Charlton’s standing with Washington turned soon after his appointment in November 2001. Twice he declined to seek the death penalty, and twice he was reversed by the Justice Department.
Rios Rico was charged with the 2003 murder of Pinkerton, without her corpse or a gun ever surfacing. She had allegedly been slain during a $125,000 meth deal at a suburban Phoenix apartment, and the case against him rested on the word of drug dealers and addicts.
Charlton thought these shortcomings justified a charge of murder, not capital murder. But Washington balked, telling him capital punishment was appropriate. A superseding indictment was filed that qualified Rios Rico for the death penalty. He is awaiting trial.
In a 2001 murder case, Alyce R. Slim, 63, and her 9-year-old granddaughter, Tiffany Lee, were killed during a carjacking on the Navajo reservation. In that case too, Charlton did not want to file capital murder charges against the defendant, Lezmond Mitchell. He cited cultural sensitivity to the Navajo, who do not believe in the death penalty.
Again, Washington told him to seek the death penalty. Mitchell was convicted, and today he sits on death row.
Charlton further butted heads when he wanted FBI agents to tape-record interviews and confessions, particularly in child molestation cases on Arizona’s 21 Indian reservations, something the FBI historically has not done.
Charlton believed the recordings would help sway juries, but the Justice Department ordered him to back down last spring. Charlton offered to resign. Cooler heads agreed that he could do a pilot project for taping confessions. The project never got off the ground.
In testimony in Washington on Tuesday, Charlton said he found “no small amount of irony” in the fact that he was soon terminated.
McKay, the U.S. attorney in Seattle, found himself in the midst of the contested 2004 governor’s race between Republican Dino Rossi and Democrat Chris Gregoire.
While the voting dispute was still in progress, McKay took a phone call from Ed Cassidy, chief of staff for Rep. Doc Hastings (R-Wash.), then the head of the House Ethics Committee.
McKay said Cassidy started to ask about what federal prosecutors were doing in the election dispute, but McKay cut him off, saying that going further could constitute obstruction of justice. Later, when McKay was interviewed by then-White House Counsel Harriet E. Miers and her deputy, William Kelly, for a possible judgeship, he said they criticized him for “mishandling” things during the recount.
He never got the judicial robes, and he lost his job as prosecutor as well.
Chief U.S. District Judge Robert S. Lasnik of Seattle praised McKay as a “superb U.S. attorney,” and said that “for the Justice Department to suggest otherwise is just not fair.”
Back in Phoenix, as in the seven other regions where U.S. attorneys have been toppled, many wonder whether other top prosecutors will risk challenging Washington when they meet across the table in future disagreements.
“Think of the chilling effect,” said Thomas Gorman, an Arizona defense lawyer who is representing Rios Rico on the capital murder charge. “Those guys who were fired are all Republicans, all team players, all conservative prosecutors. Do you think other prosecutors are going to pound the table?”
Serrano reported from Washington, Vartabedian from Los Angeles and Verhovek from Seattle.