Fired attorneys hesitated to pursue death penalties

WASHINGTON -- Margaret Chiara, a former US attorney in Grand Rapids, Mich., appealed several times to the Justice Department against having to seek the federal 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.

Indeed, under John Ashcroft, former attorney general, and his successor , Alberto R. Gonzales, far more federal defendants have been dispatched to death row than under the previous administration. And any prosecutors wishing to do otherwise often find themselves overruled.

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

In San Francisco, Ashcroft ordered US Attorney Kevin Ryan to conduct a capital trial for a Californian charged with killing a man with a mailed bomb. Ryan persuaded Gonzales to drop the death charge; in February, the defendant, David Lin, was acquitted in federal court 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 never been recovered. The remains are believed to be buried in an Arizona landfill, but the Justice Department refused Charlton's request to shoulder the cost -- up to $1 million -- to retrieve the corpse.

The three prosecutors are among eight US attorneys terminated in 2006 in a housecleaning by the Justice Department. And while their hesitation over the death penalty was not cited as a reason for their dismissals, Washington officials have made it clear they have little patience for prosecutors who are not with the program.

The Justice Department under Ashcroft and Gonzales has demanded far more death penalty cases than it did under the Clinton administration. Data from the Federal Death Penalty Information Center in Washington show that there have been 95 federal death penalty trials in the six years under Ashcroft and Gonzales, compared with 55 during the eight years when Janet Reno was attorney general .

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

As a result, he said, "you see a lot more [capital] cases going to trial, unlike what was happening before, where US 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 adviser in Texas, denying all those clemency requests."

When Chiara was appointed to be the top prosecutor in Grand Rapids in November 2001, she told reporters that 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 convince him otherwise, Dettmer said.

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

In San Francisco, federal public defender Barry J. Portman said he wonders whether Ryan's hesitation to file the death penalty charge might have hurt his standing with Washington . He cited the Lin case and Ryan's ability to get 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.