Wednesday, April 20, 2005


A change on the death penalty at the Justice Department?

A plea bargain was recently announced in the case of Eric Rudolph, who had carried out three bombings in the Atlanta area—the Olympic Park bombing in which one person was killed and bombings of a Lesbian bar and an abortion clinic, which resulted in no deaths. The federal prosecution abandoned efforts to prosecute Rudolph for a capital crime and agreed to a plea bargain in which Rudolph will serve four life sentences without parole, and make “full restitution” to his victims, which effectively means that victims will receive any money he earns from book or movie deals. The deal was reached in exchange for information from Rudolph as to where he had hidden some stolen dynamite.

If you're interested in the ways of the law, Jonathan Ringel offers a fairly detailed account, from the perspective of a member of the defense team, of the negotiations that led to the plea bargain.

What Ringel and others who have reported on the case do not question is whether this plea bargain represents a change of policy at the Department of Justice.

Former Attorney General John Ashcroft, who never met a defendant he didn't want to kill, resurrected capital punishment at the federal level. His blood thirst peaked in September 2003 when he issued a memo making pursuit of the death penalty DoJ policy. As Shannon McCaffrey of Knight-Ridder reported,

Attorney General John Ashcroft ... ordered federal prosecutors to come down harder on criminal defendants, instructing them to seek maximum penalties and to limit the use of plea bargains.

The tough new stance, outlined in a memo distributed to all 93 U.S. attorneys, dramatically reduces prosecutors' discretion in federal criminal cases ranging from drug trafficking to money laundering to terrorism.

Bill Mercer, the U.S. attorney in Montana who sat on the 15-member Attorney General's Advisory Committee, which drew up the changes, said they had the support of federal prosecutors.

"You want uniformity," Mercer said. "You don't want someone's viewpoint or philosophy determining the outcome. What we are after is eliminating disparity from place to place and defendant to defendant when the crime is the same."

In other words, Kill 'em all!, which greatly eliminates disparity.

Plea bargains may be used only in rare circumstances, such as when a defendant agrees to provide "substantial assistance" to law enforcement officers.

This "substantial assistance" clause appears normally to be invoked when a defendant may help in the pursuit or conviction of other evil-doers, not for finding hidden stashes of dynamite.

As it happened, it was the prosecution that proposed this bargaining chip—

Kish cannot recall Yates' exact words, but in effect she asked: "Can Rudolph tell us where there are any hidden explosives?"

The tone of the question was offhand, but Kish knew the veteran prosecutor well enough to know she was sending a signal. "Sally's a very thoughtful person," he says.

Indeed, former U.S. Attorney Alexander, now the general counsel of Emory University, wrote in an e-mail to the Daily Report that investigators had long suspected Rudolph of some dynamite thefts. "I'm sure they wanted to know where it was," Alexander added.

But what intrigued me was the new Attorney General Alberto Gonzalez' direct involvement in the case—

Kish was told that Gonzales, the new attorney general, looked over the deal on a March 29 flight to Mexico, where he was to meet with President Vicente Fox and other leaders to discuss cross-border cooperation.

"He was lining out stuff," says Kish, who adds he heard early that evening that Gonzales had approved the deal.

A DOJ spokesman could not say when Gonzales reviewed and approved the deal. The teams worked feverishly to complete the paperwork, finishing the following Monday, April 4, says Kish.

This doesn't strike me as the sort of deal that the former Attorney General would have accepted.

Are there any enterprising reporters out there who might like to inquire of the Justice Department whether the Ashcroft memo on the death penalty has been rescinded by the new AG? And if so, what is the current DoJ policy?

It just might be relevant to the Moussaoui case, you know.

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