According to the Congressional testimony of Paul Charlton, the former US Attorney for Arizona, Alberto Gonzales supported the death penalty for a crime in which DOJ was too cheap to actually dig up the body and examine it for forensic evidence (but Scooter Libby's sentence was excessive!):
The facts underlying the case of United States v. Rios Rico allege that the defendant, a methamphetamine dealer, murdered his supplier. The majority of the government's case relies on the testimony of cooperating witness, witnesses who have pleaded guilty to a charge and agreed to testify against the defendant. This evidence justifies, in my opinion, bringing a case against the defendant and, in the event of a conviction, seeking a term of prison for a term of years or life.
What removes Rios Rico from the realm of a death penalty case is the lack of forensic evidence directly linking the defendant to the victim's death. That means, for example, that there is no gun, no ballistics, no victim's DNA on the defendant. In fact, there is no body.
This paucity of forensic evidence, evidence that doesn't forget and cannot lie, means, in my opinion, that Rios Rico should not be a death penalty case. If a government seeks to take another person's life it should do so on only the best of evidence. I argue, therefore, that it is right to consider not just that the government is likely to win a prosecution, here I believe that there is a great likelihood of success, I argue that it is right to consider the quality of the evidence before seeking death. Where the evidence is largely testimonial, and forensic evidence is lacking, the risk that we are wrong, that we might convict and execute the wrong man, however slight, is too high.
Just as compelling though, is this additional fact: the government knows where the body lies. The victim is buried in a landfill in Mobile, Arizona. For the price of between $500,000 to $1,000,000, the government can exhume the body. While I served as the U.S. Attorney, we asked DOJ to pay for the exhumation. DOJ refused.
The body of the victim, were it recovered, might provide the forensic evidence that would ensure sufficient evidence to allow the government to seek the death penalty in good conscience. The body might, on the other hand, provide evidence that exculpates the defendant in some manner. Either way, it is wrong for the government to both seek the death penalty and at the same time refuse to provide funds to obtain evidence that could prove a vital link in supporting or negating its position.
With this in mind, I sought to convince the Death Penalty Committee not to recommend death in this case. The line Assistant U.S. Attorney's, the prosecutors assigned to the case, made their arguments to the Death Penalty Committee in person and we submitted a written memorandum setting out the reasons in support of my view that the death penalty was not appropriate. Under the previous Attorney General, when the Death Penalty Committee disagreed with my decision, I was notified of that disagreement. Here, the Death Penalty Committee rejected my position and that of the line Assistants. I received no word of their disagreement until I received a letter from Attorney General Gonzales "authorizing" me to seek the death penalty. No one had sought my opinion or provided me with an opportunity to give additional input after our initial presentation to the Death Penalty Committee.
Once I received the Attorney General's letter, I asked to have the decision reconsidered. In so doing I spoke with a number of individuals, including people within the Office of the Attorney General and the Assistant Attorney General for the Criminal Division. My most memorable discussion took place with Deputy Attorney General Paul McNulty. After speaking with McNulty, I received a call from his chief of staff, Mike Elston. Elston indicated that McNulty had spoken to the Attorney General and that McNulty wanted me to be aware of two things. First, that McNulty had spent a significant amount of time on this issue with the Attorney General, perhaps as much as 5 to 10 minutes. Second, McNulty wanted me to know that in presenting my view, he, McNulty, had remained neutral, neither supporting nor opposing my position. I was struck that on an issue as important as whether to execute someone, so little time would be devoted to the topic and that the Deputy Attorney General would maintain a neutral position. Elston reported that the Attorney General remained in favor of seeking the death penalty.
When I asked to speak with the Attorney General personally on this issue, he denied my request.
My favorite part is that 5-10 minutes is supposed to be "a significant amount" of the Attorney General's time. A man's life is at stake!
Unfortunately, this is part of a pattern. Gonzales prepared notoriously sloppy memos about scheduled executions for then-Governor Bush in Texas, which they reviewed in only 15 minutes. According to Gonzales, Bush reduced the time slot from 30 minutes because "over time, I became more efficient in giving him that information ... [a]nd he became more comfortable in making his decision based on the information I gave him." Right.
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