Tuesday, August 08, 2006

Gansler Grandstanding

The Washington Post, November 17, 2002

Gansler Touched Some Nerves in Sniper Case

By Jo Becker
Washington Post Staff Writer

Just hours after the alleged snipers were arrested, Maryland's top federal prosecutor pitched a deal to Montgomery County's prosecutor: Both wanted to prosecute the high-profile case; why not join forces and try a federal case together?

Within a day, State's Attorney Douglas F. Gansler would put a very public end to that notion. Standing before a phalanx of television cameras outside the Montgomery County courthouse, Gansler became the first prosecutor to file local murder charges against John Allen Muhammad and John Lee Malvo.

He then began publicly debunking the legal underpinnings upon which U.S. Attorney Thomas M. DiBiagio planned to build a federal death penalty case.

With those bold moves, Gansler may have lost whatever remote chance his office had to try the case. He also provoked local prosecutors on both sides of the Potomac River as well as federal authorities in the Justice Department.

Thirteen days after Gansler had his news conference, Attorney General John D. Ashcroft announced that local prosecutors in Virginia would charge Muhammad and Malvo with capital murder in connection with slayings in Fairfax and Prince William counties. Gansler had no input into the decision: He was not even invited to Ashcroft's news conference.

A look behind the scenes sheds light not only on the acrimonious angling that took place among prosecutors, but also upon the tactics of a man who openly yearns to become Maryland's next attorney general.

It is a story of ambition, old enmities and deep schisms within the county's law enforcement community that could affect Gansler's political future. It is not only about the law -- which always favored Virginia as a place to try the suspects because its death penalty statutes were considered more clear-cut -- but about politics, a realm in which Gansler found himself with few well-placed allies.

Murder trials are as much about healing and closure as they are about guilt and innocence, and no community was more affected by the deadly sniper attacks than was Montgomery County. As Gansler pointed out, six of the 10 homicide victims in the Washington region were killed there, and a seventh called it home. But with Ashcroft's Nov. 7 decision, it remains unclear whether the two suspects who authorities believe are responsible will ever be held accountable for the killings in Montgomery County.

To supporters, Gansler was punished for doing his job and was widely and unfairly tarred as promoting himself when he was simply promoting the interests of the community.

"A lot of prosecutors and politicians at the state and federal level have ambitions, but their motivations weren't questioned simply because they aren't as open about it as Doug," said Michael Levy, who worked with Gansler in the U.S. attorney's office in Washington.

But his media-savvy approach sometimes lands him in trouble. This week, the state's Attorney Grievance Commission told a court it believed Gansler had violated pretrial publicity rules in three Montgomery County cases that predate the sniper shootings.

Stanton Gildenhorn, a lawyer and staunch supporter of incumbent judges -- some of whom Gansler has publicly pilloried -- said he believed Gansler's position that Montgomery County should go first was the morally correct one. But, Gildenhorn said, "his problem was that he's viewed as overly ambitious, and his actions here played right into that image."

The suspicions began even before police had the suspects in custody.

On Oct. 7, four days after officials realized that they had a serial shooter on their hands, Montgomery County Police Chief Charles A. Moose announced that he had sent a letter to the Justice Department making their ad hoc relationship formal.

A news conference stressed the unified effort, but a meeting beforehand was anything but. Gansler walked into Moose's office to find DiBiagio on the scene. What exactly was the federal prosecutor's role, Gansler wanted to know.

Even before that day, the two prosecutors seemed at odds, politically and professionally.

DiBiagio's office was investigating the Maryland Governor's Office of Crime Control and Prevention, headed by Lt. Gov. Kathleen Kennedy Townsend (D). He was appointed by President Bush with the support of Rep. Robert L. Ehrlich Jr., Townsend's Republican opponent in the governor's race. Gansler was among Townsend's chief supporters in Montgomery County.

Plus, there were those in Gansler's office who felt that DiBiagio was predisposed to poach on cases. In a high-profile "black widow" case, involving federal charges against a woman accused of killing two husbands, DiBiagio's office teamed up with the woman's defense in asking U.S. District Judge Deborah Chasanow to impose a gag order. The request followed Gansler's discussion of the case on NBC's "Today" show.

"I probably expressed our concern about working with his office because of their history," Gansler said in an interview.

Moose also clashed with Gansler over the prosecutor's accessibility to the press in the sniper case, so much so that a gentleman's agreement had to be forged: Gansler would not go before the cameras until an arrest had been made.

Several sources said Moose blew up at Gansler after the prosecutor questioned DiBiagio's role. "This isn't about you; it's about catching the bad guys," Moose said, according to sources. Gansler denies those accounts, characterizing the meeting as cordial.

The morning of Oct. 24, Muhammad and Malvo were arrested while sleeping in their car at a Maryland rest stop. The two were quickly transported to Montgomery's juvenile assessment center, and the task force investigating the crimes secured a warrant for the car, where officers found what they said was a treasure trove of evidence.

An interrogation began. According to federal and local sources, Malvo said nothing, and Muhammad said nothing useful, but he was talking. At some point, DiBiagio spoke by phone with FBI agent Gary Bald. The two suspects had been arrested on unrelated federal charges, and the law required that they be brought before a magistrate without unnecessary delay. Twelve hours is about the limit, sources said DiBiagio told Bald.

Meanwhile, a Montgomery County police sergeant began arguing to members of the task force that there was enough evidence to charge the two men with murder locally, three law enforcement sources said. Why bother with the federal charges?

What happened next is the subject of dispute. Some say that in several phone calls, DiBiagio invoked the White House and the Justice Department to pressure Gansler into turning the suspects over to him. The U.S. attorney has denied that, but some Montgomery officials felt that Muhammad's interrogation was cut short unnecessarily.

What is clear is that Gansler cooperated in sending the suspects on their way to federal court in Baltimore, unsure whether he would ever see them again.

Moose, who was grateful for the federal help, agreed with the decision to transfer the suspects, according to sources; DiBiagio was just going by the letter of the law.

The Justice Department now was firmly in the driver's seat as the prosecutorial battle escalated, its possession of the two suspects the ultimate trump card.

The next morning, Gansler began calling federal and state prosecutors to invite them to a meeting. A jittery public needed to know that law enforcement officials believed that the two men in custody were in fact the snipers, he said.

But word soon leaked out that Gansler planned to have a news conference after the meeting to announce that he would file murder charges. Gansler has repeatedly said he wasn't naive enough to believe that just because he filed first meant he would get to prosecute first. "Everyone was told what we planned to do, and everyone encouraged us to do it," he said in an interview.

But, according to Virginia sources, Gansler received no such encouragement. Instead, they said, Gansler said other prosecutors were coming to the meeting when they weren't.

In a conference call that day, the Virginia prosecutors involved in the case asked one another if they planned to attend. "It went right around the horn: I'm not going, I'm not going, I'm not going," one source said.

Prince George's County State's Attorney Jack B. Johnson arrived at the meeting to find he was the only chief prosecutor from another county there. Upon learning of the news conference, Johnson said he turned around and went home.

"It was clear to me that it wasn't really a meeting," he said. "It was to try to ensure that Montgomery County would prosecute the case, as opposed to hearing how other prosecutors felt."

Gansler announced his decision that Friday, then appeared on the Sunday talk shows to make his case.

Ashcroft returned from a trip to Asia that weekend as Gansler was hitting the television circuit. Who is this Gansler? he asked aides.

Justice officials were outraged that the Montgomery County prosecutor was publicly disparaging their ability to bring capital charges against the men based on a law intended to root out organized crime, as they intended to do.

In an interview, Gansler said he was just being honest. He spoke out for the same reason that he rejected DiBiagio's joint prosecution offer, he said.

"Our prosecutors have integrity and ethics," he said. "They would not be willing to stand before a jury regardless of how bad these guys were and ask that two people be sentenced to death based on a theory no one believed in."

From that point forward, Gansler was cut out of the loop. Ashcroft consulted with Moose, who said he had no preference as to where the prosecution took place, according to sources. Montgomery's popular county executive, Douglas M. Duncan (D), also did nothing to help Gansler.

Gansler had crossed him two years ago by helping to sew up Montgomery support for Townsend at a time when Duncan was still considering entering the governor's race. Duncan told one official that if there was any doubt about Maryland's death penalty laws, the case should go to Virginia, according to one source.

In the end, that's what Ashcroft decided to do, with the approval of Duncan and Moose. When it came to imposing the death penalty, Virginia had the upper hand. Experts also believe that Virginia's terrorism statutes do not require prosecutors to prove who was the triggerman, unlike laws in Maryland. Plus, Maryland does not execute juveniles like Malvo.

For all the bickering, the legal points may well have decided the matter. That it happened without any input from Montgomery's top prosecutor, however, shows just how isolated Gansler was.

The federal government's handling of the case has angered some in Montgomery's legal community. "Doug Gansler was screwed, but really it was Montgomery County that was screwed," said Steven VanGrack, a lawyer.

But Duncan said that if the two men are convicted and sentenced to death in Virginia, he sees little point in another trial.

Gansler said he remains disappointed for the people of Montgomery, but not for himself. "I got hit for doing my job," he said. "But real people come up to me all the time, and they thank me for fighting for them."

Staff writers Sue Schmidt, Katherine Shaver and Josh White contributed to this report.

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