'In Briggs case, Ayotte was thinking politics'

Last modified: Thursday, October 14, 2010
As former prosecutors, we reviewed with grave concern last week's release of Kelly Ayotte's e-mail correspondence from the time that she served as attorney general. Ayotte's e-mail exchange in October 2006 with her now-chief campaign strategist, Robert Varsalone, reveals that her death penalty decision in the Michael Briggs murder case was motivated in part by her political ambitions.

Her conduct runs afoul of the American Bar Association's standards, set by its criminal justice section, which state that 'in making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his or her record of convictions' and that 'a prosecutor should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property or personal interests.'

Ayotte's use of the office of the attorney general to create a springboard for her own political future runs counter to these established standards and that office's long tradition of disciplined independence. Finding its roots in Justice David Souter's term as attorney general, New Hampshire's attorney general's office had a unique tradition of autonomy from the partisan pressures that define the attorney general's offices of our sister states. Time and again, attorneys general before Ayotte made difficult decisions by reference to the facts of the case, the law that applies and the interests of our citizens - an analysis that never included earning political equity. With the evidence in her own words, we fear that Ayotte abandoned that tradition of integrity by permitting visions of electoral victories to cloud her thinking when considering a subject matter so truly grave - when to put a man to death. We were deeply troubled by what we read.

On Oct. 27, 2006, Varsalone wrote to Ayotte's official attorney general e-mail account to encourage her to seek political office. He described to her the difficulties that then-Congressman Charles Bass faced in his re-election bid against Democrat Paul Hodes and the opportunity for her in the 2nd District if Bass faltered. He even entitled this e-mail 'Get ready to run . . .' He made clear to her that the Bass campaign was disorganized and out of touch with the Republican base and would likely lose the election. Without a beat, Ayotte immediately responded: 'A police officer was killed, and I announced that I would seek the death penalty.' Varsalone then envisioned the theme for her campaign to come: 'Where does AG Ayotte stand on the death penalty? BY THE SWITCH.'

The connection between her political ambitions and the application of the death penalty is clear and unambiguous. This back and forth devalued the gravity of the death penalty decision that Ayotte made. Instead of hinging her death penalty decision on notions of justice and the law laced with concern for the victims involved and society at large, her decision turned on self-centered thoughts of political gain. The fact that her analysis of a death penalty decision included the impact that it would have on her political future is a violation of New Hampshire's proud tradition of independent prosecutors where the office of the attorney general is not the place for political dialogue.

The fact that she turned to Varsalone, a political operative, as a sounding board during her time as attorney general underscores this point. In Ayotte's response to Varsalone, she stated nothing of the facts of the case, the proper application of the death penalty, the loss of an officer or the suffering of the family that he left behind. Instead, she responded to his description of a political opportunity by pointing immediately to the fact that her death penalty decision would be a hallmark of her political career.

While there is room for legitimate debate regarding the application of the death penalty in our state, and none of us question the need to bring to justice any person responsible for the death of another, we do not believe that any citizen would support prosecutorial decisions made for political purposes.

(John Garvey is a former military prosecutor. John Malmberg is a former assistant attorney general. This essay was also signed by former assistant attorneys general Michael Pignatelli, James Rosenberg and Paul Maggiotto; former U.S. attorney William Shaheen; former assistant county attorney Mark Abramson; former county attorney Lincoln Soldati; and former assistant U.S. attorney Steven Gordon.)