U.S. District Judge Judith Herrera sentenced Welch, 47, earlier this month to 40 years in prison after she pleaded guilty to conspiracy and related charges in 2011 and testified against McCluskey.
Welch’s attorneys had argued for a 20-year sentence and believed the government would not be in opposition because of her significant cooperation in the case. They had worked out an agreement with prosecutors in Arizona for her 20-year state sentence to run concurrently with whatever the federal court imposed.
Welch was charged in Arizona with helping to break McCluskey and buddy Tracy Province out of prison and with kidnapping two truckers.
There was no surprise when McCluskey and Province got life in prison.
McCluskey, who had faced the death penalty, was sentenced to life – the automatic sentence when jurors didn’t unanimously support his execution. And Province, like McCluskey, had a prior conviction for killing someone and negotiated a life sentence in exchange for his testimony.
But Welch’s record was pristine – she had no convictions – and she had a long, horrifying history of being a victim of abuse.
That, coupled with her “substantial assistance,” the trigger word for asking a sentencing judge to impose less time, could have potentially spelled a 20-year sentence.
Welch’s attorneys, both of whom have significant criminal defense experience, said federal prosecutors did nothing to discourage them from that belief. The defense says the prosecutors said they would “not oppose” the request for 20 years.
The U.S. Attorney’s Office has asked for an extension until June 30 to respond to the filings.
On sentencing day, the new lead prosecutor said the U.S. Attorney’s Office “does not concur” with the 20-year sentence. That led to heated argument at the time, and to a recent request for an evidentiary hearing to show just how badly they believe the prosecution behaved.
Mark Fleming, the San Diego counsel whose efforts over the past decade have been devoted to death penalty cases, and Cammie Nichols, an Albuquerque attorney with over two decades of criminal work, filed papers formally accusing the prosecution of acting in bad faith.
They attached some 80 pages of emails, notes, timelines and declarations in support of the motion.
“Because a government that lives up to its commitments is the essence of liberty under law, the harm generated by allowing the government to forego its plea obligations is one which cannot be tolerated,” their filing says.
None of it will matter to the families of Gary and Linda Haas, the retired couple headed to a fishing vacation in August 2010 when they were abducted from an Interstate 40 rest stop, taken up a rural road, shot and their bodies burned. Family members wanted the death penalty for all three defendants.
Welch’s lawyers said she held up her end of the bargain by, among other things, listening to 34 hours of recorded phone calls from prison involving McCluskey, giving six debriefings to FBI agents and accompanying agents on a road trip, while wearing chains on her waist and ankles, to show the area from which the couple was abducted.
Welch “was the undisputed star witness for the government” at trial, the defense team said.