ATF supervisors William Newell, left, and William McMahon told a congressional committee Tuesday that mistakes were made in Operation Fast and Furious, but they defended the overall goals of the program.

Photo by Cristina Rayas

The case against those suspected of murdering Border Patrol agent Brian Terry last year near Rio Rico is being farmed out to other federal prosecutors.

A spokeswoman for the U.S. Department of Justice said Tuesday the move was requested by the agency's Phoenix office. It had been handling not only the murder suspects but also the prosecution of a man who had purchased two weapons found at the scene.

Tracy Schmaler said the decision to send the cases to federal prosecutors in Los Angeles and San Diego was done "out of an abundance of caution and in the best interests of the prosecutions.''

But the move also comes in the middle of the Department of Justice's own internal investigation into the operation of the Fast and Furious program. It allowed guns to be sold to suspected "straw buyers'' acting on behalf of Mexican cartels in hopes of tracking the weapons to their ultimate purchasers.

But the now-scrapped program went seriously wrong when officials admitted they had lost track of more than half of the 2,000-plus weapons. And two of those guns them showed up at the scene where Terry was shot to death, though neither is directly linked to the killing.

And just last week, two members of Congress who are conducting their own inquiries into the Fast and Furious program questioned whether federal prosecutors in Phoenix were really doing all they could to find everyone involved in last year's murder.

Sen. Charles Grassley, R-Iowa, the ranking Republican on the Senate Judiciary Committee, called it "a step in the right direction.''

"The Justice Department has finally recognized the conflict of interest with the U.S. Attorney's Office in Arizona handling both the Terry prosecution and the Fast and Furious case,'' he said in a prepared statement. He called the move "an overdue recognition that the cases could not be handled properly by the same prosecutors who oversaw the dangerous gunwalking strategy in the first place.''

Paul Charlton, a former U.S. Attorney for Arizona who now represents the Terry family, said he believes that the lawyers in the Tucson office handling the prosecutions would have done their jobs properly. But he said farming the cases out is "the right thing to do.''

"But when you're facing an investigation such as the one the office is facing now, the right thing to do is give it to someone else so that the people outside the office can maintain a high level of confidence,'' he said.

Grassley, along with Rep. Darrell Issa, R-Iowa, said their concern is more than just an appearance of a conflict.

"Given your office's entanglement in Operation Fast and Furious, we remain concerned that the current prosecution team on the Terry murder might be hesitant to develop additional evidence on other potential defendants who may have ties to Operation Fast and Furious,'' the congressmen wrote in their Sept. 1 letter to Ann Scheel. She took over the office on an acting basis after Dennis Burke, who had been President Obama's appointee, resigned abruptly.

The congressmen said there was evidence that not all leads were being pursued.

They said witnesses in the congressional investigation of the failed program said that suspects in the murder case told police they obtained weapons found at the murder scene in backpacks that were hidden nearby.

"A thorough prosecution would identify the accomplices who placed the weapons-filled backpacks near the scene and bring appropriate charges against them,'' they wrote. They said because the U.S. Attorney's Office in Arizona office directed and approved the daily tactical decisions in the Fast and Furious program "it is hard to avoid the perception that a conflict of interest exists.''

The decision to transfer the cases could also solve another ongoing dispute involving agent Terry's murder.

Charlton had asked a federal court to have Terry's parents given "victim'' status in the case against Jaime Avila Jr., the man accused of buying the two weapons that were found at the murder scene. That would have entitled them to be given certain information about how the prosecution was going.

But Emory Hurley, the assistant U.S. attorney who was involved in the daily operations of Fast and Furious, signed a pleading earlier this year, is the same person who signed paper urging a judge to deny the request. Hurley argued that Avila's activities "are too factually and temporally attenuated from the murder -- if connected at all.''

That filing had been approved by Burke.

Giving the case to new prosecutors gives them a chance to withdraw the objection.

In their letter to Scheel, the two congressmen said that the objection by Hurley and Burke only added to their beliefs that the U.S. Attorney's Office in Arizona was not particularly interested in anyone digging too deep into the Terry case because of how it might expose the mistakes made in Fast and Furious.

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