REPORT Nº 52/01 CASE
12.243 JUAN
RAUL GARZA UNITED
STATES (*) April
4, 2001
I.
SUMMARY
1. The petition in the present case was lodged with the Inter-American Commission on Human Rights (the "Commission”) against the United States of America (the "State," the "United States," or the “U.S.”) on December 20, 1999 by six individuals: Hugh Southey, a Barrister with Tooks Chambers in London, United Kingdom; Michael Mansfield, QC, representing the Human Rights Committee of the Bar of England and Wales; John Quigley, Professor of International Law at Ohio State University; William Shabas, then Professor of International Human Rights Law at the University of Quebec at Montreal; Gregory Weirciock, an attorney in Houston, Texas; and Mark Norman, Solicitor of the Supreme Court of England and Wales (hereinafter the “Petitioner’s representatives”). 2.
The petition was filed on behalf of Juan Raul Garza (the
“Petitioner”), an inmate on Federal death row in the United States.
In their petition and subsequent observations, the Petitioner’s
representatives have alleged that Mr. Garza’s death sentence violates
his right to life under Article I of the American Declaration of the
Rights and Duties of Man (the "American Declaration" or the
"Declaration"), and that the procedures employed by the State in
sentencing Mr. Garza to death violate his right to equal protection of the
law under Article II of the Declaration, his right to a fair trial under
Article XVIII of the Declaration and his right to due process under
Article XXVI of the Declaration. In
particular, the petition contests the introduction during the sentencing
phase of the Petitioner’s criminal proceeding of evidence of four
unadjudicated murders that Mr. Garza was alleged to have perpetrated in
Mexico, which evidence was considered by the jury in determining whether
Mr. Garza should be sentenced to death.
The petition also indicated that, according to information provided
by the United States at that time, Mr. Garza’s execution date might be
set for February 2000. Mr.
Garza's execution was subsequently scheduled to take place on August 5,
2000, following which then-U.S. President William J. Clinton granted Mr.
Garza two temporary reprieves, one on August 2, 2000, and the second on
December 7, 2000. The
Petitioner's representatives have claimed that, should Mr. Garza be
executed, it will constitute the first execution under U.S. federal law in
excess of 35 years. 3. In the present Report, having examined the information and arguments provided by the parties, the Commission decided to admit the case in relation to Articles I, XVIII, and XXVI of the Declaration, with the exception of further claims under Articles I and II of the Declaration raised by the Petitioner in observations dated September 22, 2000, which the Commission declared to be inadmissible. In addition, after considering the merits of the case, the Commission found the State responsible for violations of Articles I, XVIII and XXVI of the American Declaration, in connection with the procedure followed by the State in sentencing the Petitioner to death. Accordingly, the Commission recommended that the State provide Mr. Garza with an effective remedy, which includes commutation of his death sentence. The Commission also decided to recommend that the State review its laws, procedures and practices to ensure that persons who are accused of capital crimes are tried and sentenced in accordance with the rights under the American Declaration, including in particular prohibiting the introduction of evidence of unadjudicated crimes during the sentencing phase of capital trials. II. PROCEEDINGS
BEFORE THE COMMISSION 4.
On January 27, 2000, the Commission decided to open Case Nº 12.243
in relation to Mr. Garza’s complaint, and by note of the same date
transmitted the pertinent parts of the Petitioner’s petition to the
State, with a request that the State deliver information that it
considered pertinent to the complaint within 90 days as prescribed by the
Commission’s Regulations. In
addition, in light of the information in the petition indicating that Mr.
Garza’s execution may be scheduled for February 2000, the Commission
decided to adopt precautionary measures pursuant to Article 29(2) of its
Regulations and requested in its January 27, 2000 communication to the
State that the United States take all necessary measures to preserve Mr.
Garza’s life and physical integrity so as not to hinder the processing
of his case before the inter-American system. The Commission based its
request on the fact that, if the State were to execute Mr. Garza before
the Commission had an opportunity to examine his case, any eventual
decision would be rendered moot in respect of the efficacy of potential
remedies, and irreparable harm would be caused to Mr. Garza.
Also by note dated January 27, 2000, the Commission informed the
Petitioner’s representatives that Mr. Garza's petition had been
transmitted to the State and that the Commission had adopted precautionary
measures in relation to Mr. Garza. 5.
In a communication dated February 7, 2000, the Petitioner’s
representatives provided the Commission with additional information
relevant to their complaint, including a copy of the transcript from Mr.
Garza’s sentencing hearing, and copies of the decisions of the domestic
courts that had considered Mr. Garza’s appeals from his conviction and
sentence. In their
communication, the Petitioner's representatives did not indicate that a
date for Mr. Garza's execution had yet been scheduled. 6.
By note dated May 8, 2000, the Commission reiterated its request
for the State to provide information relating to Mr. Garza’s petition,
which the Commission asked the State to provide within 30 days. 7.
In a note dated May 11, 2000, the State requested that the
Commission grant it an extension of time of 45 days within which to file a
response to the Petitioner’s petition.
By communication dated May 18, 2000, the Commission granted the
State’s request for an extension of time, on the understanding that the
State would take all necessary measures to preserve Mr. Garza’s life and
physical integrity in accordance with the Commission’s previous request
for precautionary measures. 8.
In a letter dated May 29, 2000, the Petitioner’s representatives
provided the Commission with a copy of a decision issued by the United
States District Court, Southern District of Texas, on May 26, 2000,
ordering that Mr. Garza be executed on August 5, 2000 at 6:00 a.m. 9.
By note dated May 31, 2000, the Commission transmitted the
pertinent parts of the Petitioner’s May 29, 2000 communication to the
State, with a response requested within 30 days.
The Commission also reiterated its previous call for an urgent
response to its January 27, 2000 request for precautionary measures, in
light of the scheduling of Mr. Garza’s execution date.
By communication of the same date, the Commission informed the
Petitioner’s representatives that these steps had been taken. 10.
On or about July 14, 2000, the Commission received information that
then-U.S. President William J. Clinton would postpone Mr. Garza’s
scheduled August 5, 2000 execution date until the U.S. Department of
Justice had completed drafting guidelines for seeking presidential
clemency in such cases. Accordingly,
by communication dated July 17, 2000, the Commission requested that the
State provide the Commission on an urgent basis with information
respecting the current status of Mr. Garza’s death sentence.
By note of the same date, the Commission likewise requested that
the Petitioner’s representatives provide the Commission with an urgent
communication informing the Commission of the current status of Mr.
Garza’s death sentence. 11.
By note dated July 20, 2000, the State transmitted to the
Commission its observations on the Petitioner’s petition.
In its observations, the State expressed the view that the
Commission's request for precautionary measures in Mr. Garza's case was
not binding but rather only constituted a non-binding
"recommendation," of which the State had taken note.
The Commission subsequently transmitted the pertinent parts of the
State’s observations to the Petitioner’s representatives, with a
response requested within 30 days. 12.
In a letter dated August 7, 2000, the Petitioner’s
representatives provided the Commission with a copy of an “Executive
Grant of Clemency” dated August 2, 2000 and signed by U.S. President
Clinton, which granted a reprieve of Mr. Garza’s execution date from
August 5, 2000 to December 12, 2000 and established December 12, 2000 as
the new date for Mr. Garza’s execution. 13.
By communication dated August 19, 2000, the Petitioner’s
representatives delivered to the Commission a response to the State’s
observations of July 20, 2000, and requested a hearing in the
Petitioner’s case during the Commission’s next period of sessions.
The Commission subsequently transmitted the pertinent parts of the
Petitioner’s observations to the State in a note dated August 23, 2000,
with a response requested within 30 days. 14.
In notes dated September 12, 2000, the Commission informed the
Petitioner’s representatives and the State that a hearing in the
Petitioner’s case had been scheduled for October 12, 2000 during the
Commission’s 108th period of sessions at its headquarters in
Washington, D.C., for the purpose of receiving the parties’
representations on the admissibility and merits of the case. 15.
By communication dated September 22, 2000, the Petitioner’s
representatives delivered to the Commission a document entitled “Request
to Raise Additional Matters,” and by note of the same date the
Commission transmitted a copy of the document to the State, with a request
for observations within 30 days. 16.
In a note dated September 25, 2000, the State provided the
Commission with a “Second Reply” to the Petitioner’s petition.
By communication dated September 26, 2000, the Commission
transmitted the pertinent parts of the State’s second reply to the
Petitioner’s representatives, with a response requested within 30 days.
17. On October 12, 2000, the Commission convened a hearing in the Petitioner’s case during its 108th period of sessions in Washington D.C. Representatives of both the Petitioner and the State attended the hearing, presented oral representations to the Commission respecting the admissibility and merits of the Petitioner’s case, and delivered written summaries of their oral submissions. 18. Subsequently, by communication dated November 16, 2000, the State delivered to the Commission a document entitled "Response of the Government of the United States to October 12, 2000 Submission by Petitioner." The Commission transmitted the pertinent parts of the State's response to the Petitioner's representatives in a note dated November 17, 2000. 19. By communication dated November 21, 2000, the Petitioner's representatives indicated that in light of Mr. Garza's scheduled execution on December 12, 2000, they did not intend to comment on the State's additional observations, but rather requested that the Commission consider the merits of the petition so that a report with recommendations could be issued before December 12, 2000. III. POSITIONS OF THE PARTIES A.
Position of the Petitioner 1.
Admissibility 20. In their initial petition and subsequent observations, the Petitioner’s representatives have contended that Mr. Garza’s petition is admissible in accordance with the requirements of the Commission’s Regulations. They first argue that Mr. Garza has exhausted domestic remedies in accordance with Article 37 of the Commission’s Regulations, as he pursued appeals and constitutional remedies in both the U.S. District Court and the U.S. Court of Appeals for the Fifth Circuit, with the U.S. Supreme Court dismissing his final petition for a Writ of Certiorari on November 15, 1999. 21.
In addition, the Petitioner’s representatives argue that Mr.
Garza has complied with Article 38 of the Commission’s Regulations, as
his petition was lodged with the Commission on December 20, 1999 and
therefore within 6 months of the date of the final domestic judgment in
his case. 22.
Moreover, the Petitioner's observations indicate that no
proceedings are pending or have been decided by the Commission or any
other international organization raising the subject matter of Mr.
Garza’s petition, in compliance with Article 39 of the Commission’s
Regulations. 23.
With respect to the claims raised in their September 22, 2000
"Request to Raise Additional Matters", which, as discussed
below, allege violations of Mr. Garza's rights under Articles I and II of
the Declaration based upon a document issued by the U.S. Department of
Justice on September 12, 2000 and entitled "Report on the Federal
Death Penalty System: A Statistical Survey (1988-2000)," the
Petitioner's representatives argue that, as Mr. Garza's execution is
scheduled for December 12, 2000, any attempts to raise the issues
contained in the September 22, 2000 request in a domestic forum is
unlikely to produce results until shortly before that scheduled execution
date. Consequently, the Petitioners argue that there would be no
opportunity to make the allegations of human rights abuses contained in
the request in sufficient time to enable the Commission to consider them
before execution, and therefore that it is appropriate for the Commission
to consider the matters raised in their September 22, 2000 request. 2.
Merits 24.
With respect to the merits of the case, the Petitioner’s
representatives indicate that Mr. Garza is a U.S. national who was tried
and convicted by a jury in the United States District Court, Southern
District of Texas, under U.S. Federal law on three counts of killing in
the furtherance of a continuing criminal enterprise, among other offenses,
and sentenced by the same jury to death. They also confirm that in his proceedings before the
Commission, Mr. Garza does not challenge these convictions, but rather
takes issue with the punishment that he has received for these crimes. In particular, the Petitioner’s representatives argue that
the State is responsible for violations of Mr. Garza’s rights under
Articles I, XVIII and XXVI of the American Declaration, as a consequence
of the fact that the death penalty has been imposed upon Mr. Garza, as
well as certain aspects of the process through which Mr. Garza was
afforded this punishment. 25.
With respect to Article I of the Declaration, the Petitioner’s
representatives have raised four principal arguments.
First, they contend that international law has developed such that
capital punishment per se
violates the right to life and therefore that Mr. Garza’s death sentence
in and of itself contravenes Article I of the Declaration.
In this connection, the Petitioner’s representatives argue that
the Declaration should be regarded as a living instrument that reflects
the standards of democratic and just societies as they develop.[1]
While the Petitioner's representatives recognize that the
Commission has held in past reports that the death penalty is not per
se contrary to the right to life, they urge that the standards
inherent in the Declaration have now developed to the extent that capital
punishment should be regarded as contrary to Article I of the Declaration,
and that the intentions of the original drafters of the Declaration cannot
be determinative in this respect. 26.
In support of this contention, the Petitioner’s representatives
present several arguments. They
first claim that there is a clear worldwide trend that individual nation
states are abolishing the death penalty,[2]
and, consistent with this trend, that the United Nations human rights
system supports the abolition of the death penalty and has encouraged
states to reduce their use of the death penalty.[3]
They also note the fact that the Statute of the International
Criminal Court and the Statutes of the International Criminal Tribunals
for the Former Yugoslavia and Rwanda do not include capital punishment
among the penalties that may be imposed by those tribunals.
In relation to the Americas in particular, the Petitioner's
representatives refer to the Protocol to the American Convention on Human
Rights to Abolish the Death Penalty as evidence of a “commitment” by
the Organization of American States to the abolition of the death penalty. 27.
Alternatively, the Petitioner’s representatives argue that Mr.
Garza’s death sentence contravenes Article I of the American Declaration
because international law requires states to progressively restrict the
application of the death penalty. Contrary
to this trend, however, the United States has effectively re-introduced
the death penalty after a 35-year absence of Federal executions between
1972 and 1988 and, on two occasions since November 18, 1988, has expanded
it to apply to new offenses.[4]
In addition to the arguments cited above respecting the
unlawfulness of the death penalty per se, the Petitioner's representatives contend that by protecting
the right to life, the American Declaration implicitly suggests that the
abolition of the death penalty is desirable and that one of the objects
and purposes of the Declaration is the restriction of the use of the death
penalty.[5]
They also argue that the worldwide trend toward a reduction in the
use of the death penalty suggests that there is no sufficient
justification for an increase in the use of the death penalty and
therefore that any such increase instituted by a state is arbitrary.
According to the Petitioner's representatives, it is difficult to see what
justification there can be for re-introducing the death penalty when so
many states have found that they are able to abolish it. 28.
In the further alternative, the Petitioner’s representatives
contend that the decision by the State to seek the death penalty in the
circumstances of Mr. Garza’s case was arbitrary contrary to Article I of
the American Declaration, for two reasons: it was based upon political
concerns and therefore lacked sufficient and proper justification; and, as
argued in the Petitioner's September 22, 2000 "Request to Raise
Additional Matters," the State's own statistics indicate that
decisions by U.S. attorneys since 1988 as to whether to seek the federal
death penalty appear to have been influenced by racial and geographic
disparities. In this respect,
the Petitioner's representatives suggest that the Petitioner need only
establish a prima facie case
that the application of capital punishment in his case is arbitrary, upon
which it is for the State to show that there is no violation of Article I
of the Declaration.[6]
29.
With regard to the first point, the Petitioner’s representatives
submit that the State can show no rational reason for seeking and imposing
the death penalty in Mr. Garza’s case such as deterrence,[7] but rather that any
proposed reasons are political in nature and therefore cannot be regarded
as legitimate justifications for the use of capital punishment.[8]
In the view of the Petitioner’s representatives, to the extent
that it is not per se contrary to the Declaration, the death penalty's use must be
limited to circumstances in which it is intended to protect the rights of
others under the Declaration. They
refer in this respect to previous determinations by the Commission that
the death penalty can only be imposed for crimes of “exceptional
gravity.”[9]
30.
With regard to the second point noted above, the Petitioner's
representatives rely upon a statistical study released by the U.S.
Department of Justice on September 12, 2000 entitled "The Federal
Death Penalty System: A Statistical Survey (1988-2000)" which,
according to the Petitioner’s representatives, reveals discrepancies in
the application of the federal death penalty throughout the United States
that may be considered to render Mr. Garza's execution prima facie arbitrary. In
this respect, the Petitioner’s representatives explain that at the time
when federal prosecutors sought the death penalty in Mr. Garza's case,
U.S. attorneys were only required to submit to the U.S. Attorney General
for approval cases in which they wished to seek the death penalty.
They were not required to submit cases in which the death penalty
was not being sought, cases in which a plea was accepted in return for a
sentence other than death, cases where a decision was taken that a case
would not be prosecuted at the federal level, or cases in which the matter
was charged in such a way that it did not attract the death penalty.
As a consequence, the Petitioner's representatives claim that there
was no procedure for ensuring that the approach of local US attorneys to
the selection of cases for submission to the Attorney General was
consistent. They further claim that a Protocol introduced by the Justice
Department in January 1995 eliminated one element of discretion, by
requiring U.S. attorneys to submit to the Attorney General for review all
cases in which a defendant is charged with a capital-eligible offense,
regardless of whether the U.S. attorney actually desires to seek the death
penalty in that case. 31.
In this context, the Petitioner's representatives claim that the
State's survey reveals evidence of two types of discrepancies in the
application of the U.S. federal death penalty.
First, they claim that the survey reveals geographic disparities
across the United States in decisions by U.S. prosecutors to seek the
death penalty.[10]
In addition, they claim that, according to the statistics, the
federal death penalty has been sought on a disproportionately more
frequent basis for non-white offenders than for white offenders.[11] The Petitioner's
representatives therefore argue that this statistical information
constitutes prima facie evidence
that local U.S. attorneys were not taking the decision to seek the death
penalty in a consistent manner at the time when the decision to seek the
penalty was made in Mr. Garza’s case.
The Petitioner's representatives emphasize in this regard that it
is crucial that prosecutorial discretion to seek the death penalty is
taken in a consistent manner to ensure that it is not applied arbitrarily.[12]
32. The Petitioner’s representatives state further that the arbitrary nature of the decision to seek the death penalty in Mr. Garza's case is reinforced by material obtained by Mr. Garza’s attorneys, which, according to their observations, indicates that in many cases of multiple homicides arising out of drug-related or other criminal enterprises, federal authorities have not sought the death penalty.[13] While recognizing that it is “obviously difficult” for Mr. Garza’s attorneys to produce any form of comprehensive statistics showing a lack of consistency in the decision to seek the death penalty, the Petitioner’s representatives claim that the material that they have provided is sufficient to make a prima facie case that the decision to seek the death penalty in Mr. Garza’s case was arbitrary. 33. As their second principal argument, the Petitioner’s representatives contend that the process employed by the State in sentencing Mr. Garza to death violated his rights to a fair trial and to due process under Articles XVIII and XXVI of the American Declaration. In particular, the petition alleges that during the sentencing phase of Mr. Garza’s criminal proceeding, the prosecution introduced as aggravating factors evidence of five unadjudicated murders that Mr. Garza was alleged to have committed, four of which were alleged to have occurred in Mexico. According to the Petitioner’s representatives, Mexican authorities were unable to solve any of these four homicides, and Mr. Garza had never been charged or convicted of any of these murders. However, the U.S. Government sent Customs agents to Mexico to investigate these closed cases, and then introduced resulting evidence during Mr. Garza’s sentencing hearing. 34.
Mr. Garza contends that this practice violated the due process and
fair trial protections under the American Declaration, because the jury,
having convicted Mr. Garza of capital murder, could not be regarded as an
impartial tribunal in assessing evidence of further murders for the
purposes of sentencing. Alternatively,
Mr. Garza argues that if evidence of this nature was not by its nature
inadmissible, his right to equality of arms was violated because he was
unable to conduct his own meaningful investigation of unadjudicated
murders in Mexico, and therefore could not obtain favorable documentary
evidence and the attendance and examination of witnesses on his behalf. 35.
The first argument proffered by the Petitioner’s representatives
contends that Mr. Garza was, in effect, convicted and sentenced to death
for eight murders, only three of which were proved through a proper
criminal trial, and five of which were adjudicated during a sentencing
hearing where the rules of procedure did not offer the guarantees of
impartiality and sound evidence necessary in trying and convicting
individuals for capital crimes. In
support of their argument, the Petitioner's representatives observe that
at the time of filing their petition, eight states in the United States
imposed a complete ban on the presentation of evidence of unadjudicated
offenses during the sentencing phase of capital trials, and have therefore
recognized the unfairness of having to answer criminal allegations in
front of a jury that has already found a person guilty of serous
misconduct.[14]
36.
The Petitioner’s representatives emphasize that a person facing
the death penalty is entitled to all possible safeguards to ensure a fair
trial, and argue that in considering whether Mr. Garza had received a fair
trial for the four unadjudicated murders alleged to have occurred, it must
be determined whether there was a “reasonable appearance” of a lack of
impartiality on the part of the jury or whether the impartiality of the
jury "was capable of appearing to the [defendant] to be open to
doubt."[15]
Further, they contend that requiring a jury to determine whether a
person is guilty of serious criminal conduct when that same jury has
already determined that the person is guilty of other offenses gives rise
to a particular risk of unfairness and thereby infringes that person’s
right to a fair trial. The
Petitioner’s observations refer in this regard to the dissenting
decisions of several U.S. Supreme Court justices, who have expressed the
view that the use of evidence of unadjudicated offenses in capital
sentencing hearings is improper under the U.S. Constitution.[16]
37.
In the context of Mr. Garza’s case, the Petitioner’s
representatives state that when evidence was presented during the
sentencing phase of Mr. Garza’s trial to prove his involvement in
offenses for which he had never been previously tried, the jury was
required to consider whether he was guilty of those additional offenses
"beyond a reasonable doubt."
Accordingly, the Petitioner's representatives argue that these were
offenses for which Mr. Garza would effectively receive punishment and
therefore to which the presumption of innocence applied, and consequently
that the existence of a reasonable appearance of a lack of impartiality on
the part of the jury undermined the fairness of Mr. Garza’s criminal
proceedings. According to the
Petitioner’s representatives, this lack of impartiality was particularly
acute as a result of the complexity of the task that the jury was asked to
conduct during the sentencing stage, as reflected in the 36-question
"Special Findings Form" that the jury was required to complete.
38.
The Petitioner’s representatives further submit that the risk of
unfairness from introducing the evidence of unadjudicated offenses at Mr.
Garza’s sentencing hearing was amplified by the fact that the rules of
evidence that would normally apply to the determination of a criminal
charge were not applied when the jury was presented with the evidence of
the unadjudicated murders. According
to the Petitioner’s representatives, these rules are normally an
important protection for defendants in the guilt-innocence stage of a
criminal proceeding where the defendant need not prove anything and the
burden lies entirely upon the prosecution.
As a consequence, they claim that the State denied Mr. Garza the
highest standard of procedural fairness applicable in cases involving the
death penalty. 39.
In addition, the Petitioner’s representatives claim that the
practice of introducing evidence of unadjudicated foreign murders at Mr.
Garza’s sentencing proceeding violated the principle in Article XXVI of
the Declaration that defendants be “tried…in accordance with
pre-existing laws.” In
particular, they argue that the murders alleged to have committed in
Mexico did not occur within the special maritime or territorial
jurisdiction of the United States as required under 18 U.S.C., Section
1111(b), and therefore could not have been tried as Federal crimes under
existing U.S. law at the time when they were alleged to have been
perpetrated. 40.
Alternatively, in the event that the introduction of evidence of
unadjudicated offenses during sentencing proceedings for capital crimes is
not considered per se contrary to the due process and fair trial protections under
the American Declaration, the Petitioner’s representatives argue that
this practice nevertheless violated Mr. Garza’s right to due process,
and in particular his right to equality of arms.
Specifically, it is argued on behalf of Mr. Garza that mechanisms
were available to the State under the Treaty on Cooperation Between the
United States of America and the United Mexican States for Mutual Legal
Assistance (hereinafter the "US-Mexico MLAT"),[17]
that permitted the State to investigate the Mexican murders, but that
these mechanisms are not available to defendants such as Mr. Garza.
Consequently, it is contended that Mr. Garza could not obtain
exculpatory evidence under the same conditions that incriminating evidence
against him was obtained by the prosecution, in violation of the right to
equality of arms. 41.
In this respect, the Petitioner’s representatives observe that
the relative ability of the prosecution and defense to gather evidence is
relevant to the principle of equality of arms, and requires that steps be
taken so that the advantages that the prosecution inevitably enjoys do not
disadvantage the defense.[18]
Further, the Petitioner’s representatives argue that the
principle of equality of arms is a part of the right to a fair trial
contained in the American Declaration, and that the due process
requirements of the Declaration apply to the sentencing phase of a
criminal trial.[19]
In the context of Mr. Garza’s sentencing, it is claimed that the
principle of equality of arms was not respected because, as a result of
its greater resources and the US-Mexico MLAT, the prosecution was in a
better position to obtain evidence from Mexico.
In particular, the Petitioner’s representatives state that Mr.
Garza was subject to a clear inequality, because the U.S. prosecution
authorities were entitled under the treaty to seek assistance from the
Mexican authorities, whereas Mr. Garza was not entitled to any such
assistance. 42.
As an example of such inequality, the Petitioner’s
representatives refer to the fact that one of the ways in which the
equality of arms is normally secured in domestic prosecutions is through
the requirement that the U.S. authorities disclose all relevant material
to the defense. In contrast,
the Mexican authorities were under no such obligation to disclose relevant
material to Mr. Garza. Further,
according to his representatives, Mr. Garza, unlike the State, had no
power to subpoena witnesses in Mexico. 43. The Petitioner’s representatives also indicate in this connection that, to-date, there does not exist a letters rogatory process between the United States and Mexico on criminal matters, in that neither state has extended the provisions of the Inter-American Convention on Letters Rogatory to apply in criminal matters. Further, while the Petitioner’s representatives have recognized the existence of letters rogatory processes between states as a matter of custom, they have asserted that the degree of cooperation between states with respect to litigation varies widely, which explains in part why states execute separate mutual legal assistance treaties such as the US-Mexico MLAT. Moreover, they point out that during his pre-trial hearing, Mr. Garza was denied a request to have the prosecution seek specific exculpatory evidence from the Mexican authorities on his behalf. B.
Position of the State 44.
With respect to the admissibility of Mr. Garza’s petition
generally, the State contends that the petition should be considered
inadmissible because it is manifestly ill-founded and fails to state facts
that constitute a violation of any of the rights under the American
Declaration. In addition,
specifically in respect of the claims raised in the Petitioner's September
22, 2000 "Request to Raise Additional Matters," the State argues
that the Commission should reject and declare inadmissible these new
claims, because the Petitioner failed to raise them before any U.S.
courts. 45.
In support of its position that the petition as a whole should be
considered inadmissible under Article 41 of the Commission's Regulations,
the State has provided observations respecting the merits of Mr. Garza’s
complaints, with a view to demonstrating their groundless nature. 46.
More particularly, with respect to the background to the case, the
State indicates that for over a decade, Mr. Garza controlled and operated
a major drug trafficking enterprise, through which he sold thousands of
pounds of marijuana in the United States smuggled from Mexico.
As his criminal enterprise grew in scope, Mr. Garza decided to
eliminate individuals from his organization who had earned his suspicion,
and to this end either ordered or carried out the execution-style murders
in the United States of three individuals. 47.
After a trial in the U.S. District Court, Southern District of
Texas, Mr. Garza was convicted of five violations of federal drug
trafficking laws, operating a continuing criminal enterprise, money
laundering, and three counts of killing in the furtherance of a continuing
criminal enterprise. During
the punishment phase of Mr. Garza’s proceeding, the government
introduced evidence showing that he had committed four additional murders
in Mexico, three by gunshot and one by strangulation and suffocation. Following the punishment hearing, the jury recommended a
sentence of death. 48.
Mr. Garza’s convictions and sentence were subsequently affirmed
by the U.S. Court of Appeals for the Fifth Circuit, following which the
Fifth Circuit denied a request for a re-hearing en
banc, and the U.S. Supreme Court denied certiorari review. Further, in
December 1997, Mr. Garza filed a motion to vacate his sentence under the
U.S. federal habeas corpus statute, arguing that the government’s
introduction of evidence relating to the four murders in Mexico violated
his rights under the Due Process Clause of the Fifth Amendment to the U.S.
Constitution. This motion was
denied in April 1998. Mr. Garza subsequently requested a certificate of
appealability from the U.S. District Court, as required under 28 U.S.C.,
Section 2253(1), in order to appeal the District Court’s denial of
habeas corpus, and the request was denied.
Mr. Garza appealed this determination to the Fifth Circuit Court of
Appeals, and it also denied his request, for the reason that he had not
made a substantial showing of the denial of a constitutional right.
Finally, on November 15, 1999, the U.S. Supreme Court denied Mr.
Garza certiorari review of this decision. 49.
In support of its contention that Mr. Garza’s rights under the
American Declaration have not been violated, the State first argues that
Article I of the Declaration did not at the time of its adoption nor does
it presently prohibit the death penalty.
The United States emphasizes in this regard that a state cannot be
bound to legal obligations, either under treaties or under customary
international law, that it has not explicitly accepted, and contends that
the Petitioner’s representatives cannot claim that general language in
an instrument negotiated in 1948 has taken on a different meaning 50 years
later so as to prohibit the United States from employing the death
penalty. Rather, the State
argues that governments must consent to any such modifications through,
for example, the adoption of additional protocols to treaties. 50.
The State also argues that the Petitioner has failed to establish
that international law precludes the use of the death penalty.
Rather, the State contends that the death penalty is permitted
under international law when applied to serious crimes and pursuant to
proceedings that comply with due process.
According to the State, the undisputed fact is that a majority of
nations retain the option of imposing the death penalty for the most
serious offenses, and in this respect Mr. Garza’s case is no exception.
The State notes further that the UN Secretary General reported to
the UN Commission on Human Rights that as of March 10, 1999, 87 countries
retained and used the death penalty for the most serious ordinary crimes
and that another 26 countries retained the death penalty for ordinary
crimes but had not executed any one in the previous 10 years. Moreover,
the State indicates that only 65 countries have formally abolished the
death penalty for all crimes. Based
upon these statistics, the State contends that state practice is clear and
consistent, and that there is no prohibition under international law on
the use of the death penalty. In
the context of the Petitioner’s case, it is the State’s position that
Mr. Garza’s crimes were sufficiently serious to merit a sentence of
death.
51.
With respect to the Petitioner’s arguments regarding the U.S.
Justice Department's September 12, 2000 report on the Federal death
penalty, should the Commission decide to consider his claims in this
regard, the State argues that mere statistical studies are insufficient to
establish a claim that the death penalty is imposed in a racially
discriminatory manner so as to violate the right to life.[20]
In summary, the State submits that the Petitioner’s
representatives have failed to identify any evidence that race played a
factor in Mr. Garza’s case. To
the contrary, the State notes that the Petitioner's representatives have
admitted that “[c]learly, Mr. Garza had been found guilty of offenses
that made him eligible for the death penalty under the federal statute.”
52.
The State also argues that the Petitioner has not established a
violation of either the right to a fair trial or the right to due process
of law in relation to Mr. Garza’s criminal proceeding.
In particular, according to the State, the Petitioner’s
contention that introducing evidence of unadjudicated murders during Mr.
Garza’s sentencing hearing per se violated his right to due process and a fair trial by reason
of the consequential lack of impartiality on the part of the jury lacks
merit. Rather, the State
argues that the jury is best positioned to understand the nature and
severity of the crimes committed by the defendant, namely the three
murders for which Mr. Garza was convicted, and that the previous trial for
these crimes did not render the jury prejudicial, only better informed. 53.
Similarly, with respect to the Petitioner’s alternative argument
that Mr. Garza was denied equality of arms due to the manner in which the
evidence of unadjudicated murders was gathered and presented at the
sentencing hearing, the State contends there was nothing about Mr.
Garza’s trial, at the guilt/innocence or sentencing phase, that fell
short of international standards for equality of arms and Mr. Garza’s
right to a fair trial. The
State further argues in this respect that the principle of equality of
arms protects procedural rather than substantive equality, and therefore
that the fact that the State may have more resources than a
defendant–which, the State notes, it almost invariably does–cannot
found a claim that a particular proceeding was not fair. 54.
Rather, in the circumstances of Mr. Garza’s prosecution, the
State alleges that neither the law nor the court imposed any condition
that placed Mr. Garza at a substantial disadvantage vis a vis the
prosecution, in that Mr. Garza was free to impeach the prosecution’s
evidence in any manner and to call witnesses in his defense.
In this respect, the State argues that the procedural conditions at
sentencing were the same for both parties, and the fact that certain
evidence was accumulated in Mexico is of no legal import.
According to the State, nothing prevented Mr. Garza from collecting
mitigating evidence on his behalf, whether in Mexico or in the United
States, and proffering that evidence at his sentencing hearing. 55.
The State provides several arguments in support of its contention
that mere access to greater resources by the State, in the present case
through the MLAT between the United States and Mexico, cannot form the
basis of a claim of inequality of arms.
In particular, the State submits that this treaty merely enhances
the State’s ability to collect evidence against the accused and in no
way restrains the defense from challenging that evidence or presenting his
own evidence. The State also
points in this respect to the fact that the U.S. Constitution requires the
prosecution to turn over to the accused before trial all aggravating or
mitigating evidence. Further,
the State argues that neither the existence of the MLAT between the U.S.
and Mexico nor the decision by the U.S. and Mexico not to apply the
Inter-American Convention on Letters Rogatory to criminal matters affect
the ability of a litigant, civil or criminal, from obtaining evidence
through letters rogatory, as this process is rooted in custom between
countries regardless of their treaty relations.
56.
In support of its argument that equality of arms secures only
procedural and not substantive equality, the State relies in particular
upon the July 15, 1999 judgment of the Appeals Chamber of the
International Criminal Tribunal for the Former Yugoslavia (hereinafter
“ICTY”) in the case The
Prosecutor v. Dusko Tadic.[21]
In this case, the defense alleged that the lack of cooperation and the
obstruction by certain external entities–the Government of the Republika
Srpska and the civic authorities in Prijedor–prevented it from properly
presenting its case at trial and accordingly that there was no “equality
of arms” between the prosecution and defense at trial so as to frustrate
the defendant’s right to a fair trial.
In responding to Tadic's argument, the Prosecution contended, inter
alia, that the principle of equality of arms entitles both parties the
same access to the powers of the court and the same right to present their
cases, but does not call for equalizing the material and practical
circumstances of the two parties. The
ICTY Appeals Chamber ultimately rejected the defense position, on the
basis that the defendant failed to show that the protection offered by the
principles of equality of arms was not extended to him by the ICTY Trial
Chamber. In reaching this
conclusion, the Appeals Chamber held that “equality of arms obliges a
judicial body to ensure that neither party is put at a disadvantage when
presenting its case.” The State regards Mr. Garza’s claim as being
markedly similar to that in the Tadic case, and contends that the
Commission should similarly reject Mr. Garza’s argument on this point.
57. Further, according to the State, the European Court of Human Rights and the United Nations Human Rights Committee have likewise interpreted equality of arms as protecting procedural rather than substantive equality, and cites in support cases including Dombo Beheer B.V. v. Netherlands[22] and B.d.B. et al. v. The Netherlands.[23] Applying these authorities in the context of the Petitioner’s case, the State claims that neither the law nor the court imposed any conditions that placed Mr. Garza at a substantial disadvantage in relation to the prosecution, but rather that the procedural conditions at trial and at sentencing were the same for both parties. 58.
With respect to the rules of evidence applicable during Mr.
Garza’s sentencing hearing, the State agrees that the ordinary rules of
evidence do not apply during a Federal capital sentencing proceeding in
the United States, but argues that this works to the benefit and detriment
of both parties and is therefore consistent with the nature of the
equality of arms principle. Of
particular significance in this regard, the State contends that the
Petitioner’s representatives misunderstand the purpose of a sentencing
hearing which, according to the State, is not to prove guilt, but rather
is meant to determine the appropriate punishment for the defendant’s
crimes, taking account of all relevant evidence. 59. Moreover, the State contends that the rules applicable to a sentencing hearing that permit liberal submission of evidence by both parties were developed principally to protect the defendant in capital cases, not the prosecution.[24] Accordingly, in the circumstances of the present case, the State is of the view that Mr. Garza was simply unable to marshal sufficient mitigating evidence to avoid the death sentence, and therefore that this case does not warrant a finding that federal law did not protect his rights to due process or a fair trial. IV. ANALYSIS A.
Commission's Competence 60.
The Petitioner claims that the State has violated his rights under
Articles I, XVIII, and XXVI of the American Declaration of the Rights and
Duties of Man. The State is a
member of the Organization of American States that is not a party to the
American Convention on Human Rights, as provided for in Article 20 of the
Commission's Statute and Article 51 of the Commission's Regulations, and
deposited its instrument of ratification of the OAS Charter on June 19,
1951.[25]
The events raised in the Petitioner's claim occurred subsequent to the
State's ratification of the OAS Charter.
The Petitioner is a natural person, and the Petitioner’s
representatives are authorized under Article 26 of the Commission's
Regulations to lodge the petition on his behalf.
The Commission is therefore competent to examine this petition. B.
Admissibility 61.
With respect to the admissibility of the Petitioner's petition, the
information presented by the parties indicates that Mr. Garza
unsuccessfully appealed his conviction and sentence to the U.S. Court of
Appeals and the U.S. Supreme Court, the latter having dismissed his
petition for a Writ of Certiorari and his petition for rehearing in 1996.[26]
It also indicates that Mr. Garza pursued constitutional remedies before
the U.S. District Court, the U.S. Court of Appeals and the U.S. Supreme
Court, for alleged violations of his rights under the Due Process Clause
of the U.S. Constitution, and was likewise unsuccessful, the U.S. Supreme
Court having dismissed his final petition for a Writ of Certiorari on
November 15, 1999. The State
has not alleged or otherwise established that Mr. Garza has failed to
exhaust the domestic remedies available to him in the United States. Accordingly, the Commission finds that the claims of
violations of Articles I, XVIII and XXVI of the American Declaration
contained in the Petitioner's petition of December 20, 1999 are not
inadmissible for failure to exhaust domestic remedies in accordance with
Article 37 of the Commission's Regulations. 62.
In addition, the record in this case indicates that Mr. Garza's
petition was lodged with the Commission on December 20, 1999, and
therefore within 6 months of the dismissal by the U.S. Supreme Court of
his final petition for a Writ of Certiorari on November 15, 1999.
The State has not contested the timeliness of Mr. Garza's petition.
The Commission therefore does not find the Petitioner's petition to be
inadmissible for violation of the 6-month period under Article 38 of the
Commission's Regulations. 63.
Further, according to the Petitioner's representatives, the issue
of Mr. Garza's execution has not been previously considered by the
Commission, nor is it pending in another international proceeding for
settlement. The State has not
alleged that Mr. Garza's petition is duplicitous.
Accordingly, the Commission finds that the Petitioner's petition is
not inadmissible under Article 39 of the Commission's Regulations. 64.
Finally, with respect to the requirements of Article 41 of the
Commission's Regulations, the State has contended that Mr. Garza's
petition should be considered inadmissible because it is manifestly
ill-founded and fails to state facts that constitute a violation of any of
the rights under the American Declaration.
Having reviewed the Parties' observations and other material on the
record in this matter, and in light of the heightened level of scrutiny
that the Commission has traditionally applied in cases involving the
implementation of capital punishment, the Commission considers that the
Petitioner's petition is not manifestly groundless and contains facts
that, if proven, may establish violations of Articles I, XVIII and XXVI of
the American Declaration. Consequently,
the Commission does not find Mr. Garza's petition to be inadmissible under
Article 41 of the Commission's Regulations. 65.
With regard to the Petitioner's September 22, 2000 "Request to
Raise Additional Matters," in which the Petitioner's representatives
allege violations of Mr. Garza's rights under Articles I and II of the
Declaration in connection with the U.S. Justice Department's September 12,
2000 "Report on the Federal Death Penalty System: A Statistical
Survey (1988-2000)," the State argues that these constitute new
claims based upon new alleged facts and arguments that were not a part of
the Petitioner's original petition, and which have not been raised before
any U.S. court. The
Petitioner's representatives have not alleged that Mr. Garza has exhausted
domestic remedies in respect of these claims or that such remedies are not
available or effective. Rather,
they argue that any attempt to secure domestic relief would likely not
produce results until shortly before Mr. Garza's scheduled execution date,
and as a consequence would deprive the Commission of an opportunity to
address the merits of these claims at that stage and prior to Mr. Garza's
execution. Consequently, the Petitioner's representatives urge the
Commission to consider these claims. 66. The Commission recognizes and is deeply concerned by the fact that its ability to effectively investigate and determine capital cases has frequently been undermined when states have scheduled and proceeded with the execution of condemned prisoners despite the fact that those prisoners have proceedings pending before the Commission. It is for this reason that the Commission requests precautionary measures pursuant to Article 29(2) of its Regulations, as it has in Mr. Garza's case, to require a state to stay a condemned prisoner's execution until the Commission has had an opportunity to investigate his or her claims. Anything less effectively deprives condemned prisoners of their right to petition in the inter-American human rights system and causes them serious and irreparable harm. Accordingly, the Commission has on numerous occasions called upon the United States and other OAS member states to comply with the Commission's requests for precautionary measures in cases involving threats to the right to life and thereby properly and fully respect their international human rights obligations.[27] 67. Notwithstanding these regrettable complications, however, the Commission is also obliged to apply the requirements prescribed by its Regulations and under general principles of international law governing the admissibility of claims presented to it, including the requirement that domestic remedies be invoked and exhausted. In the present case, the claims raised in the Petitioner's September 22, 2000 request constitute additional claims based upon new facts and evidence that, according to the information available, have not been raised before domestic courts in the United States. Moreover, the Petitioner has not alleged, and the Commission cannot conclude on the record before it, that domestic remedies are not available to address these claims, that the Petitioner has been prevented from exhausting them, or that such remedies would not be potentially effective. [ Table of Contents | Previous | Next ] *
Commission Member Professor Robert Goldman did not take part in the
discussion and voting on this case, pursuant to Article 19(2) of the
Commission's Regulations. [1]
Petitioner's Summary of Issues to be Presented, dated October 5, 2000,
para. 5.1, citing IACHR,
Report on the Human Rights of Asylum Seekers in the Canadian Refugee
Determination System, OEA/Ser.L/V/II.106; Resolution Nº 3/87, Roach
and Pinkerton v. U.S., Annual Report of the IACHR 1987-88; Eur. Court
H.R., Tyrer v. U.K (1978) 2 E.H.R.R. 1 at para. 31. [2]
Id., para. 6.1, citing Report of the Secretary General to the Commission on Human
Rights, U.N. Doc. E/CN.4/1999/52; Facts and Figures on the Death
Penalty, ACT 50/006/2000). [3]
Id., para. 6.2, citing G.A. Res. 2857 (XXVI) of 20 December 1971 and 32/61 of 8
December 1997; U.N. Commission on Human Rights, Resolution Nº
2000/65; International Covenant on Civil and Political Rights, Art.
6(2); Errol Johnson v. Jamaica,
Communication Nº 588/1994, U.N. Doc. CCPR/C/56/D/588/1994. [4]
Id., para. 8, citing Survey of the Federal Death Penalty (1988-2000), U.S.
Department of Justice, September 12, 2000, Introduction. [5]
Id., para. 7.2, citing Errol Johnson v.
Jamaica, supra. [6]
Id., citing Report Nº
57/96, Andrews v. United States, Annual Report of the IACHR 1998, at
para. 146. [7]
Id., paras. 9.1, 9.2, citing,
inter alia, Capital Punishment and Deterrence: Examining the Effect of Executions in
Texas, Crime and Delinquency, Vol. 45, Nº 4, p. 481 (suggesting
that capital punishment does not act as a deterrent to crime). [8]
Id., para. 9.3, citing, inter alia, The Death Penalty: Casualties and Costs of the
War on Crime, a lecture by Stephen Bright; USA: Death Penalty
Developments in 1996, Amnesty International. [9]
Id., citing
Andrews v. United States, supra,
para. 177. [10]
Id., paras. 11-12, citing U.S.
Department of Justice, Report on the Federal Death Penalty (12
September 2000), pp. T18-T22. The Petitioner’s representatives note
in particular that according to the Report, two states, Virginia and
Texas, produced 25% of the cases in which local prosecutors sought the
federal death penalty during the period when the decision was made to
seek the penalty in Mr. Garza's case. [11]
Id., paras. 11, 12, footnote
10 (indicating that the number of non-white defendants in cases in
which the death penalty was sought decreased following the
introduction of the Justice Department's January 1995 Protocol). [12]
Id., para. 12, citing Guidelines on the Role of Prosecutors, Eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders,
Havana, 27 August - 7 September, 1990, U.N. Doc. A/CONF.144/28/Rev.1
at 189 (1990). [13]
Id., para. 14, citing Clemency petition filed on behalf of Juan Raul Garza. [14]
See e.g. Petition dated
December 20, 1999, Appendix, U.S. v. Garza, Petition for a Writ of
Certiorari before the U.S. Supreme Court, October Term 1998, pp. 11-12
(indicating that eight states in the United States impose a strict
prohibition on the use of unadjudicated offenses at capital sentencing
(Alabama, Florida, Indiana, Maryland, Ohio, Pennsylvania, Tennessee
and Washington), and ten other states allow the introduction of such
evidence but require strict procedural protections such as a
heightened standard of reliability (Arkansas, California, Delaware,
Georgia, Illinois, Louisiana, Nebraska, Nevada, South Carolina and
Utah). [15]
Petitioner's Summary of the Issues to be Presented, supra, para. 16.1, citing
Andrews v. United States, supra,
para. 177; Eur. Court H.R., De Cubber v. Belgium (1984) 7 E.H.R.R.
236. [16]
Id., para. 20, citing Justice Marshall, joined by Justice Brennan, dissenting in
Williams v. Lynaugh, 484 U.S. 935 (1987) at 938. [17]
Treaty on Cooperation Between the United States of America and the
United Mexican States for Mutual Legal Assistance, December 9, 1987,
U.S.-Mex., 27 I.L.M. 447. According to the Petitioner’s
representatives, this treaty obliges the states parties to provide
each other with assistance in criminal matters, including the taking
of testimony or statements of persons, the provision of documents
records and evidence, and the execution of legal requests for searches
and seizures. Moreover, the Petitioner’s representatives note that
Article 1(5) of the Treaty explicitly excludes the possibility that
private defendants may invoke the provisions of the treaty. [18]
Petitioner’s Summary of Issues to be Presented, supra, para. 16.3, citing
Eur. Comm. H.R., Jespers v. Belgium (1981) 27 D.R. 61, para. 58. [19]
Id., paras. 16.2, 16.4,
16.5, citing Canada Report, supra,
para. 96; McKenzie et al., supra,
para. 204. [20]
State's November 16, 2000 observations, citing
Resolution 23/89 (Celestine v. US), Annual Report of the IACHR
1989-90. [21]
Case Nº IT-94-1-T, The Prosecutor v. Tadic, Judgment of July 15,
1999, International Criminal Tribunal for the Former Yugoslavia
(Appeals Chamber). [22]
Eur. Court H.R., Dombo Beheer B.V. v. Netherlands (27 October 1993),
A274 [23]
UNHRC, B.d.B. et al. v. The
Netherlands, Comm. Nº 273/1989 (30 March 1989), U.N. Doc. Supp. Nº
46 (A/44/40) at 286 (1989). [24]
State’s Second Reply, dated September 25, 2000, citing the decision
of the U.S. Supreme Court in the case Lockett v. Ohio 438 U.S. 586,
604 (1978) for the proposition that in all but the rarest kind of
capital case the sentencing authority should be permitted to consider
as a mitigating factor any aspect of the defendant’s character or
record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death. [25]
The Inter-American Court of Human Rights and this Commission have
previously determined that the American Declaration of the Rights and
Duties of Man is a source of international obligation for the United
States and other OAS member states that are not parties to the
American Convention on Human Rights, as a consequence of Articles 3,
16, 51, 112, and 150 of the OAS Charter. See I/A Court H.R., Advisory Opinion OC-10/89 Interpretation of the American Declaration of the Rights and Duties of
Man Within the Framework of Article 64 of the American Convention on
Human Rights, July 14, 1989, Ser. A
Nº 10 (1989), paras. 35-45; I/A Comm. H.R., James
Terry Roach and Jay Pinkerton v. United States, Case 9647, Res.
3/87, 22 September 1987, Annual Report 1986-87, paras. 46-49. See also Statute of the Inter-American Commission on Human Rights,
Art. 20. [26]
U.S. v. Garza, 519 U.S. 825 (1996); 519 U.S. 1022 (1996). [27]
See e.g. IACHR, Press
Communiqué 9/00, June 22, 2000, Regarding the Execution in the United
States of Shaka Sankofa, formerly known as Gary Graham; IACHR, Press
Communiqué 17/00, November 13, 2000, Regarding the Execution in the
United States of Miguel Angel Flores. |