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Mexico Ends the Death Penalty

The Corrido of Death Row

by JOHN ROSS

Even as the United States celebrated its 1,000th execution since the reinstatement of the death penalty in 1976, Mexico has finally wiped its own death penalty off the books. On December 9th, President Vicente Fox signed off on constitutional amendments that abolished capital punishment in both civil courts and military codes. Executions in Mexico have been suspended for decades – the last Mexican to be executed went before a military firing squad in 1961.

Nonetheless, symbolic as abolition was. Fox’s act contrasted starkly with Mexico’s neighbor to the north where a former gang leader turned peacemaker who had been nominated for the Nobel Prize was executed by lethal injection December 13th despite pleas for clemency to California Governor Arnold Schwarzenegger, a former action movie star, from a broad rainbow of social justice organizations and celebrities. The execution of Stan "Tookie" Williams was followed by that of John Nixon, 77, the oldest man in U.S/ annals ever to be put to death ­ both Williams and Nixon went to their deaths proclaiming their innocence.

Despite the long-awaited demise of the death penalty here, Mexico still has 46 citizens awaiting imminent execution on Death Row. In the United States.

"The death penalty is the ultimate violation of human rights", the Mexican president, a devout Catholic, noted in promulgating the official end of capital punishment here. But with nearly half a hundred Mexican citizens out of approximately 120 foreigners from 29 countries on U.S. death rows, the Fox government is heavily invested in legal actions to prevent the executions of its countrymen (there are no Mexican women condemned to death in the U.S.) in El Norte/

In most cases, non-U.S. citizens on U.S. death rows share one common grievance ­ they were denied contact with representatives of their country as guaranteed under the 1963 Vienna Convention on Consular Relations which obligates U.S. authorities to inform foreign detainees of his or her right to contact the nearest consulate of their country.

Mexicans arrested in the U.S. are routinely kept in the dark about their Vienna Convention rights, notes Sandra Babcock, a Texas death penalty attorney who has been retained by the Mexican government in many capital punishment cases. If they are consulted in a timely fashion, Mexican consulates in the U.S. can provide legal assistance for its citizens in trouble with the law, and denying them that right can result in flawed convictions and in capital cases, even death.

In the past, when Vienna Convention rights have been denied and Mexicans have later been executed, the U.S. response has been merely to apologize and argue that the denial of consular contact had no impact on the final judgment.

By 2003, Fox and his then-foreign minister Jorge Castaneda, were tired of this song and dance and took the cases of 51 Mexicans on U.S. death rows who had been denied Vienna Convention protection to the World Court in the Hague and by a 14 to 1 decision, that tribunal, which operates under the auspices of the United Nations, called upon Washington to rectify by reviewing or reopening all 51 cases.

Of the 51 Mexican death row residents whose cases were decided by the World Court, two had been kidnapped from Mexico by private bounty hunters and brought to the U.S. to stand trial, a practice explicitly outlawed by the U.S. Supreme Court.

When the World Court decision was handed down March 31st, 2004, Oswaldo Nezahualcoytl Torres, a Mexican citizen from Nuevo Leon state, was only days away from execution in an Oklahoma penitentiary but Governor Brad Henry recognized the Hague edict (Torres was one of the 51 cases listed) and commuted his death sentence to life in prison without benefit of parole. Torres was convicted of a murder-robbery in Oklahoma in which two Mexican citizens were killed he was not the shooter. Since Torres’ commutation, five other Mexicans have been removed from U.S. death row rosters.

Jose Medillin, 18 at the time of the crime, was convicted of a gang killing in Houston, Texas and sentenced to death for his part in the double homicide and rape of two women. Although he repeatedly told police that he was a Mexican citizen, he was never informed that he had a right to call his country’s consulate in Houston where he could have enlisted legal defense. Later, his court-appointed attorney who, purportedly unbeknownst to the court, had been suspended from practice, called no witnesses on Medillin’s behalf at his trial.

This past March, Medillin’s conviction was appealed to the U.S. Supreme court, the first Mexican death penalty case to reach that august body since the World Court decision came down. Simultaneously, President George Bush sent a letter to all U.S. governors urging them to comply with The Hague. "We had the law, we had the president! I had to slap myself ­ I couldn’t believe it," an elated Babcock, who had successfully represented Mexico before the World Court, told reporters.

But, ultimately, the Bush order proved to be a subterfuge to blunt the Supreme Court’s hearing of Medillin, the first high court test case of the applicability of the Hague decision. Instead, Medillin was sent back to a Texas court for review.

Moreover, the Bush administration moved promptly to pull out of the optional protocol, which gives the World Court jurisdiction over Vienna Convention violations ­ the U.S. had actually designed the protocol and ratified it in 1969.

Since its advent, the U.S. has generally ceded jurisdiction to the World Court in international disputes ­ indeed, President Jimmy Carter went to that court for redress under the Vienna Convention after U.S. hostages were taken in Iran in 1979. But since the court condemned the Reagan administration for mining Nicaraguan harbors in 1986, Washington has refused to recognize The Hague’s standing in anything other than Vienna Convention disputes, a jurisdiction the U.S. now no longer recognizes.

The Vienna Convention has, in fact, been liberally utilized by the U.S. to protect its citizens traveling in the world. Bush’s abandonment of the protocol provoked the New York Times to issue an editorial entitled "Travel Advisory", cautioning U.S. citizens abroad that, in effect, their Vienna Convention safeguards had been retired: "increasing global hostility towards Americans makes the Vienna Convention more important than ever."

The U.S. rejection of the World Court as arbiter for Vienna Convention violations will also prevent Mexico from appealing to The Hague in future death penalty cases involving the denial of consular contact, considers Michael Snedeker, a San Francisco attorney representing a Mexican citizen currently on California death row whose Vienna Convention protections were not honored.

Bush’s request to the states to conform to the World Court decision in favor of the 51 Mexicans met with disdain from Texas governor Rick Parry, the President’s successor in that statehouse. In insisting that the decision did not apply, Parry argued that Texas had not signed the Vienna Convention. The governor was merely reiterating a previous position taken by Bush’s lawyer and clemency officer Alberto Gonzalez, now the U.S. Attorney General. Bush and Gonzalez signed off on more than 30 death warrants including those of three Mexicans, while they occupied the Texas governor’s mansion.

The execution of Mexicans in U.S. prisons incites much anger here. After Governor Bush presided over the death of Irenio Tristan in 1997, residents of Tamaulipas, Tristan’s home state, lined the roads chanting, "Bush! Asasino!" (‘Bush Is A Killer!’) as the coffin rolled by on its way to a final resting place. In 2002, Fox canceled a visit to the Bush ranch in Crawford Texas after Governor Parry declined to intervene in the execution of still another Mexican, Javier Suarez.

Defending Mexicans in capitol punishment cases before U.S. courts can be a frustrating responsibility. When Babcock won the release of Mexican citizen Ricardo Aldape after years on death row at Huntsville’s notorious Walls, he returned to Mexico and was killed within a week in an automobile crash. Babcock has said that she is sometimes chastised by prosecutors for taking the appeals of Mexicans who have been convicted of murder. One government attorney boasted that he worked "for my country and my president", insinuating that Babcock was unpatriotic.

For Michael Snedeker, who is handling the appeal of Tomas Verano Cruz, an indigenous field worker from the impoverished outback of San Luis Potosi state convicted of killing a police office, the logistics of locating witnesses who can provide mitigating evidence are xomplex and often involve multiple visits to the defendant’s hometown. "The Mexican government has been more than helpful in facilitating the gathering of this information – for Mexico, the death penalty is a moral issue."

Another frustration for death penalty lawyers working with Mexican inmates is that even if they do rescue their clients from execution, like Oswaldo Torres, they often wind up buried alive under sentences of life imprisonment without benefit of parole. The author of this article has been unable to ascertain just how many Mexicans commuted from death row or plea-bargained by lawyers into unappeasable sentences have been salted away in U.S. prisons for the rest of their natural lives – but legal observers venture that there could be as many as a thousand such inmates. The "buried-alive" syndrome is "the next frontier" in these capital cases, suggests Snedeker.

Through all of this legal tragedy, one thread runs like a long, nagging corrido (Mexican border ballad): Innocence. Recently, reporter Lies Olsen of the Houston Chronicle revisited the 1993 execution of Ruben Cantu by the state of Texas. Cantu had been convicted in 1984 of murdering an undocumented Mexican worker on San Antonio’s crime-ridden south side when he was 17, a case that appeared to be a typical "Cholo" (young Mexican-American) murder-robbery of a hapless migrant worker for the few bucks Jose Gomez had been able to pull together to send to his family back home in Mexico. Cantu’s family was also from Mexico but he was born on the U.S. side of the border.

Now Juan Moreno, who survived the attack but was grievously wounded, says he was coerced by San Antonio police into fingering Cantu. Then an 18 year-old new arrival from Zacatecas, Moreno was threatened with deportation unless he identified Cantu ­ there was no physical evidence tying the accused boy to the murder. Olsen has since recounted how San Antonio police sought to frame the young Cantu after he was involved in a pool hall shooting of an off-duty officer. In an open letter to "the people of San Antonio" before he was executed, Cantu insisted he was being railroaded.

Ruben Cantu was a troubled, taciturn teenager. His alibi for the night of the killing? He had been up in Waco stealing a pick-up truck. When offered his last meal in the death house in Huntsville, Ruben ordered bubble gum.

Olsen reports that his request was denied.

JOHN ROSS is back in Mexico pounding away on his latest Zapatista opus "Making Another World Possible–Zapatista Chronicles 2000-2006" to be published next year by Nationbooks.