By CAPITAL PUNISHMENT: How Else Can We Teach Them a Lesson?
Rodolfo F. AcuñaWhen the attorneys for Manuel Salazar, a young Chicano on Illinois's death row, learned that I would be in the Chicago area in 1992, on a lecture tour, they asked me to help them build support for a new trial. The "People" had convicted Manuel Salazar in the murder of officer Martin Murrin, a Joliet police officer in 1984.
Murrin and his partner on the usual grounds of suspicion stopped Salazar and four other Latinos and blacks. Murrin had harassed Salazar, who panicked and ran carrying a gym bag with a gun. Cornered at a fence, Salazar threw his bag over the fence. The officer pulled a hand gun and severely beat Salazar who struggled for the gun. It discharged, killing Murrin.
Salazar, fearing for his life, fled to Texas and then to Mexico, from where US authorities illegally extradited him (his followers claimed the government kidnaped him). In 1985 the "People" of Illinois tried Salazar for first degree murder. Salazar claimed he acted in self-defense, seeking to reduce the murder charge to voluntary manslaughter. The trial was tainted. Salazar had an incompetent defense: his lawyer was under investigation during trial and later was suspended by the Attorney Registration and Disciplinary Commission. He failed to challenge the trial judge's instructions on the initial appeal of the case, which improperly charged the jury. The judge had instructed the jury that they should require the prosecution to prove, rather than disprove, that the defendant was in enough fear to warrant a killing.
In 1994 the Illinois Supreme Court overturned the murder conviction in a 6-1 decision, because the judge did not tell the jury that prosecutors had to prove any mitigating circumstances were surrounding Murrin's death. Two years later a jury retried Salazar of manslaughter, and received credit for the eleven years and 191 days he spent behind bars.
While Salazar languished on death row for some eleven years, he became an accomplished artist. His new attorneys used this as a way to call attention to his case. It was something that I emphasized when I sought to involve Chicano artists to raise funds. Instead, much to my dismay it got me into intense arguments, with some artists turning art critics, and some academicians objecting to the religious themes in his art.
The support for Salazar did not come easily. Within the Chicano community, opposition to capital punishment has always been limited to a core of activists. Perhaps, like my artist friends, and my scholarly brethren, Latinos overall have fail to understand that the politics of the death penalty trumps all other arguments.
The truth be told, Latinos should be concerned about capital punishment just as they are with the growing xenophobia in this country. The United States is a nation of immigrants, and immigration law has always mirrored the tensions with the country. The silent majority has always had the attitude of comedian Mort Saul, who once said, sure that he was for capital punishment, how else could you teach them a lesson.
Until now, it has been good politics to support the death penalty. Like the public's hysteria over immigration, crime is a wedge issue. In 1988 election George Bush Sr. sensed that Michael Dukakis's opposition to the death penalty was a weakness. He dredged it up in the debates, and ran incendiary advertisements about Willie Horton, a black man.
Bill Clinton, ever adept at stealing a right-wing issue, did not commit Dukakis's sin. During his first term as governor of Arkansas in the 1970s, he regularly commuted the sentences of convicted murders, and he got kicked out of office. By 1992, Clinton staunchly defended the death-penalty. During the campaign he flew back to Arkansas to preside over the execution of Ricky Ray Rector, a severely brain-damaged prisoner.
Public opinion has for the moment begun to shift. Historically, Americans have supported the death penalty because of a desire for retribution, and the belief that this is the only way to prevent crime. Politicians have exploited the fear of crime, portraying the criminal-justice system as a revolving door that allows convicted killers to go free. Underneath all this, Americans have a fundamental faith in the fairness of the American court system.
Thus, Americans justify the death penalty because they assume that they are executing the right person. They ignored the fact that for every seven executions --close to 500 since 1976-- one other prisoner on death row has been found innocent. This knowledge has temporarily shaken public confidence that only the guilty sit on death row is, and that the system works.
In January 2000, Republican Governor George Ryan of Illinois declared a moratorium on executions. The fact that Illinois had exonerated thirteen death-row inmates since 1976 shook the conservative governor's faith in the system. A case that weighed on his decision was that of Rolando Cruz, who the state freed after twelve years on the Illinois Death Row for the 1983 murder and rape of a ten-year-old girl.
They charged Cruz and Alejandro Hernandez with the murder of the small girl although police had arrested a repeat sex offender and murderer named Brian Dugan who confessed to the crime. DNA testing linked Dugan to the crime. At Cruz's first trial an expert claimed that she could tell a person's class and race by shoe imprints. At the third trial in 1995, a police officer admitted that he had lied when he testified Cruz had confessed in a "vision" about the girl's murder. The judge declared Cruz not guilty. An investigation led to criminal charges against the authorities who prosecuted Cruz, and the identification of the actual killer.
While the Salazar and the Cruz cases expose glaring flaws in the system, other cases make it more difficult to shift the paradigm. For example, of the twenty inmates on federal death rows, fourteen are black, four white, one Latino and one Asian. Here, some Mexican Americans rationalize that the federal government is prosecuting only one of their own, and after all he was an admitted drug runner.
Take the case of Juan Raul Garza, a migrant farm worker and high school dropout, who is scheduled to be executed on August 5, 2000, and who is the first inmate to be executed by the federal government in more than thirty-five years. In 1993 a federal court convicted Garza of marijuana smuggling and three drug-related murders in Brownsville, Tex.. The state charged Garza under the 1988 federal "drug kingpin" law, which allowed the death penalty for anyone convicted of murder in furtherance of an illegal drug enterprise. They gave garza's associates, including the triggermen in some murders, lighter sentences in exchange for their testimony against Garza. The appeal posits that prosecutors sought the death penalty in Garza's case, based on race. Of the twenty-seven defendants against whom the George Bush Senior administration sought the death penalty for drug-related killings, twenty-three were African-American or Latino. Improprieties occurred at the punishment phase of Garza's trial, when prosecutors introduced testimony that Garza committed four murders in Mexico. Mexican authorities had never prosecuted him for the alleged murders. Does it matter? Garza was a drug dealer.
Consider that Texas and Virginia account for almost half of all executions in the US. In the Lone Star state, George W. Bush, son and compassionate conservative, has refused to grant a stay of execution in death penalty cases riddled with evidence of racial bias. When they asked the Republican presidential candidate, how he could be so certain that in all of the executions on his watch the defendants were guilty, he replied that nothing like what had happened in Illinois had happened on his watch. "I'm confident of the guilt of the person who committed the crime." (Bush has now presided over 135 executions, more than any governor in US history).
An investigation by the Chicago Tribune casts doubt on George W's arrogance. It found that of the 131 cases where they have executed a death row inmate in Texas under Governor George W. Bush: forty-three included defense attorneys publicly sanctioned for misconduct, either before or after their work on these cases. Forty involved trials where the defense attorneys presented no evidence or only one witness during the sentencing phase. Twenty-nine included a psychiatrist who gave testimony that the American Psychiatric Association condemned as unethical and untrustworthy. Twenty-three included jailhouse informants, considered to be among the least credible of witnesses. Twenty-three included visual hair analysis, which has consistently proved unreliable.
Further, Texas does not have a statewide public defender system. The responsibility of assigning legal counsel to poor defendants falls to the counties. In capital murder cases, the judge assigns the defense counsel. Texas ranks 40th among states in the amount of money it spends on indigent defense.
Not too surprisingly, the abuses of the system have fallen greatest on the poor. Take the case of Jesse San Miguel, 28, who recently died of lethal injection, after the compassionate conservative declined to grant him thirty more days to explore whether racially tinged remarks biased the jury to sentence him to death for a 1991 rampage that left four dead. San Miguel admitted to shooting four people, including a pregnant teenager, in the cooler of a Taco Bell. So why should we care about San Miguel?
The issue here is the systemic incompetent representation afforded Latinos in Texas. San Miguel's defense attorney was incompetent. He quizzed several witnesses about the "pushy and macho" attitude of Mexican Americans. The prosecutor asked jurors to pay attention to those who "cross that border" when committing crimes. The Dallas-based defense attorney asked one witness: "A young Mexican American man does not let anyone insult or belittle his woman, does he?" trying to show that San Miguel's propensity for fighting was typical for his peer group, was trying to imply that it was part of the culture. An expert witness for the state told jurors in several trials that Latinos and blacks were more likely to be dangerous in the future than whites.
Miguel Angel Martinez, born on August 6, 1973, in Laredo, Texas, is also sitting on death row. In January 1991, armed police officers arrested Miguel Angel. Police had previously arrested Miguel Venegas from whom they recovered knives believed to have been used to commit a crime. Venegas implicated Martinez and another youth, Manuel "Milo" Flores, son of district judge Manuel Flores. "Milo" was not arrested nor as he been to this day. It took his lawyers seven months even to speak to Martinez. During this period, his attorneys kept withdrawing from the case. One attorney refused to continue unless the family gave him $10,000. Finally, an attorney who had never had a capital case accepted. He was so incompetent that Miguel Angel attempted to dismiss him. The attorney refused to absent himself, and the judge concurred, even as he failed to confer with his client.
The court convicted Miguel Angel of capital murder on April 6, 1992. During the hearing to assess the punishment, the jury appeared deadlocked. A person in the courtroom saw the prosecutor and the two parents of one of the victims go in the room where the jury was deliberating over the punishment of Martinez. Thirty minutes after this happened the jury came out with an unexpected death sentence. There was no change of venue due to the ineffectiveness and lack of interest by his court-appointed attorney. They began and completed this capital murder jury trial within five days.
Even as the unsuccessful appeal went forward, the charade continued. On December 6, 1993, the Venegas escaped from a detention center. Friends had told police of the planned escape of Venegas. "Milo" Flores was never arrested. On December 14, 1994, the Court of Criminal Appeals rejected every error that the defense raised. Although the Court issued a 31-page opinion, it made only a six-page portion public. On October 30, 1995, the U.S. Supreme Court, refused to consider the Martinez case. By that, officially making his conviction and sentence final. The question is, did Martinez receive a fair trial?
Texas executed Leonel Herrera in 1993 for a 1982 murder though another man confessed to murdering two South Texas police officers. The court sentenced Herrera to death. Eight years later, on the verge of his execution, a lawyer signed an affidavit saying that Herrera's brother had confessed the killings. Texas courts refused to reopen the case because the new evidence had come long after their 30-day limit for additional evidence. Herrera's case went all the way to the U.S. Supreme Court, which ruled six to three that Texas's time limitation was constitutional. The case sharply divided the high court. Justice Blackmun said caustically from the bench that "the execution of a person who can show that he is innocent comes perilously close to simple murder."
Despite George W.'s certainty, his judgment was tested in June 2000 when the U.S. Supreme Court ordered Texas courts to provide a new sentence hearing to death-row inmate Victor Hugo Saldano. The court ruled that the prosecution used racially discriminatory evidence violating the equal protection clause of the U.S. Constitution's 14th Amendment. It put into question the cases of six other Texas death row inmates. A Texas court had allowed a psychologist to testify about Saldano's "future dangerousness" based on factors that included the fact that Saldano was a Latino. The Texas Court of Criminal Appeals had previously upheld Saldano's death sentence, stating that the prosecution's use of ethnicity as a factor to be considered in death sentencing was not a "fundamental error" requiring reversal.
Despite this decision, the Roman circus went on. Texas executed three inmates in three days, and with eight more scheduled before the end of June 2000. Bush poised himself to surpass its record of thirty-seven executions in a single year (1997). At the time, Texas had ten Latinos awaiting execution.
A disturbing trend is the execution of juveniles. In wanting to teach them a lesson the public has called for harsher sentences. Between 1992 and 1997, 47 states passed laws making it easier to try children as adults. Of the thirty-eight death penalty states, nineteen execute 16- and 17-year-olds and four execute those seventeen and older. In 1988, the U.S. Supreme Court held that executing children under the age of sixteen violated the Eighth Amendment's ban against "cruel and unusual punishment." This principle has been challenged as of late. Former Gov. Pete Wilson, the architect of California's recently passed Proposition 21, said the age for the death penalty should be lowered to fourteen. Texas legislator Jim Pitts proposed lowering the age to eleven.
The Bureau of Justice Statistics reports that the number of youths under the age of 17, committed to adult prisons, has more than doubled, rising from 3,400 in 1985 to 7,400 in 1997. More than a quarter of these youths in adult prisons are between the ages of 13 and 16.
These statistics go to the moral fibre of the country. I will always remember what a rabbi at my first teaching job at a Yeshiva, (I was the only goy at the school) told me. That God judged a society on how well it took care of its old and its children. This is why the dismantling of the juvenile justice system shows that we do not live in a compassionate society. It has shifted foci away from the individual child's needs, to the seriousness of the crime and teaching them a lesson. Age, intent, why he is in trouble, and extenuating factors do not matter. Just get rid of the kid.
The United States has the honor along with the collapsed state of Somalia as the only countries in the U.N not to ratify the organizations 10-year-old U.N. Convention on the Rights of the Child, which forbids the death penalty against youths under eighteen. Similarly, it has not signed the International Covenant on Civil and Political Rights, which more than 144 countries have signed, because it also bans the execution of those who commit crimes under the age of eighteen. In the 1990s, Amnesty International reported nineteen executions of child offenders. The United States executed ten of these children.
Currently about seventy death row inmates (all male) were sentenced as juveniles, about 2% of the total death row. Texas again leads with 37% of these juveniles being from the Lone Star state. We have executed twelve men for crimes committed as juveniles since 1976. Since 1985 only the USA, Bangladesh, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, Yemen have executed juveniles. According to Amnesty International, in 1999 the US along with China, Congo, Iran and Saudi Arabia accounted for 85% of the world's executions.
A Scripps-Howard Survey found that 57% of Texans polled do not share George W's self righteousness and believe Texas has executed someone who was innocent of the crime. Three quarters of them believe that the state should declare a moratorium on death sentences in cases that DNA testing might affect. The survey also showed support for capital punishment was based on race, supported by 81% of whites, 55% among Latinos and 44% among blacks.
In conclusion, because of space I have focused on Texas in this essay. Suffice to say that California, which enjoys a more tolerant reputation that the former confederate state, is not too far behind. Witness the passage of Proposition 21, which effectively lowers the age of the youthful offender. Like Texas and other states California has scuttled or at least handicapped its once vaunted juvenile justice system. California also has the largest death row in the nation with 560 inmates. About 100 of these are Latinos; about 200 blacks. Justice is just us.
The purpose of the essay is to attempt to generate discussion within the Chicano/Latino community. I do not place too much hope on the current trends that show that a substantial number of Americans are beginning to soften on their faith that the system is executing only the guilty. The truth be told, a determining factor in this softening has been the inclusion of DNA evidence. It does not bother them. It does not bother George W. Bush that capital punishment is morally questionable, or that its application was racially motivated, or that the defendant received inadequate legal representation. The American public is fickle, witness its softening on the abortion question where it is going to the right. All it takes to change Americans is a little recession or another evil empire.
Other articles by Porfessor Rodolfo F. Acuña:
Murder in Arizona . . . Its Only the Third World