|
...continued
68.
Accordingly, based upon the information before it, the Commission
concludes that the domestic remedies have not been invoked and exhausted
in accordance with Article 37 of its Regulations, in connection with the
claims raised in the Petitioner's Request to Raise Additional Matters
dated September 22, 2000. Consequently, the Commission finds that the Petitioner's
claims in this regard are inadmissible, without prejudice to the
Petitioner's right to raise these claims before the Commission at such
subsequent time that the requirements of the Commission's Regulations may
be satisfied.
69.
In accordance with the foregoing analysis of the requirements of
the applicable provisions of the Commission’s Regulations, the
Commission decides to declare as admissible the claims presented in the
Petitioner's December 20, 1999 petition with respect to Articles I, XVIII,
and XXVI of the American Declaration, and to proceed to examine the merits
of these matters. The
Commission also decides to declare as inadmissible the claims respecting
Articles I and II of the Declaration raised by the Petitioner in his
September 22, 2000 Request to Raise Additional Matters.
C. Merits
1.
Standard of Review
70.
Before addressing the merits of the present case, the Commission
wishes to reaffirm and reiterate its well-established doctrine that it
will apply a heightened level of scrutiny in deciding capital punishment
cases. The right to life is
widely-recognized as the supreme right of the human being, and the conditio
sine qua non to the enjoyment of all other rights.
The Commission therefore considers that it has an enhanced
obligation to ensure that any deprivation of life that an OAS member state
proposes to perpetrate through the death penalty complies strictly with
the requirements of the applicable inter-American human rights
instruments, including the American Declaration.
This "heightened scrutiny test" is consistent with the
restrictive approach taken by other international human rights authorities
to the imposition of the death penalty,
and has been articulated and applied by the Commission in previous capital
cases before it.
71.
The Commission also notes that this heightened scrutiny test
applicable to death penalty cases is not precluded by the Commission's
fourth instance formula, according to which the Commission in principle
will not review the judgments issued by domestic courts acting within
their competence and with due judicial guarantees.
In particular, where a possible violation of an individual's rights
under applicable Inter-American human rights instruments is involved, the
Commission has consistently held that the fourth instance formula has no
application and the Commission may consider the matter.
72.
The Commission will therefore review the allegations of the
Petitioner's representatives in the present case with a heightened level
of scrutiny, to ensure in particular that the right to life, the right to
due process, and the right to a fair trial as prescribed under the
American Declaration have been properly respected by the State.
2.
Pertinent Facts
73.
In undertaking its analysis of the substance of the present case,
the Commission will first set out its understanding, based upon the record
before it, of the pertinent facts pertaining to Mr. Garza's trial and
sentencing. These facts appear to be largely uncontested as between the
parties, insofar as the parties have commented upon them.
74.
Under U.S. constitutional law, both state governments and the
Federal Congress have the authority to establish criminal penalties for
matters falling within their respective jurisdictions.
In addition, the U.S. Supreme Court has confirmed that such
penalties may as a matter of Federal constitutional law include capital
punishment, as the Court has concluded that the death penalty does not per
se constitute "cruel and unusual punishment" within the
meaning of the Eighth Amendment to the U.S. Constitution.
In 1972, however, the U.S. Supreme Court issued a ruling that had the
effect of invalidating capital punishment throughout the United States,
both in the Federal criminal justice system and in all of the states that
provided for the death penalty, based upon the arbitrary manner in which
judges and juries were applying the penalty in individual cases.
A number of states revised their death penalty legislation
relatively expeditiously in order to comply with the standards prescribed
by the Supreme Court. The
federal government did not do so, however, until November 18, 1988, when
President Ronald Reagan signed into law the Anti-Drug Abuse Act of 1988,
rendering the death penalty available as a possible punishment for certain
drug-related offenses. Subsequently,
in September 1994, the Federal Death Penalty Act was enacted, which
provided that over 40 offenses could be punished as capital crimes, and in
1996, the Antiterrorism and Effective Death Penalty Act came into effect
that further extended the list of Federal capital crimes to include
additional Federal offenses.
75.
In the circumstances of Mr. Garza's case, the record indicates that
in 1993, Mr. Garza was tried and convicted 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, in
addition to seven other counts that included conspiring to import over
1,000 kilograms of marijuana and possession with intent to distribute over
1,000 kilograms of marijuana. More
particularly, Mr. Garza was prosecuted and sentenced under Title 21,
Section 848 of the U.S. Code (21 U.S.C. Section 848) for the killings of
Gilberto Matos, Erasmo De La Fuente and Thomas Rumbo.
76.
21 U.S.C. Section 848(e)(1)(A) establishes criminal responsibility
and punishment, including the death penalty, for killing in the course of
a continuing criminal enterprise, as follows:
any
person engaging in or working in furtherance of a continuing criminal
enterprise, or any person engaging in an offense punishable under section
841(b)(1)(A) of this title or section 960(b)(1) of this title who
intentionally kills or counsels, commands, induces, procures, or causes
the intentional killing of an individual and such killing results, shall
be sentenced to any term of imprisonment, which shall not be less than 20
years, and which may be up to life imprisonment, or
may be sentenced to death; [emphasis added]
77.
21 U.S.C. Section 848 also prescribes certain preconditions and
procedures that are necessary in order for the State to seek the death
penalty, and for a jury or court to impose the death penalty, in a
particular case. In
particular, Section 848(h) requires that whenever the Government seeks the
death penalty for an offense under Section 848 for which one of the
sentences provided is death (including Section 848(e)) the attorney for
the Government, at a reasonable time before trial or acceptance by the
court of a plea of guilty, "shall sign and file with the court, and
serve upon the defendant, a notice (a) that the Government in the event of
conviction will seek the sentence of death; and (b) setting forth the
aggravating factors enumerated in subsection (n) of this section and any
other aggravating factors which the Government will seek to prove as a
basis for the death penalty."
78.
In addition, under 21 U.S.C. Section 848(i), where the government
has filed a notice required under Section 848(h) and the defendant is
found guilty or pleads guilty to an offense under Article 848(e), a
separate sentencing hearing must be conducted to determine the punishment
to be imposed. In cases in
which the defendant was tried and convicted before a court sitting with a
jury, the sentencing hearing must be conducted before the jury that
determined the defendant's guilt or, upon motion of the defendant and with
the approval of the government, before the court alone.
79.
Moreover, 21 U.S.C. Section 848 prescribes a specific and detailed
regime for the proof and consideration of aggravating and mitigating
factors during a sentencing hearing under Article 848(i), in determining
whether a defendant should be sentenced to death.
In particular, Article 848(j) dispenses with the rules governing
the admission of evidence at criminal trials and mandates the liberal
consideration of evidence of aggravating and mitigating factors as
follows:
Notwithstanding
rule 32(c) of the Federal Rules of Criminal Procedure, when a defendant is
found guilty of or pleads guilty to an offense under subsection (e) of
this section, no pre-sentence report shall be prepared. In the sentencing hearing, information may be presented as to
matters relating to any of the aggravating or mitigating factors set forth
in subsections (m) and (n) of this section, or any other mitigating factor
or any other aggravating factor for which notice has been provided under
subsection (h)(1)(B) of this section.
Where information is presented relating to any of the aggravating
factors set forth in subsection (n) of this section, information may be
presented relating to any other aggravating factor for which notice has
been provided under subsection (h)(1)(B) of this section.
Information presented may include the trial transcript and exhibits
if the hearing is held before a jury or judge not present during the
trial, or at the trial judge's discretion.
Any other information relevant to such mitigating or aggravating factors
may be presented by either the Government or the defendant, regardless of
its admissibility under the rules governing admission of evidence at
criminal trials, except that information may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.
The Government and the defendant shall be permitted to rebut
any information received at the hearing and shall be given fair
opportunity to present argument as to the adequacy of the information to
establish the existence of any of the aggravating or mitigating factors
and as to appropriateness in that case of imposing a sentence of death.
The Government shall open the argument.
The defendant shall be permitted to reply.
The Government shall then be permitted to reply in rebuttal.
The burden of establishing
the existence of any aggravating factor is on the Government, and is not
satisfied unless established beyond a reasonable doubt.
The burden of establishing the existence of any mitigating factor
is on the defendant, and is not satisfied unless established by a
preponderance of the evidence. [emphasis added]
80.
It is significant to note that Section 848(j) permits the
introduction of evidence of aggravating or mitigating factors regardless
of its admissibility under the rules governing the admission of evidence
at criminal trials, and that the existence of any aggravating factors must
be established by the Government "beyond a reasonable doubt".
81.
21 U.S.C. Sections 848(m) and (n) in turn prescribe, respectively,
pertinent statutory aggravating and mitigating factors to be considered
during a capital sentencing hearing as follows:
m)
Mitigating factors
In
determining whether a sentence of death is to be imposed on a defendant,
the finder of fact shall consider mitigating factors, including the
following:
(1) The defendant's capacity to
appreciate the wrongfulness of the defendant's conduct or to conform
conduct to the requirements of law was significantly impaired, regardless
of whether the capacity was so impaired as to constitute a defense to the
charge.
(2) The defendant was under unusual
and substantial duress, regardless of whether the duress was of such a
degree as to constitute a defense to the charge.
(3) The defendant is punishable as a
principal (as defined in section 2 of title 18) in the offense, which was
committed by another, but the defendant's participation was relatively
minor, regardless of whether the participation was so minor as to
constitute a defense to the charge.
(4) The defendant could not
reasonably have foreseen that the defendant's conduct in the course of the
commission of murder, or other offense resulting in death for which the
defendant was convicted, would cause, or would create a grave risk of
causing, death to any person.
(5) The defendant was youthful,
although not under the age of 18.
(6) The defendant did not have a
significant prior criminal record.
(7) The defendant committed the
offense under severe mental or emotional disturbance.
(8) Another defendant or defendants,
equally culpable in the crime, will not be punished by death.
(9) The victim consented to the
criminal conduct that resulted in the victim's death.
(10) That other factors in the
defendant's background or character mitigate against imposition of the
death sentence.
(n)
Aggravating factors for
homicide
If
the defendant is found guilty of or pleads guilty to an offense under
subsection (e) of this section, the following aggravating factors are the
only aggravating factors that shall be considered, unless notice of
additional aggravating factors is provided under subsection (h)(1)(B) of
this section:
(1)
The defendant –
(A)
intentionally killed the victim;
(B)
intentionally inflicted serious bodily injury which resulted in the
death of the victim;
(C) intentionally engaged in conduct
intending that the victim be killed or that lethal force be employed
against the victim, which resulted in the death of the victim; (D)
intentionally engaged in conduct which –
(i)
the defendant knew would create a grave risk of death to a person,
other than one of the participants in the offense; and
(ii)
resulted in the death of the victim.
(2) The defendant has been convicted
of another Federal offense, or a State offense resulting in the death of a
person, for which a sentence of life imprisonment or a sentence of death
was authorized by statute.
(3) The defendant has previously been
convicted of two or more State or Federal offenses punishable by a term of
imprisonment of more than one year, committed on different occasions,
involving the infliction of, or attempted infliction of, serious bodily
injury upon another person.
(4) The defendant has previously been
convicted of two or more State or Federal offenses punishable by a term of
imprisonment of more than one year, committed on different occasions,
involving the distribution of a controlled substance.
(5) In the commission of the offense
or in escaping apprehension for a violation of subsection (e) of this
section, the defendant knowingly created a grave risk of death to one or
more persons in addition to the victims of the offense.
(6) The defendant procured the
commission of the offense by payment, or promise of payment, of anything
of pecuniary value.
(7) The defendant committed the
offense as consideration for the receipt, or in the expectation of the
receipt, of anything of pecuniary value.
(8) The defendant committed the
offense after substantial planning and premeditation.
(9) The victim was particularly
vulnerable due to old age, youth, or infirmity.
(10) The defendant had previously
been convicted of violating this subchapter or subchapter II of this
chapter for which a sentence of five or more years may be imposed or had
previously been convicted of engaging in a continuing criminal enterprise.
(11) The violation of this subchapter
in relation to which the conduct described in subsection (e) of this
section occurred was a violation of section 859 of this title.
(12) The defendant committed the
offense in an especially heinous, cruel, or depraved manner in that it
involved torture or serious physical abuse to the victim.
82.
Finally, 21 U.S.C. Section 848(k) prescribes the procedure to be
followed by a jury or court in identifying and weighing aggravating and
mitigating factors in determining whether the death penalty is to be
imposed upon a defendant:
The jury, or if
there is no jury, the court, shall consider all the information received
during the hearing. It shall
return special findings identifying any aggravating factors set forth in
subsection (n) of this section, found to exist.
If one of the aggravating factors set forth in subsection (n)(1) of
this section and another of the aggravating factors set forth in
paragraphs (2) through (12) of subsection (n) of this section is found to
exist, a special finding identifying any other aggravating factor for
which notice has been provided under subsection (h)(1)(B) of this section,
may be returned. A finding
with respect to a mitigating factor may be made by one or more of the
members of the jury, and any member of the jury who finds the existence of
a mitigating factor may consider such a factor established for purposes of
this subsection, regardless of the number of jurors who concur that the
factor has been established. A
finding with respect to any aggravating factor must be unanimous.
If an aggravating factor set forth in subsection (n)(1) of this
section is not found to exist or an aggravating factor set forth in
subsection (n)(1) of this section is found to exist but no other
aggravating factor set forth in subsection (n) of this section is found to
exist, the court shall impose a sentence, other than death, authorized by
law. If an aggravating factor
set forth in subsection (n)(1) of this section and one or more of the
other aggravating factors set forth in subsection (n) of this section are
found to exist, the jury, or if there is no jury, the court, shall then
consider whether the aggravating factors found to exist sufficiently
outweigh any mitigating factor or factors found to exist, or in the
absence of mitigating factors, whether the aggravating factors are
themselves sufficient to justify a sentence of death.
Based upon this consideration, the jury by unanimous vote, or if
there is no jury, the court, shall recommend that a sentence of death
shall be imposed rather than a sentence of life imprisonment without
possibility of release or some other lesser sentence.
The jury or the court, regardless of its findings with respect to
aggravating and mitigating factors, is never required to impose a death
sentence and the jury shall be so instructed.
83.
In summary, Section 848(k) requires the jury to reach a unanimous
verdict on, at a minimum, the existence of one or more of the aggravating
factors in each of Sections 848(n)(1) and 848(n)(2) to (12) before a death
sentence may be imposed. In
the event of such a verdict, Section 848(k) further mandates the jury to
determine whether the aggravating factors "sufficiently
outweigh" any mitigating factors or are otherwise sufficient to
justify a death sentence.
84.
In the circumstances of Mr. Garza's case, the process by which the
jury determined Mr. Garza's punishment was described in the decision of
the Firth Circuit Court of Appeals disposing of Mr. Garza's statutory
appeal as follows:
The day after the
jury's guilty verdict, the district court convened the penalty hearing.
The jury made a binding recommendation of a death sentence for each
of Garza's §848(e) convictions after taking steps required by the
statute. First, as to each
murder, the jury was asked to decide whether the government had
established at least one of the four aggravating "intent"
factors in §848(n)(1). §848(j). For
the De La Fuente murder, the jury found that Garza had intentionally
killed De La Fuente, (n)(1)(A), and that Garza had intentionally engaged
in conduct intending that De La Fuente be killed and/or that lethal force
be employed against him, (n)(1)(C). For the Rumbo murder, the jury again
found both (n)(1)(A) and (n)(1)(C) and for the Matos murder, the jury
found only (n)(1)(c), If the jury had not unanimously found one of these
factors to exist for a murder, it could not have recommended a death
sentence for that murder. §848(k).
Having
found the requisite aggravating intent for all three killings, the jury
then considered the second category of statutory aggravating factors
derived from §848(n)(2)-(12). In
this step, the jury found that Garza had committed all three murders after
substantial planning and premeditation, (n)(8), and that Garza procured De
La Fuente and Matos' killing by payment of something of pecuniary value,
(n)(6). Again, if the jury had not unanimously found at least one of
these enumerated factors for each of these killings, it could not have
recommended death for that particular murder. §848(k).
Having
found these second tier statutory aggravators to exist, the jury was
directed to determine whether the government had proven any of its
non-statutory aggravators. In response to this inquiry, the jury found that Garza was responsible
for five additional killings, that he procured two of these killings by
payment of something of a pecuniary value, that four of these killings
were committed after substantial planning and premeditation, that two of
these killings were committed in furtherance of the CCE, and that Garza
represented a continuing danger to the lives of others based upon his
pattern of violent and brutal acts.
The
jury next considered whether Garza had proven any mitigating factors.
Garza's jury found that Garza had established the statutory
mitigators that he was under unusual and substantial duress, that he was
youthful, that other defendants who were equally culpable would not be
punished by death and that the victims consented to the criminal conduct
that resulted in their deaths. Although
it did not specify which one, the jury also found at least one mitigator
from the list of non-statutory mitigators that Garza had introduced.
After
making these findings, the jury was instructed to balance the aggravators
against the mitigators. The
jury could recommend death only if it unanimously found that the
aggravators sufficiently outweighed the mitigators to justify a sentence
of death. Even if it found
the aggravators sufficiently weighty, the jury was never required to
recommend death. After
considering the questions required by the statute, Garza's jury
recommended a death sentence. Pursuant
to §848(o), the jurors certified that they arrived at this decision
without considering the race, color, religion, national origin or sex of
Garza or his victims. After
the jury recommended death, the district court imposed a death sentence as
the statute mandated.
[emphasis added]
85.
As the foregoing description suggests, during Mr. Garza's
sentencing hearing the prosecution introduced as aggravating factors
evidence pertaining to five additional killings that Mr. Garza was alleged
to have committed, four of which related to the deaths of Oscar Cantu,
Antonio Nieto, Bernabe Sosa and Fernando Escobar-Garcia in Mexico.
The information on the record also indicates that the Mexican authorities
had been unable to solve any of the four homicides, but that the U.S.
government sent Customs agents to Mexico to re-investigate the cases.
According to the Petitioners, the prosecution offered no physical
evidence tying Mr. Garza to the crimes.
The only evidence directly linking him to the murders was the
testimony of three accomplices, Gregory Srader, Israel Flores and Jesus
Flores, who received promises of substantially reduced sentences in
exchange for their testimony. The
evidence presented by the prosecution during the sentencing phase related
almost entirely to the unadjudicated offenses, and consisted of the
testimony of the accomplices, US customs agents and pathologists.
86.
The foregoing description also confirms that during the sentencing
hearing, the jury concluded beyond a reasonable doubt that Mr. Garza
committed the four killings in Mexico, and considered his responsibility
for these crimes in determining whether he should be sentenced to death.
3.
The Right to Life under
Article I of the American Declaration
87. Article
I of the Declaration provides as follows:
Right to life, liberty and person security.
Article I. Every human being
has the right to life, liberty and the security of his person.
88.
In addressing the allegations raised by the Petitioner's
representatives in this case, including their claim that Mr. Garza's death
penalty violates Article I of the American Declaration, the Commission
first wishes to clarify that in interpreting and applying the Declaration,
it is necessary to consider its provisions in the context of the
international and inter-American human rights systems more broadly, in the
light of developments in the field of international human rights law since
the Declaration was first composed and with due regard to other relevant
rules of international law applicable to member states against which
complaints of violations of the Declaration are properly lodged.
The Inter-American Court of Human Rights recently reiterated its
endorsement of an evolutive interpretation of international human rights
instruments, which takes into account developments in the corpus
juris gentium of international human rights law over time and in
present-day conditions.
89.
Developments in the corpus of international human rights law
relevant to interpreting and applying the American Declaration may in turn
be drawn from the provisions of other prevailing international and
regional human rights instruments. This
includes in particular the American Convention on Human Rights which, in
many instances, may be considered to represent an authoritative expression
of the fundamental principles set forth in the American Declaration.
90.
Against this backdrop of interpretative principles, the Commission
observes in relation to the Petitioner's alleged violations of Article I
of the Declaration that this provision is silent on the issue of capital
punishment. In past
decisions, however, the Commission has declined to interpret Article I of
the Declaration as either prohibiting use of the death penalty per se, or conversely as exempting capital punishment from the
Declaration's standards and protections altogether. Rather, in part by reference to Article 4 of the American
Convention on Human Rights, the Commission has found that Article I of the
Declaration, while not precluding the death penalty altogether, prohibits
its application when doing so would result in an arbitrary deprivation of
life.
91.
Further, the Commission has identified several deficiencies that
may render an execution arbitrary contrary to Article I of the
Declaration. These include a
failure on the part of a state to limit the death penalty to crimes of
exceptional gravity prescribed by pre-existing law,
denying an accused strict and rigorous judicial guarantees of a fair
trial,
and notorious and demonstrable diversity of practice within a member state
that results in inconsistent application of the death penalty for the same
crimes.
92.
Having carefully reviewed the information and evidence submitted by
the parties in Mr. Garza's case, the Commission cannot conclude that
pertinent international law has developed to the present time, so as to
alter the Commission's standing interpretation of Article I of the
Declaration. Rather, the
Commission remains of the view that the American Declaration, while not
proscribing capital punishment altogether, does prohibit its application
in a manner that would render a deprivation of life arbitrary.
93.
The Commission similarly recognizes and takes note of evidence,
including that cited by the Petitioner's representatives, which suggests
the existence of an international trend toward the restrictive application
of the death penalty. Indeed, the Inter-American Court of Human Rights has
interpreted Article 4 of the American Convention on Human Rights as
adopting an approach that is "clearly incremental in character, that
is, without going so far as to abolish the death penalty, the Convention
imposes restrictions designed to delimit strictly its application and
scope, in order to reduce the application of the penalty to bring about
its gradual disappearance."
94.
In this respect, the Commission is deeply troubled by the fact that
the United States has not only chosen to re-introduce the death penalty at
the Federal level after an interruption of over 35 years, but has also
chosen to extend the penalty on at least two occasions to additional
crimes. The Commission, like
other international authorities,
considers that these courses of action are inconsistent with the spirit
and purpose of numerous international human rights instruments to which
the State is a signatory or a party,
and are at odds with a demonstrable international trend toward more
restrictive application of the death penalty.
Interpreted in the context of these contemporary developments, the
Commission likewise considers that the State's actions are not consistent
with the spirit and purposes underlying the American Declaration.
95.
The Commission is unable to conclude, however, based upon the
information before it, that the international legal norms binding upon the
State by way of Article I of the American Declaration precluded the United
States from applying the death penalty in the circumstances of Mr. Garza's
case. In particular, the
Commission cannot find on the evidence in the record that the State
abolished the death penalty under its law so as to preclude it from
applying this penalty to Mr. Garza's crimes.
Rather, the evidence indicates that the death penalty continued to
be applied in the United States as early as 1976, albeit at the state
level. Further, the
Commission is not satisfied based upon the information available that the
norms of international law under Article I of the Declaration, as informed
by current developments in international human rights law, prevented the
State from prescribing the penalty for the crimes for which Mr. Garza was
tried and convicted. In
particular, the Commission does not find before it sufficient evidence
establishing the existence of an international legal norm binding upon the
United States, under Article I of the Declaration or under customary
international law, that prohibited the extension of the death penalty to
Mr. Garza's crimes, provided that they are properly considered to be of a
"most serious" nature.
The Commission notes further in this connection that Mr. Garza was
convicted, among other offenses, of multiple homicides in the course of a
continuing criminal enterprise, convictions with which he has not taken
issue in these proceedings. The Commission cannot find that crimes of this
nature do not constitute "most serious crimes" to which the
death penalty may be imposed without rendering the execution arbitrary
contrary to Article I of the Declaration.
For similar reasons, the Commission cannot conclude that the State's
decision to seek the death penalty in the circumstances of Mr. Garza's
crimes lacked sufficient justification so as to be rendered arbitrary
under Article I of the Declaration.
96.
Based upon the foregoing analysis and the record in the present
matter, therefore, the Commission does not find a violation of Mr. Garza's
rights under Article I of the Declaration in relation to the application per
se of the death penalty in the circumstances of his case.
4. The Rights to Due
Process and a Fair Trial under Articles XVIII and XXVI of the American
Declaration
97.
Articles XVIII and XXVI of the Declaration provide as follows:
Right
to a fair trial.
Article
XVIII. Every person may
resort to the courts to ensure respect for his legal rights. There should
likewise be available to him a simple, brief procedure whereby the courts
will protect him from acts of authority that, to his prejudice, violate
any of his fundamental constitutional rights.
Right
to due process of law.
Article
XXVI. Every accused person is
presumed to be innocent until proven guilty.
Every person accused
of an offense has the right to be given an impartial and public hearing,
and to be tried by courts previously established in accordance with
pre-existing laws, and not to receive cruel, infamous or unusual
punishment.
98.
As indicated previously, the Petitioner's representatives have
challenged the procedure employed by the State in sentencing Mr. Garza to
death under Articles XVIII and XXVI of the American Declaration in two
respects, both of which relate to the introduction during Mr. Garza's
sentencing hearing of evidence of unadjudicated murders alleged to have
been committed by Mr. Garza in Mexico. The
Commission wishes to point out in this regard that the Fifth Circuit U.S.
Court of Appeals did not deal explicitly with these aspects of Mr. Garza's
constitutional claims on either occasion when these issues were raised
before that Court.
To this extent, therefore, the Commission appears to be the first tribunal
to expressly analyze the compatibility of this process with Mr. Garza's
fundamental human rights.
99.
First, the Petitioner's representatives argue that evidence of the
four unadjudicated murders in Mexico should not have been introduced at
all for the purposes of sentencing, essentially because consideration of
evidence of this nature failed to satisfy the standard of due process
applicable when trying individuals for capital crimes.
100.
In this connection, the Commission reiterates the fundamental
significance of ensuring full and strict compliance with due process
protections in trying individuals for capital crimes, from which there can
be no derogation. The
Commission has recognized previously that, due in part to its irrevocable
and irreversible nature, the death penalty is a form of punishment that
differs in substance as well as in degree in comparison with other means
of punishment, and therefore warrants a particularly stringent need for
reliability in determining whether death is the appropriate punishment in
a given case.
Further, the Inter-American Court of Human Rights recently noted
the existence of an "internationally recognized principle whereby
those States that still have the death penalty must, without exception,
exercise the most rigorous control for observance of judicial guarantees
in these cases," such that "[i]f the due process of law, with
all its rights and guarantees, must be respected regardless of the
circumstances, then its observance becomes all the more important when
that supreme entitlement that every human rights treaty and declaration
recognizes and protects is at stake: human life."
The U.S. Supreme Court has similarly emphasized in addressing
allegations of due process violations in capital cases that it is of vital
importance to a defendant and to the community more broadly that any
decision to impose the death penalty be, and appear to be, based on reason
rather than caprice or emotion.
101.
Consistent with these fundamental principles, the Commission
considers that Articles I, XVIII and XXVI of the Declaration must be
interpreted and applied in the context of death penalty prosecutions so as
to give stringent effect to the most fundamental substantive and
procedural due process protections.
The essential requirements of substantive due process in turn
include the right not to be convicted of any act or omission that did not
constitute a criminal offense, under national or international law, at the
time it was committed,
and the right not to be subjected to a heavier penalty than the one that
was applicable at the time when the criminal offense was committed.
The requisite procedural due process protections include most
fundamentally the right of a defendant to be presumed innocent until
proven guilty according to law,
the right to prior notification in detail of the charges against him,
the right to adequate time and means for the preparation of his defense,
the right to be tried by a competent, independent and impartial tribunal,
previously established by law,
the right of the accused to defend himself personally or to be assisted by
legal counsel of his own choosing and to communicate freely and privately
with his counsel, and the right not to be
compelled to be a witness against himself or to plead guilty.
102.
The Commission considers that these protections apply to all
aspects of a defendant's criminal trial, regardless of the manner in which
a state may choose to organize its criminal proceedings.
Consequently, where, as in the present case, the State has chosen to
establish separate proceedings for the guilt/innocence and sentencing
stages of a criminal prosecution, the Commission considers that due
process protections nevertheless apply throughout.
103.
It is in light of the above principles that the Commission has
analyzed the allegations of the Petitioner’s representatives regarding
the conduct of Mr. Garza's sentencing proceeding.
In this respect, several facts, as described previously, are
particularly relevant to determining this aspect of his claim.
First, the parties agree that during Mr. Garza's sentencing
hearing, the prosecution introduced evidence relating to four additional
murders that Mr. Garza was alleged to have committed in Mexico. Mr.
Garza was never previously charged or convicted of these crimes; indeed
the Mexican authorities were not able to resolve or prosecute them,
which resulted in their "unadjudicated" status. Moreover, the
Petitioner's representatives have alleged, and the State has not
disputed, that these murders could not have been prosecuted under U.S.
Federal law at the time that they were committed, as they did not occur
within the special maritime or territorial jurisdiction of the United
States, a prerequisite for prosecuting the crime of murder under U.S.
federal law.
The evidence presented by the prosecution consisted of the testimony of
several alleged accomplices to these murders, who agreed to testify in
exchange for substantial reductions in their sentences.
104.
It also appears to be common ground, as supported by the record
and judicial decisions in Mr. Garza's case, that the jury was required
to conclude, and in fact did conclude "beyond a reasonable
doubt" on the evidence presented that Mr. Garza committed each of
these four murders. Finally,
it is apparent from the record that the jury considered Mr. Garza’s
responsibility for these additional murders in determining whether he
should be sentenced to the death penalty.
105.
Based upon these facts, the Commission can only conclude that
during his criminal proceeding, Mr. Garza was not only convicted and
sentenced to death for the three murders for which he was charged and
tried in the guilt/innocence phase of his proceeding; he was also
convicted and sentenced to death for the four murders alleged to have
been committed in Mexico, but without having been properly and fairly
charged and tried for these additional crimes.
Considered in this light, in the Commission's view, the
introduction of evidence of this nature and in this manner during Mr.
Garza's sentencing hearing was inconsistent with several fundamental
principles underlying Articles XVIII and XXVI of the Declaration.
106.
First, based upon the record in this case, the United States
would have been prevented from prosecuting Mr. Garza for these
additional crimes under the nullum
crimen sine lege principle, as U.S. federal law did not render
conduct of this nature perpetrated in Mexico as a crime under U.S. law
at the time that Mr. Garza was alleged to have committed them.
To this extent, then, the State appears to be seeking to do
indirectly what it cannot do directly, namely secure responsibility and
punishment on the part of Mr. Garza for four murders through a
sentencing hearing, which are otherwise outside of U.S. federal
jurisdiction to prosecute.
107.
In addition, it cannot be said that Mr. Garza was tried for these
four additional murders before an impartial tribunal.
Rather, the Commission is of the view that the jury that
sentenced Mr. Garza could not reasonably have been considered impartial
in determining his criminal liability for the four unadjudicated murders
in Mexico when the same jury had just convicted Mr. Garza of three
murders. The Commission has
previously articulated the international standard on the issue of
“judge and juror impartiality” as employing an objective test based
on “reasonableness and the appearance of impartiality”.
In the Commission’s view, it cannot reasonably be contended that the
facts concerning these additional four murders were presented to an
untainted, unbiased jury in a forum in which the full protections of the
rights under the American Declaration were afforded to Mr. Garza.
To the contrary, presentation of evidence of prior criminal
conduct is generally considered to be irrelevant and highly prejudicial
to the determination of guilt for a current criminal charge.
This conclusion is corroborated by the State’s own Federal
Rules of Evidence, which preclude the introduction of evidence of prior
crimes during the guilt/innocence phase of a criminal trial, unless it
is relevant to proof of motive, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
108.
Further, the prejudice resulting from the determination of Mr.
Garza’s guilt for four additional murders during his sentencing
hearing was compounded by the fact that lesser standards of evidence
were applicable during the sentencing process.
As the Petitioner’s representatives have pointed out, the
application of strict rules of evidence during trials of criminal
charges, where the onus is solely upon the prosecution, is generally
intended to protect the defendant from conviction based upon information
that is prejudicial or unreliable.
Such protections were not, however, applicable when the jury
found Mr. Garza responsible for the four murders in Mexico, as is clear
from the terms of 21 U.S.C. Section 848(j).
Consequently, Mr. Garza was not afforded the strictest and most
rigorous standard of due process when his liability for the four foreign
murders was determined.
109.
The State appears to argue in this respect that the unadjudicated
murders were simply another aggravating factor properly taken into
account in determining the appropriate sentence for Mr. Garza.
The Commission must emphasize, however, that a significant and
substantive distinction exists between the introduction of evidence of
mitigating and aggravating factors concerning the circumstances of an
offender or his or her offense, such as those enumerated in 21 U.S.C.
848(n), and an effort to attribute to an offender individual criminal
responsibility for violations of additional serious offenses that have
not, and indeed could not under the State’s criminal law, be charged
and tried pursuant to a fair trial offering the requisite due process
guarantees. The State
itself asserts that the purpose of a sentencing hearing is to determine
the appropriate punishment for a defendant’s crime, not to prove
guilt. Yet proving Mr.
Garza’s guilt for the four unadjudicated murders so as to warrant
imposition of the death penalty was, by the Government's own admission,
precisely the intended and actual effect of its effort in introducing
evidence in this regard during Mr. Garza’s sentencing hearing.
110.
Based upon the foregoing, the Commission considers that the
State’s conduct in introducing evidence of unadjudicated foreign
crimes during Mr. Garza’s capital sentencing hearing was antithetical
to the most basic and fundamental judicial guarantees applicable in
attributing responsibility and punishment to individuals for crimes.
Accordingly, the Commission finds that the State is responsible for
imposing the death penalty upon Mr. Garza in a manner contrary to his
right to a fair trial under Article XVIII of the American Declaration,
as well as his right to due process of law under Article XXVI of the
Declaration.
111.
The Commission also concludes that, by sentencing Mr. Garza to
death in this manner, and by scheduling his execution for December 12,
2000 and thereby exhibiting its clear intention to implement Mr. Garza's
sentence, the State had placed Mr. Garza's life in jeopardy in an
arbitrary and capricious manner, contrary to Article I of the
Declaration. In addition,
to execute Mr. Garza pursuant to this sentence would constitute a
further deliberate and egregious violation of Article I of the American
Declaration.
112.
In light of the Commission's conclusion that evidence pertaining
to the four unadjudicated murders should not have been introduced during
Mr. Garza's sentencing hearing, the Commission does not consider it
necessary to determine whether, in the alternative, introduction of this
evidence violated Mr. Garza's right to equality of arms and was for this
reason contrary to the Declaration.
V. PROCESSING OF REPORT Nº 109/00
PREPARED PURSUANT TO ARTICLE 53 OF THE REGULATIONS OF THE COMMISSION
113.
On December 4, 2000, the Commission adopted Report 109/00
pursuant to Article 53 of its Regulations, setting forth its analysis of
the record, findings and recommendations.
114.
Report 109/00 was transmitted to the State on December 5, 2000.
In light of Mr. Garza’s then-pending execution on December 12,
2000 and the State’s failure to clearly and adequately respond to and
comply with the Commission’s request for precautionary measures in the
matter, the Commission also decided to transmit Report 109/00 to the
Petitioner's representatives, and to provide the State a period of 5
days to comply with the Commission's first recommendation, namely to
commute Mr. Garza’s sentence, and a period of 90 days to comply with
the Commission's remaining recommendations.
115.
By communication dated March 6, 2001 and received by the
Commission on the same date, the State delivered a response to Report
109/00. In its response,
the State indicated as follows:
With
respect to admissibility, we reiterate the arguments set forth in our
response of November 16, 2000, summarized in Part III(B), paragraphs
44-59 of Report 109/00. Our
essential position is that the petition does not state facts that would
constitute a violation of the American Declaration and is therefore
manifestly groundless.
With
respect to the Commission's reference to precautionary measures in Part
IV(B), para. 66, we also reiterate our view that the Commission's
authority to request "precautionary measures," based on
Article 29 of the Commission's regulations, is non-binding in nature.
Finally,
with respect to the Commission's conclusions in Part IV(C)(4) that Mr.
Garza's rights to due process and a fair trial under Articles XVIII and
XXVI of the American Declaration were violated, we note that these
conclusions are in conflict with jurisprudence based on the Eighth
Amendment to the U.S. Constitution.
This
jurisprudence requires the provision of all relevant information to a
capital jury before it makes a sentencing determination. Indeed, the rationale on which the Commission recommends
invalidating Garza's death sentence was presented to the appropriate
federal courts in collateral review and rejected by them as not
affording a basis for relief.
116.
Having considered the State's response, the Commission makes the
following additional observations.
With respect to the State's submission respecting the
admissibility of the Petitioner's claims, the Commission notes that it
would be improper to re-examine its pronouncement on admissibility at
this stage in the proceedings; this would only be appropriate in
exceptional circumstances when substantial material errors or elements
of fact are present which, had they been taken into account, would have
substantially modified the decision on admissibility.
The Commission does not consider that the State has raised any
such circumstances in the present case.
117.
With respect to the State's submissions on the non-binding nature
of the Commission's precautionary measures, the Commission previously
expressed in this Report its profound concern regarding 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 persons, despite the fact that those
individuals have proceedings pending before the Commission.
It is for this reason that in capital cases the Commission
requests precautionary measures from states to stay a condemned
prisoner's execution until the Commission has had an opportunity to
investigate his or her claims. Moreover,
in the Commission's view, OAS member states, by creating the Commission
and mandating it through the OAS Charter and the Commission's Statute to
promote the observance and protection of human rights of the American
peoples, have implicitly undertaken to implement measures of this nature
where they are essential to preserving the Commission's mandate. Particularly in capital cases, the failure of a member state
to preserve a condemned prisoner's life pending review by the Commission
of his or her complaint emasculates the efficacy of the Commission's
process, deprives condemned persons of their right to petition in the
inter-American human rights system, and results in serious and
irreparable harm to those individuals,
and accordingly is inconsistent with the state's human rights
obligations.
118.
In the present case, the Commission has not only requested
precautionary measures from the State as an interim measure, but has
examined Mr. Garza's complaint pursuant to the Commission's Statute and
Regulations and has determined the State's international responsibility
for violations of Mr. Garza's rights under the American Declaration.
The Commission has also determined that these violations have
vitiated the propriety of Mr. Garza's death sentence and has therefore
recommended commutation as the appropriate remedy.
For the State to proceed with Mr. Garza's execution in these
circumstances would give rise to its responsibility for serious and
deliberate violations of its international obligations under the OAS
Charter and the American Declaration.
119.
As for compliance with the Commission's recommendations, the
State has not provided any information in this respect, but rather has
objected to the Commission's determination of the State's responsibility
for violations of Mr. Garza's rights under Articles XVIII and XXVI of
the American Declaration because the United States considers this
finding to be inconsistent with its domestic jurisprudence.
Having considered the State's observations, and in light of the
fundamental principle according to which states may not invoke the
provisions of their internal law as justification for their failure to
perform a treaty,
the Commission has decided to ratify its conclusions and reiterate its
recommendations, as set forth below.
VI.
CONCLUSIONS
120.
The Commission, based upon the foregoing considerations of fact
and law, and in light of the response of the State to Report 109/00,
hereby ratifies its conclusion that the State is responsible for
violations of Articles I, XVIII and XXVI of the American Declaration in
condemning Juan Raul Garza to the death penalty.
The Commission also hereby ratifies its conclusion that the
United States will perpetrate a grave and irreparable violation of the
fundamental right to life under Article I of the American Declaration,
should it proceed with Mr. Garza's execution based upon the criminal
proceedings under consideration.
VII.
RECOMMENDATIONS
121.
In accordance with the analysis and conclusions in the present
report,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE UNITED STATES:
1.
Provide Mr. Garza with an effective remedy, which includes
commutation of sentence.
2.
Review its laws, procedures and practices to ensure that persons
who are accused of capital crimes are tried and, if convicted, sentenced
in accordance with the rights established in the American Declaration,
including Articles I, XVIII and XXVI of the Declaration, and in
particular by prohibiting the introduction of evidence of unadjudicated
crimes during the sentencing phase of capital trials.
VIII.
PUBLICATION
122.
In light of the above, and in conformity with Articles 53(3) and
53(4) of the Commission's Regulations, the Commission decided to
transmit this Report to the State and to the Petitioner’s
representatives, to publish this Report, and to include it in its Annual
Report to the General Assembly of the OAS.
The Commission, according to the norms contained in the
instruments which govern its mandate, will continue evaluating the
measures adopted by the United States with respect to the above
recommendations until they have been complied with by the United States.
Done
and signed in Santiago, Chile, on the 4 day of the month of April, 2001.
(Signed): Claudio Grossman, Chairman; Juan Méndez, First
Vice-Chairman,. Marta Altolaguirre, Second Vice-Chair; Peter Laurie and
Julio Prado Vallejo, Commissioners.
The concurring opinion of Hélio Bicudo is included immediately
following this report.
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See e.g. I/A Court
H.R., Advisory Opinion OC-16/99 (1 October 1999) "The Right to
Information on Consular Assistance in the Framework of the Guarantees
of the Due Process of Law", para. 136 (finding that
"[b]ecause execution of the death penalty is irreversible, the
strictest and most rigorous enforcement of judicial guarantees is
required of the State so that those guarantees are not violated and a
human life not arbitrarily taken as a result"); Baboheram-Adhin et al. v. Suriname, Communication nos. 148-154/1983,
adopted 4 April 1985, para. 14.3 (finding that the law must strictly
control and limit the circumstances in which a person may be deprived
of his life by the authorities of the state.); Report by the U.N.
Special Rapporteur on Extra-judicial Executions, Mr. Bacre Waly
Ndiaye, submitted pursuant to Commission on Human Rights Resolution
1994/82, Question of the Violation of Human Rights and Fundamental
Freedoms in any part of the World, with particular reference to
Colonial and Other Dependent Countries and Territories, U.N.
Doc.E/CN.4/1995/61 (14 December 1994) (hereinafter “Ndiaye
Report”), para. 378 (emphasizing that in capital cases, it is the
application of the standards of fair trials to each and every case
that needs to be ensured and, in case of indications to the contrary,
verified, in accordance with the obligation under international law to
conduct exhaustive and impartial investigations into all allegations
of violation of the right to life.).
See I/A Court H.R.,
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, Advisory Opinion OC-10/89 of July 14, 1989,
Inter-Am.Ct.H.R. (Ser. A)
Nº 10 (1989), para. 37
(pointing out that in determining the legal status of the American
Declaration, it is appropriate to look to the inter-American system of
today in the light of the evolution it has undergone since the
adoption of the Declaration, rather than to examine the normative
value and significance which that instrument was believed to have had
in 1948). See also ICJ,
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 ad
31 stating that "an international instrument must be interpreted
and applied within the overall framework of the juridical system in
force at the time of the interpretation").
The Commission has similarly found in the context of the American
Convention on Human Rights that the due process guarantees under
Article 8 of the Convention apply to the sentencing phase of the
victim’s capital prosecution so as to guarantee him an opportunity
to make submissions and present evidence as to whether a death
sentence may not be a permissible or appropriate punishment in the
circumstances of his or her case. See
Baptiste, supra, paras.
91, 92; McKenzie et al., supra,
at paras. 204, 205. See
similarly Eur. Comm. H.R., Jespers v. Belgium, 27 D.R. 61 (1981)
(applying the principle of equality of arms to sentencing
proceedings).
See 18 U.S.C. Section 1111(b) (providing that “[w]ithin the special maritime and territorial jurisdiction
of the United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment
for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.”).
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