REPORT Nº 99/03*

CASE 11.331

MERITS

CESAR FIERRO

UNITED STATES

December 29, 2003

I.        SUMMARY

1.       This Report concerns a petition dated July 21, 1994 and lodged with the Inter-American Commission on Human Rights (hereinafter "the Commission") on July 22, 1994 by S. Adele Shank, Attorney at Law, and John B. Quigley, Professor of Law at Ohio State University (hereinafter "the Petitioners") against the United States of America (hereinafter the "United States" or "the State").  The petition was filed on behalf of Cesar Roberto Fierro, a Mexican national incarcerated on death row in the state of Texas who was at that time scheduled to be executed on August 10, 1994 but whose execution has since been postponed owing to additional domestic proceedings pursued on his behalf. The petition alleges violations of Articles II, XVIII and XXVI of the American Declaration of the Rights and Duties of Man (hereinafter "the Declaration") based upon the alleged failure of the United States to inform Mr. Fierro of his right to consular notification under Article 36 of the Vienna Convention on Consular Relations.  The State has opposed the petition on the basis that the alleged victim failed to exhaust domestic remedies and that he has failed to establish that he was not afforded his right to due process during the course of his criminal proceedings.

2.       Owing to the exceptional circumstances of the case, including information indicating that no stay of Mr. Fierro’s execution is in place and his execution could be scheduled at any time, the Commission decided to consider the admissibility of Mr. Fierro’s complaints together with the merits in accordance with Article 37(3) of the Commission’s Rules of Procedure in the present abbreviated report. Upon considering the petition, the Commission declared as admissible the claims presented on behalf of Mr. Fierro in respect of Articles II, XVIII and XXVI of the American Declaration.  The Commission also concluded that the State is responsible for violations of Articles XVIII and XXVI of the American Declaration in the trial, conviction and sentencing to death of Cesar Fierro, and recommended that the State provide Mr. Fierro with an effective remedy, which includes a re-trial or his release.

II.       PROCESSING BEFORE THE COMMISSION

3.       By note dated July 25, 1994, the Commission transmitted the pertinent parts of the Petitioners’ petition to the State with a request for information within 90 days as provided for in Article 34(5) of the Commission’s former Regulations.  In the same communication, the Commission requested that the United States stay Mr. Fierro’s execution, at that time scheduled to take place on August 10, 1994, in order that the Commission could examine the allegations in his complaint.

4.       In a letter dated August 5, 1994, the Petitioners informed the Commission that the Texas Court of Criminal Appeals had granted Mr. Fierro an indefinite stay of execution pending an inquiry into the conduct of the El Paso and Mexican police in the circumstances of Mr. Fierro’s arrest and interrogation.  This information was also confirmed in a letter dated August 2, 1994 and received by the Commission from the Governor of Texas.

5.       By note dated October 21, 1994, the State responded to the Commission’s July 25, 1994 request for information in which it alleged, inter alia, that Mr. Fierro’s complaint should be dismissed for failure to exhaust domestic remedies, owing to the proceedings then pending before the courts in Texas.  The Commission transmitted the State’s observations to the Petitioners by communication dated November 15, 1994 with a response requested within 30 days.

6.       The Petitioners replied to the State’s October 21, 1994 response by letter dated December 28, 1994, which the Commission transmitted to the State with a request for a response within 60 days.  The Commission reiterated its request for a response from the State in two subsequent notes dated May 9, 1995 and February 26, 1996.

7.       In a communication dated September 19, 1996, the State provided the Commission with a response to the Petitioners’ October 21, 1994 observations, which included a letter from Mr. William C. Zapalac, Assistant Attorney General of the State of Texas, addressing the procedural status of Mr. Fierro’s case before the courts in Texas. The Commission transmitted the State’s response to the Petitioners by note dated April 2, 1997.

8.       In a letter dated July 1, 2002 and received by the Commission on July 8, 2002, the Petitioners delivered a document entitled “Request for a Decision on the Merits” which, inter alia, provided current information concerning the status of Mr. Fierro’s document proceedings and indicating that his execution could be scheduled by the end of 2002.  The Commission transmitted the Petitioners’ communication to the State by note dated July 15, 2002 with a request for a response within 30 days.

9.       The State delivered its response to the Petitioners’ July 1, 2002 communication in a note dated August 16, 2002, which the Commission transmitted to the Petitioners with a request for a response within 20 days.  By communication dated September 10, 2002 the Petitioners responded to the Commission’s request for information.  The Commission transmitted the Petitioners’ response to the State by note dated September 17, 2002 with observations requested within 30 days, to which the State responded in a communication dated November 15, 2002.  The Commission transmitted the State’s response to the Petitioners by letter November 20, 2002 and, by notes dated November 27, 2002, informed the Petitioners and the State that the Commission had decided to open a case but defer its treatment of admissibility until the debate and decision on the merits of the matter pursuant to Article 37(3) of its Rules of Procedure and requested any additional information on the merits of the case from the Petitioners within a period of two months.

10.     By communication dated December 19, 2002, the Petitioners delivered additional information to the Commission, which the Commission transmitted to the State in a note dated January 6, 2003. In a letter dated February 1, 2003, the State requested an extension of time until March 8, 2003 within which to deliver its response.  By note dated February 24, 2003 the Commission granted the State an extension of time to March 5, 2003 within which to deliver its response.  The Commission did not receive any further observations from the State on or before the March 5, 2003 deadline.

III.    POSITIONS OF THE PARTIES

A.      Position of the Petitioners

11.     According to the information provided by the Petitioners, Cesar Fierro, a national of Mexico, was in the custody of police authorities in El Paso, Texas in relation to probation violations when he was interrogated concerning the February 27, 1979 murder of a taxi driver, Nicolas Castanon, in that city.  He was tried for Mr. Castanon’s murder, convicted on February 14, 1980 and subsequently sentenced to death.

12.     With regard to the admissibility of the petition, the Petitioners argue that Mr. Fierro has exhausted available domestic remedies, as he has pursued direct appeals from his appeal and conviction as well as applications for post conviction relief that have been available to him.  Specifically with regard to the issue raised before the Commission, namely the alleged failure of the United States to inform Mr. Fierro upon his arrest and detention of his right to consular notification under Article 36 of the Vienna Convention on Consular Relations, the Petitioners allege that Mr. Fierro raised this issue, together with five others, in his July 27, 1994 application for a writ of habeas corpus before the 171^st District Court of El Paso, Texas.  The Petitioners also state that the District Court ruled against Mr. Fierro on all six allegations on August 4, 1994,[1] and that the Texas Court of Criminal Appeals, the highest appellate court in Texas, decided on appeal on August 5, 1994 to entertain only two of the six issues, which did not include the allegation pertaining to the Vienna Convention on Consular Relations.[2]  Consistent with this, on October 12, 1994 the Texas Court of Criminal Appeals ordered the District Court to hold an evidentiary hearing on these two issues, noting in a footnote that the case had been filed and set on these two allegations only,[3] and the District Court convened the evidentiary hearing from January 10 to January 13, 1995. Finally, the record indicates that while Mr. Fierro lodged two applications in the U.S. Court of Appeals for the Fifth Circuit, those applications were rejected on procedural grounds without permitting Mr. Fierro to raise any substantive issues concerning his case.[4]

13.     In light of these circumstances, the Petitioners allege that due to the decision of the Texas Court of Criminal Appeals to limit the proceedings before it and the District Court to issues not including that pertaining to the Vienna Convention on Consular Relations, Mr. Fierro was precluded from presenting evidence of a consular access violation before the State courts.  The Petitioners also allege that they twice sought review by the U.S. Court of Appeals for the Fifth Circuit and on both occasions were precluded by that court from raising any issues on Mr. Fierro’s behalf. Accordingly, the Petitioners contend that Mr. Fierro should be considered to have exhausted the domestic remedies that were available to him in respect of the issue raised before the Commission.

14.     The Petitioners also assert that no complaint has previously been filed with the Commission concerning Mr. Fierro, nor has a similar complaint been filed with any other international organization.

15.     With regard to the merits of their petition, the Petitioners contend that police authorities were aware of Mr. Fierro’s nationality at the time of his detention and interrogation in August 1979 but failed to inform him of his right to consular notification pursuant to Article 36 of the Vienna Convention on Consular Relations.  

16.     Further, the Petitioners allege that during the course of his interrogation by officers who included one Detective Al Medrano, Mr. Fierro confessed to the murder. Mr. Fierro was subsequently tried for Mr. Castanon’s murder and was convicted of the murder on February 14, 1980 and sentenced to death.  According to the Petitioners, Mr. Fierro’s conviction was based in part upon his signed confession, as well as upon the evidence of a sixteen-year-old boy, Geraldo Olague, who claimed to be in the taxi cab and to have seen Mr. Fierro shoot the driver.[5]

17.     The Petitioners allege that Mr. Fierro’s confession was coerced, because during his interrogation in El Paso, police officials in Juarez, Mexico, where his family resided, had detained Mr. Fierro’s mother and step-father and, in a telephone call to Mr. Fierro arranged by the police in El Paso and Juarez, threatened to physically abuse Mr. Fierro’s family members if he did not confess to the crime.  According to the Petitioners, the Juarez police had a notorious reputation for brutality and torture in the interrogation of suspects and Mr. Fierro was well-aware of this reputation, in part because he had been arrested previously by the Juarez police and was physically abused during his interrogation. Consequently, the Petitioners claim that Mr. Fierro was in a state of panic about his mother and step-father at the time of his interrogation and confession.  The Petitioners also allege that Detective Medrano gave perjured evidence at trial concerning this aspect of Mr. Fierro’s interrogation and that the evidence of this coercion did not come to light until after his conviction.[6]

18.     Mr. Fierro subsequently challenged his conviction before the domestic courts based upon the confession.  According to the court decisions provided by the Petitioners, the District Court of Texas, following its evidentiary hearing from January 10 to January 13, 1995, concluded that there was a “strong likelihood that the Defendant’s confession was coerced by the actions of the Juarez police and by the knowledge and acquiescence [sic] of those actions by Det. Medrano,” and also concluded that Mr. Fierro should be retried by another jury who would then render a verdict based upon all of the evidence. After considering the District Court’s conclusions, a majority of the Texas Court of Criminal Appeals accepted that Mr. Fierro’s due process rights were violated by Medrano’s perjured testimony, but that “because we conclude that the error was harmless, we deny relief.” The majority of the Court concluded in particular that there was sufficient evidence apart from the confession to sustain Mr. Fierro’s conviction, namely the testimony of Mr. Olague, and therefore declined to order a retrial.

19.     Based upon these circumstances, the Petitioners contend that the failure of officials to inform Mr. Fierro of his right to consular assistance was a factor that led Mr. Fierro to confess and consequently that the failure of officials to notify Mr. Fierro of his right to consular assistance affected the fairness of the criminal proceedings against him.

20.     The Petitioners therefore contend that the State is responsible for violating Mr. Fierro’s right to a fair hearing under Article XVIII of the American Declaration, his right to equality before the law under Article II of the American Declaration, and his right to due process of law under Article XXVI of the American Declaration, as well as violations of Mr. Fierro’s rights under Article 36 of the Vienna Convention on Consular Relations and correspondent rights under customary international law and U.S. domestic law.

B.       Position of the State

21.     With regard to the admissibility of the Petitioners’ petition, the State has contended that the Commission should dismiss Mr. Fierro’s petition for failure to exhaust domestic remedies.  Specifically with regard to the Petitioners’ consular relations allegations, the State has contended through the observations of the Office of the Attorney General of the State of Texas, provided with its August 16 and November 15, 2002 observations, that Mr. Fierro abandoned his consular notification claim before the state and federal courts, because he did not seek to introduce evidence on the issue when he was afforded an opportunity to do so during the 1995 evidentiary hearing before the District Court of Texas, and because he did not include the claim in his brief before the Texas Court of Criminal Appeals following that hearing.  The State also argues that Mr. Fierro did not raise the consular notification claim in any pleading filed in the U.S. federal courts.

          22.     With respect to the merits of the petition, the State has not provided any observations concerning whether Mr. Fierro was entitled to or in fact received notification of his right to consular assistance under Article 36 of the Vienna Convention on Consular Relations.  Rather, the State has suggested, again through the observations of the pursuant Office of the Attorney General of the State of Texas, that Mr. Fierro’s challenge to his conviction based upon the use of his confession has no merit. In particular, the State contends that no state or federal court has ever determined that Mr. Fierro’s confession was coerced, but to the contrary that the Texas Court of Criminal Appeals explicitly rejected this notion.  According to the State, the courts in Texas acknowledged that an El Paso police officer falsely testified during Mr. Fierro’s trial concerning that officer’s knowledge of investigative efforts by law enforcement officials in Ciudad Juarez, but argue that evidence establishing this falsity was fully available to Mr. Fierro’s attorneys in 1979. The State suggests further that these circumstances left open the possibility that Mr. Fierro could challenge the constitutionality of his trial representation in this regard.  

IV.      ADMISSIBILITY

23.     The Commission has considered the admissibility of the present complaint pursuant to Articles 30 and 34 of its Rules of Procedure and makes the following determinations.

A.       Competence of the Commission ratione personae, ratione materiae, ratione temporis and ratione loci

24.     The Commission is competent to examine the petition in question. Under Article 23 of the Rules of Procedure of the Commission, the Petitioners are authorized to file complaints alleging violations of rights protected under the American Declaration.  The alleged victim, Cesar Fierro, is a person whose rights are protected under the American Declaration, the provisions of which the State is bound to respect in conformity with the OAS Charter, Article 20 of the Commission’s Statute and Article 49 of the Commission’s Rules of Procedure. The United States has been subject to the jurisdiction of the Commission since June 19, 1951, the date on which it deposited its instrument of ratification of the OAS Charter.

25.     Inasmuch as the Petitioners have filed complaints alleging violation of Articles II, XVIII and XXVI of the American Declaration, the Commission is competent ratione materiae to examine the complaint.

26.     The Commission is competent ratione temporis to examine the complaints because the petition alleges facts that occurred on and after August 1, 1979, the date on which Mr. Fierro is alleged to have been detained and interrogated.  The facts alleged, therefore, occurred subsequent to the date on which the United States’ obligations under the American Declaration took effect.

27.     Finally, the Commission is competent ratione loci, given that the petition indicates that the alleged victim was under the jurisdiction of the United States at the time the alleged events occurred, which reportedly took place within the territory of that State.

B.       Duplication

28.     The Petitioners have indicated that the subject matter of Mr. Fierro’s complaint has not been previously submitted to the Commission or before any other intergovernmental organization of which the United States is a member.  The State has not contested the issue of duplication of procedures.  The Commission therefore finds no bar to the admissibility of the Petitioners’ claims under Article 33 of the Commission's Rules of Procedure.

C.      Exhaustion of Domestic Remedies

29.     Article 31(1) of the Commission's Rules of Procedure specifies that, in order to decide on the admissibility of a matter, the Commission must verify whether the remedies of the domestic legal system have been pursued and exhausted in accordance with generally recognized principles of international law.  In accordance with Article 31(2) of the Commission’s Rules, however, the requirement under Article 31(1) does not apply when, inter alia, the party alleging violation of his or her rights has been denied access to the remedies under domestic law or has been prevented from exhausting them.

30.     The claim raised by the Petitioners before this Commission is the contention that the United States failed to inform Mr. Fierro upon his arrest of his right to consular notification as provided for under Article 36 of the Vienna Convention on Consular Relations, as well as correspondent customary international law and U.S. domestic law, and is thereby responsible for violations of Mr. Fierro’s rights under Articles II, XVIII and XXVI of the American Declaration.  As described above, the Petitioners argue that Mr. Fierro was precluded by the August 4 and October 12, 1994 decisions of the Texas Court of Criminal Appeals from pursuing this claim before the Texas State courts by limiting his proceedings to issues that did not include the consular notification allegation and that the U.S. Federal Courts precluded Mr. Fierro from raising any claims based upon limitations in the Anti-Terrorism and Effective Death Penalty Act of 1996.  The judicial decisions on the record before the Commission support the Petitioners’ contentions in this regard. On this basis, the Petitioners argue that Mr. Fierro should be considered to have exhausted the domestic remedies available to him concerning his consular notification issue, or alternatively that he has been precluded from pursuing that claim before the domestic courts. 

31.     For its part, the State has contended that Mr. Fierro abandoned his consular notification claim before the domestic courts, because he did not seek to introduce evidence on the issue during the evidentiary hearing before the District Court, nor did he include the claim in his brief to the Texas Court of Criminal Appeals following the appeal.

32.     Upon considering the positions of the parties, it is evident to the Commission from the documentation available that Mr. Fierro attempted to raise the consular relations issue in the fora that were available to him but was foreclosed by the courts from litigating the substance of the matter.[7]  It is not clear how Mr. Fierro should reasonably have been expected to pursue this argument in the face of the courts’ rulings that they would not consider his consular relations allegations, and the State, which bears the burden of demonstrating that any remedies allegedly available to Mr. Fierro are effective,[8] has not provided any clarification or explanation in this regard.  It has only asserted that Mr. Fierro abandoned his consular relations claim before the state and federal courts, a claim that is not supported by the record.

33.     Accordingly, based upon the information before it, the Commission considers that Mr. Fierro has pursued and exhausted the domestic remedies that were available to him in relation to his consular notification claim, and therefore that his complaint satisfies the admissibility requirements of Article 31 of the Commission’s Rules of Procedure.

D.      Timeliness of the Petition

34.     Pursuant to Article 32(1) of the Commission's Rules of Procedure, the Commission shall consider petitions that are lodged within a period of six months following the date on which the alleged victim has been notified of the decision that exhausted the domestic remedies.  In the present case, the Petitioners' petition was not lodged beyond six months from the date on which Mr. Fierro was notified of any of the final rulings on the issues raised before the Commission in his case, in those instances in which domestic remedies were available. The State has not specifically contested the timeliness of the Petitioners' petition. Consequently, the Commission concludes that the Petitioners' petition is not barred from consideration under Article 32 of the Commission's Rules of Procedure.

E.       Colorable Claim

35.     The Commission has outlined in Part III of this Report the substantive allegations of the Petitioners, as well as the State's responses to those allegations. After carefully reviewing the information and arguments provided by the parties in light of the heightened scrutiny test applied by the Commission in capital punishment cases,[9] and without prejudging the merits of the matter, the Commission considers that the petition states facts that tend to establish a violation of rights under the American Declaration and is not manifestly groundless or out of order.  Accordingly, the Commission concludes that the Petitioners' petition should not be declared inadmissible under Article 34 of the Commission's Rules of Procedure.

F.       Conclusions on Admissibility

36.     In accordance with the foregoing analysis of the requirements of Articles 30 to 34 of the Commission’s Rules of Procedure, and without prejudging the merits of the matter, the Commission decides to declare as admissible the claims presented on behalf of Mr. Fierro in respect of Articles II, XVIII and XXVI of the American Declaration and continue with the analysis of the merits of the case.

          V.      MERITS

          37.     In its recent decision in the case of Ramón Martinez Villareal v. United States,[10] the Commission determined that it is appropriate to consider compliance by a state party to the Vienna Convention on Consular Relations with the requirements of Article 36 of that treaty in interpreting and applying the provisions of the American Declaration to a foreign national who has been arrested, committed to prison or to custody pending trial, or is detained in any other manner by that state.  In particular, the Commission may consider the extent to which a state party has given effect to the requirements of Article 36 of the Vienna Convention on Consular Relations for the purpose of evaluating that state’s compliance with a foreign national’s due process rights under Articles XVIII and XXVI of the American Declaration.[11]  The Commission adopts for the purposes of this report its findings in the Villareal Case and will analyze Mr. Fierro’s circumstances in light of those findings.

38.     In the present case, the Petitioners have alleged, and the State has not contested, that Mr. Fierro was at all relevant times a Mexican national and that he was in the custody of the El Paso, Texas Police on August 1, 1979 when he was interrogated in connection with the murder of Nicolas Castanon. Mr. Fierro has also stated that he was never informed of his right to consular notification under Article 36 of the Vienna Convention on Consular Relations during the period of his detention or interrogation. Mr. Fierro was subsequently prosecuted, convicted and sentenced to death for Mr. Castanon’s murder based to a significant extent upon a confession elicited from him by the police during his interrogation.

39.     It is also not apparent, from the State’s observations or otherwise, that Mr. Fierro’s proceedings were fair notwithstanding the State’s failure to comply with the consular notification requirements. To the contrary, it is evident to the Commission, based upon the information available, that the State’s failure in this regard had a potentially serious impact upon the fairness of Mr. Fierro’s trial.  In particular, Mr. Fierro’s confession was taken at a time when consular notification and assistance may have been highly significant in the circumstances.  The consulate could, for example, have verified the status of Mr. Fierro’s mother and step-father, who were being held in Mexico by the Mexican police, and thereby mitigated any detrimental impact that their detention may have had on Mr. Fierro’s interrogation and the veracity of the resulting confession.  The conclusion that Mr. Fierro’s lack of consular assistance may have adversely affected the fairness of his criminal proceedings is reinforced by the finding of the Texas District Court following its January 1995 evidentiary hearing that there was a “strong likelihood” that Mr. Fierro’s confession was coerced and its corresponding recommendation that he be re-tried by another jury, as well as the statements of the prosecuting attorney suggesting that he would not have relied on the confession had he been fully aware of the manner in which it was elicited.

40.     Based upon the foregoing, the Commission concludes that Mr. Fierro’s right to information under Article 36(1)(b) of the Vienna Convention on Consular Relations constituted a fundamental component of the due process standards to which he was entitled under Articles XVIII and XXVI of the American Declaration, and that the State’s failure to respect and ensure this obligation constituted serious violations of Mr. Fierro’s rights to due process and to a fair trial under these provisions of the Declaration.[12]  

41.     Accordingly, should the State execute Mr. Fierro based upon the criminal proceedings for which he is presently convicted and sentenced, the Commission finds that this will constitute an arbitrary deprivation of Mr. Fierro’s life contrary to Article I of the Declaration. 

42.     In a case such as the present, where a defendant’s conviction has occurred as a result of proceedings that fail to satisfy the minimal requirements of fairness and due process, the Commission considers that the appropriate remedy includes a re-trial in accordance with the due process and fair trial protections prescribed under Articles XVIII and XXVI of the American Declaration or, where a re-trial in compliance with these protections is not possible, Mr. Fierro’s release.[13]