ASHINGTON, Oct. 26 — Reflecting an increasing
intervention by foreign governments in American death penalty
cases, Mexico has sent a formal protest to the State Department
in an effort to prevent the execution of a Mexican citizen
scheduled to be put to death in two weeks.
The Mexican government has said that the condemned man,
Miguel Angel Flores, was deprived of due process because he was
not advised of his right to contact the Mexican embassy, in
violation of an international treaty.
Mexican officials did not become aware of the charges against
Mr. Flores — in the 1989 rape and murder of a 20-year-old video
store employee in Hutchinson County, in the Texas panhandle —
until nearly one year after he had been sentenced to death, the
government said in the letter. It was delivered to the State
Department on Oct. 19.
The Mexican government said it would have helped him hire a
lawyer and would have ensured that members of his family, who do
not speak English, had been available to testify on his behalf.
Mr. Flores, 20 at the time of the crime, had no criminal record
or history of violence, but his court-appointed lawyer, who did
not speak Spanish, put on no character witnesses or mitigating
evidence.
Mexico wants Mr. Flores's sentence commuted to life in prison
and has asked the State Department to intercede with officials
in Texas, where Mr. Flores is on death row. He has filed a
last-minute appeal with the Supreme Court.
The State Department said it took seriously the failure of
states to advise defendants of their notification rights and has
asked Texas for an explanation. Texas officials said that
whether Mr. Flores, who came to the United States when he was a
child, had been properly advised of his consular rights was a
matter to be resolved by the courts.
Whatever the outcome, the Flores case illustrates the
tensions between the United States and foreign governments,
including many allies, created by the small but growing number
of foreign citizens on death row. Of particular concern are the
cases, like Mr. Flores's, in which foreign inmates have not been
advised of their rights to contact the governments through their
embassies in the United States. That right is guaranteed under
the Vienna Convention and the United States aggressively demands
that it be accorded American citizens detained abroad.
Although experts in death penalty law say they have no
concrete figures, they say they believe the numbers of such
cases may be growing in proportion to the number of foreign
citizens on death row. At least 87 foreign citizens — from 28
countries — are on death row, in 16 states. Forty-six are
Mexican citizens, the Mexican government said.
In the last two and a half years, six states have executed a
foreign citizen, according to the Death Penalty Information
Center, a nongovernmental organization in Washington. None of
the six were advised of their consular rights.
In a landmark case that is to be argued next month, Germany
is suing the United States in the World Court, seeking
reparations for the execution in Arizona last year of two
brothers, Karl and Walter LaGrand. They were not advised of
their consular rights, Arizona officials acknowledged many years
after their incarceration. It is only the fourth time in nearly
half a century that an ally has sued the United States in the
international court, and if the court rules for Germany, other
countries are likely to sue, diplomats and lawyers said.
The issue is particularly contentious with the Mexican
government.
"It is a strain on bilateral relations," Jorge G. Castañeda,
foreign policy adviser to Mexico's president- elect, Vicente Fox
Quesada, said about the number of Mexicans on death row in the
United States. Mr. Fox plans to raise the issue when he meets
with the United States president-elect, which is expected to be
in late November, Mr. Castañeda said. Mexico, which has the
death penalty but has not executed anyone since the 1940's,
considers it "inhuman punishment," Mr. Castañeda said, noting
that this was the view of nearly all European countries.
Of Washington's policy of apologizing, Mr. Castañeda said:
"It's nice, it's polite. But it's not enough."
Even in cases when a Mexican has been advised of the right to
consular notification, Mexico will push for a commutation of the
convict's sentence to life in prison, said Jesús F.
Reyes-Heroles, Mexico's ambassador in Washington.
"It's a moral issue," he said. While Mexico may be the most
active, because of the numbers, he said that the problem of
foreign nationals being sentenced to death "transcends
Mexico."
In the first nine months of this year, the European Union,
which has called on the United States to abolish the death
penalty, has intervened in 11 death penalty cases, according to
the E.U. Web site, which has a section for the death penalty
(www.eurunion.org).
Two years ago, Paraguay appealed, unsuccessfully, to the
State Department and the governor of Virginia to block the
execution of Angel Francisco Breard, who was convicted of murder
and attempted rape. The State Department acknowledged that his
rights under the Vienna Convention had been violated. "We fully
appreciate that the United States must see to it that foreign
nationals in the United States receive the same treatment that
we expect for our citizens overseas," the department said. "We
cannot have a double standard."
Philip T. Reeker, a State Department spokesman, said this
week: "Our own consular officers regularly raise this issue with
foreign governments when U.S. citizens are arrested abroad, that
they have the opportunity to speak with their consular
representatives. So it is entirely appropriate to raise this
case with us." He added that the department does not believe
that the resolution lies in the criminal justice process.
In the Breard case, the agency apologized to Paraguay for the
violation of his rights. This is the standard response when a
foreign citizen's Vienna Convention rights have been violated,
the State Department's legal office wrote last year in a case
involving seven Chinese defendants who were not advised of their
consular rights when they were arrested off the coast of Bermuda
and charged with smuggling.
Paraguay and Mr. Breard appealed to the Supreme Court.
Without reaching a decision on the merits, the court said, in an
unsigned opinion, that Mr. Breard's lawyers "were likely far
better able to explain the United States legal system to him
than any consular official would have been."
But advocates for foreign citizens argue that an individual
from a defendant's culture, who has lived in the United States
as a diplomat, is better equipped to explain legal
proceedings.
To illustrate, Mark Warren, who works for Amnesty
International on issues of foreign citizens and the death
penalty, gave the example of a suspect who is told by the police
that he has a right to remain silent. That does not mean much to
a person who comes from a country where police routinely torture
a suspect who does not confess. But if he hears that from a
diplomat who is now in the United States, he might believe it.
Mr. Warren also gave the example of a Mexican suspect in
Colorado who told the police he did not need a lawyer but wanted
to see the judge; the police wondered why he would conceivably
want to see a judge. What the police did not know was that in
Mexico, as well as in most European countries, judges supervise
criminal investigations.
A judge in the case said the fact that the defendant wanted
to speak to a judge was "a clear indication that he did not
understand the legal proceedings."
Sandra Babcock, a Minneapolis lawyer who is representing the
Mexican government in several cases, said that the involvement
of Mexican officials is critical in getting witnesses to court
for a defendant, particularly family members. In death penalty
cases, prosecutors generally seek to depict the defendant as
cold and inhuman. Family members can rebut that.
The families of Mexican defendants often live in villages in
Mexico, are poor, do not have travel documents and are
frightened by the prospect of coming to the United States, Ms.
Babcock said. Mexican officials can overcome those obstacles,
she said.
The Mexican government is so concerned about the problem that
it has given Ms. Babcock a $300,000 grant to set up a project to
provide legal assistance to Mexican citizens on death row.
When Mexican officials have become involved, they have
achieved notable success in helping Mexicans avoid the death
penalty.
Rodolfo Quilantan, the legal attaché at the Mexican embassy,
said that in the last two years, he had persuaded prosecutors in
Ohio, Oregon, Texas and Virginia to not seek the death penalty
in murder cases. Altogether, Mexican consular officials have
intervened in 261 death penalty cases since December 1994, and
in 119 of those cases prosecutors did not proceed with a capital
prosecution, according to the Mexican foreign ministry.
The intervention by Mexico's consular officer in Miami was
critical in saving Sergio Soto from the death penalty, said his
lawyer, Clayton Kaeiser. The prosecution had a strong case
against Mr. Soto on charges of kidnapping, robbery and murder,
Mr. Kaeiser said, and it was tried in Palm Beach, Fla., "a very
conservative jurisdiction where feelings against foreigners are
high in such cases."
The Mexican government paid for medical experts who
discovered that Mr. Soto suffered from brain damage, and for
investigators to go to Mexico, where they located witnesses who
testified about Mr. Soto's upbringing, Mr. Kaeiser said. This
evidence was critical in the jury sentencing Mr. Soto to life,
instead of imposing the death sentence, he
said.
