Gary T. Graham v. United States, Case 11.193, Report No. 51/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 387 (2000).
REPORT
Nº 51/00
CASE
11.193
GARY T. GRAHAM, now known as SHAKA SANKOFA
UNITED STATES (*)
June 15, 2000
I.
SUMMARY
1.
On April 26, 1993, the Inter-American Commission on Human Rights
(the Commission) received a petition from the International
Human Rights Law Clinic at the Washington College of Law, American University
(the Petitioners) against the Government of the United States
(the State or United States). The petition was presented
on behalf of Mr. Gary Graham, now known as Shaka Sankofa ("Mr. Sankofa"
or "Sankofa"), who is incarcerated on death row in the state of
Texas. The petition stated
that in October 1981, Mr. Sankofa was convicted of a May 1981 homicide in
the state of Texas and sentenced to death, and that he was scheduled to
be executed on April 29, 1993. Mr. Sankofa's execution was subsequently
stayed on several occasions as a consequence of various domestic legal proceedings.
As of the date of this Report, Mr. Sankofa was again scheduled to
be executed on June 22, 2000, following the denial by the U.S. Supreme Court
on May 1, 2000 of his most recent petition for a writ of certiorari.
2.
In their initial petition and subsequent observations, the Petitioners
claim that Mr. Sankofa has brought three applications for writs of habeas
corpus in the Texas state courts and four applications for writs of habeas
corpus in U.S. federal courts, alleging, inter
alia, ineffective assistance of counsel at trial and evidence of his
innocence, and that none of these applications has been successful.
The Petitioners also claim that Mr. Sankofa has been precluded under
domestic law from filing additional habeas corpus applications in state
or federal courts. Accordingly
the Petitioners contend that Mr. Sankofa has exhausted domestic remedies,
and alternatively that he falls under the exceptions to the exhaustion of
domestic remedies rule prescribed in Article 37(2) of the Commission's Regulations.
The State has argued conversely that domestic remedies remain under
state and federal law for Mr. Sankofa to exhaust, and therefore that the
Commission should declare the Petitioners' petition to be inadmissible.
3.
With respect to the substance of their petition, the Petitioners
allege that the State is responsible for violations of Mr. Sankofa's right
to life and his right to equality before the law under Articles I and II
of the American Declaration of the Rights and Duties of Man (the "American
Declaration"), because he was 17 years of age at the time of the offense
for which he was convicted and sentenced to death.
The Petitioners also claim that the State has violated Mr. Sankofa's
right to a fair trial and to due process of law under Articles XVIII and
XXVI of the American Declaration, because Mr. Sankofa has been denied a
forum for any legal body to review identification and other evidence that
suggests that he is innocent of the crime for which he has been condemned.
The Petitioners allege further violations of Articles XVIII and XXVI
of the Declaration on the basis that Mr. Sankofa was denied effective assistance
of counsel at trial. Finally,
the Petitioners allege violations of Mr. Sankofa's right not to be subject
to torture or cruel, infamous or unusual punishment under Article XXVI of
the American Declaration because of the delay in his execution.
The State denies these allegations, on the basis, inter
alia, that domestic courts have reviewed Mr. Sankofa's evidence of ineffective
assistance of counsel and innocence, that this evidence does not substantiate
Mr. Sankofa's allegations that he was denied a fair trial or that he is
innocent, and that U.S. constitutional law allows for the execution of offenders
who were 16 years of age or older at the time of their crimes.
4.
As set forth in this Report, having examined the information and
arguments provided by the parties on the question of admissibility, and
without prejudging the merits of the matter, the Commission decided to admit
the present petition, and continue with the analysis of the merits of the
case. The Commission also decided to reiterate its request under Article
29(2) of its Regulations that the State take all necessary measures to ensure
that Mr. Sankofa's execution is stayed pending the Commission's investigation
of the matter.
II. PROCEEDINGS BEFORE
THE COMMISSION
5.
Following the lodging of the Petitioners' initial petition dated
April 26, 1993, the Commission by note dated April 27, 1993 requested that
the Governor of the State of Texas stay Mr. Sankofa's execution pending
a full investigation into the factual allegations raised by him.
By note of the same date, the Commission provided the State with
a copy of its communication to the Governor of Texas.
6.
By communication dated May 5, 1993, the Petitioners provided the
Commission with a copy of a Proclamation dated April 28, 1993 from the Governor
of Texas by which she exercised her power under the Constitution of Texas
to grant one 30-day reprieve of Mr. Sankofa's execution.
The Petitioners also informed the Commission that a new execution
date had been set for June 3, 1993, and indicated that further emergency
intervention by the Commission was not necessary at that time.
7.
By note dated June 1, 1993, the Commission again requested that the
Governor of Texas stay Mr. Sankofa's execution scheduled for June 3, 1993,
pending a full investigation into the factual allegations raised by him.
The Commission subsequently received information that on or about
June 3, 1993, the Texas Court of Criminal Appeals granted Mr. Sankofa a
stay of execution pending a decision by the United Stated Supreme Court
in another death penalty case, Dorsie
Johnson v. State of Texas, relating to the constitutionality of the
treatment of youth as a mitigating circumstance in the Texas capital sentencing
process.
8.
On or about August 5, 1993, additional observations were delivered
to the Commission on Mr. Sankofa's behalf by his Texas attorney. Included
with the observations were documents setting forth the procedural history
of Mr. Sankofa's criminal case. The observations indicated that Mr. Sankofa's execution was
scheduled for August 17, 1993, and contended that his execution would violate
international law and standards, because he was innocent of the capital
offense for which he was sentenced to death.
The observations referred in this regard to exculpatory eyewitness
evidence, and indicated that Mr. Sankofa had been denied a forum by any
legal body to review this evidence.
The observations also indicated that Mr. Sankofa was 17 years of
age when he was accused of the capital offense.
9.
On August 11, 1993, the Commission decided to open Case No. 11.193,
and transmitted the pertinent parts of the Petitioners' petition to the
State, together with copies of all prior documentation forwarded to the
State and the Governor of Texas with respect to the matter, and requested
information from the State on the petition within 90 days as established
by the Commission's Regulations. Also by note of the same date, the Commission requested that
the Governor of Texas stay Mr. Sankofa's execution pending a full inquiry
into the factual allegations raised by him.
10.
By note dated August 12, 1993, the Governor of Texas informed the
Commission that, having expended the single temporary reprieve that she
was authorized to grant under the Texas Constitution, she was without power
to grant further clemency unless the 18-member Texas Board of Pardons and
Paroles made a clemency recommendation.
The Governor also indicated that the issue of what type of clemency
review by the Board would be held was the subject of a civil suit in the
domestic courts, and therefore it was not clear whether Mr. Sankofa's execution
would be further delayed.
11.
By note dated August 16, 1993, the State responded to the Commission's
August 11, 1993 note by indicating that a copy of the Commission's correspondence
and pertinent documents had been forwarded to the Governor of Texas by facsimile
transmission on August 13, 1993, and that the State would inform the Commission
as soon as it received a response from Texas regarding the information requested
in the Commission's letter.
12.
In a communication dated September 14, 1993, the Petitioners requested
a hearing in Mr. Sankofa's case during the Commission's next session.
By notes dated September 16, 1993, the Commission informed the Petitioners
and the State that a hearing had been set in the matter for October 4, 1993
during the Commission's 84th Period of Sessions.
13.
By note received by the Commission on October 4, 1993, the State
responded to the Commission's September 16, 1993 communication.
In its note, the State provided the Commission with a communication
dated September 21, 1993 from the Office of the Attorney General of the
State of Texas, which contained observations on the admissibility and substance
of the Petitioners' petition. The
State also indicated that, given that a request by Mr. Sankofa for clemency
or a reprieve was pending before the Texas Board of Pardons and Paroles
and was the subject of a civil law suit in the state courts in Texas, the
Petitioners had not exhausted domestic remedies, and therefore that the
petition was inadmissible. Further,
the State indicated that a representative would attend the Commission's
October 4, 1993 hearing for the purposes of observing but understood that,
as the time had not expired for the State to respond to the petition, the
Commission would not reach any conclusions on the case until the State responded
or the time for doing so expired.
14.
The hearing before the Commission proceeded on October 4, 1993, with
representatives of the Petitioners and the State in attendance.
At the hearing, the Petitioners provided the Commission and the State
with additional written observations dated October 4, 1993, and the Petitioners
were provided with a copy of the State's October 4, 1993 communication and
the observations from the Office of the Attorney General of the State of
Texas attached thereto. Also
during the hearing, the Petitioners asked the Commission to adopt precautionary
measures pursuant to Article 29(2) of its Regulations, requesting, inter
alia, that the State ensure that Mr. Sankofa was afforded a fair hearing
before the Texas Board of Pardons and Paroles, and that the State urge the
Board to recommend that he be pardoned of the capital offence of which he
was convicted.
15.
Also during its 84th Period of Sessions, the Commission
decided to request precautionary measures from the State in Mr. Sankofa's
case, pursuant to Article 29(2) of the Commission's Regulations and the
Petitioners' request during the October 4, 1993 hearing. In its request
for precautionary measures, the Commission noted that Mr. Sankofa was 17
years of age at the time of the commission of the offense for which he was
sentenced to death, that Mr. Sankofa's case dealt with the most important
right, the right to life, and that a mistake on the part of authorities
could result in irreparable harm.
On this basis, and without prejudice to the final decision in the
case, the Commission called upon the State to take the necessary measures
to ensure that Mr. Sankofa was afforded a hearing before the Texas Board
of Pardons and Paroles. The
Commission also requested that the Governor of Texas and the State ensure
that the death sentence not be carried out on Mr. Sankofa, for humanitarian
reasons and to avoid irreparable harm.
The Commission transmitted the precautionary measures to the State
and to the Petitioners by communications dated, respectively, October 27,
1993 and October 29, 1993.
16.
On October 11, 1993, the Petitioners delivered to the Commission
observations respecting the September 21, 1993 communication of the Attorney
General for the State of Texas. By
note dated October 28, 1993, the Commission transmitted the pertinent parts
of the Petitioners' observations to the State, with a response requested
within 30 days.
17.
By note dated January 11, 1994, the Commission reiterated its request
that the State provide information concerning Mr. Sankofa's case, and called
for a response within 30 days.
18.
The State responded by note dated February 10, 1994, in which it
indicated that knowledgeable authorities in Texas had informed the State
that Mr. Sankofa's matter was still before the U.S. courts, as oral arguments
in Mr. Sankofa's civil suit had been heard on December 1, 1993 with no decision
yet issued. The State also
indicated that Mr. Sankofa had filed a new request for habeas corpus relief
in federal district court, which was denied on August 13, 1993, and that
he had appealed that decision to the U.S. Court of Appeals for the Fifth
Circuit. The State therefore
argued that Mr. Sankofa had not exhausted domestic remedies available with
respect to the subject matter of the petition, and that the petition was
therefore inadmissible. The
State also reserved the right to address the substance of the petition if
there was a need to do so. The
Commission transmitted the pertinent parts of the State's observations to
the Petitioners, with a response requested within 30 days.
19.
By communication dated March 24, 1994, the Petitioners requested
an extension of time of two weeks within which to respond to the State's
February 10, 1994 observations. The
Commission granted the Petitioners' request by note dated March 29, 1994.
In a communication dated April 11, 1994, the Petitioners delivered a response
to the State's observations, in which the Petitioners argued, inter
alia, that their petition was admissible because Mr. Sankofa had exhausted
domestic remedies, and alternatively that the Petitioners should be exempt
from the requirement of exhaustion of domestic remedies because the legislation
in Texas makes such an attempt futile.
The Commission transmitted the pertinent parts of the Petitioners'
response to the State by note dated April 20, 1994, with a response requested
within 30 days.
20.
The State delivered observations on the Petitioners' March 24, 1994
response by note dated May 25, 1994.
In its observations, the State argued that Mr. Sankofa's case was
still pending before the State's domestic courts.
The State also indicated that a recent decision of one of these courts,
Holmes et al. v. Third Court of Appeals,
1994 W.L. 135476 (Tex. Crim. App., April 20, 1994), opened an avenue previously
closed to Mr. Sankofa and allowed him to assert his claim of innocence.
By note dated June 7, 1994, the Commission transmitted the pertinent
parts of the State's observations to the Petitioners, with a response requested
within 30 days.
21.
By communication dated July 12, 1994, the Petitioners delivered a
response to the State's May 25, 1994 observations. In this communication,
the Petitioners reiterated their position that their petition was not inadmissible
for failure to exhaust domestic remedies, and that the case should be considered
to fall under the exceptions to exhaustion in Articles 37(2)(a) and 37(2)(b)
of the Commission's Regulations. Further,
without making any concessions as to the admissibility of their petition,
the Petitioners asked that the Commission take no further action in the
case until after the resolution of Mr. Sankofa's appeal to the Fifth Circuit
U.S. Court of Appeals and the hearing that he might ultimately be accorded
under the Holmes decision. By communication
dated July 19, 1994, the Commission transmitted the pertinent parts of the
Petitioners' observations to the State, with a response requested within
30 days.
22.
In a note dated September 19, 1994, the State responded to the Petitioners'
July 12, 1994 observations. In its response, the State argued that the Commission
was obliged to respect its Regulations, which required the dismissal of
petitions filed in cases where the remedies available under domestic law
have not been exhausted. The
State contended further that, as Mr. Sankofa appeared to "concede"
that he had not yet exhausted domestic remedies available under United States
federal and state law, the Commission should dismiss the petition forthwith.
23.
By communication dated November 30, 1995, the Commission requested
that the Petitioners provide it with information concerning the status of
Mr. Sankofa's case in the United States domestic courts.
In a communication dated March 27, 1996, the Petitioners indicated
that they were considering the Commission's request and would send a response
to the Commission at the completion of their research on the status of the
domestic proceedings.
24.
Subsequently, in a response dated March 8, 1999, the Petitioners
informed the Commission that Mr. Sankofa had taken the Muslim name Shaka
Sankofa, and that he had fully exhausted all available domestic relief available
to him as of February 25, 1999, when the Fifth Circuit U.S. Court of Appeals
barred him from further pursuit of habeas corpus relief by application of
the State's Anti-Terrorism and Effective Death Penalty Act ("AEDPA")
of 1996. Further, the Petitioners indicated that they anticipated that a
new warrant of execution would be issued within four to five weeks, with
an execution dated set between April 10 and May 10, 1999. The Petitioners
therefore requested the Commission to issue precautionary measures, or alternatively
to schedule an emergency hearing in the matter.
25.
By letter dated August 30, 1999, the Petitioners requested a hearing
in Mr. Sankofa's case, during the Commission's October 1999 Period of Sessions.
The Commission informed the Petitioners by note dated August 31,
1999 that due to the large amount of requests for hearings during the Commission's
104th Period of Sessions, it would not be able to accede to their
request.
26.
By letter dated November 24, 1999, the Petitioners again requested
a hearing in Mr. Sankofa's case, during the Commission's February 2000 Period
of Sessions. The Commission
informed the Petitioners by note dated February 4, 2000 that, due to the
large amount of requests for hearings during the Commission's 106th
Period of Sessions, it would not be able to accede to their request for
a hearing. The Commission also
informed the Petitioners that, by communication dated February 4, 2000,
it had reiterated to the State the Commission's October 1993 request for
precautionary measures Finally,
the Commission requested that the Petitioners provide it with any additional
information relevant to the case, following which the Commission would proceed
to consider the admissibility and, if necessary, the merits of the case.
27.
Correspondingly, by communication dated February 4, 2000, the Commission
reiterated to the State the Commission's October 1993 request for precautionary
measures. Further, the Commission requested that the State provide it with
any additional information relevant to the case, following which the Commission
would proceed to consider the admissibility and, if necessary, the merits
of the case.
28.
In a communication dated March 10, 2000, the Petitioners provided
the Commission with additional observations on the admissibility and merits
of their case. The Petitioners
also indicated that Mr. Sankofa could face execution as soon as May 2000.
By note dated March 13, 2000, the Commission transmitted the pertinent parts
of the Petitioners' observations to the State, with a response requested
within 30 days.
29.
On or about May 23, 2000, the Commission received information that
Mr. Sankofa's application for a writ of certiorari before the U.S. Supreme
Court had been dismissed on May 1, 2000, and that his execution had been
scheduled for June 22, 2000.
III.
POSITIONS OF THE PARTIES
A.
POSITION OF THE PETITIONERS
30.
In relation to the admissibility of their complaint, the Petitioners
claim that Mr. Sankofa has exhausted his domestic remedies in the United
States, as required under Article 37(1) of the Commission's Regulations.
Alternatively, they argue that Mr. Sankofa should be considered exempt
from the requirement to exhaust domestic remedies under the terms of Article
37(2) of the Commission's Regulations.
31.
More particularly, as of their most recent March 10, 2000 observations,
the Petitioners allege that Mr. Sankofa has exhausted all domestic relief
and is procedurally barred from any further relief under federal and state
law. In this regard, the procedural history of Mr. Sankofa's criminal proceedings
in the U.S. state and federal courts, as described by the Petitioners, can
be summarized as follows:
October
1981 - Mr. Sankofa was
convicted of capital murder and sentenced to death for the shooting death
of Bobby Grant Lambert in a Safeway parking lot in Houston at 9:30 p.m.
on May 13, 1981. Mr. Sankofa
was 17 years of age at the time of the offense.
The prosecution's case rested on the evidence of one of the eyewitnesses
to the crime, Ms. Bernadine Skillern, who identified Mr. Sankofa as the
perpetrator in a line up and at trial.
The prosecution also relied upon evidence that the caliber of the
lethal bullet matched that of a gun found in Mr. Sankofa's possession at
the time of his arrest.
July
1987 - Mr. Sankofa brought
the first of three applications for a writ of habeas corpus in the state
courts in Texas, alleging ineffective assistance of counsel at trial, that
Mr. Sankofa was not mentally competent to be executed, and that the capital
punishment scheme in Texas was constitutionally defective.
This application was denied by the Texas court following an evidentiary
hearing in February 1988.
February
1988 - Mr. Sankofa brought
the first of three applications for a writ of habeas corpus in the federal
courts, based upon essentially the same grounds argued in his first habeas
application in the state courts. The
federal district court adopted the state court's findings without an evidentiary
hearing and denied the writ The
U.S. Court of Appeals for the Fifth Circuit, the federal reviewing court,
affirmed the district court's determination. The United States Supreme Court, however, reversed this finding
and remanded the case for reconsideration of whether the Texas capital sentencing
scheme adequately considered youth as a mitigating factor in sentencing.
The Fifth Circuit ultimately determined that Texas had sufficiently considered
youth as a mitigating factor in Mr. Sankofa's case, and reinstated its prior
mandate affirming the district court's dismissal of his habeas petition.
April
1993 - Mr. Sankofa brought
his second state application for a writ of habeas corpus, again alleging
that he received ineffective assistance of counsel at trial and that the
punishment issues raised at trial did not allow for adequate consideration
of youth as a mitigating factor. Mr.
Sankofa also alleged that he was innocent, and relied in this regard upon
several new affidavits of eyewitnesses who disputed trial witness Bernadine
Skillern's identification of Mr. Sankofa as the shooter.
In addition, the Petitioners provided an affidavit from an investigator
retained by Mr. Sankofa's trial counsel which suggested that the trial attorney
did not conduct a thorough factual investigation or present the exculpatory
testimony of witnesses. In
April 1993, the Texas state court made supplementary findings of fact without
holding an evidentiary hearing and denied relief, and the Texas Court of
Criminal Appeals adopted the findings and denied habeas relief.
Mr. Sankofa filed an application for a writ of certiorari in respect
of this decision in the U.S. Supreme Court, which was denied by that Court
in May 1993.
April
1993 - also in April 1993, Mr. Sankofa filed his second federal habeas corpus
application. He voluntarily
withdrew this application, however, after the Governor of Texas granted
him a 30-day reprieve on April 29, 1993 in connection with his executive
clemency proceedings.
July
1993 - Mr. Sankofa brought
his third application for a writ of habeas corpus in the federal courts,
claiming ineffective assistance of counsel and actual innocence. In this
regard, Mr. Sankofa presented new evidence that was not presented to the
state courts, including: the affidavits of two eyewitnesses who were never
contacted by Mr. Sankofa's trial lawyers; an affidavit corroborating the
affidavit of one of the alibi witness that had previously been determined
to be "not credible" by the state habeas judge, and two reports
by psychologists who had reviewed the statements and affidavits of witnesses
and concluded that Ms. Skillern's identification of Mr. Sankofa was unreliable.
The Petitioners also provided a Houston Police Department Firearms
Report of May 1981 which indicated that he firearm confiscated from Mr.
Sankofa upon his arrest was not the firearm used to shoot Bobby Lambert.
The district court held that the new evidence did not meet the "actual
innocence" threshold established by the U.S. Supreme Court's in the
case Herrera v. Collins 113 S.
Ct. 853 (1993) and adopted the Texas court's finding that Mr. Sankofa did
not have ineffective assistance of trial counsel.
On appeal from that decision, the U.S. Court of Appeals for the Fifth
Circuit dismissed Mr. Sankofa's appeal without prejudice in August 1996,
on the basis that he had failed to exhaust state remedies respecting the
new evidence presented, pursuant to 18 U.S.C. §254 (b) and (c). On remand,
the federal district court dismissed Mr. Sankofa's claim for failure to
exhaust state remedies.
April,
May and August 1993
- Mr. Sankofa sought and was denied clemency by the Texas Board of Pardons
and Paroles on April 26, 1993 and May 25, 1993.
In August 1993 a state district court held that the Texas Board of
Pardons and Paroles was required to hold an adversarial hearing on Mr. Sankofa's
clemency application. Subsequently, in April 1994, the Texas Board of Pardons
and Paroles denied Mr. Sankofa a hearing on his case despite the state district
court's August 1993 order, and denied clemency. Mr. Sankofa appealed to
the Texas Court of Appeals, which enjoined his execution pending the appeal.
In April 1994, the Texas Court of Criminal Appeals held that the
Texas Court of Appeals did not have jurisdiction to issue a temporary injunction
and that appropriate relief for Mr. Sankofa was through state habeas relief.
Subsequently, in June 1994, the state court determined that
Mr. Sankofa was not entitled to a clemency hearing before the Board.
The Texas Court of Appeals affirmed the state district court's decision
on appeal in January 1996, holding that Mr. Sankofa's prior state habeas
review satisfied his right to a hearing and that he was not entitled to
a full clemency hearing.
April
1998 - Mr. Sankofa brought
a third application for a writ of habeas corpus in state courts, in which
he presented three new affidavits and the same evidence previously presented
to the courts, and raised the same issues that he had raised in his third
federal habeas application. He
also argued that the state of Texas had violated his Eighth and Fourteenth
Amendment rights by sentencing him to death for a crime committed when he
was 17 years old without a pre-trial determination that he was competent
to be tried as an adult, and that his youth had not been sufficiently considered
by the court as a mitigating factor in sentencing.
On appeal, in November 1998, the Texas Court of Criminal Appeals
dismissed his application as an abuse of process pursuant to a new 1995
Texas law.
December
1998 - Mr. Sankofa brought
a fourth application for a writ of habeas corpus in federal courts, in which
he raised the same issues that he raised in his third state habeas application.
The district court dismissed for lack of jurisdiction pursuant to
the AEPDA, under the terms of which Mr. Sankofa was required to obtain permission
from the Fifth Circuit to file a "successive" habeas application.
In January 1999, Mr. Sankofa filed a motion for a stay of execution,
a notice of appeal from the dismissal of his fourth habeas application and
a request for recall of his 1996 habeas case.
On January 8, 1999, the U.S. Court of Appeals for the Fifth Circuit
granted a stay of execution. However, in February 1999, the Fifth Circuit
denied Mr. Sankofa permission to file a successive federal habeas application
in the district court under the AEDPA, and held that the AEDPA applied to
Mr. Sankofa because, inter alia,
his re-filed post-exhaustion application before the Court was not a "continuation"
of his third federal habeas application because the third application had
been dismissed in 1996 without prejudice for lack of exhaustion.
The Court also refused to recall its 1996 mandate, on the basis that
the AEDPA applied to the motion to recall because the Court itself had not
done so sua sponte.
March
11, 1999 - Mr. Sankofa's
counsel filed a petition for a rehearing en
banc in the Fifth Circuit, which was subsequently denied
October
1999 - Mr. Sankofa submitted
a petition for a writ of certiorari to the U.S. Supreme Court in respect
of the Fifth Circuit's February 1999 decision, which was outstanding as
of the Petitioners' March 10, 2000 observations, and was subsequently dismissed
on May 1, 2000.
32.
In light of the procedural history of Mr. Sankofa's case, the Petitioners
argue that Mr. Sankofa has exhausted available domestic remedies, based
upon an application of the exhaustion rule that considers the human rights
context of the Petitioners' case.
In this regard, the Petitioners emphasize the reasoning behind the
principle of exhaustion, that "a State should be given the opportunity
to redress an alleged wrong within the framework of its own domestic legal
system before its international responsibility [could] be called into question
at the international level"[1],
and claim that this principle was designed within the context of the law
of state responsibility for injuries to aliens and the practice of diplomatic
protection, and not within the context of redressing human rights abuses.
33.
Essentially, the Petitioners argue that the rationale for strict
application of the domestic remedies rule in the context of international
law does not logically apply to the human rights context.
Further in this regard, the petitioners cite the exceptional nature
of a capital case that must be considered in applying the exhaustion of
domestic remedies rule. They claimed in Mr. Sankofa's case in particular
that it was statistically unlikely that the U.S. Supreme Court would grant
certiorari on his claim, and that if the Commission waited for the Supreme
Court to determine Mr. Sankofa's writ of certiorari and he was unsuccessful,
his execution date would be set quickly thereafter.
Consequently, according to the Petitioners, if the Commission waits
until the last moment to declare the petition admissible and then decide
the merits, Mr. Sankofa "is sure to lose the opportunity to benefit
from the Commission's decision."
34.
Alternatively, the Petitioners argue that Mr. Sankofa falls within
the three exceptions to the exhaustion of domestic remedies rule set out
in Article 37(2) of the Commission's Regulations.
They argue first that a new Texas habeas law enacted in 1995, as
well as the federal AEDPA of 1996, make an attempt to exhaust remedies "futile"
because they prevent Mr. Sankofa from filing successive habeas corpus petitions
in the federal and state courts. Consequently,
the Petitioners argue that Mr. Sankofa is not afforded due process to protect
the rights allegedly violated in his petition, as provided for under Article
37(2)(a) of the Commission's Regulations.
35.
Further, the Petitioners argue that there has been unwarranted delay
in determining the Petitioners' case, as provided for under Article 37(2)(c)
of the Commission's Regulations, so as to render international action in
support of Mr. Sankofa ineffective.
In particular, the Petitioners allege that the federal and state
courts have unduly delayed rendering a judgment in Mr. Sankofa's case by
retroactively imposing procedural bars through the 1995 Texas habeas law
and the 1996 federal AEDPA that deprive Mr. Sankofa of due process.
The Petitioners note in this regard that these laws were passed during
the two-year delay in the rendering of judgment by the Fifth Circuit on
Mr. Sankofa's third federal habeas application.
Essentially, the Petitioners argue that nineteen years after his
conviction, Mr. Sankofa is effectively barred from habeas corpus relief
and the right to present new evidence of his innocence before an unbiased
court of law in the State. Consequently,
the Petitioners argue that the Fifth Circuit U.S. Court of Appeals' February
25, 1999 decision on Mr. Sankofa's fourth habeas corpus application constitutes
complete exhaustion of domestic relief in his case.
36.
The Petitioners also argue that Mr. Sankofa is legally prohibited
from pursuing the remedy that he now seeks before the Commission as provided
for under Article 37(2)(b) of the Commission's Regulations, because procedurally
he is barred from raising the issue of his innocence under a Texas law that
requires that a motion for a new trial based upon newly-discovered evidence
of innocence to be filed within 30 days of conviction.
They also note that the Texas Constitution prevents the Governor
of that State from granting more than one stay of execution in the absence
of a recommendation by the Texas Board of Pardons and Paroles. The Petitioners
therefore suggest that domestic remedies are not effectively available.[2]
37.
Finally, the Petitioners contend that in filing his petition, Mr.
Sankofa deferred to State authority for as long as he reasonably could,
thereby giving "extreme deference" to the domestic courts, and
that the State is using the exhaustion rule as an "escape clause"
by forcing Mr. Sankofa to be on the brink of death before he might qualify
for redress before the Commission.
They also note that Mr. Sankofa's petition for a writ of certiorari
before the U.S. Supreme Court would not itself provide Mr. Sankofa with
a full and fair evidentiary hearing on the question of his innocence, and
therefore did not bar the presentation to the Commission of a petition which
seeks this very relief.
38.
With respect to the substance of their complaints against the State,
the Petitioners raise several claims.
First, they argue that the State has violated Mr. Sankofa's right
to prove his innocence implicit in Articles XVIII and XXVI of the American
Declaration[3]
by denying his right to a fair trial and due process of law.
In particular, they claim that the federal and state courts have
denied Mr. Sankofa a fair hearing in which he could present exculpatory
evidence, including evidence that was proffered, but not substantively considered,
in his third state and third federal habeas applications.
As indicated previously, this evidence includes ballistics tests
that reveal that the fatal bullet was not fired from Mr. Sankofa's gun.
It also includes evidence from other eyewitnesses to the crime that is said
to impugn Bernadine Skillern's identification of Mr. Sankofa as the shooter
and demonstrate the ineffectiveness of Mr. Sankofa's trial counsel. For example, according to the Petitioners, of eight eye witnesses
to the crime, only three testified at trial. Of these, two did not identify
Mr. Sankofa in a line up and were not asked at trial whether Mr. Sankofa
was the gunman or whether they had identified him in a line up.
Of the five remaining witnesses who did not testify, the Petitioners
indicate that only one identified Mr. Sankofa in a line up and three are
confident that Mr. Sankofa was not the gunman.
Further, the Petitioners claim that six of the eight eyewitnesses
estimated the height of the assailant to be under Mr. Sankofa's height of
five feet, six inches. The
Petitioners also refer to evidence from an investigator retained by the
defense that both he and Mr. Sankofa's lawyer assumed Mr. Sankofa's guilt
and therefore undertook no investigation of his guilt or innocence.
39.
Also based upon this evidence, the Petitioners claim that Articles
XVIII and XXVI of the Declaration have been violated because, due to the
ineffective assistance of trial counsel, Mr. Sankofa never received a fair
opportunity to present his case during his trial, and has been barred from
doing so in subsequent proceedings.
40.
Further, relying in part upon this Commission's decision in Andrews
v. United States,[4] the Petitioners argue that
the delay in Mr. Sankofa's execution in and of itself constitutes a violation
of Article XXVI of the Declaration, the right not to be subjected to cruel,
infamous or unusual punishment. The Petitioners emphasize in this regard that Mr. Sankofa was
sentenced at the age of seventeen years and has been imprisoned on death
row for nineteen years, and contend that these factors suggest that the
treatment to which Mr. Sankofa has been subjected constitutes cruel, infamous
or unusual punishment. In support
of their claim, the Petitioners rely upon the jurisprudence of the European
Court of Human Rights in the case Soering
v. United Kingdom,[5] in which that Court precluded
the extradition of a German national to the United States for prosecution
on a capital charge committed when the victim was eighteen years of age.
The Court's decision was based in part upon evidence of the effects
of extended periods of time on death row in extreme conditions, taken together
with the age and mental state of the applicant.
41.
The Petitioners argue further in this regard that Mr. Sankofa has
been subjected to cruel, infamous or unusual punishment under Article XXVI
of the American Declaration so severe as to be classified as torture, which
the Petitioners claim is implicitly prohibited under Article XXVI of the
Declaration. In particular,
they contend that a condemned person suffers "undue psychological torture"
awaiting execution of a death sentence, and cite judicial decisions in the
United States and several other common jurisdictions in support of this
proposition.[6]
42.
Finally, the Petitioners argue that the State has violated Mr. Sankofa's
rights to life, liberty and security of the person and of equality before
the law under Articles I and II of the Declaration,[7] based upon the fact that
Mr. Sankofa was under eighteen years of age at the time of the commission
of the crime for which he has been convicted and sentenced.
The Petitioner's cite in support of this argument this Commission's
decision in the case Roach and Pinkerton v. United States,[8]
in which the Commission found that the diversity of state practice in the
United States results in very different sentences for juvenile offenders
for the commission of the same crimes, and therefore violated Articles I
and II of the Declaration. The
Petitioners contend in this regard that the U.S. and Texas governments have
not made reforms in the disparate application of the death penalty to juveniles
since the Roach and Pinkerton
decision, and that in Mr. Sankofa's case, as in Roach
and Pinkerton, the failure of the U.S. Government to preempt the states
in regard to protection of the right to life for juveniles under sentence
of death results in a pattern of arbitrary deprivation of life and inequality
before the law.
B.
POSITION OF THE STATE
43.
With respect to the admissibility of the Petitioners' petition, the
State has argued in its various observations in this case that domestic
remedies remain for Mr. Sankofa to exhaust, and therefore that the Petitioners'
petition is not admissible under Article 37 of the Commission's Regulations.
44.
In this regard, the State provided some information respecting the
history of Mr. Sankofa's criminal proceedings.
In particular, in its October 4, 1993 observations, the State delivered
to the Commission a September 21, 1993 communication from the Office of
the Attorney General of the State of Texas.
This communication was presented by the Government of the State in
response to the Commission's request for information, and set forth several
observations respecting the background of Mr. Sankofa's criminal proceedings,
including the following:
a.
The communication indicated that the May 13, 1981 murder for which
Mr. Sankofa was condemned was the first in a series of fourteen violent
robberies, four involving shootings and one involving kidnapping and rape,
which occurred over an eight day period, and that Mr. Sankofa was sentenced
to death, as well as to concurrent 20 year sentences pursuant to guilty
pleas for aggravated robbery in 10 of these other robberies.[9]
b.
In Mr. Sankofa's first state habeas corpus application, denied in
February 1988, the court conducted an evidentiary hearing on the alleged
ineffectiveness of trial counsel for failing to present four alibi witnesses.
After hearing evidence that included testimony from Mr. Sankofa's
two trial attorneys and two of the alibi witnesses, the court concluded
that the alibi witnesses were not credible, that Mr. Sankofa never informed
counsel of the alibi witnesses, and that counsel provided effective assistance;[10]
c.
In his second state habeas corpus application filed in April 1993,
Mr. Sankofa re-urged his ineffective assistance of counsel claim and made
a claim of "actual innocence".
He also added evidence of a newly found eyewitness who claimed that
Mr. Sankofa did not commit the crime, and two eyewitnesses who claimed that
the assailant was shorter than Mr. Sankofa. These claims were rejected by
the state courts on the basis that these new eyewitnesses were refuted on
the record as a whole, and the U.S. Supreme Court affirmed this determination
on May 24, 1993;[11]
d.
Mr. Sankofa's first federal habeas application, which raised arguments
similar to those in the first state habeas application, was rejected by
the district court in February 1998 and affirmed by the Fifth Circuit U.S.
Court of Appeals, but was subsequently reversed by the U.S. Supreme Court
and remanded on the question of whether Mr. Sankofa's youth at the time
of the offense could be considered in mitigation of punishment.
The Fifth Circuit subsequently concluded that Mr. Sankofa's youth
could adequately be considered, and the U.S. Supreme Court affirmed this
decision in January 1993;
e.
In his federal habeas application filed in July 1993, Mr. Sankofa
claimed, inter alia, lack of effective
assistance of counsel for failing to raise an alibi defense and for failing
to discover the newly-related discrepancies in eyewitness evidence.
The federal district court denied the writ on the basis that the
new evidence presented in support of this application did not constitute
the high threshold showing necessary under U.S. Supreme Court jurisprudence
to make an "actual innocence" claim;
f.
The State also contends that Mr. Sankofa received two temporary reprieves,
one 30-day reprieve by the Governor of Texas in April 1993 and another by
the Texas Court of Criminal Appeals in June 1993. Further, Mr. Sankofa sought
executive clemency on two occasions, one where he presented videotape evidence
of the witnesses referred to in his petitions and where clemency was refused
on a 12-1 vote, and a second filed on May 25, 1993.[12]
45.
In the context of this procedural history, the State has consistently
argued that Mr. Sankofa has failed to exhaust domestic remedies. In the
State's view, such domestic remedies have included Mr. Sankofa's request
for clemency or a reprieve before the Texas Board of Pardons and Paroles
and the related civil law suit, as well as Mr. Sankofa's application to
the Fifth Circuit of the U.S. Court of Appeals in respect of his second
request for federal habeas corpus relief.
46.
In further response to the Petitioners' observations, the State contends
that there is no support for, and indeed authority against, the proposition
that the requirement of exhaustion of domestic remedies should be applied
less rigorously in the human rights context. In particular, the State emphasizes
that existence of the exhaustion requirement in numerous international human
rights instruments, including Article 41(c) of the International Covenant
on Civil and Political Rights, Article 11(3) of the International Convention
on the Elimination of All Forms of Racial Discrimination, Article 26 of
the European Convention on Human Rights and Fundamental Freedoms, and Article
46 of the American Convention on Human Rights.
The State specifically notes that the Commission's own Regulations
require domestic remedies to be exhausted "in accordance with general
principles of international law".
Further, the State suggests that the principles cited by the Petitioners
as underlying the exhaustion of domestic remedies, namely to "give
the state concerned an opportunity to offer redress within its domestic
legal framework to the individual who alleges to have been wronged",
supports the State's position that the Petitioners' petition should be declared
inadmissible.
47.
With respect to the substance of the Petitioners' complaints, the
State in several of its communications provided observations on the admissibility
of the petition, and indicated that it reserved its right to make observations
on the substance of the case, in the event that there was a need to do so.
At the same time, as noted previously, in its October 4, 1993 observations,
the State delivered to the Commission a September 21, 1993 communication
from the Office of the Attorney General of the State of Texas, in response
to the Commission's request for information in the case.
This communication sets forth several arguments respecting the substance
of Mr. Sankofa's allegations.
48.
Regarding the Petitioners' arguments respecting Mr. Sankofa's age
at the time that he committed the offense, the State indicates that the
U.S. Supreme Court in the case Stanford v. Kentucky, 492 U.S. 361 (1989) determined that the U.S.
Constitution allows for the arrest, conviction and execution of murderers
who were 16 years or older at the time of their crime. The State argued further that Mr. Sankofa's youth was properly
considered by the jury in mitigation of punishment.
49.
With respect to the alleged misidentification of Mr. Sankofa by Bernadine
Skillern, the State argues that all of the evidence and information available
indicates that Ms. Skillern did not misidentify any one.
In this regard, the State refers to the length of time available
to Ms. Skillern to identify Mr. Sankofa, and the fact that she was unequivocal
in identifying Mr. Sankofa in the line up and at trial.
50.
With respect to the "newly-related" eyewitness evidence,
the State essentially argues that, in light of the dearth of useful eyewitness
evidence at the time of the crime and the subsequent police investigation,
and inconsistencies in the statements that these witnesses had previously
given to police and their current allegations, their claims should be considered
with suspicion. The State also
points in this regard to inconsistencies and implausibilities in the observations
and affidavits of the additional eyewitnesses relied upon by the Petitioners.
51.
With respect to the Petitioners' claim of denial of a legal forum
in which to review new evidence, the State contends that Mr. Sankofa's claim
of alibi, raised within a claim of insufficient assistance of counsel, had,
at the time of the State's September 21, 1993 submission, been reviewed
on the merits by the state district and appellate courts twice, the U.S.
district court twice, and the U.S. Court of Appeals once.
They also note that all of the witnesses and evidence upon which
Mr. Sankofa's relies were presented to the Texas Board of Pardons and Paroles
as a basis for executive clemency, which request was subsequently denied.
Accordingly, the State contends that Mr. Sankofa's complaint is not that
his evidence has never been reviewed, but rather that he disagrees with
the conclusions reached by the bodies that have reviewed it.
IV.
ANALYSIS
A.
COMPETENCE OF THE COMMISSION
52.
The Petitioners claim that the State has violated Mr. Sankofa's rights
under Articles I, II, XVIII and XXVI of the American Declaration of the
Rights and Duties of Man. The State is a Member State of the Organization
of American States that is not a party to the American Convention on Human
Rights, as provided for in Article 51 of the Commission's Regulations, and
deposited its instrument of ratification of the OAS Charter on June 19,
1951.[13]
The events that relate to the Petitioners' claim occurred subsequent to
the States ratification of the OAS Charter.
The alleged victim is a natural person, and the petition was lodged
by the staff of the International Human Rights Law Clinic, who are authorized
to lodge petitions with the Commission under Article 26 of the Commission's
Regulations. The Commission
is therefore competent to examine this petition.
B.
ADMISSIBILITY OF PETITION
1.
Duplication of Procedures
53.
There is no information on the record indicating that the subject
of this petition is pending settlement in another procedure under an international
governmental organization of which the State is a member, or that the case
essentially duplicates a petition pending or already examined and settled
by the Commission or other international governmental organization of which
the State is a member, as provided for under Article 39 of the Commission's
Regulations.[14]
The State has not contested the issue of duplication of procedures.
The Commission therefore finds no bar to the admissibility of the
petition under Article 39 of the Commission's Regulations.
2.
Exhaustion of Domestic Remedies
54.
Article 37(1) of the Commission's Regulations specifies that, in
order for a case to be admitted, remedies under domestic jurisdiction
must have been invoked and exhausted in accordance with the general principles
of international law. When
domestic remedies are unavailable as a matter of fact or law, however, the
requirement that they be exhausted may be excused. Article 37(2) of the
Commission's Regulations specifies that this exception applies if the domestic
legislation of the state concerned does not afford due process of law for
protection of the right allegedly violated, if the party alleging the violation
has been denied access to domestic remedies or prevented from exhausting
them, or if there has been an unwarranted delay in reaching a final judgment
under the domestic remedies.
55.
In addition, the Inter-American Court of Human has observed that
domestic remedies, in order to accord with generally recognized principles
of international law, must be both adequate, in the sense that they must
be suitable to address an infringement of a legal right, and effective,
in that they must be capable of producing the result for which they were
designed.[15]
56.
Further, when a petitioner alleges that he or she is unable to prove
exhaustion, Article 37(3) of the Commissions Regulations provides
that the burden then shifts to the State to demonstrate that the remedies
under domestic law have not previously been exhausted.
57.
In the present case, Mr. Sankofa has pursued numerous domestic avenues
of redress since his conviction and sentencing to death in October 1981.
The various proceedings are described in the observations of the
Petitioners and of the State, as set out in Part III of this Report, as
well as in the February 25, 1999 decision of the U.S. Court of Appeals for
the Fifth Circuit on Mr. Sankofa's fourth federal habeas corpus application,[16] and include the following:
a.
Following his conviction and sentencing in October 1981, Mr. Sankofa
appealed his capital conviction and death sentence, which were affirmed
by the Texas Court of Criminal Appeals in 1984.
Mr. Sankofa did not seek certiorari from the U.S. Supreme Court in
respect of the appeal court's decision;
b.
Mr. Sankofa brought three applications for writs of habeas corpus
in the state courts in Texas.
In
the first state habeas application, Mr. Sankofa raised three principal issues:
ineffective assistance of counsel, in part for failure to call alibi witnesses;
Mr. Sankofa's mental competence to be executed; and the constitutionality
of the capital punishment scheme in Texas for various reasons, including
the ability of juries to consider youth as a mitigating factor in sentencing.
After holding an evidentiary hearing, the state habeas trial court
concluded that Mr. Sankofa had received effective assistance of counsel
and recommended that the Texas Court of Criminal Appeals deny habeas relief,
which the Court of Criminal
Appeals
did on February 19, 1988.
In
the second state habeas corpus application, Mr. Sankofa argued that he was
innocent and that he had been represented by ineffective counsel, and supported
his ineffectiveness claim by several new affidavits. These included affidavits from eyewitnesses who disputed the
identification evidence given by witness Bernadine Skillern at trial, and
an affidavit from an investigator retained by Mr. Sankofa's trial counsel
indicating that he and counsel assumed Mr. Sankofa was guilty and therefore
gave his case relatively little attention.
Without conducting an evidentiary hearing, the state habeas trial
court found, inter alia, that
the new affidavits were not credible, and recommended that the Texas Court
of Criminal Appeals deny habeas relief, which that Court did in April 1993.
The U.S. Supreme Court subsequently denied certiorari.
In
his third state habeas application, filed in April 1998, Mr. Sankofa presented
the evidence that he had presented in his previous state and federal habeas
applications, together with three new affidavits, and raised, inter
alia, the same issues that he had raised in his third federal habeas
application, namely ineffective assistance of counsel and innocence.
In November 1998, the Court of Criminal Appeals dismissed his application
as an abuse of process under the new 1995 Texas habeas law.
c.
Mr. Sankofa brought four applications for habeas corpus relief in
the federal courts. In the
first application, Mr. Sankofa raised the same grounds as in his first state
habeas application. The district
court adopted the state court's findings without an evidentiary hearing
and denied the writ. The U.S.
Court of Appeals for the Fifth Circuit subsequently affirmed this determination
on appeal, but the U.S. Supreme Court subsequently reversed this finding
and remanded the case to reconsider the issue of whether the Texas capital
sentencing scheme adequately considered youth as a mitigating factor in
sentencing in light of prevailing jurisprudence. Upon reconsideration, the Fifth Circuit Court of Appeals ultimately
found en banc that the Texas capital
sentencing scheme allowed adequate consideration of Mr. Sankofa's mitigating
evidence, particularly his youth, and affirmed the denial of habeas relief.
The U.S. Supreme Court affirmed.
Mr.
Sankofa's second federal habeas corpus application was filed immediately
after the decision of the Texas Court of Criminal Appeals on his second
state habeas application, but was withdrawn voluntarily after the Governor
of Texas granted a 30-day reprieve in connection with Mr. Sankofa's executive
clemency proceedings.
In
Mr. Sankofa's third federal habeas application, filed in July 1993, he again
claimed ineffective assistance of counsel and innocence, and relied upon
evidence that was not presented to the state courts, including: the affidavits
of two eyewitnesses who were never contacted by Mr. Sankofa's trial lawyers;
an affidavit corroborating one of the alibi witnesses' affidavits that had
previously been determined by the state court not to be credible; reports
by two psychologists who had reviewed the statements and affidavits of witnesses
and concluded that Bernadine Skillern's identification of Mr. Sankofa was
unreliable; and a Houston Police Department Firearms Report of May 1981
which indicated that the firearm confiscated from Mr. Sankofa on his arrest
was not the firearm used to shoot Bobby Lambert.
The state of Texas waived the issue of exhaustion before state courts
in relation to this new evidence, and the district court held without an
evidentiary hearing that the new evidence did not meet the "actual
innocence" threshold established in the U.S. Supreme Court's case in
Herrera v. Collins 113 S. Ct. 853 (1993) and adopted the state court's
finding that Mr. Sankofa did not have ineffective assistance of trial counsel.
On appeal, the U.S. Court of Appeals for the Fifth Circuit declined to accept
the waiver by the state of Texas of exhaustion and remanded the case to
the district court, and the district court subsequently dismissed Mr. Sankofa's
third federal habeas application for failure to exhaust state remedies.
Finally,
in his fourth federal habeas application, filed in December 1998, Mr. Sankofa
raised the same issues that he had raised in his third federal habeas application.
The district court dismissed for lack of jurisdiction pursuant to
the AEPDA, pursuant to which Mr. Sankofa was required to obtain permission
from the Fifth Circuit to file a "successive" habeas application.
In January 1999, Mr. Sankofa filed a motion for a stay of execution, a notice
of appeal from the dismissal of his fourth habeas application and a request
for recall of his 1996 habeas case.
On January 8, 1999, the Fifth Circuit granted a stay of execution.
However, in February 1999, the Fifth Circuit denied Mr. Sankofa permission
to file a successive federal habeas application in the district court under
the AEDPA, and held that the AEDPA applied to Mr. Sankofa because, inter
alia, his re-filed post-exhaustion application before the Court was
not a "continuation" of his third federal habeas application because
the third application had been dismissed in 1996 without prejudice for lack
of exhaustion. In March 1999,
Mr. Sankofa's counsel filed a petition for a rehearing en
banc in the Fifth Circuit, which was subsequently denied.
In October 1999, Mr. Sankofa submitted a petition for a writ of certiorari
to the U.S. Supreme Court, which was subsequently denied on May 1, 2000.
d.
Mr. Sankofa also brought two applications for executive clemency,
and a related civil law suit. Mr. Sankofa sought executive clemency before
the Texas Board of Pardons and Paroles on April 26, 1993 and May 25, 1993,
which the Board denied on both occasions.
Subsequently, Mr. Sankofa brought a civil claim against the Board
seeking an evidentiary hearing before that body on his innocence-based clemency
request. In August 1993, a
state district court issued a temporary injunction requiring the Board to
hold a hearing on Mr. Sankofa's innocence claim.
The Board appealed, and ultimately the matter came back before the
state district court, which held, contrary to its earlier decision, that
Mr. Sankofa was not entitled to a clemency hearing before the Board on his
actual innocence claim. The
Texas Court of Appeals affirmed this decision in January 1996, holding that
Mr. Sankofa's prior state habeas review satisfied his right to a hearing
for his claim of actual innocence.
58.
From the foregoing procedural history, it appears that there are
certain aspects of Mr. Sankofa's claims of due process violations currently
before this Commission that have been addressed substantively before a domestic
court of the State, and others that have not. In particular, in Mr. Sankofa's
first and second state habeas applications, the state habeas trial courts
considered certain of the evidence relating to Mr. Sankofa's claims of ineffective
assistance of counsel, including the affidavits of several eyewitnesses
who contested Bernadine Skillern's identification of Mr. Sankofa as the
murderer.
59.
At the same time, Mr. Sankofa's claims of ineffective assistance
of counsel and innocence do not appear to have been addressed substantively
in any of his domestic proceedings, in respect of several pieces of evidence
presented in support of his third state and federal habeas applications,
including: the affidavits of two eyewitnesses who were never contacted by
Mr. Sankofa's trial lawyers; an affidavit corroborating one of the alibi
witnesses' affidavit that had previously been determined by the State court
not be not credible; reports by two psychologists who had reviewed the statements
and affidavits of witnesses and concluded that Bernadine Skillern's identification
of Mr. Sankofa was unreliable; and a Houston Police Department Firearms
Report of May 1981 which indicated that the firearm confiscated from Mr.
Sankofa on his arrest was not the firearm used to shoot Bobby Lambert.
This evidence was not considered by the state and federal courts
as a consequence of interpretations of state and federal legislation by
those courts that precluded Mr. Sankofa from filing successive habeas corpus
applications. It appears, therefore,
that Mr. Sankofa has either exhausted all available domestic remedies in
respect of the due process claims raised before this Commission, because
the domestic courts have considered and rejected his claims, or has been
precluded from doing so, because domestic legislation bars Mr. Sankofa from
introducing new claims before state and federal courts.
60.
In addition, with respect to the Petitioners' alleged violations
of Articles I and II of the American Declaration relating to Mr. Sankofa's
age at the time of the commission of the offence in question, and the Petitioners'
alleged violations of Article XXVI of the American Declaration based upon
the delay in Mr. Sankofa's execution, the State does not appear to have
specifically contested the admissibility of these claims, based upon exhaustion
of domestic remedies or otherwise. In any event, prevailing jurisprudence
in the United States suggests that any proceedings instituted on these issues
would have no reasonable prospect of success.
More particularly, the State itself notes that its Supreme Court
in the case Stanford v. Kentucky[17]
determined that the U.S. Constitution allows for the arrest, conviction
and execution of murderers who were 16 years or older at the time of their
crime. Similarly, U.S. Supreme Court recently denied applications for writs
of certiorari in two cases, Knight
v. Florida and Moore v. Nebraska,[18]
in which the petitioners raised the very question of whether the U.S. Constitution
prohibits as cruel and unusual punishment the execution of prisoners who
have spent nearly 20 years or more on death row.
The former case involved a post-sentencing delay of 19 years and
4 months, and the latter case involved a post-sentencing delay of 24 years
and 6 months. Consequently,
based upon the information available, the Commission finds that any proceedings
raising these claims before domestic courts would appear to have no reasonable
prospect of success, and therefore would not be effective in accordance
with general principles of international law.[19]
61.
Based upon the information before it, therefore, the Commission finds
that Mr. Sankofa has exhausted or has been precluded from exhausting domestic
remedies, or that any available domestic proceedings would provide no reasonable
prospect of success, in respect of his claims before the Commission. Consequently,
the Petitioners' petition is not barred under Article 37 of the Commission's
Regulations.
3.
Timeliness of the Petition
62.
In accordance with Article 38(1) of the Commission's Regulations,
the Commission must refrain from taking up petitions that are lodged after
the six month period following the date on which the complaining party has
been notified of the final ruling, in cases where the remedies under domestic
law have been exhausted.
63.
In the present case, the Petitioners' petition was not lodged beyond
six months from the date on which Mr. Sankofa was notified of the final
ruling in his case, May 1, 2000. 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 38 of the Commission's Regulations.
4.
Colorable Claim
64.
Article 41(c) of the Commission's Regulations require the Commission
to declare inadmissible any petition when the petition is manifestly groundless
or inadmissible on the basis of a statement by the petitioners or the government.
65.
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 to the extent that such responses have been provided.
After reviewing the allegations in light of the information provided
by both parties, the Commission does not find the allegations to be manifestly
groundless or inadmissible. This
is particularly evident in light of the Commission's previous decisions
in the case Roach and Pinkerton v.
United States,[20]
in which the Commission found violations of Article I and II of the American
Declaration in relation to the age of the complainants in that case at the
time they committed the offenses for which they were sentenced to death,
and in the case Andrews v. United
States,[21]
in which the Commission found a violation of Article XXVI of the American
Declaration partly in relation to the complainant's time and conditions
on death row. Accordingly, the Commission concludes that the Petitioners'
petition is not inadmissible under Article 41(c) of the Commission's Regulations.
V.
CONCLUSIONS
66. The Commission
concludes that it has the competence to examine this case, and that the
petition is admissible in accordance with the Commission's Regulations.
67. On the basis
of the findings of fact and law set forth above, and without prejudging
the merits of the matter,
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS,
DECIDES:
1.
To declare the present case admissible, in respect of Articles I, II, XVIII
and XXVI of the American Declaration.
2.
To transmit this Report to the Parties.
3.
To continue with the analysis of the merits of the case.
4.
To reiterate its request under Article 29(2) of the Commission's Regulations
that the State take all necessary measures to ensure that Mr. Sankofa's
execution is stayed pending the Commission's investigation of the matter.
5.
To publish this Report and include it in its Annual Report to the General
Assembly of the Organization of American States.
Done
and signed in the city of Brasilia, Brazil, on the fifteenth day of the
month of June, 2000. (Signed): Hélio Bicudo, Chairman; Juan Méndez, Second
Vice-Chairman, Marta Altolaguirre, Peter Laurie and Julio Prado Vallejo,
Commissioners.
[ Table of
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]
*
Commission Members Profs. Claudio Grossman, First Vice-Chairman, and
Robert Goldman did not take part in the discussion and voting on this
case, pursuant to Article 19(2) of the Commission's Regulations.
[1]
Petitioners' March 10, 2000 observations, pp. 14-15, citing A.A. Cançado Trinidade,
The Application of the Rule of Exhaustion of Local Remedies in International
Law: Its Rationale in the International Protection of Human Rights
1 (Cambridge University Press 1983).
[2]
Petitioners' March 10, 2000 observations, pp. 20-21, citing Eur. Court H.R., De Wilde,
Oomas and Versyp Cases, 10 June 1971, Publ. E.C.H.R. Ser. A, Vol.12,
p. 34, para 37.
[3] Articles
XVIII (right to a fair trial) and XXVI (right to due process of law)
of the American Declaration provide as follows:
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 fundamental constitutional rights.
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.
[4] I/A Comm. H.R., Andrews v. United States, Case No. 11.139, Res. 57/96, 19 February 1998.
[5] Eur. Court H.R., Soering v. United Kingdom, 11 E.H.R.R. 439 (1989).
[6]
Petitioners' March 10, 2000 observations, p. 29, citing, inter alia, concurring
opinion of Brennan J. in Furman
v. Georgia, 408 U.S. 238 (U.S.S.C.); Vatheeswaran
v. State of Tamil Nada, 2 S.C.R. 348 (India 1983).
[7]
Articles I (right to life, liberty and personal security) and II (right
to equality before law) provide as follows:
I.
Every human being has the right to life, liberty and the security
of his person.
II.
All persons are equal before the law and have the rights and
duties established in this Declaration, without distinction as to race,
sex, language, creed or any other factor.
[8]
I/A Comm. H.R., Roach and Pinkerton
v. United States, Case 9647, Res. 3/87, 22 September 1987.
[9] In their October 11, 1993 response to the September 21, 1993 observations from the Office of the Attorney General of the State of Texas, the Petitioners take issue with the statement that the murder in question was Mr. Sankofa's "first in a series of fourteen similar violent robberies". Rather, the Petitioners indicate that Mr. Sankofa pled guilty to ten charges of armed robbery and aggravated armed robbery for crimes that occurred between May 14 and May 20, 1981, one week after the murder of Mr. Lambert, and that the remaining four charges were never well-founded enough to prosecute. The Petitioners also claim that the 10 robberies admittedly committed by Mr. Sankofa did not involve open threats or assaults on the victims in public view and therefore were not that similar to the Lambert murder.
[10] In their October 11, 1993 response to the September 21, 1993 observations from the Office of the Attorney General of the State of Texas, the Petitioners claim in respect of this evidentiary hearing that none of the eyewitness evidence was presented, and that only two of the alibi witnesses testified. They also state that the alibi testimony of Loraine Johnson was not presented, even though she had made an effort to testify at Mr. Sankofa's trial but was "rebuffed" by Mr. Sankofa's attorney. The Petitioners suggest that this evidence, if presented during the first state habeas application, would have changed the evidentiary picture on the application "dramatically".
[11] In their October 11, 1993 response to the September 21, 1993 observations from the Office of the Attorney General of the State of Texas, the Petitioners note that the Court did not hold an evidentiary hearing on Mr. Sankofa's second state habeas application, despite the presentation of affidavits from the crime scene witnesses, the alibi witnesses and the defense investigator Merv West. Rather, the Court found all of the witnesses incredible solely on the basis of their written affidavits, and relied on its finding in the 1988 hearing despite the new evidence.
[12] In their October 11, 1993 response to the September 21, 1993 observations from the Office of the Attorney General of the State of Texas, the Petitioners claim that the vote of the Texas Board of Pardons and Paroles denied Mr. Sankofa's clemency request by a vote of 12-5, not 12-1 as indicated by the State.
[13]
The Inter-American Court and Commission have previously determined that
the American Declaration of the Rights and Duties of Man is a source
of international obligation for the United States and other OAS Member
States that are not parties to the American Convention on Human Rights,
as a consequence of Articles 3, 16, 51, 112, and 150 of the OAS Charter.
See Charter of the Organization of American States, Arts. 3, 16, 51,
112, 150; Statute of the Inter-American Commission on Human Rights,
Arts. 1, 20; Regulations of the Inter-American Commission on Human Rights,
Arts. 26, 51-54; I/A. Court H.R., Advisory
Opinion OC-10/8 "Interpretation of the Declaration of the Rights
and Duties of Man Within the Framework of Article 64 of the American
Convention on Human Rights, July 14, 1989, Ser. A No. 10 (1989),
paras. 35-45; I/A Comm. H.R., James
Terry Roach and Jay Pinkerton v. United States, Case 9647, Res.
3/87, 22 September 1987, Annual Report 1986-87, paras. 46-49.
[14]
Article 39(1) of the Commission's Regulations provides: "The Commission
shall not consider a petition in cases where the subject of the petition:
a) is pending settlement in another procedure under an international
governmental organization of which the State concerned is a member;
b) essentially duplicates a petition pending or already examined and
settled by the Commission or by another international governmental organization
of which the state concerned is a member."
[15]
I/A Court H.R., Velásquez Rodríguez
Case, Judgment of July 29, 1988, Ser. C No. 4,
(1988), paras. 64-66.
[16] Graham v. Johnson, Case No. 99-20014, 1999 W.L. 98513 (5th Cir. (Tex.)).
[17]
Stanford v. Kentucky, 492
U.S. 361 (U.S. Sup. Ct., 1989).
[18]
Knight v. Florida and Moore
v. Nebraska, 1999 U.S. West Law 7479; 68 U.S.L.W. 3307 (U.S. Sup.
Ct., 8 November 1999).
[19] See similarly Eur. Court H.R., De Wilde, Oomas and Versyp Cases, 10 June 1971, Publ. E.C.H.R. Ser. A, Vol.12, p. 34, paras. 37, 62 (suggesting that domestic remedies need not be exhausted in circumstances in which an applicant believes that there is no reasonable chance of success and where that doubt is supported by the jurisprudence of the state's highest court); Eur. Court H.R., Avan Oosterwijck v. Belgium, Judgment (Preliminary Objections), November 6, 1980, Case No. 7654/76, para. 37.
[20] I/A Comm. H.R., Roach and Pinkerton v. United States, Case 9647, Res. 3/87, 22 September 1987.
[21]
I/A Comm. H.R., Andrews v. United
States, Case No. 11.139, Res. 57/96, 19 February 1998, para. 178.