Juan Raúl Garza v. United States, Case 12.243, Report No. 52/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 1255 (2000).
REPORT Nº 52/01
1. The petition in the present case was lodged with the Inter-American Commission on Human Rights (the "Commission) against the United States of America (the "State," the "United States," or the U.S.) on December 20, 1999 by six individuals: Hugh Southey, a Barrister with Tooks Chambers in London, United Kingdom; Michael Mansfield, QC, representing the Human Rights Committee of the Bar of England and Wales; John Quigley, Professor of International Law at Ohio State University; William Shabas, then Professor of International Human Rights Law at the University of Quebec at Montreal; Gregory Weirciock, an attorney in Houston, Texas; and Mark Norman, Solicitor of the Supreme Court of England and Wales (hereinafter the Petitioners representatives).
The petition was filed on behalf of Juan Raul Garza (the Petitioner),
an inmate on Federal death row in the United States.
In their petition and subsequent observations, the Petitioners
representatives have alleged that Mr. Garzas death sentence violates
his right to life under Article I of the American Declaration of the Rights
and Duties of Man (the "American Declaration" or the "Declaration"),
and that the procedures employed by the State in sentencing Mr. Garza to
death violate his right to equal protection of the law under Article II
of the Declaration, his right to a fair trial under Article XVIII of the
Declaration and his right to due process under Article XXVI of the Declaration.
In particular, the petition contests the introduction during the
sentencing phase of the Petitioners criminal proceeding of evidence
of four unadjudicated murders that Mr. Garza was alleged to have perpetrated
in Mexico, which evidence was considered by the jury in determining whether
Mr. Garza should be sentenced to death.
The petition also indicated that, according to information provided
by the United States at that time, Mr. Garzas execution date might
be set for February 2000. Mr.
Garza's execution was subsequently scheduled to take place on August 5,
2000, following which then-U.S. President William J. Clinton granted Mr.
Garza two temporary reprieves, one on August 2, 2000, and the second on
December 7, 2000. The Petitioner's
representatives have claimed that, should Mr. Garza be executed, it will
constitute the first execution under U.S. federal law in excess of 35 years.
3. In the present Report, having examined the information and arguments provided by the parties, the Commission decided to admit the case in relation to Articles I, XVIII, and XXVI of the Declaration, with the exception of further claims under Articles I and II of the Declaration raised by the Petitioner in observations dated September 22, 2000, which the Commission declared to be inadmissible. In addition, after considering the merits of the case, the Commission found the State responsible for violations of Articles I, XVIII and XXVI of the American Declaration, in connection with the procedure followed by the State in sentencing the Petitioner to death. Accordingly, the Commission recommended that the State provide Mr. Garza with an effective remedy, which includes commutation of his death sentence. The Commission also decided to recommend that the State review its laws, procedures and practices to ensure that persons who are accused of capital crimes are tried and sentenced in accordance with the rights under the American Declaration, including in particular prohibiting the introduction of evidence of unadjudicated crimes during the sentencing phase of capital trials.
BEFORE THE COMMISSION
On January 27, 2000, the Commission decided to open Case Nº 12.243
in relation to Mr. Garzas complaint, and by note of the same date
transmitted the pertinent parts of the Petitioners petition to the
State, with a request that the State deliver information that it considered
pertinent to the complaint within 90 days as prescribed by the Commissions
Regulations. In addition, in
light of the information in the petition indicating that Mr. Garzas
execution may be scheduled for February 2000, the Commission decided to
adopt precautionary measures pursuant to Article 29(2) of its Regulations
and requested in its January 27, 2000 communication to the State that the
United States take all necessary measures to preserve Mr. Garzas life
and physical integrity so as not to hinder the processing of his case before
the inter-American system. The Commission based its request on the fact
that, if the State were to execute Mr. Garza before the Commission had an
opportunity to examine his case, any eventual decision would be rendered
moot in respect of the efficacy of potential remedies, and irreparable harm
would be caused to Mr. Garza. Also
by note dated January 27, 2000, the Commission informed the Petitioners
representatives that Mr. Garza's petition had been transmitted to the State
and that the Commission had adopted precautionary measures in relation to
In a communication dated February 7, 2000, the Petitioners
representatives provided the Commission with additional information relevant
to their complaint, including a copy of the transcript from Mr. Garzas
sentencing hearing, and copies of the decisions of the domestic courts that
had considered Mr. Garzas appeals from his conviction and sentence.
In their communication, the Petitioner's representatives did not
indicate that a date for Mr. Garza's execution had yet been scheduled.
By note dated May 8, 2000, the Commission reiterated its request
for the State to provide information relating to Mr. Garzas petition,
which the Commission asked the State to provide within 30 days.
In a note dated May 11, 2000, the State requested that the Commission
grant it an extension of time of 45 days within which to file a response
to the Petitioners petition.
By communication dated May 18, 2000, the Commission granted the States
request for an extension of time, on the understanding that the State would
take all necessary measures to preserve Mr. Garzas life and physical
integrity in accordance with the Commissions previous request for
In a letter dated May 29, 2000, the Petitioners representatives
provided the Commission with a copy of a decision issued by the United States
District Court, Southern District of Texas, on May 26, 2000, ordering that
Mr. Garza be executed on August 5, 2000 at 6:00 a.m.
By note dated May 31, 2000, the Commission transmitted the pertinent
parts of the Petitioners May 29, 2000 communication to the State,
with a response requested within 30 days.
The Commission also reiterated its previous call for an urgent response
to its January 27, 2000 request for precautionary measures, in light of
the scheduling of Mr. Garzas execution date.
By communication of the same date, the Commission informed the Petitioners
representatives that these steps had been taken.
On or about July 14, 2000, the Commission received information that
then-U.S. President William J. Clinton would postpone Mr. Garzas scheduled
August 5, 2000 execution date until the U.S. Department of Justice had completed
drafting guidelines for seeking presidential clemency in such cases.
Accordingly, by communication dated July 17, 2000, the Commission
requested that the State provide the Commission on an urgent basis with
information respecting the current status of Mr. Garzas death sentence.
By note of the same date, the Commission likewise requested that
the Petitioners representatives provide the Commission with an urgent
communication informing the Commission of the current status of Mr. Garzas
By note dated July 20, 2000, the State transmitted to the Commission
its observations on the Petitioners petition.
In its observations, the State expressed the view that the Commission's
request for precautionary measures in Mr. Garza's case was not binding but
rather only constituted a non-binding "recommendation," of which
the State had taken note. The
Commission subsequently transmitted the pertinent parts of the States
observations to the Petitioners representatives, with a response requested
within 30 days.
In a letter dated August 7, 2000, the Petitioners representatives
provided the Commission with a copy of an Executive Grant of Clemency
dated August 2, 2000 and signed by U.S. President Clinton, which granted
a reprieve of Mr. Garzas execution date from August 5, 2000 to December
12, 2000 and established December 12, 2000 as the new date for Mr. Garzas
By communication dated August 19, 2000, the Petitioners representatives
delivered to the Commission a response to the States observations
of July 20, 2000, and requested a hearing in the Petitioners case
during the Commissions next period of sessions.
The Commission subsequently transmitted the pertinent parts of the
Petitioners observations to the State in a note dated August 23, 2000,
with a response requested within 30 days.
In notes dated September 12, 2000, the Commission informed the Petitioners
representatives and the State that a hearing in the Petitioners case
had been scheduled for October 12, 2000 during the Commissions 108th
period of sessions at its headquarters in Washington, D.C., for the purpose
of receiving the parties representations on the admissibility and
merits of the case.
By communication dated September 22, 2000, the Petitioners
representatives delivered to the Commission a document entitled Request
to Raise Additional Matters, and by note of the same date the Commission
transmitted a copy of the document to the State, with a request for observations
within 30 days.
In a note dated September 25, 2000, the State provided the Commission
with a Second Reply to the Petitioners petition.
By communication dated September 26, 2000, the Commission transmitted
the pertinent parts of the States second reply to the Petitioners
representatives, with a response requested within 30 days.
17. On October 12, 2000, the Commission convened a hearing in the Petitioners case during its 108th period of sessions in Washington D.C. Representatives of both the Petitioner and the State attended the hearing, presented oral representations to the Commission respecting the admissibility and merits of the Petitioners case, and delivered written summaries of their oral submissions.
18. Subsequently, by communication dated November 16, 2000, the State delivered to the Commission a document entitled "Response of the Government of the United States to October 12, 2000 Submission by Petitioner." The Commission transmitted the pertinent parts of the State's response to the Petitioner's representatives in a note dated November 17, 2000.
19. By communication dated November 21, 2000, the Petitioner's representatives indicated that in light of Mr. Garza's scheduled execution on December 12, 2000, they did not intend to comment on the State's additional observations, but rather requested that the Commission consider the merits of the petition so that a report with recommendations could be issued before December 12, 2000.
III. POSITIONS OF THE PARTIES
Position of the Petitioner
20. In their initial petition and subsequent observations, the Petitioners representatives have contended that Mr. Garzas petition is admissible in accordance with the requirements of the Commissions Regulations. They first argue that Mr. Garza has exhausted domestic remedies in accordance with Article 37 of the Commissions Regulations, as he pursued appeals and constitutional remedies in both the U.S. District Court and the U.S. Court of Appeals for the Fifth Circuit, with the U.S. Supreme Court dismissing his final petition for a Writ of Certiorari on November 15, 1999.
In addition, the Petitioners representatives argue that Mr.
Garza has complied with Article 38 of the Commissions Regulations,
as his petition was lodged with the Commission on December 20, 1999 and
therefore within 6 months of the date of the final domestic judgment in
Moreover, the Petitioner's observations indicate that no proceedings
are pending or have been decided by the Commission or any other international
organization raising the subject matter of Mr. Garzas petition, in
compliance with Article 39 of the Commissions Regulations.
With respect to the claims raised in their September 22, 2000 "Request
to Raise Additional Matters", which, as discussed below, allege violations
of Mr. Garza's rights under Articles I and II of the Declaration based upon
a document issued by the U.S. Department of Justice on September 12, 2000
and entitled "Report on the Federal Death Penalty System: A Statistical
Survey (1988-2000)," the Petitioner's representatives argue that, as
Mr. Garza's execution is scheduled for December 12, 2000, any attempts to
raise the issues contained in the September 22, 2000 request in a domestic
forum is unlikely to produce results until shortly before that scheduled
execution date. Consequently, the Petitioners argue that there would be no
opportunity to make the allegations of human rights abuses contained in
the request in sufficient time to enable the Commission to consider them
before execution, and therefore that it is appropriate for the Commission
to consider the matters raised in their September 22, 2000 request.
With respect to the merits of the case, the Petitioners representatives
indicate that Mr. Garza is a U.S. national who was tried and convicted by
a jury in the United States District Court, Southern District of Texas,
under U.S. Federal law on three counts of killing in the furtherance of
a continuing criminal enterprise, among other offenses, and sentenced by
the same jury to death. They also confirm that in his proceedings before the Commission,
Mr. Garza does not challenge these convictions, but rather takes issue with
the punishment that he has received for these crimes. In particular, the Petitioners representatives argue
that the State is responsible for violations of Mr. Garzas rights
under Articles I, XVIII and XXVI of the American Declaration, as a consequence
of the fact that the death penalty has been imposed upon Mr. Garza, as well
as certain aspects of the process through which Mr. Garza was afforded this
With respect to Article I of the Declaration, the Petitioners
representatives have raised four principal arguments.
First, they contend that international law has developed such that
capital punishment per se violates
the right to life and therefore that Mr. Garzas death sentence in
and of itself contravenes Article I of the Declaration.
In this connection, the Petitioners representatives argue that
the Declaration should be regarded as a living instrument that reflects
the standards of democratic and just societies as they develop.
While the Petitioner's representatives recognize that the Commission
has held in past reports that the death penalty is not per
se contrary to the right to life, they urge that the standards inherent
in the Declaration have now developed to the extent that capital punishment
should be regarded as contrary to Article I of the Declaration, and that
the intentions of the original drafters of the Declaration cannot be determinative
in this respect.
In support of this contention, the Petitioners representatives
present several arguments. They
first claim that there is a clear worldwide trend that individual nation
states are abolishing the death penalty,
and, consistent with this trend, that the United Nations human rights system
supports the abolition of the death penalty and has encouraged states to
reduce their use of the death penalty.
They also note the fact that the Statute of the International Criminal
Court and the Statutes of the International Criminal Tribunals for the Former
Yugoslavia and Rwanda do not include capital punishment among the penalties
that may be imposed by those tribunals.
In relation to the Americas in particular, the Petitioner's representatives
refer to the Protocol to the American Convention on Human Rights to Abolish
the Death Penalty as evidence of a commitment by the Organization
of American States to the abolition of the death penalty.
Alternatively, the Petitioners representatives argue that Mr.
Garzas death sentence contravenes Article I of the American Declaration
because international law requires states to progressively restrict the
application of the death penalty.
Contrary to this trend, however, the United States has effectively
re-introduced the death penalty after a 35-year absence of Federal executions
between 1972 and 1988 and, on two occasions since November 18, 1988, has
expanded it to apply to new offenses.
In addition to the arguments cited above respecting the unlawfulness
of the death penalty per se, the Petitioner's representatives contend that by protecting
the right to life, the American Declaration implicitly suggests that the
abolition of the death penalty is desirable and that one of the objects
and purposes of the Declaration is the restriction of the use of the death
They also argue that the worldwide trend toward a reduction in the
use of the death penalty suggests that there is no sufficient justification
for an increase in the use of the death penalty and therefore that any such
increase instituted by a state is arbitrary. According to the Petitioner's
representatives, it is difficult to see what justification there can be
for re-introducing the death penalty when so many states have found that
they are able to abolish it.
In the further alternative, the Petitioners representatives
contend that the decision by the State to seek the death penalty in the
circumstances of Mr. Garzas case was arbitrary contrary to Article
I of the American Declaration, for two reasons: it was based upon political
concerns and therefore lacked sufficient and proper justification; and,
as argued in the Petitioner's September 22, 2000 "Request to Raise
Additional Matters," the State's own statistics indicate that decisions
by U.S. attorneys since 1988 as to whether to seek the federal death penalty
appear to have been influenced by racial and geographic disparities.
In this respect, the Petitioner's representatives suggest that the
Petitioner need only establish a prima
facie case that the application of capital punishment in his case is
arbitrary, upon which it is for the State to show that there is no violation
of Article I of the Declaration.
With regard to the first point, the Petitioners representatives
submit that the State can show no rational reason for seeking and imposing
the death penalty in Mr. Garzas case such as deterrence, but rather that any proposed
reasons are political in nature and therefore cannot be regarded as legitimate
justifications for the use of capital punishment.
In the view of the Petitioners representatives, to the extent
that it is not per se contrary to the Declaration, the death penalty's use must be
limited to circumstances in which it is intended to protect the rights of
others under the Declaration. They
refer in this respect to previous determinations by the Commission that
the death penalty can only be imposed for crimes of exceptional gravity.
With regard to the second point noted above, the Petitioner's representatives
rely upon a statistical study released by the U.S. Department of Justice
on September 12, 2000 entitled "The Federal Death Penalty System: A
Statistical Survey (1988-2000)" which, according to the Petitioners
representatives, reveals discrepancies in the application of the federal
death penalty throughout the United States that may be considered to render
Mr. Garza's execution prima facie arbitrary. In
this respect, the Petitioners representatives explain that at the
time when federal prosecutors sought the death penalty in Mr. Garza's case,
U.S. attorneys were only required to submit to the U.S. Attorney General
for approval cases in which they wished to seek the death penalty.
They were not required to submit cases in which the death penalty
was not being sought, cases in which a plea was accepted in return for a
sentence other than death, cases where a decision was taken that a case
would not be prosecuted at the federal level, or cases in which the matter
was charged in such a way that it did not attract the death penalty.
As a consequence, the Petitioner's representatives claim that there
was no procedure for ensuring that the approach of local US attorneys to
the selection of cases for submission to the Attorney General was consistent. They further claim that a Protocol introduced by the Justice
Department in January 1995 eliminated one element of discretion, by requiring
U.S. attorneys to submit to the Attorney General for review all cases in
which a defendant is charged with a capital-eligible offense, regardless
of whether the U.S. attorney actually desires to seek the death penalty
in that case.
In this context, the Petitioner's representatives claim that the
State's survey reveals evidence of two types of discrepancies in the application
of the U.S. federal death penalty.
First, they claim that the survey reveals geographic disparities
across the United States in decisions by U.S. prosecutors to seek the death
In addition, they claim that, according to the statistics, the federal
death penalty has been sought on a disproportionately more frequent basis
for non-white offenders than for white offenders. The Petitioner's representatives
therefore argue that this statistical information constitutes prima
facie evidence that local U.S. attorneys were not taking the decision
to seek the death penalty in a consistent manner at the time when the decision
to seek the penalty was made in Mr. Garzas case.
The Petitioner's representatives emphasize in this regard that it
is crucial that prosecutorial discretion to seek the death penalty is taken
in a consistent manner to ensure that it is not applied arbitrarily.
32. The Petitioners representatives state further that the arbitrary nature of the decision to seek the death penalty in Mr. Garza's case is reinforced by material obtained by Mr. Garzas attorneys, which, according to their observations, indicates that in many cases of multiple homicides arising out of drug-related or other criminal enterprises, federal authorities have not sought the death penalty. While recognizing that it is obviously difficult for Mr. Garzas attorneys to produce any form of comprehensive statistics showing a lack of consistency in the decision to seek the death penalty, the Petitioners representatives claim that the material that they have provided is sufficient to make a prima facie case that the decision to seek the death penalty in Mr. Garzas case was arbitrary.
33. As their second principal argument, the Petitioners representatives contend that the process employed by the State in sentencing Mr. Garza to death violated his rights to a fair trial and to due process under Articles XVIII and XXVI of the American Declaration. In particular, the petition alleges that during the sentencing phase of Mr. Garzas criminal proceeding, the prosecution introduced as aggravating factors evidence of five unadjudicated murders that Mr. Garza was alleged to have committed, four of which were alleged to have occurred in Mexico. According to the Petitioners representatives, Mexican authorities were unable to solve any of these four homicides, and Mr. Garza had never been charged or convicted of any of these murders. However, the U.S. Government sent Customs agents to Mexico to investigate these closed cases, and then introduced resulting evidence during Mr. Garzas sentencing hearing.
Mr. Garza contends that this practice violated the due process and
fair trial protections under the American Declaration, because the jury,
having convicted Mr. Garza of capital murder, could not be regarded as an
impartial tribunal in assessing evidence of further murders for the purposes
of sentencing. Alternatively,
Mr. Garza argues that if evidence of this nature was not by its nature inadmissible,
his right to equality of arms was violated because he was unable to conduct
his own meaningful investigation of unadjudicated murders in Mexico, and
therefore could not obtain favorable documentary evidence and the attendance
and examination of witnesses on his behalf.
The first argument proffered by the Petitioners representatives
contends that Mr. Garza was, in effect, convicted and sentenced to death
for eight murders, only three of which were proved through a proper criminal
trial, and five of which were adjudicated during a sentencing hearing where
the rules of procedure did not offer the guarantees of impartiality and
sound evidence necessary in trying and convicting individuals for capital
crimes. In support of their
argument, the Petitioner's representatives observe that at the time of filing
their petition, eight states in the United States imposed a complete ban
on the presentation of evidence of unadjudicated offenses during the sentencing
phase of capital trials, and have therefore recognized the unfairness of
having to answer criminal allegations in front of a jury that has already
found a person guilty of serous misconduct.
The Petitioners representatives emphasize that a person facing
the death penalty is entitled to all possible safeguards to ensure a fair
trial, and argue that in considering whether Mr. Garza had received a fair
trial for the four unadjudicated murders alleged to have occurred, it must
be determined whether there was a reasonable appearance of a
lack of impartiality on the part of the jury or whether the impartiality
of the jury "was capable of appearing to the [defendant] to be open
Further, they contend that requiring a jury to determine whether
a person is guilty of serious criminal conduct when that same jury has already
determined that the person is guilty of other offenses gives rise to a particular
risk of unfairness and thereby infringes that persons right to a fair
trial. The Petitioners
observations refer in this regard to the dissenting decisions of several
U.S. Supreme Court justices, who have expressed the view that the use of
evidence of unadjudicated offenses in capital sentencing hearings is improper
under the U.S. Constitution.
In the context of Mr. Garzas case, the Petitioners representatives
state that when evidence was presented during the sentencing phase of Mr.
Garzas trial to prove his involvement in offenses for which he had
never been previously tried, the jury was required to consider whether he
was guilty of those additional offenses "beyond a reasonable doubt."
Accordingly, the Petitioner's representatives argue that these were
offenses for which Mr. Garza would effectively receive punishment and therefore
to which the presumption of innocence applied, and consequently that the
existence of a reasonable appearance of a lack of impartiality on the part
of the jury undermined the fairness of Mr. Garzas criminal proceedings.
According to the Petitioners representatives, this lack of
impartiality was particularly acute as a result of the complexity of the
task that the jury was asked to conduct during the sentencing stage, as
reflected in the 36-question "Special Findings Form" that the
jury was required to complete.
The Petitioners representatives further submit that the risk
of unfairness from introducing the evidence of unadjudicated offenses at
Mr. Garzas sentencing hearing was amplified by the fact that the rules
of evidence that would normally apply to the determination of a criminal
charge were not applied when the jury was presented with the evidence of
the unadjudicated murders. According
to the Petitioners representatives, these rules are normally an important
protection for defendants in the guilt-innocence stage of a criminal proceeding
where the defendant need not prove anything and the burden lies entirely
upon the prosecution. As a
consequence, they claim that the State denied Mr. Garza the highest standard
of procedural fairness applicable in cases involving the death penalty.
In addition, the Petitioners representatives claim that the
practice of introducing evidence of unadjudicated foreign murders at Mr.
Garzas sentencing proceeding violated the principle in Article XXVI
of the Declaration that defendants be tried
in accordance with
pre-existing laws. In
particular, they argue that the murders alleged to have committed in Mexico
did not occur within the special maritime or territorial jurisdiction of
the United States as required under 18 U.S.C., Section 1111(b), and therefore
could not have been tried as Federal crimes under existing U.S. law at the
time when they were alleged to have been perpetrated.
Alternatively, in the event that the introduction of evidence of
unadjudicated offenses during sentencing proceedings for capital crimes
is not considered per se contrary to the due process and fair trial protections under
the American Declaration, the Petitioners representatives argue that
this practice nevertheless violated Mr. Garzas right to due process,
and in particular his right to equality of arms.
Specifically, it is argued on behalf of Mr. Garza that mechanisms
were available to the State under the Treaty on Cooperation Between the
United States of America and the United Mexican States for Mutual Legal
Assistance (hereinafter the "US-Mexico MLAT"),
that permitted the State to investigate the Mexican murders, but that these
mechanisms are not available to defendants such as Mr. Garza.
Consequently, it is contended that Mr. Garza could not obtain exculpatory
evidence under the same conditions that incriminating evidence against him
was obtained by the prosecution, in violation of the right to equality of
In this respect, the Petitioners representatives observe that
the relative ability of the prosecution and defense to gather evidence is
relevant to the principle of equality of arms, and requires that steps be
taken so that the advantages that the prosecution inevitably enjoys do not
disadvantage the defense.
Further, the Petitioners representatives argue that the principle
of equality of arms is a part of the right to a fair trial contained in
the American Declaration, and that the due process requirements of the Declaration
apply to the sentencing phase of a criminal trial.
In the context of Mr. Garzas sentencing, it is claimed that the principle
of equality of arms was not respected because, as a result of its greater
resources and the US-Mexico MLAT, the prosecution was in a better position
to obtain evidence from Mexico. In
particular, the Petitioners representatives state that Mr. Garza was
subject to a clear inequality, because the U.S. prosecution authorities
were entitled under the treaty to seek assistance from the Mexican authorities,
whereas Mr. Garza was not entitled to any such assistance.
As an example of such inequality, the Petitioners representatives
refer to the fact that one of the ways in which the equality of arms is
normally secured in domestic prosecutions is through the requirement that
the U.S. authorities disclose all relevant material to the defense.
In contrast, the Mexican authorities were under no such obligation
to disclose relevant material to Mr. Garza.
Further, according to his representatives, Mr. Garza, unlike the
State, had no power to subpoena witnesses in Mexico.
43. The Petitioners representatives also indicate in this connection that, to-date, there does not exist a letters rogatory process between the United States and Mexico on criminal matters, in that neither state has extended the provisions of the Inter-American Convention on Letters Rogatory to apply in criminal matters. Further, while the Petitioners representatives have recognized the existence of letters rogatory processes between states as a matter of custom, they have asserted that the degree of cooperation between states with respect to litigation varies widely, which explains in part why states execute separate mutual legal assistance treaties such as the US-Mexico MLAT. Moreover, they point out that during his pre-trial hearing, Mr. Garza was denied a request to have the prosecution seek specific exculpatory evidence from the Mexican authorities on his behalf.
Position of the State
With respect to the admissibility of Mr. Garzas petition generally,
the State contends that the petition should be considered inadmissible because
it is manifestly ill-founded and fails to state facts that constitute a
violation of any of the rights under the American Declaration.
In addition, specifically in respect of the claims raised in the
Petitioner's September 22, 2000 "Request to Raise Additional Matters,"
the State argues that the Commission should reject and declare inadmissible
these new claims, because the Petitioner failed to raise them before any
In support of its position that the petition as a whole should be
considered inadmissible under Article 41 of the Commission's Regulations,
the State has provided observations respecting the merits of Mr. Garzas
complaints, with a view to demonstrating their groundless nature.
More particularly, with respect to the background to the case, the
State indicates that for over a decade, Mr. Garza controlled and operated
a major drug trafficking enterprise, through which he sold thousands of
pounds of marijuana in the United States smuggled from Mexico.
As his criminal enterprise grew in scope, Mr. Garza decided to eliminate
individuals from his organization who had earned his suspicion, and to this
end either ordered or carried out the execution-style murders in the United
States of three individuals.
After a trial in the U.S. District Court, Southern District of Texas,
Mr. Garza was convicted of five violations of federal drug trafficking laws,
operating a continuing criminal enterprise, money laundering, and three
counts of killing in the furtherance of a continuing criminal enterprise.
During the punishment phase of Mr. Garzas proceeding, the government
introduced evidence showing that he had committed four additional murders
in Mexico, three by gunshot and one by strangulation and suffocation. Following the punishment hearing, the jury recommended a sentence
Mr. Garzas convictions and sentence were subsequently affirmed
by the U.S. Court of Appeals for the Fifth Circuit, following which the
Fifth Circuit denied a request for a re-hearing en
banc, and the U.S. Supreme Court denied certiorari review. Further,
in December 1997, Mr. Garza filed a motion to vacate his sentence under
the U.S. federal habeas corpus statute, arguing that the governments
introduction of evidence relating to the four murders in Mexico violated
his rights under the Due Process Clause of the Fifth Amendment to the U.S.
Constitution. This motion was
denied in April 1998. Mr. Garza subsequently requested a certificate of
appealability from the U.S. District Court, as required under 28 U.S.C.,
Section 2253(1), in order to appeal the District Courts denial of
habeas corpus, and the request was denied.
Mr. Garza appealed this determination to the Fifth Circuit Court
of Appeals, and it also denied his request, for the reason that he had not
made a substantial showing of the denial of a constitutional right.
Finally, on November 15, 1999, the U.S. Supreme Court denied Mr.
Garza certiorari review of this decision.
In support of its contention that Mr. Garzas rights under the
American Declaration have not been violated, the State first argues that
Article I of the Declaration did not at the time of its adoption nor does
it presently prohibit the death penalty.
The United States emphasizes in this regard that a state cannot be
bound to legal obligations, either under treaties or under customary international
law, that it has not explicitly accepted, and contends that the Petitioners
representatives cannot claim that general language in an instrument negotiated
in 1948 has taken on a different meaning 50 years later so as to prohibit
the United States from employing the death penalty.
Rather, the State argues that governments must consent to any such
modifications through, for example, the adoption of additional protocols
The State also argues that the Petitioner has failed to establish
that international law precludes the use of the death penalty.
Rather, the State contends that the death penalty is permitted under
international law when applied to serious crimes and pursuant to proceedings
that comply with due process. According
to the State, the undisputed fact is that a majority of nations retain the
option of imposing the death penalty for the most serious offenses, and
in this respect Mr. Garzas case is no exception.
The State notes further that the UN Secretary General reported to
the UN Commission on Human Rights that as of March 10, 1999, 87 countries
retained and used the death penalty for the most serious ordinary crimes
and that another 26 countries retained the death penalty for ordinary crimes
but had not executed any one in the previous 10 years. Moreover, the State
indicates that only 65 countries have formally abolished the death penalty
for all crimes. Based upon
these statistics, the State contends that state practice is clear and consistent,
and that there is no prohibition under international law on the use of the
death penalty. In the context
of the Petitioners case, it is the States position that Mr.
Garzas crimes were sufficiently serious to merit a sentence of death.
With respect to the Petitioners arguments regarding the U.S.
Justice Department's September 12, 2000 report on the Federal death penalty,
should the Commission decide to consider his claims in this regard, the
State argues that mere statistical studies are insufficient to establish
a claim that the death penalty is imposed in a racially discriminatory manner
so as to violate the right to life.
In summary, the State submits that the Petitioners representatives
have failed to identify any evidence that race played a factor in Mr. Garzas
case. To the contrary, the
State notes that the Petitioner's representatives have admitted that [c]learly,
Mr. Garza had been found guilty of offenses that made him eligible for the
death penalty under the federal statute.
The State also argues that the Petitioner has not established a violation
of either the right to a fair trial or the right to due process of law in
relation to Mr. Garzas criminal proceeding.
In particular, according to the State, the Petitioners contention
that introducing evidence of unadjudicated murders during Mr. Garzas
sentencing hearing per se violated his right to due process and a fair trial by reason
of the consequential lack of impartiality on the part of the jury lacks
merit. Rather, the State argues
that the jury is best positioned to understand the nature and severity of
the crimes committed by the defendant, namely the three murders for which
Mr. Garza was convicted, and that the previous trial for these crimes did
not render the jury prejudicial, only better informed.
Similarly, with respect to the Petitioners alternative argument
that Mr. Garza was denied equality of arms due to the manner in which the
evidence of unadjudicated murders was gathered and presented at the sentencing
hearing, the State contends there was nothing about Mr. Garzas trial,
at the guilt/innocence or sentencing phase, that fell short of international
standards for equality of arms and Mr. Garzas right to a fair trial.
The State further argues in this respect that the principle of equality
of arms protects procedural rather than substantive equality, and therefore
that the fact that the State may have more resources than a defendantwhich,
the State notes, it almost invariably doescannot found a claim that
a particular proceeding was not fair.
Rather, in the circumstances of Mr. Garzas prosecution, the
State alleges that neither the law nor the court imposed any condition that
placed Mr. Garza at a substantial disadvantage vis a vis the prosecution,
in that Mr. Garza was free to impeach the prosecutions evidence in
any manner and to call witnesses in his defense.
In this respect, the State argues that the procedural conditions
at sentencing were the same for both parties, and the fact that certain
evidence was accumulated in Mexico is of no legal import.
According to the State, nothing prevented Mr. Garza from collecting
mitigating evidence on his behalf, whether in Mexico or in the United States,
and proffering that evidence at his sentencing hearing.
The State provides several arguments in support of its contention
that mere access to greater resources by the State, in the present case
through the MLAT between the United States and Mexico, cannot form the basis
of a claim of inequality of arms.
In particular, the State submits that this treaty merely enhances
the States ability to collect evidence against the accused and in
no way restrains the defense from challenging that evidence or presenting
his own evidence. The State
also points in this respect to the fact that the U.S. Constitution requires
the prosecution to turn over to the accused before trial all aggravating
or mitigating evidence. Further,
the State argues that neither the existence of the MLAT between the U.S.
and Mexico nor the decision by the U.S. and Mexico not to apply the Inter-American
Convention on Letters Rogatory to criminal matters affect the ability of
a litigant, civil or criminal, from obtaining evidence through letters rogatory,
as this process is rooted in custom between countries regardless of their
In support of its argument that equality of arms secures only procedural
and not substantive equality, the State relies in particular upon the July
15, 1999 judgment of the Appeals Chamber of the International Criminal Tribunal
for the Former Yugoslavia (hereinafter ICTY) in the case The
Prosecutor v. Dusko Tadic.
In this case, the defense alleged that the lack of cooperation and the obstruction
by certain external entitiesthe Government of the Republika Srpska
and the civic authorities in Prijedorprevented it from properly presenting
its case at trial and accordingly that there was no equality of arms
between the prosecution and defense at trial so as to frustrate the defendants
right to a fair trial. In responding
to Tadic's argument, the Prosecution contended, inter
alia, that the principle of equality of arms entitles both parties the
same access to the powers of the court and the same right to present their
cases, but does not call for equalizing the material and practical circumstances
of the two parties. The ICTY
Appeals Chamber ultimately rejected the defense position, on the basis that
the defendant failed to show that the protection offered by the principles
of equality of arms was not extended to him by the ICTY Trial Chamber.
In reaching this conclusion, the Appeals Chamber held that equality
of arms obliges a judicial body to ensure that neither party is put at a
disadvantage when presenting its case. The State regards Mr. Garzas
claim as being markedly similar to that in the Tadic case, and contends
that the Commission should similarly reject Mr. Garzas argument on
57. Further, according to the State, the European Court of Human Rights and the United Nations Human Rights Committee have likewise interpreted equality of arms as protecting procedural rather than substantive equality, and cites in support cases including Dombo Beheer B.V. v. Netherlands and B.d.B. et al. v. The Netherlands. Applying these authorities in the context of the Petitioners case, the State claims that neither the law nor the court imposed any conditions that placed Mr. Garza at a substantial disadvantage in relation to the prosecution, but rather that the procedural conditions at trial and at sentencing were the same for both parties.
With respect to the rules of evidence applicable during Mr. Garzas
sentencing hearing, the State agrees that the ordinary rules of evidence
do not apply during a Federal capital sentencing proceeding in the United
States, but argues that this works to the benefit and detriment of both
parties and is therefore consistent with the nature of the equality of arms
principle. Of particular significance
in this regard, the State contends that the Petitioners representatives
misunderstand the purpose of a sentencing hearing which, according to the
State, is not to prove guilt, but rather is meant to determine the appropriate
punishment for the defendants crimes, taking account of all relevant
59. Moreover, the State contends that the rules applicable to a sentencing hearing that permit liberal submission of evidence by both parties were developed principally to protect the defendant in capital cases, not the prosecution. Accordingly, in the circumstances of the present case, the State is of the view that Mr. Garza was simply unable to marshal sufficient mitigating evidence to avoid the death sentence, and therefore that this case does not warrant a finding that federal law did not protect his rights to due process or a fair trial.
The Petitioner claims that the State has violated his rights under
Articles I, XVIII, and XXVI of the American Declaration of the Rights and
Duties of Man. The State is
a member of the Organization of American States that is not a party to the
American Convention on Human Rights, as provided for in Article 20 of the
Commission's Statute and Article 51 of the Commission's Regulations, and
deposited its instrument of ratification of the OAS Charter on June 19,
The events raised in the Petitioner's claim occurred subsequent to the State's
ratification of the OAS Charter. The
Petitioner is a natural person, and the Petitioners representatives
are authorized under Article 26 of the Commission's Regulations to lodge
the petition on his behalf. The
Commission is therefore competent to examine this petition.
With respect to the admissibility of the Petitioner's petition, the
information presented by the parties indicates that Mr. Garza unsuccessfully
appealed his conviction and sentence to the U.S. Court of Appeals and the
U.S. Supreme Court, the latter having dismissed his petition for a Writ
of Certiorari and his petition for rehearing in 1996.
It also indicates that Mr. Garza pursued constitutional remedies before
the U.S. District Court, the U.S. Court of Appeals and the U.S. Supreme
Court, for alleged violations of his rights under the Due Process Clause
of the U.S. Constitution, and was likewise unsuccessful, the U.S. Supreme
Court having dismissed his final petition for a Writ of Certiorari on November
15, 1999. The State has not
alleged or otherwise established that Mr. Garza has failed to exhaust the
domestic remedies available to him in the United States. Accordingly, the Commission finds that the claims of violations
of Articles I, XVIII and XXVI of the American Declaration contained in the
Petitioner's petition of December 20, 1999 are not inadmissible for failure
to exhaust domestic remedies in accordance with Article 37 of the Commission's
In addition, the record in this case indicates that Mr. Garza's petition
was lodged with the Commission on December 20, 1999, and therefore within
6 months of the dismissal by the U.S. Supreme Court of his final petition
for a Writ of Certiorari on November 15, 1999.
The State has not contested the timeliness of Mr. Garza's petition.
The Commission therefore does not find the Petitioner's petition to be inadmissible
for violation of the 6-month period under Article 38 of the Commission's
Further, according to the Petitioner's representatives, the issue
of Mr. Garza's execution has not been previously considered by the Commission,
nor is it pending in another international proceeding for settlement.
The State has not alleged that Mr. Garza's petition is duplicitous.
Accordingly, the Commission finds that the Petitioner's petition
is not inadmissible under Article 39 of the Commission's Regulations.
Finally, with respect to the requirements of Article 41 of the Commission's
Regulations, the State has contended that Mr. Garza's petition should be
considered inadmissible because it is manifestly ill-founded and fails to
state facts that constitute a violation of any of the rights under the American
Declaration. Having reviewed
the Parties' observations and other material on the record in this matter,
and in light of the heightened level of scrutiny that the Commission has
traditionally applied in cases involving the implementation of capital punishment,
the Commission considers that the Petitioner's petition is not manifestly
groundless and contains facts that, if proven, may establish violations
of Articles I, XVIII and XXVI of the American Declaration.
Consequently, the Commission does not find Mr. Garza's petition to
be inadmissible under Article 41 of the Commission's Regulations.
With regard to the Petitioner's September 22, 2000 "Request
to Raise Additional Matters," in which the Petitioner's representatives
allege violations of Mr. Garza's rights under Articles I and II of the Declaration
in connection with the U.S. Justice Department's September 12, 2000 "Report
on the Federal Death Penalty System: A Statistical Survey (1988-2000),"
the State argues that these constitute new claims based upon new alleged
facts and arguments that were not a part of the Petitioner's original petition,
and which have not been raised before any U.S. court.
The Petitioner's representatives have not alleged that Mr. Garza
has exhausted domestic remedies in respect of these claims or that such
remedies are not available or effective.
Rather, they argue that any attempt to secure domestic relief would
likely not produce results until shortly before Mr. Garza's scheduled execution
date, and as a consequence would deprive the Commission of an opportunity
to address the merits of these claims at that stage and prior to Mr. Garza's
execution. Consequently, the Petitioner's representatives urge the Commission
to consider these claims.
66. The Commission recognizes and is deeply concerned by the fact that its ability to effectively investigate and determine capital cases has frequently been undermined when states have scheduled and proceeded with the execution of condemned prisoners despite the fact that those prisoners have proceedings pending before the Commission. It is for this reason that the Commission requests precautionary measures pursuant to Article 29(2) of its Regulations, as it has in Mr. Garza's case, to require a state to stay a condemned prisoner's execution until the Commission has had an opportunity to investigate his or her claims. Anything less effectively deprives condemned prisoners of their right to petition in the inter-American human rights system and causes them serious and irreparable harm. Accordingly, the Commission has on numerous occasions called upon the United States and other OAS member states to comply with the Commission's requests for precautionary measures in cases involving threats to the right to life and thereby properly and fully respect their international human rights obligations.
67. Notwithstanding these regrettable complications, however, the Commission is also obliged to apply the requirements prescribed by its Regulations and under general principles of international law governing the admissibility of claims presented to it, including the requirement that domestic remedies be invoked and exhausted. In the present case, the claims raised in the Petitioner's September 22, 2000 request constitute additional claims based upon new facts and evidence that, according to the information available, have not been raised before domestic courts in the United States. Moreover, the Petitioner has not alleged, and the Commission cannot conclude on the record before it, that domestic remedies are not available to address these claims, that the Petitioner has been prevented from exhausting them, or that such remedies would not be potentially effective.
Commission Member Professor Robert Goldman did not take part in the
discussion and voting on this case, pursuant to Article 19(2) of the
Petitioner's Summary of Issues to be Presented, dated October 5, 2000,
para. 5.1, citing IACHR, Report
on the Human Rights of Asylum Seekers in the Canadian Refugee Determination
System, OEA/Ser.L/V/II.106; Resolution Nº 3/87, Roach and Pinkerton
v. U.S., Annual Report of the IACHR 1987-88; Eur. Court H.R., Tyrer
v. U.K (1978) 2 E.H.R.R. 1 at para. 31.
Id., para. 6.1, citing Report of the Secretary General to the Commission on Human
Rights, U.N. Doc. E/CN.4/1999/52; Facts and Figures on the Death Penalty,
Id., para. 6.2, citing G.A. Res. 2857 (XXVI) of 20 December 1971 and 32/61 of 8 December
1997; U.N. Commission on Human Rights, Resolution Nº 2000/65; International
Covenant on Civil and Political Rights, Art. 6(2); Errol
Johnson v. Jamaica, Communication Nº 588/1994, U.N. Doc. CCPR/C/56/D/588/1994.
Id., para. 8, citing Survey of the Federal Death Penalty (1988-2000), U.S. Department
of Justice, September 12, 2000, Introduction.
Id., para. 7.2, citing Errol Johnson v. Jamaica,
Id., citing Report Nº 57/96,
Andrews v. United States, Annual Report of the IACHR 1998, at para.
Id., paras. 9.1, 9.2, citing,
inter alia, Capital Punishment and Deterrence: Examining the Effect of Executions
in Texas, Crime and Delinquency, Vol. 45, Nº 4, p. 481 (suggesting
that capital punishment does not act as a deterrent to crime).
Id., para. 9.3, citing, inter alia, The Death Penalty: Casualties and Costs of the
War on Crime, a lecture by Stephen Bright; USA: Death Penalty Developments
in 1996, Amnesty International.
Andrews v. United States, supra,
Id., paras. 11-12, citing U.S.
Department of Justice, Report on the Federal Death Penalty (12 September
2000), pp. T18-T22. The Petitioners representatives note in particular
that according to the Report, two states, Virginia and Texas, produced
25% of the cases in which local prosecutors sought the federal death
penalty during the period when the decision was made to seek the penalty
in Mr. Garza's case.
Id., paras. 11, 12, footnote
10 (indicating that the number of non-white defendants in cases in which
the death penalty was sought decreased following the introduction of
the Justice Department's January 1995 Protocol).
Id., para. 12, citing Guidelines on the Role of Prosecutors, Eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders,
Havana, 27 August - 7 September, 1990, U.N. Doc. A/CONF.144/28/Rev.1
at 189 (1990).
Id., para. 14, citing Clemency petition filed on behalf of Juan Raul Garza.
See e.g. Petition dated December
20, 1999, Appendix, U.S. v. Garza, Petition for a Writ of Certiorari
before the U.S. Supreme Court, October Term 1998, pp. 11-12 (indicating
that eight states in the United States impose a strict prohibition on
the use of unadjudicated offenses at capital sentencing (Alabama, Florida,
Indiana, Maryland, Ohio, Pennsylvania, Tennessee and Washington), and
ten other states allow the introduction of such evidence but require
strict procedural protections such as a heightened standard of reliability
(Arkansas, California, Delaware, Georgia, Illinois, Louisiana, Nebraska,
Nevada, South Carolina and Utah).
Petitioner's Summary of the Issues to be Presented, supra, para. 16.1, citing
Andrews v. United States, supra,
para. 177; Eur. Court H.R., De Cubber v. Belgium (1984) 7 E.H.R.R. 236.
Id., para. 20, citing Justice Marshall, joined by Justice Brennan, dissenting in
Williams v. Lynaugh, 484 U.S. 935 (1987) at 938.
Treaty on Cooperation Between the United States of America and the United
Mexican States for Mutual Legal Assistance, December 9, 1987, U.S.-Mex.,
27 I.L.M. 447. According to the Petitioners representatives, this
treaty obliges the states parties to provide each other with assistance
in criminal matters, including the taking of testimony or statements
of persons, the provision of documents records and evidence, and the
execution of legal requests for searches and seizures. Moreover, the
Petitioners representatives note that Article 1(5) of the Treaty
explicitly excludes the possibility that private defendants may invoke
the provisions of the treaty.
Petitioners Summary of Issues to be Presented, supra, para. 16.3, citing
Eur. Comm. H.R., Jespers v. Belgium (1981) 27 D.R. 61, para. 58.
Id., paras. 16.2, 16.4, 16.5,
citing Canada Report, supra,
para. 96; McKenzie et al., supra,
State's November 16, 2000 observations, citing
Resolution 23/89 (Celestine v. US), Annual Report of the IACHR 1989-90.
Case Nº IT-94-1-T, The Prosecutor v. Tadic, Judgment of July 15, 1999,
International Criminal Tribunal for the Former Yugoslavia (Appeals Chamber).
Eur. Court H.R., Dombo Beheer B.V. v. Netherlands (27 October 1993),
UNHRC, B.d.B. et al. v. The
Netherlands, Comm. Nº 273/1989 (30 March 1989), U.N. Doc. Supp. Nº 46
(A/44/40) at 286 (1989).
States Second Reply, dated September 25, 2000, citing the decision
of the U.S. Supreme Court in the case Lockett v. Ohio 438 U.S. 586,
604 (1978) for the proposition that in all but the rarest kind of capital
case the sentencing authority should be permitted to consider as a mitigating
factor any aspect of the defendants character or record and any
of the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.
The Inter-American Court of Human Rights and this 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 I/A Court H.R., Advisory Opinion OC-10/89 Interpretation of the American Declaration of the Rights and Duties of
Man Within the Framework of Article 64 of the American Convention on
Human Rights, 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. See also Statute of the Inter-American Commission on Human Rights,
U.S. v. Garza, 519 U.S. 825 (1996); 519 U.S. 1022 (1996).
See e.g. IACHR, Press Communiqué
9/00, June 22, 2000, Regarding the Execution in the United States of
Shaka Sankofa, formerly known as Gary Graham; IACHR, Press Communiqué
17/00, November 13, 2000, Regarding the Execution in the United States
of Miguel Angel Flores.