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June 17, 2001, Drug kingpin battles for stay as execution date approaches By KIM COBB For the second time in as many weeks, the federal government is preparing to put a man to death. As Texas drug kingpin Juan Raul Garza approaches his scheduled execution at 7 a.m. Tuesday, he is fighting a battle similar to Timothy McVeigh's - seeking a sympathetic ear from the courts when there can be no claim to innocence. But terrorist bomber McVeigh abandoned all appeals just days before his June 11 execution, and Garza is still hoping for a court-ordered stay. He is also asking for clemency from the nation's most visible death penalty supporter - President Bush - based on what his attorneys argue are racial and regional disparities in how the federal death penalty is assessed. Of the 19 men awaiting execution at the Terre Haute, Ind., federal penitentiary, 17 are black or Hispanic - six from Texas. Garza, 44, was convicted and sentenced to death in 1993 for killing a man and ordering the murders of two others as part of his massive marijuana smuggling operation. Like McVeigh, Garza took responsibility for his crimes after conviction. "I really believe that if they think you did it, and you said you did it, the sympathy factor goes out the window," said Houston attorney Doug McNabb, who represented Garza at trial. It's hard to convey fairness issues to people in cases like Garza's, agreed Jotaka Eaddy, a consultant with the National Coalition Against the Death Penalty. "Usually they look at the crime that's committed, and not necessarily the death penalty itself," she said. Garza had a double life: He owned a construction business in Brownsville and was married to the daughter of a minister. But the Brownsville native was running great amounts of marijuana out of Mexico and distributing it in Houston, Louisiana and Michigan. Prosecutors say his were the kinds of crimes Congress had in mind when it first authorized the death penalty in 1988 for high-volume, violent drug traffickers - legislation known as the Drug Kingpin Act. Garza acknowledged that he committed or ordered the three murders. But his attorneys claim it was prejudicial when prosecutors submitted evidence of up to four murders he allegedly arranged in Mexico - even though he was never charged. His attorneys also argue that Garza got caught before a change in federal law on jury instructions in death penalty cases. The law changed in 1994, requiring prosecutors to tell juries that life in prison without parole is an automatic option to the death penalty in cases like Garza's. But he was tried in 1993, and his attorneys say prosecutors were wrong to imply that he could have eventually gotten out of prison if he was not given death. "This is so important," argues David Bruck, an attorney on the Death Penalty Information Center's board, a nonprofit organization opposed to the death penalty. "This is what jurors think about, and quite properly so. Why not tell them what's really going to happen?" The U.S. 5th Circuit Court of Appeals previously ruled that the "life without parole" instruction was not required, and the Supreme Court refused to hear the question. But Garza's lawyers on June 7 appealed to the U.S. Supreme Court, believing that a ruling the high court issued in March now opens the door for the justices to consider his plea. On Friday, Garza's attorneys filed a second appeal to the Supreme Court claiming prosecutors were wrong to present "hearsay" evidence against Garza of crimes in Mexico for which he was not convicted. The death sentence that resulted, argues this newest appeal, violates the United State's obligations under the charter of the Organization of American States - specifically a human-rights compact called the American Declaration of the Rights and Duties of Man. Greg Wiercioch, a Houston attorney representing Garza on appeal, said he believes a Supreme Court decision issued in March on a South Carolina case shows "very clearly" that Garza deserved an instruction to his jury that a life sentence with no parole was an option. But his client is fighting tough odds for Supreme Court review of a case it already rejected, he conceded. "It's very difficult to get back into the federal courts after you've been through all your appeals," Wiercioch said. The Justice Department filed a brief before the high court Thursday arguing that legal procedure prohibits Garza from using the jury instruction argument again. And, writing on behalf of the Justice Department, Solicitor General Theodore Olson said Thursday that a judge could indeed have decided to impose a sentence of less than life if the jury had rejected the death penalty. Justice Antonin Scalia has jurisdiction over appeals from Texas cases, but it's expected he will refer the question to the full nine-member court. Garza was first scheduled to die Aug. 5, 2000, but the date was postponed until Dec. 12, 2000, to allow the Justice Department to complete guidelines for federal inmates seeking clemency. Garza later applied for clemency under those new rules, and then-President Clinton in December delayed his execution for at least six months to wait for a Justice Department study of the fairness of the death penalty. U.S. Attorney General John Ashcroft announced June 6 that his department's study found no evidence of race-based bias in the federal system as it relates to death penalty cases. In testimony before the Senate Judiciary Committee last week, former federal prosecutor Jim McBride said he believes the bias charge is being fabricated by people whose only goal is to block enforcement of the death penalty for other reasons. Critics say the Department of Justice study didn't address the discretion that prosecutors have in selecting which cases are considered for the death penalty. "It's one thing to say a person did it and deserves to die," Bruck said. "It's another thing to say that of all people who did bad murders, we're going to execute blacks and Hispanics. We don't know that's happening, but we don't know that it's not." | |