Foreign Nationals

USS Cole Lawyers Resign From Guantánamo Death-Penalty Defense, Say Government Spied on Client Communications

The U.S. Supreme Court has denied review of a petition filed by lawyers on behalf of Abd al Rahim al Nashiri—accused of orchestrating al-Qaida’s October 12, 2000 suicide bombing of the USS Cole warship off the coast of Yemen—challenging the legality of his death penalty trial before a Guantánamo Bay military commission. But in what has been described as "a stunning setback" to what would have been the first death-penalty trial held before the special military tribunals established in the wake of the 9/11 attacks, the entire civilian legal team has resigned from the case amid allegations that the government was illicitly listening in on their legal meetings. The Miami Herald reported on October 13, just three days before the Supreme Court decision, that the Chief Defense Counsel for the Military Commissions Defense Organization, Brigadier General John Baker (pictured) had “found good cause” to permit Nashiri's defense team to withdraw from the case as a result of ethical concerns created by alleged government spying on privileged attorney-client meetings. In June 2017, Gen. Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo, saying that he was “not confident that the prohibition on improper monitoring of attorney-client meetings” at the detention center was being followed. Attorney Rick Kammen, who has defended Nashiri since 2008, alleges in the Supreme Court petition that his team discovered classified information contradicting government assurances that the facilities in which they met with Nashiri were not being improperly surveiled. In the past, the spying has included, among other things, "microphones hidden in smoke detectors." Because the information relating to the violation of the right to counsel is classified, the defense lawyers have been ordered by the judge in the case, Air Force Colonel Vance Spath, not to share the information with the public or their client. Although Brig. Gen. Baker has released Kammen from representing Nashiri, the case cannot proceed until another experienced death-penalty defender is brought onboard. Two other civilian defense attorneys who are Pentagon employees—Rosa Eliades and Mary Spears—also quit the case with permission from Baker but remain on his staff. The only member of Nashiri's defense team who remains on the case is Lieutenant Alaric Piette—a former Navy SEAL who has never tried a murder case. “I am certainly not qualified as learned [death-penalty] counsel,” Lt. Piette told the Miami Herald, which he says Nashiri “is entitled to and should have ... since the government is trying to kill him.” Kammen says the defense team is "angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice.” The pretrial proceedings at the Guantánamo Bay that were scheduled to begin on October 30th are expected to be delayed for months, until learned death-penalty counsel who has received Top Secret security clearance to review the evidence in the case is appointed.

Virginia Governor Commutes Death Sentence of Ivan Teleguz

On April 20, Virginia Governor Terry McAuliffe commuted the death sentence of Ivan Teleguz (pictured), whom the Commonwealth had scheduled to be executed on April 25. Teleguz will now serve a sentence of life without parole. It was the first  death-penalty clemency ever issued by Gov. McAuliffe. The official statement released to the media in conjunction with the commutation outlined several of the factors that influenced the Governor's decision, including the prosecution's use of false evidence that tainted the jury's choice to sentence Teleguz to death. "[D]uring the trial, evidence was admitted implicating Mr. Teleguz in another murder in a small Pennsylvania town," McAuliffe said. "In arguing for the death penalty, the prosecutor made explicit reference to this evidence in arguing that Mr. Teleguz was so dangerous that he needed to be put to death. We now know that no such murder occurred, much less with any involvement by Mr. Teleguz. It was false information, plain and simple, and while I am sure that the evidence was admitted in a good-faith belief in its truthfulness at the time, we now know that to be incorrect." McAuliffe also cited the disproportionality of sentencing Teleguz to death when Michael Hetrick, the admitted killer, received a sentence of life without parole in exchange for his testimony against Teleguz. "To allow a sentence to stand based on false information and speculation is a violation of the very principles of justice our system holds dear," McAuliffe said. Teleguz—a foreign national from the Ukraine—maintains that he is innocent of the crime, and his clemency petition received support from numerous political, religious, and business leaders.

President Obama Commutes Two Death Sentences

On January 17, 2017, President Barack Obama (pictured) commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th. Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty. In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment." Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die. Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.

Human Rights Commission Calls for Stay of Execution for Nicaraguan Man on Texas Death Row

(UPDATE: The Texas Court of Criminal Appeals has granted Bernard Tercero a stay of execution to permit him to litigate evidence that a lead prosecution witness testified falsely against him.) The Inter-American Commission on Human Rights (IACHR), a unit of the Organization of American States, has called on Texas officials to stay the execution of Nicaraguan citizen Bernardo Tercero (pictured), who is scheduled to be executed in Texas on August 26. Under international treaties on consular relations, foreign citizens (including Americans abroad) must be afforded access to their government's consulate at the time of their arrest. The IACHR has ruled that Texas' failure to respect these treaty obligations denied Tercero "his right to consular notification and assistance [and] deprived him of a criminal process that satisfied the minimum standards of due process and a fair trial" required under Inter-American human rights treaties. The IACHR also concluded that Tercero's court-appointed counsel "committed serious mistakes that affected his right to defense" and that procedural rulings by the courts in his case denied Tercero the "possibility to have his sentence effectively reviewed." The Organization of American States issued a statement saying that, "Should the state of Texas carry out this execution, it would be committing a serious and irreparable violation of the basic right to life" guaranteed in American human rights instruments. As of June 9, 2015, 139 foreign nationals were on death rows across America, with 61 in California and 22 in Texas. 

Supreme Court to Review Impact of Eliminating Black and Hispanic Jurors in Capital Case

On October 20, the U.S. Supreme Court agreed to hear Chappell v. Ayala (No. 13-1428), a death penalty case from California in which all the black and Hispanic potential jurors were struck from the defendant's trial. Hector Ayala was convicted in 1989 of three murders in San Diego. At his trial, Ayala's attorneys argued that the prosecutor was improperly striking jurors on the basis of race. The judge reviewed the prosecutor's explanation for the strikes without defense attorneys present, saying it was necessary to protect the prosecutor's trial strategy, and concluded the strikes were not racially motivated. The California Supreme Court found that any potential constitutional error related to the racial makeup of the jury or the subsequent closed review was harmless, rejecting Ayala's appeal. The U.S. Court of Appeals for the Ninth Circuit granted Ayala relief and ordered California to retry him. The 9th Circuit held that the constitutional issues could be reviewed without deference to the state court opinion because no ruling based on federal law had been made against Ayala, and that the errors made at trial had an injurious effect on the jury's verdict. The Supreme Court will consider whether more deference was due the state court's decision and whether the 9th Circuit used the correct standard in determining that the trial errors were harmful.

NEW VOICES: Former Texas Governor Calls for Hearing for Edgar Tamayo

In an op-ed in the Austin American-Statesman, former Texas Governor Mark White called for a new hearing for Edgar Tamayo, a Mexican national scheduled for execution on January 22. Foreign nationals charged with crimes in the U.S. are entitled to assistance from their consulate under the Vienna Convention on Consular Relations, but Tamayo was denied that right. White joins U.S. Secretary of State John Kerry and the Mexican Foreign Minister in calling for hearings to determine whether assistance from the Mexican government would have affected Tamayo's case. White highlighted the importance of upholding the Vienna Convention, saying, "If American states, including Texas, fail to honor Vienna Convention rights for citizens of other countries, then how can we expect those other countries to protect our own rights?" He concluded, "I hope that Governor Perry and Attorney General Abbott will do the right thing and protect Texas’ integrity at the same time, by allowing a court to hear Tamayo’s claims of prejudice." Read the op-ed below.

Upcoming Death Penalty Events in 2014

As the new year begins, there are several notable events related to the death penalty likely to occur in the next few months. The first execution of the year is scheduled for January 7 in Florida. The execution of Askari Muhammad had originally been scheduled for December 3, 2013, but was stayed due to a challenge to the state's new execution protocol. The Florida Supreme Court approved the new protocol, and the execution was rescheduled, though legal challenges are continuing in federal court. Ohio has scheduled the execution of Dennis McGuire for January 16, and the state plans to use a lethal injection protocol never tried before in any state. Ohio will use midazolam and hydromorphone, drugs formerly listed in the state's backup procedure. This latest change in Ohio was caused by a shortage of the drug pentobarbital, after restrictions on its use were imposed by its European manufacturer. On January 22, Texas is scheduled to execute Edgar Tamayo, a Mexican citizen who was denied consular access at the time of his arrest, in violation of the Vienna Convention on Consular Relations. Objections to the execution have been raised by U.S. Secretary of State John Kerry and by numerous other governments. On March 3, the U.S. Supreme Court will hear oral arguments in Hall v. Florida, a challenge to Florida's strict procedure for determining intellectual disability in capital cases. The Court previously ruled that intellectually disabled defendants are barred from execution.

FOREIGN NATIONALS: Mexican Foreign Minister Appeals to Texas Officials about Upcoming Execution

Mexican foreign minister José Antonio Meade Kuribreña recently sent letters to Texas Governor Rick Perry and the Texas Board of Pardons and Paroles requesting that the execution of Edgar Arias Tamayo, a Mexican citizen, be postponed or commuted. Tamayo is currently on death row in Texas and is scheduled for execution for on January 22, 2014. In 2004, the International Court of Justice ordered the U.S. to review the convictions of Tamayo and 50 other Mexican citizens who had been sentenced to death without being notified of their rights under the Vienna Convention. No U.S. court has examined the consular issues in Tamayo's case. Earlier this month, Secretary of State John Kerry wrote a letter to Texas officials urging to review Tamayo’s case, and warning that Tamayo's execution could damage U.S.-Mexican relations and hinder the ability of U.S. officials to help American citizens detained abroad.

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