Two Foreign Nationals Receive New Trials as U.S. Supreme Court Declines to Hear State Death-Penalty Appeals

Two for­eign nation­als who were sen­tenced to death in unre­lat­ed cas­es will receive new tri­als after the U.S. Supreme Court declined to hear appeals of low­er court rul­ings over­turn­ing their con­vic­tions. Jose Echavarria (pic­tured, left), a Nevada pris­on­er orig­i­nal­ly from Cuba, and Ahmad Issa (pic­tured, right), an Ohio pris­on­er orig­i­nal­ly from Jordan, each were award­ed new tri­als by fed­er­al appel­late court deci­sions in 2018. The states peti­tioned the Supreme Court seek­ing review of the cas­es, but on May 20, 2019, the Court denied the peti­tions, allow­ing the low­er court rul­ings to stand. Echavarria and Issa were among 130 for­eign nation­als from 35 coun­tries under sen­tence of death across the United States.

Echavarria, who was sen­tenced to death in Clark County, Nevada for the 1990 killing of FBI agent John Bailey dur­ing an attempt­ed bank rob­bery, was grant­ed a new tri­al on his claim that his tri­al had been taint­ed by judi­cial bias. Echavarria fled to Mexico after the crime, and lat­er alleged that he had been tor­tured and beat­en by Mexican police until he con­fessed. He moved to sup­press the con­fes­sion, but the tri­al judge, Jack Lehman, denied the motion. Unknown to the defense, Lehman had been the sub­ject of an FBI inves­ti­ga­tion into issues of pos­si­ble cor­rup­tion, fraud, and per­jury and that inves­ti­ga­tion had been con­duct­ed by Agent Bailey. The FBI ulti­mate­ly referred the case to state author­i­ties in 1988, who brought no charges against the judge. Lehman met with the pros­e­cu­tor and the lawyer rep­re­sent­ing Echavarria’s co-defen­dant pri­or to tri­al, ask­ing whether they want­ed him to recuse him­self. According to the U.S. Court of Appeals for the Ninth Circuit, ​“Judge Lehman did not ful­ly explain … the nature and extent of the FBI’s inves­ti­ga­tion,” and nei­ther par­ty request­ed recusal. Echavarria’s coun­sel did not learn about the FBI inves­ti­ga­tion until well after tri­al and sentencing.

The Ninth Circuit ruled that Judge Lehman’s par­tic­i­pa­tion in the tri­al cre­at­ed ​“a con­sti­tu­tion­al­ly intol­er­a­ble risk of bias” that vio­lat­ed Echavarria’s right to due process. It wrote that “[a]n aver­age judge in [Lehman’s] posi­tion would have feared that rul­ings favor­ing Echavarria, tip­ping the out­come towards acquit­tal or a sen­tence less than death, could cost him his rep­u­ta­tion, his judge­ship, and pos­si­bly his lib­er­ty.” The court found that ​“the risk of bias was extra­or­di­nary in both its nature and sever­i­ty … [and] was obvi­ous to all who had com­plete infor­ma­tion about Agent Bailey’s inves­ti­ga­tion.” It upheld a fed­er­al dis­trict court rul­ing that vacat­ed Echavarria’s con­vic­tion and death sen­tence and required the state to retry or release Echavarria. This was the sec­ond case in two years in which the Supreme Court had been asked to inter­vene in a Clark County case alleg­ing judi­cial bias. In 2017, the Court reversed a Nevada court rul­ing that had upheld the cap­i­tal con­vic­tion of Michael Rippo after a judge who was the sub­ject of a fed­er­al bribery inves­ti­ga­tion in which Clark County pros­e­cu­tors were play­ing a role refused to recuse him­self from the trial.

Issa was grant­ed a new tri­al by the Ohio fed­er­al courts based on Hamilton County pros­e­cu­tors’ improp­er use of hearsay evi­dence. Issa was con­vict­ed of cap­i­tal mur­der for alleged­ly hir­ing Andre Miles to kill Maher Khriss, Issa’s boss, at the behest of Khriss’ wife, Linda. Miles also killed Zaid Khriss, Maher’s broth­er, when he shot Maher. Miles, Issa, and Linda Khriss were all charged with aggra­vat­ed mur­der. Linda Khriss was acquit­ted in a tri­al in which Miles — who had received a life sen­tence in his tri­al — tes­ti­fied against her. Miles sub­se­quent­ly refused to tes­ti­fy at Issa’s tri­al and the tri­al court allowed Cincinnati pros­e­cu­tors to instead present tes­ti­mo­ny from two friends of Miles, who said Miles had told them that Issa had hired him to kill some­one. The U.S. Court of Appeals for the Sixth Circuit found that this tes­ti­mo­ny vio­lat­ed the Confrontation Clause of the Sixth Amendment, which states, “[i]n all crim­i­nal pros­e­cu­tions, the accused shall enjoy the right … to be con­front­ed with the wit­ness­es against him.”

The two cas­es illus­trate the height­ened risks fac­ing for­eign nation­als in state courts in the U.S. Six for­eign nation­als have been exon­er­at­ed from U.S. death rows since the 1990s, three of them since December 2017. Overall, there has been one exon­er­a­tion for about every nine exe­cu­tions in the U.S. However, for for­eign nation­als on death row, there has been one exon­er­a­tion for every 6.17 exe­cu­tions. Foreigners fac­ing cap­i­tal charges in the U.S. are also fre­quent­ly denied their right to con­sular assis­tance, which is guar­an­teed under the Vienna Convention on Consular Relations. International human rights courts have ruled that the U.S. has breached its treaty oblig­a­tions by allow­ing states to impose death sen­tences on more than fifty for­eign nation­als with­out pro­vid­ing them access to consular assistance.

(Echavarria v. Filson, U.S. Court of Appeals for the Ninth Circuit, July 25, 2018; Issa v. Bradshaw, U.S. Court of Appeals for the Sixth Circuit, September 21, 2018; Order List, U.S. Supreme Court, May 20, 2019.) See Foreign Nationals.