Case No. 11.331

Cesar Fierro

United States of America

July 1, 2002

REQUEST FOR A DECISION ON THE MERITS

A. POSTURE OF THE CASE BEFORE THE COMMISSION

Undersigned petitioners filed a denunciation July 21, 1994, indicating that Mr. Fierro, a national of Mexico, had been convicted of murder and sentenced to death in the State of Texas. The denunciation stated that Mr. Fierro had not been informed at the time of his arrest and trial of his right to contact a consul of Mexico for assistance in his defense, and that the confession that constituted the primary evidence at trial had been unlawfully coerced from him. In response, the United States of America filed a Note on October 21, 1994. Petitioners replied on December 28, 1994, by filing Observations by Complainants on the Note of October 21, 1994, of the Government of the United States of America. Since that time, no further documents have been filed by Petitioners or, so far as Petitioners are aware, by the United States of America.

The case has been in an inactive status because the attorneys representing Mr. Fierro in the United States courts discovered a police report proving that the confession had been coerced from him unlawfully by the El Paso, Texas, Police Department. The discovery of this new evidence led the courts of Texas to re-open the case.

As result of these further proceedings, as will be explained below, the courts of Texas determined that the confession was unlawfully coerced and should not have been admitted into evidence at Mr. Fierro's trial. Despite this finding of fact, neither the courts of Texas, nor the federal courts of the United States, have reversed Mr. Fierro's conviction and death sentence. Neither the courts of Texas, nor the federal courts of the United States have undertaken any review or reconsideration of Mr. Fierro's conviction and death sentence in light of the failure to advise him of his right of consular access.

Petitioners hereby ask the Commission to proceed to a decision on the merits. By virtue of a decision of the U.S. Court of Appeals for the Fifth Circuit of June 13, 2002, as will be explained below, all judicial proceedings that might reasonably be expected to result in relief for Mr. Fierro have been completed. The circumstances that led to postponement of the Commission's consideration are therefore no longer present. A new date for the execution of Mr. Fierro has not yet been set but may be set at any time. An execution may be scheduled for a date before the end of the year 2002. Petitioners request that the Commission consider the case as a matter of urgency, in order that the Commission may proceed to a decision prior to an execution date.

B. PROCEEDINGS IN COURTS OF THE UNITED STATES SINCE 1994

In late 1994, attorneys for Mr. Fierro discovered a supplemental offense report in the files of the El Paso County District Attorney. The report was dictated by the interrogating officer, Detective Al Medrano, and indicates that he knew at the time he was interrogating Mr. Fierro that Mr. Fierro's mother and stepfather had been taken into custody by Comandante Jorge Palacios of the Ciudad Juarez Police Department.

At a pre-trial court hearing held on a defense motion to suppress Mr. Fierro's confession, Mr. Fierro's attorneys asked Detective Medrano whether, at the time Mr. Fierro confessed, Mr. Fierro's mother and stepfather were in the custody of the Ciudad Juarez Police Department. Detective Medrano answered that he had no knowledge that Mr. Fierro's mother had, at that time, been in the custody of the Ciudad Juarez Police Department.

According to Detective Medrano's testimony at the pre-trial suppression hearing, as he was attempting to confirm certain background information about Fierro, such as whether his mother's name was Socorro Reyna and whether she lived in Juarez, Mr. Fierro grew concerned about how Detective Medrano had obtained this information about his mother. Detective Medrano testified that he told Mr. Fierro that the Juarez police had provided this information, as they were assisting in the investigation. Detective Medrano testified that Mr. Fierro immediately became concerned that his mother was in the custody of the Juarez police. Detective Medrano testified that he offered to allay Mr. Fierro's concerns by putting him in direct telephone contact with Comandante Jorge Palacios of the Juarez Police Department. Detective Medrano testified that after this telephone call, Mr. Fierro was calm and ready to give a voluntary confession.

The supplemental offense report shows that this testimony by Detective Medrano at the pre-trial suppression hearing was false. According to the report, Comandante Palacios telephoned Detective Medrano in the early morning hours of August 1, 1979, to say that the Juarez Police Department "had in custody" both the mother and stepfather of Mr. Fierro. Accordingly, Detective Medrano's testimony that he was trying to allay Mr. Fierro's anxiety by putting him in telephone contact with Comandante Palacios was false.

On the basis of this new information, Mr. Fierro's attorneys asked the Texas Court of Criminal Appeals to order the Texas court of first instance to make findings of fact and conclusions of law regarding the circumstances of Mr. Fierro's confession. In that filing, Mr. Fierro's attorneys asked the court to reverse the conviction because of the failure of El Paso police to notify Mr. Fierro of his right of access to a Mexican consul. [Amended Application for Postconviction Writ of Habeas Corpus, Ex parte Fierro, para. 124-130.]

As reported by the Texas Court of Criminal Appeals, [Ex parte Fierro, Court of Criminal Appeals of Texas, 937 S.W.2d 370 (1996)], the court of first instance, after hearing the testimony of seventeen witnesses, after considering letters rogatory testimony from Mexico, and after reviewing various exhibits, affidavits and pleadings, made the following three findings of fact:

(1) that at the time of eliciting the Defendant's confession, Det. Medrano (now deceased) did have information that the Defendant's mother and step-father had been taken into custody by the Juarez police with the intent of holding them in order to coerce a confession from the Defendant, contrary to said Det. Medrano's testimony at the pretrial suppression hearing.

(2) That the District Attorney's Office did not withhold this Supplemental Offense Report from the attorneys for the Defendant.

(3) That Det. Medrano presented false testimony regarding the nature and extent of the cooperation between the El Paso police and the Juarez police in this particular case, as it existed in 1979. There was no evidence produced to show that such practices are still taking place.

Finding #2 reflected a conclusion by the trial court had reached that Gary Weiser, the state attorney who prosecuted Mr. Fierro, had not seen the report or known that Detective Medrano had coerced the confession.

As also reported by the Texas Court of Criminal Appeals [Ex parte Fierro, Court of Criminal Appeals of Texas, 937 S.W.2d 370 (1996)], the court of first instance made two conclusions of law:

(1) That there is a strong likelihood that the Defendant's confession was coerced by the actions of the Juarez police and by the knowledge and acquiesence [sic] of those actions by Det. Medrano.

(2) It is not the conclusion of this Court that the Defendant should be released from these charges, but that he should be retried by another jury who will then render a verdict based on all the evidence, both old and new that has been developed at these hearings.

The Texas Court of Criminal Appeals, sitting en banc, accepted the three findings of fact and the two conclusions of law, except that it did not think that the case needed to be submitted to a new trial. The Texas Court of Criminal Appeals stated: "As a result of the trial court's findings and the evidence in the record, we conclude that applicant's due process rights were violated by Medrano's perjured testimony. But, because we conclude that the error was harmless, we deny relief."

The basis for the conclusion that the error was harmless was that at trial, the prosecution also presented the testimony of a Gerardo Olague, a teenage boy who asserted that Mr. Fierro had committed the murder. Thus, according to the Texas Court of Criminal Appeals (at p. 375), there was sufficient evidence apart from the confession to sustain the conviction of Mr. Fierro. Beyond Mr. Fierro's confession, and the testimony of Mr. Olague, who suffered from a mental illness, the prosecution presented no evidence, physical or otherwise, to connect Mr. Fierro to the crime.

Four judges of the Texas Court of Criminal Appeals dissented. They pointed out that the Court's majority acknowledged that due process had been violated by the use of Detective Medrano's perjured testimony. They thought that Mr. Fierro's conviction could not have been sustained absent his confession.

One of the dissenting judges recited the contents of an affidavit given by the Texas prosecuting attorney, Gary Weiser, who prosecuted Mr. Fierro, and from whom the circumstances of the confession had apparently been concealed. Mr. Weiser, as his affidavit indicates, considered that Mr. Olague's testimony, standing alone, was insufficient to convict Mr. Fierro. The affidavit reads:

Had I known at the time of Fierro's suppression hearing what I have since learned about the family's arrest, I would have joined in a motion to suppress the confession. Had the confession been suppressed, I would have moved to dismiss the case unless I could have corroborated Olague's testimony. My experience as a prosecutor indicates that the judge would have granted the motion as a matter of course. (Maloney, J., dissenting, at p. 390)

Judge Maloney recited the circumstances of Mr. Fierro's confession, as they had been determined by the court of first instance. Mr. Fierro testified at the pre-trial suppression hearing that Detective Medrano had told him that his mother was in custody in Juarez and would not be released until he confessed. Mr. Fierro further testified that Detective Medrano had shown him two letters that he and his brother had written to his mother in an effort to convince him that his mother was in custody." (Maloney, J., dissenting, at p. 388)

Judge Maloney also recounted the testimony that Mr. Fierro's mother and stepfather gave at the pre-trial suppression hearing:

. . . Palacios [a member of the Ciudad Juarez Police Department] and eight other police officers invaded their home at 3:00 a.m. on the morning of August 1, 1979. The officers seized two letters which applicant and his brother had written to their mother. They were arrested and taken into custody, although they were not charged with an offense. They testified that while in custody at the Juarez jail, applicant's mother was physically abused and threats were repeatedly made to attach an electrical generator, known as a "chacharra," to applicant's stepfather's genitals. They were released at 7:00 pm that evening, after applicant had signed a confession. (Maloney, J., dissenting, at p. 388)

The Texas Court of Criminal Appeals did not respond to the request by Mr. Fierro's attorney that the conviction be reversed because of violation of the right of notification of consular access.

Attorneys for Mr. Fierro sought review by the federal courts, but the federal courts decided, without reaching the merits of Mr. Fierro's arguments, that they had no basis, as a matter of procedure, to consider the case. Fierro v. Johnson, 197 F.3d 147, U.S. Court of Appeals, 5th Circuit, November 23, 1999; certiorari denied 530 U.S. 1206 (U.S. Supreme Court, May 30, 2000).

Attorneys for Mr. Fierro again sought review by the federal courts, asking that they issue a habeas corpus writ, based on the finding by the Texas Court of Criminal Appeals that his confession had been coerced. This action was filed in the U.S. District Court for the Western District of Texas, which denied the request, refusing to entertain it on the merits on the grounds that it was time-barred by provisions of the Anti-Terrorism and Effective Death Penalty Act. On June 13, 2002 that denial was affirmed by the U.S. Court of Appeals, 5th Circuit, 2002 U.S. App. LEXIS 11628. This decision precludes Mr. Fierro from raising in the federal courts any issues relevant to his conviction and death sentence.

C. REQUEST FOR A DECISION ON THE MERITS

Mr. Fierro has exhausted remedies available in the United States. A date for his execution may be set shortly. Action by the Commission is required at this time, to ensure that its decision is made prior to Mr. Fierro's execution date.

The failure of the state and federal courts of the United States to reverse Mr. Fierro's conviction is a flagrant violation of due process of law and of rights adhering to Mr. Fierro under the Vienna Convention on Consular Relations.

The Texas Court of Criminal Appeals has acknowledged that the confession taken from Mr. Fierro should not have been admitted into evidence during his trial. The prosecuting attorney has stated, by affidavit, that absent the confession there was insufficient evidence to convict Mr. Fierro.

The Texas Court of Criminal Appeals has upheld Mr. Fierro's conviction and death sentence on the rationale that the jury might have convicted Mr. Fierro, even if it had not been told of his confession. However, it is impossible to know whether the jury would have convicted Mr. Fierro solely on the basis of Mr. Olague's testimony. As indicated above, Gary Weiser, the prosecuting attorney who gained the conviction of Mr. Fierro, has stated that Mr. Olague's testimony, without more, was insufficient to justify a murder charge against Mr. Fierro.

In a capital case, procedural rules must be followed even more closely than in other cases. In addition to the lack of evidence, it is undisputed that Mr. Fierro was not notified as required by Article 36 of the Vienna Convention on Consular Relations of his right of consular access. These errors should have led the courts of the United States to reverse Mr. Fierro's conviction. These courts have sustained Mr. Fierro's conviction despite the acknowledged wrongdoing by the El Paso police. They have refused to consider the violation of the Vienna Convention on Consular Relations. They have upheld the death sentence despite their finding that the El Paso Police Department coerced a confession by leading him to believe that his mother and stepfather would be in jeopardy until he did so. The action of the El Paso Police Department in this case constituted torture as defined in customary international law, since it involved the infliction of mental suffering to gain a confession.

Since the time of the filing before the Commission in 1994, both the Inter-American Court of Human Rights (Case OC/16) and the International Court of Justice (LaGrand) have indicated that a death sentence may not be carried out following non-compliance with the obligation to notify about consular access rights. The impending execution of Mr. Fierro would constitute an arbitrary deprivation of his life, and a denial of due process of law.

The courts of Texas and the federal courts have shown, in this case, no respect for the obligation to reconsider a conviction and sentence in light of a consular access violation. They have not even taken up this issue to explain, if they could, why they might deem it possible to sustain the conviction and sentence despite the violation. They have simply refused to address the issue. They have thus violated Mr. Fierro's rights in two ways: (1) by sustaining his conviction and death sentence, (2) by refusing even to consider whether to sustain his conviction and death sentence.

The Inter-American Court of Human Rights, in El derecho a la información sobre la asistencia consular en el marco de las garantías del debido proceso legal, Opinión consultiva OC-16/99, 1 October 1999, made clear that a conviction and death sentence may not stand, following upon a failure to comply with consular access rights. The Court said (at para. 137) that the imposition of a death sentence without compliance with the obligation to inform of the right of consular access constitutes arbitrary deprivation of life.

The International Court of Justice has similarly stated that a reversal of such a conviction and death sentence are required. It said that in the event of a conviction and death sentence following upon a failure to notify of consular access rights, "it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the [Vienna] Convention [on Consular Relations]." LaGrand (Germany v. USA), 2001 I.C.J. at para. 125.

These two courts were addressing the precise situation in which Mr. Fierro finds himself. He was convicted and sentenced to death without having been informed at the time or arrest, or trial, that he had a right to contact a consul of Mexico. The courts of the United States have not even undertaken an inquiry into the question of voiding Mr. Fierro's conviction or death sentence because of the acknowledged violation of the obligation to notify about consular access rights.

The manner in which the courts of the United States have ignored consular access rights in Mr. Fierro's case is typical of the manner in which they are handling this matter in general. The federal and state courts are uniformly denying claims based on denial of information about consular access. They are disregarding both the Advisory Opinion of the Inter-American Court of Human Rights, and the Judgment of the International Court of Justice in the LaGrand case. They deny relief to foreign nationals sentenced following a violation of the right of notification about consular access. See John Quigley, LaGrand: A Challenge to the Courts of the United States, 27 Yale Journal of International Law __ (2002).

The courts have referred, in reaching this conclusion, to the views expressed to the courts by the Department of State. The Department has told the courts that a foreign national has no judicially enforceable right where the right of consular access has been violated, and in particular no right to a judicial remedy. Since the time of the Advisory Opinion of the Inter-American Court of Human Rights, and the Judgment of the International Court of Justice in the LaGrand case, the Department has not revised the opinions it previously gave the courts. As a result, the courts continue to cite views expressed by the Department prior to the dates of these two judicial statements. The courts state that they defer to the view of the Department on such issues.

The U.S. Court of Appeals for the Fifth Circuit, in particular, has ruled that there is no judicially enforceable right where a foreign national is not informed of the right of consular access. To support its conclusion, the Court of Appeals cited an opinion rendered by the Department of State for the proposition that the Department of State, rather than the courts, deals with the violations, and that the manner in which the Department does so is to apologize to the relevant foreign government. U.S. v. Jiminez-Nava, 243 F.3d 192, at 199 (2001).

Petitioners ask the Commission to consider Mr. Fierro's case as a matter of urgency, in order that the Commission may render a decision on the merits prior to the date of Mr. Fierro's execution. Petitioners undertake to advise the Commission when a date is scheduled for Mr. Fierro's execution.

_________________________

John Quigley, Petitioner

S. Adele Shank, Petitioner

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