October Term, 1999





JAMES LYNAUGH and his successor in interest, GARY JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,



On Appeal from the United States Court of Appeals

for the Fifth Circuit






March 16, 2000

Pursuant to Rule 37.2(a) of the Rules of the Supreme Court of the United States, this brief is respectfully submitted by the Government of the United Mexican States ("Mexico") with the consent of the parties . (1)


The Government of the United Mexican States supports the petition of Cesar Roberto Fierro, a Mexican citizen sentenced to death in the State of Texas, for the writ of certiorari. Mexico has a vital interest in the treatment of its citizens by other governments. As a sovereign nation, Mexico is responsible under customary principles of international law for the welfare of its citizens, wherever located. Mexico is particularly concerned with protecting the rights of Cesar Fierro, who presents compelling claims of police misconduct, a coerced confession, and scanty evidence supporting his conviction. Indeed, his is the only case in which the Fifth Circuit has authorized a successive habeas corpus petition, finding that Mr. Fierro had made a prima facie showing of innocence under the AEDPA's stringent "clear and convincing" standard. 28 U.S.C. §2244 (b)(2)(B)(ii); In re Cesar Roberto Fierro, No. 97-00498 (5th Cir. Nov. 11, 1997).

Mexico also has a vital interest in assuring compliance by other states with a matter covered by international law. Under both the International Covenant on Civil and Political Rights (ICCPR) and customary international law, nations must ensure that the protection of their laws is extended to foreign nationals within their territories. In this instance, Mexico is not seeking preferential treatment for Mr. Fierro. Rather, Mexico seeks to ensure that Mr. Fierro receives the protections afforded by the United States Constitution, international human rights covenants, and customary international law.

Mexico has a special interest in Mr. Fierro's case, since the facts surrounding Mr. Fierro's arrest and interrogation involved misconduct by Mexican police officers. During the 1994-1995 state postconviction proceedings, Mexico provided extensive support and assistance to counsel in an effort to uncover the truth behind Mr. Fierro's confession. Mexican officials helped counsel track down key witnesses, provided affidavits regarding Mexican law and police practices, and cooperated with counsel to obtain letters rogatory testimony for a state evidentiary hearing. In this manner, Mexico has sought to expose any misconduct by the Juarez police that may be relevant to Mr. Fierro's legal claims. (2) In contrast, the state of Texas has sought, at every turn, to shield the El Paso police and their misdeeds from judicial review. Mexico believes that the integrity of a police investigation is vital in assuring that only the guilty are convicted. In a capital case, this concern is paramount.

Mexico has taken progressive steps to prevent abuses of power by police officers. Mexico created a National Commission of Human Rights on June 6, 1990. On December 4, 1990, the Human Rights Commission for the State of Chihuahua  (3) was created. These organizations are empowered to investigate and monitor reports of human rights abuses by police officers, and to propose recommendations to prevent future human rights violations. Both of these commissions were established to promote openness and accountability to citizens for governmental abuses of power.

In addition, Mexico has enacted legislation to ensure that coerced confessions are excluded from all criminal proceedings. Under Mexico's Federal Act to Prevent and Punish Torture, enacted in 1991, "[n]o confession or information obtained by torture may be invoked as evidence." Ley Federal para Prevenir y Sancionar la Tortura, D.O. 27 Dec. 1991, art. 8. All Mexican states recognize this rule, as a means of deterring local police from using coercive interrogation techniques. In 1993, the Federal Constitution of Mexico was explicitly amended to limit the admission of confessions taken by police. Article 20, §II of the Constitution of Mexico now declares that any confession is null and void, without any evidentiary value, if it is "rendered before officials other than the district attorney or the judge, or before them without the assistance of defense counsel." Constitución Política de los Estados Unidos Mexicanos art. 20, §II. None of these reforms were in force at the time of Mr. Fierro's 1979 arrest and interrogation.


This case involves U.S. Const. Art. III, §§ 1 & 2 and Amend. XIV. Also involved are 28 U.S.C. §§ 2244, 2253, 2254.

In addition, this case involves Rule 60(b) of the Federal Rules of Civil Procedure, which states in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. ... This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, ... or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.



A. Mr. Fierro has presented an extraordinary case of fraud perpetrated by agents of the State of Texas.

Mr. Fierro's conviction and death sentence rest on evidence that is, in light of the record developed in state post-conviction proceedings, astonishingly weak. The facts cited by Mr. Fierro in his petition for writ of certiorari establish the following, disturbing set of circumstances.

No physical evidence links Mr. Fierro to the 1979 shooting of Nicolas Castanon, an El Paso taxi driver. Indeed, a police investigation conducted immediately after the homicide indicated that two other men had committed the crime. S.R. Vol. I at 1043. In separate lineups, two witnesses identified Roberto Rodriguez as the man driving Castanon's car after the murder. Id. at 1022, 1042. One of those witnesses also identified Ricardo Cano as the passenger. Id. at 1022.

Five months after the homicide, a mentally disturbed sixteen-year old named Gerardo Olague told police that Cesar Fierro had shot Castanon. S.R. Vol. I at 1025, 1045, 1142. Olague - who admitted during the trial that he had "psychological problems" - claimed to have witnessed the murder. S.R. Vol. II at 1269-71. Even prosecutors were unsure that Olague's testimony was reliable. (4) Because Olague's testimony alone may not have sustained a conviction, (5) the police needed other, convincing evidence of Fierro's guilt.

Cesar Fierro is a Mexican citizen whose family resides in Ciudad Juarez, Mexico. At the time Olague implicated him, Mr. Fierro was incarcerated in the El Paso jail. S.R. Vol. I at 45. The lead investigator in his case was Al Medrano of the El Paso police department. According to testimony elicited at the state postconviction hearing, Medrano was the liaison officer between the El Paso and Juarez police, S.H. Vol. II at 71-82, and had a particularly close working relationship with Juarez police Commandante Jorge Palacios. Amended Application for Postconviction Writ of Habeas Corpus, Exhibit 17 (Affidavit of Al Medrano).

In 1979, the mere mention of Commandante Palacios caused Juarez citizens to shudder with fear. Palacios at one time worked with the secret police, "an agency which lacked any official status." (6) Appendix A. According to Jorge Lopez Molinar, former Attorney General for the northern region of the State of Chihuahua, "any citizen of Juarez over the age of thirty" would be familiar with the reputation of Palacios. Id. "When citizens of Juarez hear the name[] of Palacios, . . . they think of police brutality." Id. At the time of Mr. Fierro's capital murder trial, Palacios and the Juarez police were renowned for corruption and the use of coercive interrogation techniques. S.H. Vol. II, 52-53, 93, 105.

Shortly after Mr. Fierro became a suspect in the Castanon murder, Juarez police invaded his family home in a pre-dawn raid. S.R. Vol. I at 137-40, 151-57, 160-62. Commandante Palacios and three to seven other Juarez police officers entered the home, searched it, and confiscated two letters written by Mr. Fierro and his brother. S.R. Vol. I at 152, 160, 1324. They arrested Mr. Fierro's mother and stepfather. S.R. Vol. I at 152-54, 160.

The Juarez police took Mr. Fierro's parents to the Juarez jail, where they were interrogated. S.R. Vol. I at 158-59, 160-61. They placed Mr. Fierro's stepfather in a room and threatened to attach a "chicharra," or electric cattle prod, to his sex organs. S.R. Vol. II at 1326-27. Mr. Fierro's parents were never charged with a crime or required to post a bond. S.R. Vol. I at 158, Vol. II at 1328. Eventually, Palacios told them they were free to go "because your son already sang." Id. at 162, 1326.

The heart of Mr. Fierro's case lies in the degree to which the El Paso and Juarez police colluded in the Fierro family's detention, and the extent to which Medrano manipulated Mr. Fierro - using the fact of his family's custodial status in Juarez - to coerce his confession. During the 1980 suppression hearing in Mr. Fierro's case, Medrano claimed to have no knowledge of the incarceration of Mr. Fierro's parents. S.R. Vol. I at 116. He swore that when he interrogated Mr. Fierro, he sought to reassure him that his parents were safe. Medrano claimed to have called Commandante Palacios, and allowed Mr. Fierro to speak to him directly. After this conversation, Medrano asserted, Mr. Fierro was calm and willing to confess. Id. at 123; 131. Relying on Medrano's testimony, the trial court denied Mr. Fierro's motion to suppress his statement. Since then, every court - at the urging of state prosecutors - has relied on that same testimony to deny Mr. Fierro's claim.

For the last twenty years, Mr. Fierro has insisted that Medrano was lying. Mr. Fierro testified at a pre-trial suppression hearing that Medrano told him his parents were incarcerated in Juarez, and would not be released unless he confessed. S.R. Vol. I at 105, 117-118, 166-68, 171. He stated that Medrano showed him personal letters taken from his parents' home as proof of their incarceration. Id. at 166-68. Mr. Fierro swore that he confessed in order to secure the release of his parents from the notorious Juarez police. See id. At the 1995 state postconviction hearing, Judge Herbert Marsh heard evidence that convinced him Mr. Fierro was telling the truth.

With the assistance of the government of Mexico, counsel for Mr. Fierro obtained the testimony of former Juarez police commander Jorge Palacios by letters rogatory, and presented it at the state postconviction hearing. Contrary to Medrano's testimony, Palacios swore that he had never spoken to Mr. Fierro by phone. S.H. Vol. VI, State's App. A, 13. Gustavo de la Rosa Hickerson, Palacios' former attorney and acquaintance for twenty years, testified that Palacios told him he had taken letters from Mr. Fierro's family and had given them to Medrano, beforeMedrano interrogated Mr. Fierro. S.H. Vol. VI at 578. This testimony substantiated Mr. Fierro's account that Medrano showed him the letters as a device to coerce his confession.

Other evidence indicates that Medrano was aware of the Fierro family's incarceration, and used this information to extract Mr. Fierro's confession. At the postconviction hearing, Mr. Fierro introduced a report authored by Medrano that flatly contradicts his testimony at the suppression hearing. In his report, Medrano makes clear that he was aware of the Fierro family's detention before he interrogated Mr. Fierro. Ex parte Fierro, No. 33752-171-4, App. Exhibit 6. Mr. Fierro's trial prosecutor, Gary Weiser, testified that Medrano was untrustworthy. S.H. Vol. II at 186-87. By 1980, Medrano's internal affairs record included charges of perjury, brutality, theft, unnecessary force, fighting, dereliction of duty, harassment, threats, and shooting. Amended Application for Postconviction Writ of Habeas Corpus, Exhibit 40.

Other witnesses corroborated Mr. Fierro's claim that he confessed to secure his parents' release. Luis Alberto Magallanes, the director of investigation for the Center for Human Rights in Juarez, Mexico, testified on Mr. Fierro's behalf at the postconviction hearing. Mr. Magallanes testified that in 1979, the average Juarez citizen would have "confess[ed] everything" if he knew his parents were in the custody of the Juarez police. S.H. Vol. II at 51. Alfredo Bonilla, former chief investigator for the homicide division of the El Paso police department, confirmed that the Juarez police had a reputation for using torture to extract information from suspects in 1979. According to Mr. Bonilla, the Juarez police often took the families of suspects into custody as a method of coercing suspects to confess. (7) Id. at 113. Once the Juarez police took a suspect into custody, they would sometimes "wet down their victims and - or suspects, and then they jolt them with a chicharra. And this kind of gets people to talk, too." Id. at 105.

After four days of testimony, the state post-conviction judge, Hon. Herbert E. Marsh Jr., concluded that there was a "strong likelihood" that Mr. Fierro's confession had been coerced by the joint actions of the El Paso and Juarez police. Ex Parte Cesar Roberto Fierro, No. 33,752-171-4, slip op. at 2 (171st Dist. Ct. - El Paso May 1, 1995). He found that Mr. Fierro's parents had been taken into custody in Ciudad Juarez, across the Mexican border from El Paso, in order to induce his confession. Id. Moreover, he found that the El Paso police had worked closely with the Juarez officers who abducted Mr. Fierro's parents. Id. Judge Marsh concluded that Fierro "should be retried by another jury who will then render a verdict based on all the evidence, both old and new." Id.

B. Unless the prior, fraudulent habeas judgment is vacated, the district court may grant Respondent's pending motion to dismiss all of Mr. Fierro's police misconduct claims on procedural grounds - despite the Court of Appeals' finding that Mr. Fierro may be innocent.

Mr. Fierro's case is the sort that creates the nightmarish specter of prisoners who, despite compelling claims of innocence, are executed in deference to inflexible procedural rules. Because the confession claim was raised in Mr. Fierro's 1987 habeas petition, it cannot be raised in the successive petition that Fierro has been authorized to file. Under the AEDPA, "[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. 28 U.S.C. §2244(b)(1); See also Stewart v. Martinez-Villareal, 523 U.S. 637, 641-42 (1998).

In theory, by authorizing the filing of his successive petition in the district court the Court of Appeals has provided Mr. Fierro an opportunity to litigate other due process claims related to the police misconduct in his case. In reality, the federal habeas proceedings may prove to be a meaningless ritual. Respondent has moved to dismiss the pending petition on procedural grounds, claiming that it is time-barred under the AEDPA's statute of limitations. If Respondent succeeds, the instant equitable proceeding will be the only vehicle by which the federal courts can remedy the due process violations in this case. In other words, if this Court fails to correct the judgment of the Court of Appeals, the federal courts may be barred from ever considering the police misconduct, perjury, and coercive interrogation techniques utilized in this case - despite the Court of Appeals' recognition that Mr. Fierro may be innocent.

Mr. Fierro first challenged the circumstances surrounding his confession at his 1980 trial. After the trial court denied his motion to suppress, he challenged the trial court's ruling on appeal to the Texas Court of Criminal Appeals. At the urging of state prosecutors, the appellate court denied the claim based on the trial court's findings of fact, ruling that "Medrano testified he truthfully had no information that [Fierro's] mother was in custody." Texas v. Fierro, 706 S.W.2d 310, 316 (Tex. Crim. App. 1986). In state and federal postconviction proceedings, Mr. Fierro again challenged the admission of his statement. Once again at the urging of state prosecutors, the courts denied relief without holding an evidentiary hearing.

If Mr. Fierro's request for equitable relief is denied, he will have been deprived of a federal forum to litigate the facts and legal arguments that go to the heart of his conviction and death sentence, through no fault of his own. As this Court observed in Martinez-Villareal, this result would have "far-reaching and seemingly perverse" implications. 523 U.S. at 644.
Fundamental fairness requires, at minimum, that Mr. Fierro be granted the opportunity to fully and fairly litigate his due process claims in federal court. For this reason alone, the district court should be required to vacate its 1988 habeas judgment, and the Court of Appeals should recall its mandate affirming the judgment, Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989).

C. International norms of due process require that the federal court vacate its fraudulent habeas judgment, so that Mr. Fierro has a forum to litigate his coerced confession claim.

This Court has recognized that "[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." The Paquete Habana, 175 U.S. 677, 700 (1900). Denial of Mr. Fierro's request for equitable relief would violate several binding norms of international law, as explained below.

1. Use of Coerced Confessions under International Law

The record is now clear that the El Paso police coerced Mr. Fierro's confession. The tactics employed by Medrano constitute psychological torture under international law. When Medrano informed Fierro that his parents were in the hands of Palacios and the Juarez police, he could not have sent a more compelling message that Mr. Fierro's relatives were in grave danger. The threat that "physical abuses will be extended to persons close to the prisoner" is "the most powerful of all [psychological torture techniques]." Nigel S. Rodley, The Treatment of Prisoners Under International Law 10 (2d ed. 1999).

At the time of Mr. Fierro's 1979 arrest and interrogation, "[m]any Mexicans questioned about torture and beatings by the police simply accepted them as part of the system - so common as to be taken for granted." Paper Protection , supra n. 7, at 14. Luis de la Barreda Solorzano, currently the Public Human Rights Commissioner for Mexico City, agrees:

Due in good part to their frequency, illegal detentions, mistreatment, humiliation, and even torture of detainees are observed as normal procedures. This fact does not, however, prevent the population from feeling an unexplainable fear at the possibility of having anything to do with a police officer.

Id. (quoting Luis de la Barreda Solorzano, La Tortura en Mexico at 175 (1989)). Human rights organizations have documented the illegal detention and torture - and occasionally, murder - of innocent relatives of detainees in order to obtain information about suspects. See supra n. 7. Thus, as Mr. Magallanes testified, the average Juarez citizen would have "confess[ed] everything" if he knew his parents were in the custody of the Juarez police in 1979. S.H. Vol. II at 51.

Numerous treaties expressly prohibit the use of torture. (8) Moreover, it is widely accepted that the torture is prohibited under customary international law. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)("Having examined the sources from which customary international law is derived. . . we conclude that official torture is now prohibited by the law of nations"); Siderman de Blake v. Republic of Argentina , 965 F.2d 699 (9th Cir. 1992)(concluding in light of "extraordinary consensus" that "the right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens"); Committee of U.S. Citizens Living in Nicaragua v. Reagan , 859 F.2d 929, 941 (D.C. Cir. 1988)(listing the prohibition of torture among the few norms which meet the criteria for jus cogens).

The definition of "torture" under international law clearly encompasses psychological torture . (9) For example, the Torture Convention defines torture as:

any act by which severe pain and suffering, whether physical or mental , is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. . . when such pain and suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Torture Convention, supra n. 8, art. 1 §1 (emphasis added ). Article 2 of the Inter-American Torture Convention contains a similar definition:

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

Inter-American Torture Convention, supra n. 8, art. 2. The Human Rights Committee has described the application of psychological torture in even broader terms, in interpreting the reach of Article 14(3)(g) of the ICCPR. In Kelly v. Jamaica, the Committee held that the prohibition against compelled confessions contained in article 14(3)(g) "must be understood in terms of the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt." No. 253/1987, April 8, 1991, Report of the Human Rights Committee, A/46/40, 1991. See also Kristen B. Rosati, The United Nations Convention Against Torture: A Self-Executing Treaty that Prevents the Removal of Persons Ineligible for Asylum and Withholding of Removal, 26 Denv. J. Int'l L. & Pol'y 533 (1998)("[t]he inclusion of mental pain and suffering in the definition of torture is essential: many of the most barbaric and damaging tortures are psychological").

International law is equally clear that a threat to the well-being of one's family or loved ones constitutes torture. As one commentator on the Torture Convention has observed:

The acts inflicting severe mental pain or suffering can be of very different kinds. One category consists of acts which imply threats or which create fear in the victim. Examples are that the victim is made to believe that he will be killed or that reprisals will be taken against his wife or his children if he does not cooperate.

J. Herman Burgers and Hans Danelius, A Handbook on the Convention Against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 118 (1988). See also Views of the Human Rights Committee under Article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights Concerning Communication No. 74/1980, para. 1.6, 8.3, Hum. Rts. Comm., March 29, 1998 (threats by Uruguayan authorities to torture or harm a detainee's relatives constituted psychological torture); Report of the European Commission of Human Rights on the Greek Case, 1969 Y.B. Eur. Conv. on H.R. 1 (Eur. Comm'n. on H.R.)(infliction of mental suffering through threats to family members constitutes non-physical torture).

Finally, international law bars the use of any confession that is procured through such methods. See, e.g., ICCPR, supra n. 8, art. 14 §3(g)("[i]n the determination of any criminal charge against him, everyone shall be entitled . . . [n]ot to be compelled to testify against himself or to confess guilt"); American Convention, supra n. 8, art. 8 §2(g) (providing every person, as a minimum guarantee, "the right not to be compelled to be a witness against himself or to plead guilty"). The Torture Convention expressly prohibits the use of any statement made as a result of torture. Torture Convention, supra n. 8, art. 15. See also U.N. Declaration, supra n. 8, art. 12 ("Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings."); Inter-American Torture Convention, supra n. 8, art. 10.

The introduction of Mr. Fierro's confession surely violated these basic human rights norms. Moreover, to deny Mr. Fierro any remedy for the unconscionable conduct of the El Paso police in this case would, in itself, violate international law. "A state violates international law if, as a matter of state policy, it practices, encourages, or condones. . . torture or other cruel, inhuman, or degrading treatment of punishment." Restatement (Third) of the Foreign Relations Law of the United States §702(d) (1987). If the federal courts refuse even to entertain Mr. Fierro's well-supported claim of psychological torture, and turn a blind eye to the Texas prosecutors' repeated reliance on perjured testimony, the United States will, by implication, condone the techniques utilized by the police in this case.

The use of torture is repugnant to international efforts to maintain and advance respect for basic human rights. The extraction of a confession through psychological torture violates international law accepted by civilized nations of the world, including the United States. International law obligates the United States to provide a meaningful remedy for the blatant violation of Mr. Fierro's human rights in this case. The opportunity to present his arguments in federal court is the first, basic step in the remedial process.

2. Access to the Courts

It is now apparent that the district court's first habeas judgment was based on a distorted and incomplete record. The right of meaningful access to the courts is recognized in every major human rights instrument. Moreover, the United States has signed and ratified multilateral instruments, such as the ICCPR and the American Declaration on Human Rights, (10) that require it, as a matter of law, to provide detainees with effective access to the courts. See, e.g., ICCPR,supra n. 8, art. 9(4)("Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."); American Declaration of the Rights and Duties of Man, art. 18, OAS Res. XXX, O.A.S. Rec. OEA/Ser.L/V/I.4 (1945)("[e]very person may resort to the courts to ensure respect for his legal rights."). See also Body of Principles, supran. 8, Principle 32 ("A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention. . . The proceedings . . . shall be simple and expeditious. . ."); American Convention, ( 11) supra n.8, art. 7(6)("[a]nyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention. . ."); European Convention, supra n. 8, art. 5(4)("[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful").

The Torture Convention requires each party to the Convention to "ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities." Torture Convention, supra n. 8, art. 13. Moreover, Article 14 requires each state party to "ensure in its legal system that the victim of an act of torture obtains redress." Id., art. 14. The state courts have already determined Mr. Fierro's confession was "likely coerced," but have refused to provide a remedy for this human rights violation. The federal courts can provide a remedy.

International tribunals have observed that the right to effective recourse to a competent court "constitutes one of the basic pillars. . .of the very rule of law in a democratic society," and must be more than a mere formality. See, e.g., Suarez Rosero v. Ecuador, Inter-Am. Ct. H.R., Nov. 12, 1997, at para. 63, 65 (Article 7(6) of the American Convention on Human Rights, involving right of access to a competent tribunal, is not satisfied "with the mere formal existence" of the remedy); Report on the Situation of Human Rights in Panama, Inter-Am. C.H.R., OEA/Ser.L/V/II.44, doc. 38, rev. 1, 1978; Ashingdane v. United Kingdom, 93 Eur. Ct. H.R. (ser. A), para. 57 (1985)(while a country may impose reasonable limitations on the right of access to the courts, "the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired"). Finally, in a case interpreting the right of access to the courts under the ICCPR, the Human Rights Committee (12) held that if a country provides for more than one appeal as part of the appellate process, the convicted person must be given effective access to each stage of appeal. Henry v. Jamaica, 230/1987, Nov. 1, 1991, Report of the Human Rights Committee, A/47/40, 1992, at 218, para. 8.4.

As noted above, the state courts have failed to provide a remedy for Mr. Fierro, despite finding that his confession was "likely coerced." Unless Mr. Fierro's motion for equitable relief is granted, he will have no means of litigating his confession claim. Moreover, while the Fifth Circuit has authorized the filing of a successive petition to examine other police misconduct claims, Respondent has moved to dismiss that petition on procedural grounds. If Respondent is successful, he will have succeeded in blocking every federal avenue of appeal regarding the unconscionable police conduct in this case. Such a result would be incompatible with the right of fair, effective access to the courts under international law.

3. Due Process and the Death Penalty

International law similarly requires that procedural guarantees of fairness and due process be strictly observed when a country seeks to impose the death penalty. See Reid v. Jamaica (No. 250/1987), Report of the Human Rights Committee, GAOR, 45th Session, Supplement No. 40, Vol. II (1990), Annex IX, J, para. 12.2, reprinted in 11 Hum. Rts. L.J. 321 (1990)("in capital punishment cases, the duty of States parties to observe rigorously all the guarantees for a fair trial. . . is even more imperative"); G.A. Res. 35/172, Dec. 15, 1980 (member states must "review their legal rules and practices so as to guarantee the most careful legal procedures and the greatest possible safeguards for the accused in capital cases"); Rodley,supra, at 225-28.

The Inter-American Commission on Human Rights held in Case No. 11,139, that "before the death penalty can be executed, the accused person must be given all the guarantees established by pre-existing laws, which includes those rights and freedoms enshrined in the American Declaration [of the Rights and Duties of Man]." Case 11,139, Inter-Am. C.H.R. at para. 171, Report No. 57/96 of 6 December 1996, OEA/Ser/L/V/II.98, Doc. 7, rev., (February 19, 1998). In October 1999, the Inter-American Court on Human Rights (13) reaffirmed this principle, emphasizing that "[s]tates that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases." (14) OC-16/99, para. 135, Inter-Am. Ct. H.R. (October 1, 1999)(full text available at www. law.nwu.edu/humanrights).

When the police have extracted a confession by using coercive techniques amounting to psychological torture, and the state then relies primarily on that confession to obtain a conviction and sentence of death, it cannot be said that a state has "rigorously" observed basic norms of due process. International law thus requires that the Court closely scrutinize this case and the violations presented by Mr. Fierro.



For too long, the police misconduct in Mr. Fierro's case has been shielded from judicial scrutiny. Mr. Fierro has presented a unique and compelling case for equitable relief, given his strong showing of innocence, and the state court's determination that his confession was coerced. Moreover, the federal courts may never again have an opportunity to rectify the due process violations that occurred in this case. If Respondent succeeds in his effort to dismiss the pending habeas petition on procedural grounds, there will be no place for Mr. Fierro to turn. Under such circumstances, Mexico believes strongly that the American legal system has the ability and the will to ensure that justice is done.


1 Counsel for Petitioner and Respondent have consented in writing to the filing of this brief amicus curiae. No counsel for a party authored this brief in whole or in part. No person or entity other than the amicus made a monetary contribution to the preparation or submission of this brief.

2 Nothing in the present brief shall be construed as a waiver of the immunities to which Mexico is entitled under international law, the Foreign Sovereign Immunities Act, and international treaties and conventions. The filing of this brief shall not imply or confer a submission by Mexico to the jurisdiction of any United States Court.

3 Ciudad Juarez is in the state of Chihuahua.

4 Mr. Fierro's trial prosecutor, Gary Weiser, has sworn that he never would have prosecuted Mr. Fierro based solely on Olague's testimony. In an affidavit provided to postconviction counsel, Mr. Weiser stated he was unaware that Mr. Fierro's family had been jailed by the Juarez police:

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.

Amended Application for Postconviction Writ of Habeas Corpus, Exhibit 10.

5 Texas Code of Criminal Procedure 38.14 requires that an accomplice's testimony be corroborated. Tex. Code Crim. Proc. Ann. art. 38.14 (West Supp. 1997).

6 The affidavit of Mr. Lopez Molinar is part of the record of state postconviction proceedings in this case. Mexico has attached the affidavit for ease of reference.

7 See also Amnesty International, Mexico: Torture with Impunity , at 18, 34 (1991); Minnesota Lawyers International Human Rights Committee, Paper Protection: Human Rights Violations and the Mexican Criminal Justice System, at iv-v (July 1990).

8 See, e.g., Universal Declaration of Human Rights, Dec. 10, 1948, art. 5, G.A. Res. 217A (III), U.N. Doc. A/810 ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment"); International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 7, 999 U.N.T.S. 171 (entered into forceMar. 23, 1976)[hereinafter "ICCPR"](same); American Convention on Human Rights, November 22, 1969, art. 5(2), 1144 U.N.T.S. 123 (entered into force July 18, 1978)[hereinafter "American Convention"](same); European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter "European Convention"](same); Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment, Dec. 10, 1984, art. 2, §1, G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26, 1987) [hereinafter "Torture Convention"] ("Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction"); Inter-American Convention to Prevent and Punish Torture, December 9, 1985, art. 2, reprinted in 25 I.L.M. 519 (1986)[hereinafter "Inter-American Torture Convention"](same); Code of Conduct for Law Enforcement Officials, art. 5, G.A. Res. 34/169, U.N. GAOR 34th Sess., Supp. No. 46, at 185, U.N. Doc. A/34/46 (1980)("No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment"); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 21, G.A. Res. 43/173, Dec. 9, 1988 [hereinafter "Body of Principles"]("no detained person shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or judgment"); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 9, 1975, G.A. Res. 3452 (XXX)[hereinafter "U.N. Declaration"].

9 American jurists have also recognized that the infliction of extreme mental anguish can be a form of unconstitutional torture. See, e.g., Hudson v. McMillan, 112 U.S. 995, 1004 (1992) (Blackmun, J., concurring) ("I am unaware of any precedent of this Court to the effect that psychological pain is not cognizable for constitutional purposes [under the Eighth Amendment]. If anything, our precedent is to the contrary."); Furman v. Georgia , 408 U.S. 238, 271-73 (1972) (Brennan, J., concurring) ("[T]he Framers also knew []that there could be exercises of cruelty other than those which inflicted bodily pain or mutilation."); Smith v. Aldingers, 999 F.3d 109, 110 n.4 (5th Cir. 1993) (collecting recent cases holding that mental or psychological torture can violate the Eighth Amendment).

10. The American Declaration embodies principles of customary international law that are binding on the United States. See Advisory Opinion OC-10/89, Inter-Am. Ct. H.R., Series A: Judgments and Opinions, No. 10, para. 45 (1989)("for the member states of the [OAS], the Declaration is . . . a source of international obligations related to the Charter of the Organization"). The American Declaration was adopted on May 2, 1948 at the Ninth International Conference of American States in Bogota, Colombia. The United States is bound by the Declaration by virtue of its 1968 ratification of the OAS Charter. Christina M. Cerna, International Law and the Protection of Human Rights in the Inter-American System, Houst J. Int'l L. 731, 747 (1997)(quoting Case 2141, Inter-Am. C.H.R. 25, OEA.ser. L/V/II.54, doc. 9 rev. 1 (1981)).

11. Although the United States signed the American Convention on Human Rights, it has not yet ratified the agreement. A state that has signed an agreement, however, is obliged to "refrain from acts that would defeat the object and purpose of the agreement." Restatement (Third) of the Foreign Relations Law of the United States §312(3)(1987).

12. The Human Rights Committee examines communications from member states regarding compliance with the ICCPR, and hears complaints from individuals regarding violations of the Covenant. See generally Thomas Buergental, International Human Rights in a Nutshell 43-50 (2d ed. 1995).

13. The Inter-American Court on Human Rights has jurisdiction to issue advisory opinions "regarding the interpretation of the [American] Convention or other treaties concerning the protection of human rights in the American States." American Convention on Human Rights, Nov. 22, 1969, OAS/Ser.L.V/11.92, doc. 31 rev. 3 (May 3, 1996).

14. OC-16 was an advisory opinion issued by the Inter-American Court at the request of Mexico. The Court received briefs and heard oral arguments from eight countries, including the United States, before issuing its opinion. "Advisory opinions [of the Inter-American Court] are not academic exercises; they are judicial pronouncements. The mere fact therefore that the Court has made a pronouncement in an advisory opinion rather than in a contentious case does not diminish the legitimacy or authoritative character of the legal principle enunciated by it." Buergental,supra n. 13, at 220.