A Texas Tragedy: the shocking case of
"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."
Sworn statement of Fierro trial prosecutor Gary Weiser
Mexican national César Roberto Fierro Reyna faces imminent execution in Texas, even though a state court found more than a decade ago that his conviction must be reversed and called for a new trial. Despite conclusive proof that César's conviction was based on a coerced confession and perjured testimony by police, repeated appeals by the State of Texas and new procedural rules may have left the courts powerless to prevent a fatal miscarriage of justice.
The man at the heart of this growing international controversy is a 54-year-old artist and migrant worker from Juarez, Mexico. In 1980, César Fierro was sentenced to death for the murder of Nicolas Castanon, an El Paso cab driver. No physical evidence of any kind links him to the crime. His conviction now rests entirely on the dubious testimony of a psychologically-disturbed juvenile thief, used by the prosecution to prop up César's "voluntary" confession. Two other suspects had been charged with the murder based on credible witness testimony, but the charges against them were dropped after César was arrested.
Fourteen years after the trial, new evidence finally surfaced that confirmed what César had alleged all along: an El Paso detective had conspired with his counterparts across the border in Juarez to coerce his confession. Just before his interrogation in El Paso, members of his family in Mexico were abducted by the Juarez police, whose agents were notorious for their widespread use of torture. César was told that his mother would not be released from the infamous Juarez jail until he confessed. Justifiably afraid that his mother faced brutal torture, he eventually signed a "confession", after the police provided him with key details of the crime. César recanted his confession at once, but El Paso police falsely testified at a pre-trial hearing that there had been no coercion--and the confession became the centrepiece of the prosecution's case at trial.
"...Medrano presented false testimony... there is a strong likelihood that Defendant's confession was coerced by the actions of the Juarez police and the knowledge and acquiescence of those actions by Det. Medrano."
Judge Herb Marsh, Ex parte Fierro (1995)
In 1995, an El Paso district judge recommended a retrial after reviewing new evidence of gross police misconduct. But in 1996 a Texas appeals court refused to follow that recommendation, even though the court unanimously agreed that the confession was coerced and that the lead detective had committed perjury to conceal the truth.
Although César Fierro's nationality was known to them, El Paso police never informed him of his treaty-based right to contact the Mexican Consulate for assistance. Mexican officials believe that their prompt notification and timely intervention would have prevented the fabricated confession in the first place.
Mexican consular and governmental officials have since sworn that they would have immediately sought and obtained the release of César's parents from illegal detention, had they been notified of his plight. Without the threat of torture to his loved ones, César Fierro would not have falsely confessed to this crime, and the charge against him would have been dismissed. Since learning of the case, the Mexican Government has vigorously supported the efforts to obtain a remedy through the courts and was instrumental in developing the conclusive new evidence of police misconduct.
"Mexico has sought to expose any misconduct by the Juarez police that may be relevant to Mr. Fierro's legal claims. In contrast, the state of Texas has sought, at every turn, to shield the El Paso police and their misdeeds from judicial review."
Amicus Curiae Brief of the United Mexican States to the US Supreme Court (2000)
When César faced an imminent execution date in 1997, appeals for clemency were made on his behalf by the Texas Conference of Catholic Bishops, the Governor of Chihuahua, the Mexican Foreign Minister, the UN High Commissioner for Human Rights and many other prominent individuals and organizations. His case has been featured in syndicated newspaper stories, in law review articles and by human rights organizations such as Amnesty International, Derechos Humanos and the Mexican Commission for Human Rights.
Just days before his scheduled execution, the U.S. Fifth Circuit Court of Appeals allowed him to file a successor habeas corpus petition challenging his capital murder conviction. It was the first time since Congress curtailed access to capital case habeas review in 1996 that the Fifth Circuit had found strong enough evidence of innocence to warrant more than one round of appeals. Predictably, the State of Texas has vigorously opposed every effort to obtain some measure of justice for César Fierro.
Throughout his 30-year confinement on death row, César
Roberto Fierro has steadfastly maintained his innocence. Over the
intervening years, the case against him has completely unravelled;
if he were to be prosecuted today, the remaining evidence would likely
be insufficient to sustain an indictment, let alone a conviction and death
sentence. Nonetheless, he faces a lethal Catch-22 of judicial deference
to finality over fairness. So far, the federal courts have failed to find
any means to remedy this glaring case of injustice, a case that rests beyond
any doubt on police corruption, coercion, torture and perjury.
The trial and appeals: a legacy of falsehoods
César Fierro did not become a suspect until some five months after the murder. Within days of the crime, the police had arrested two suspects who had been identified by credible witnesses as the driver and passenger in Castanon's cab, just hours before his body was discovered. The El Paso police considered the Castanon case closed: aside from the witness testimony, there was evidence that one of the suspects had lied about his alibi and had put a down payment on a car shortly after the murder. However, the police immediately turned their attention to César when they were approached by a mentally unbalanced sixteen-year-old thief, Gerardo Olague, who accused César of committing the murder.
Based solely on Olague's statement, El Paso police immediately set out to arrest César Fierro. At the trial, El Paso police detective Al Medrano claimed that he had needed assistance from the Juarez police to make the arrest, because he believed that César was living in Juarez. In fact, César was incarcerated in the El Paso jail, just a block from Medrano's office, on charges of marijuana possession and theft. According to Gary Weiser, the lead trial prosecutor, Medrano must have known this: when Medrano conferred with Weiser about obtaining an arrest warrant for César Fierro, Weiser told him that he thought he recognized the name from the jail log.
Instead of arresting César at the El Paso jail, Medrano drove across the border to Juarez, Mexico, for a series of meetings with the chief of the Juarez Municipal police force, notorious at the time for its lawlessness, corruption and torture of detainees. Within hours of their first meeting, eight uniformed Juarez police officers bearing machine guns broke into the house of Fierro's parents in Juarez, searched the house, and seized personal letters that César and his brother had written to their parents. The police then abducted his parents and brought them to the Juarez jail. According to their sworn testimony, César's mother was physically assaulted and his stepfather was threatened with the application of electric shocks to his genitals.
Upon his return to El Paso, Medrano took custody of César Fierro at the El Paso jail. César testified at trial that Medrano then told him that his parents were being held by the Juarez police, where they would remain unless he confessed. Medrano showed César the letters that the Juarez police had seized, to prove that his parents were in custody. Medrano also arranged for César to speak by phone with the Juarez police chief, who threatened that César's mother would be tortured if he did not confess. Immediately after the phone call, Fierro told Medrano that he was "ready to give a confession of the whole thing."
With coaching on what Medrano later described as the "fine points", César Fierro gave a confession -- insisting on including a statement that his mother and stepfather had nothing to do with the crime. The crucial details Medrano provided included: the date of the crime, the location of the crime, the description of the area around the crime scene, the disposition of the body and the route Fierro allegedly took back to Juarez. Shortly after César signed this manufactured confession, his parents were released without charge. Their detention was no longer necessary, according to the Juarez police chief, because their son "already sang".
Armed with Olague's dubious statement which they then used to manufacture César's coached confession, El Paso police failed to seek any corroboration. Although Olague claimed that he still had the blood-soaked pants he was wearing on the night of the crime, the police made no effort to obtain this crucial evidence. Olague also insisted that he knew how and where the murder weapon was disposed of, but the police did not attempt to retrieve it.
Olague's version of the crime has never been corroborated by any supporting evidence, aside from César's fabricated confession. For example, Olague claimed that the cab had skidded out of control when Castanon was shot, climbing the curb and ending up in the yard of Olague's next door neighbor. Police never questioned any of the neighbors. Long after the trial, defense investigations established that no one in the neighborhood had heard a gunshot or saw a cab go out of control that night.
Olague's conflicting testimony and bizarre statements during the trial may well explain why the El Paso police were so reluctant to check out his story. His trial testimony about the crime details differed significantly from the statement he initially gave to the police. When confronted with these major discrepancies, Olague stated that he suffered from psychological problems- and was psychologically impaired even while he was testifying. At one point in his testimony, Olague falsely accused one of the jurors of having received stolen goods from himself and César on the night of the crime. The prosecution then presented the testimony of a pawn shop owner, who confirmed that Olague had sold her a CB radio that night but who denied ever seeing César in her shop. Olague also asserted that he had committed over 40 burglaries and that the police were aware of his crimes, but that he had only been charged for one offense. Ironically, the prosecution told the jury during closing argument that if they did not believe Olague, they would still have to convict César on the basis of his confession.
César's parents testified at the pre-trial hearing and the trial, describing their brutal treatment at the hands of the Juarez police. Detective Medrano was fully aware of the notorious reputation of the Juarez police for torturing detainees. Asked whether he thought César was worried about the possibility that Juarez police had arrested his mother, Medrano replied, "I would be concerned, wouldn't you?" But Medrano also insisted that he had no idea that César parents were in custody and swore that the confession was completely voluntary.
César's landlord also testified at the trial, confirming his alibi by swearing that César was at home on the night of the crime. Still, the defense case was not enough to overcome the power of what the police insisted was a voluntary confession to a brutal crime. After a brief deliberation, the jury returned a guilty verdict. In February of 1980, César Fierro was sentenced to death.
On appeal, César continued to insist that he had falsely confessed to a crime he did not commit. More than a decade after the trial, new evidence finally established that he had been telling the truth all along about his interrogation and confession.
"Cesar Fierro told me he had been arrested before in Juarez, and that the Mexican police had done everything they could to try and make him confess...He told me that he would sign whatever I wanted him to. He told me to write it and he would sign it."
1994 sworn affidavit of Detective Medrano (15 years after his perjured trial testimony)
After a lengthy hearing, District Court Judge Herb Marsh found that Detective Medrano colluded with the Juarez police to arrest and detain the parents of César Fierro in order to coerce a confession from him and then lied under oath to conceal the truth. The evidence supporting the court's conclusions includes Medrano's police report, which the habeas attorneys discovered in the District Attorney's file for the first time in 1994, the sworn testimony of the Mexican police officer that led the pre-dawn raid on the Fierro family home in Juarez, and Medrano's own sworn affidavit contradicting his trial testimony of 15 years earlier.
Based on this evidence, the post-conviction judge determined that César should receive a new trial. The Texas Court of Criminal Appeals agreed that Medrano had committed perjury about his collusion in coercing the confession, but it concluded that the constitutional violations amounted to "harmless error" in this case. In a 5-4 decision, the Court determined that the jury would have convicted Fierro even without his confession--ignoring the fact that the prosecution's case was so weak that there likely would have been no trial at all, if the statement had been suppressed. Because the new evidence had emerged so late in the appeals process, the majority also concluded that no remedy could be provided. Four justices issued lengthy and cogent dissents to this incomprehensible decision.
Principals of fundamental justice aside, the Court's judgement flies in the face of the trial prosecutor's own sworn statement: he would have moved to dismiss the charge, had he been aware of the coerced confession and failed to corroborate the only other existing testimony.
"As a result of the trial court's findings and the evidence on the record, we conclude that applicant's due process rights were violated. But, because we conclude that the error was harmless, we deny relief."
Texas Court of Criminal Appeals, Ex parte Fierro (1996)
Using the Fierro case to set a new precedent, the Court of Criminal Appeals simply raised the standard for "harmless error" analysis to an impossible height, in an obvious effort to sidestep the conceded evidence of gross police misconduct. (Ex parte Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996)).
César's trial lawyer, Texas State Representative Paul Moreno, strongly disagrees that the introduction of perjured testimony from the police officer about his coercive tactics was "harmless":
"How can it be 'harmless' for a police officer to manipulate the deepest fears of a young man in his custody to extort a 'confession' from him? In the era of Mr. Fierro's arrest, the people of Juarez lived in terror of their police. They believed them capable of the most base forms of torture, including applying electric cattle prods to the genitals of detainees. Can there be any doubt that a decent man, convinced that this was the fate of his parents, would sign, say or do anything in his power to change that fate?"
At no time after his arrest was César informed of his right under international law to contact and communicate with his consular representatives--with disastrous consequences for his right to a fair trial. If Texas police notified him of his right to seek consular assistance (as they were required to do under the Vienna Convention on Consular Relations), Mexican consular officials would have secured the release of his parents from illegal custody in Juarez.
Francisco Molina Ruiz, Assistant Attorney General of the State of Chihuahua, has submitted a sworn statement that his office would have intervened to prevent the illegal detention of Mr. Fierro's family members. According to the statement, "If I received information that the state judicial police had illegally detained innocent relatives of a crime defendant in the United States...I would order their immediate release."
As a direct consequence of the failure of Texas authorities to comply with their binding treaty obligations, a Mexican citizen was thus wrongfully sentenced to death and now faces the threat of execution. Although the consular treaty violation was raised in a timely manner in the state post-conviction habeas petition, the Texas Court of Criminal Appeals refused to address it in any way. Both the International Court of Justice and the Inter-American Commission on Human Rights have now concluded that his case merits a judicial remedy for the violations of binding international law that infected his conviction and sentencing.
"The Fierro conviction is based upon a crumbling foundation of due process violations - the use of torture, a confession acquired through torture, and the use of perjured testimony to protect the admissibility of a confession acquired through torture."
Joint amicus curiae brief submitted in 2000 by six human rights organizations
Without any doubt, the use of a confession obtained through threats and psychological torture is inadmissible in court, both under domestic law and under binding human rights treaties ratified by the United States.
Unquestionably, César Fierro deserves the opportunity to establish his innocence through a new trial. Rather than concede this obvious truth, the State of Texas has relied on procedural rules limiting death sentence appeals to repeatedly argue that the federal courts may not provide any remedy in the Fierro case.
"The plain truth is that no one involved in this case has any confidence in the fairness of Mr. Fierro's trial or the reliability of the verdict", one of his attorneys commented recently. "If the courts condone these coercive police tactics, then any person in Texas is vulnerable to wrongful conviction."
On June 13, 2002, the U.S. Court of Appeals for the Fifth Circuit denied César Fierro's habeas corpus petition on procedural grounds. Although César's attorneys had filed the petition based on a briefing schedule set by the District Court judge reviewing the case, the Fifth Circuit determined that the appeal was not filed in a timely manner and dismissed it without consideration of its merits. On March 31, 2003, the United States Supreme Court declined to accept the case for their review. The Court gave no reasons for its decision.
César Roberto Fierro has continued to insist on his innocence. He has now been under sentence of death for more than half of his life. After years of deteriorating mental health, recent reports indicate that he has been driven insane by his ordeal. Although all normal legal avenues have now been exhausted, efforts are continuing to obtain justice for César Fierro--before it is too late to avert another Texas tragedy.
César Roberto Fierro, at age 20
...and after 25 years of torment on death row