Texas Lawyer
Monday, May 2, 2005

Stuck in Habeas Hell: Bush Breathes New Life Into Texas Death-Row Inmate's

Mark Donald
Texas Lawyer

Editor's note: The following is the first of two articles detailing the
decades-long legal maneuvers involving death-row inmate Cesar Fierro. The
second article will appear in the May 9 issue of Texas Lawyer.

It had been at least five years since Houston attorney David Dow visited
Cesar Fierro on death row, but Dow felt obliged to deliver the news to his
client in person. After 25 years of dashed dreams, frustrating findings and
procedural traps that prevented the courts from rehearing Fierro's claim
that he was wrongfully convicted, Fierro finally had found relief in an
unusual forum. The International Court of Justice (ICJ) had ordered the U.S.
government to "find an appropriate remedy" that would permit a meaningful
review of Fierro's Texas capital murder conviction.

On March 31, 2004, the ICJ, an organ of the United Nations also known as the
World Court, decided in favor of Mexico and ruled that the United States had
violated the Vienna Convention on Consular Relations, a treaty to which both
countries were signatories. In Case Concerning Avena and Other Mexican
Nationals, the ICJ ruled that the United States had denied the consular
notification rights of 51 Mexican nationals sentenced to death in this
country, one of whom was Fierro. By holding that no state procedural rules
of default could bar reconsideration of these cases, the ICJ granted Fierro
the opportunity to reassert his claim that his El Paso County conviction had
been tainted by the introduction of his coerced confession and perjured
police testimony.

Despite the favorable decision, Dow says he had heard rumors from other
condemned clients that Fierro had "gone stark raving mad." During Fierro's
decades on death row, his mother had died, his brother had died, his wife
had divorced him and his daughter had stopped visiting him. Gradually, he
refused to speak with his lawyers, returning unopened letters from Dow, as
well Richard Burr and Jean Terranova, who also represented Fierro in his
habeas proceedings.

"He wouldn't come out of his cell for months at a time unless he was
forcibly extracted," says Dow, a constitutional law professor at the
University of Houston Law Center and director of its Texas Innocence
Network. "He refused to shower and there were feces on his cell wall. It was
very disturbing, but I really needed to see him."

When Dow finally visited Fierro in late 2004, Dow grew shocked at his
client's transformation. When Fierro was sent to death row in 1980, Dow says
he was a soft-spoken, slightly overweight man in his mid-20s who was highly
respectful of his lawyers and the process, which he felt would set him free.
"When I saw him last year, he had long, stringy hair and a strong wind could
have blown him over," says Dow who has recently written "Executed on a
Technicality," a book about his death-penalty practice that includes a
chapter on Fierro. "[Fierro] told me he was on a hunger strike but then
asked for food."

Dow tried to explain what might occur as a result of the ICJ ruling *
another Mexican national case, Medellin v. Dretke, was already pending
before the U.S. Supreme Court; a successive habeas writ might be filed on
his behalf * but Fierro would hear none of it. Rather than talk to his
lawyer, he raged at him, rambling incoherently and banging the phone against
the glass enclosure. "I started talking to him in Spanish, then he shifted
to English and asked who sent me," Dow says. "Then he asked if I wanted to
speak in French. Only I don't speak French and neither does he."

Dow had mixed feelings about his client's mental condition: On the one hand,
it might keep him alive because Article 46.05 of the Texas Code of Criminal
Procedure bans executing defendants who are incompetent; on the other hand,
what kind of a life could Fierro have, branded a disciplinary problem,
deprived of human contact, taunted by guards and inmates alike.

Dow had always hoped, even expected, that Fierro would someday walk out of
the penitentiary a free man. In 1993, Dow, working with Burr, Terranova and
Sandra Babcock, attorneys with the Texas Resource Center, a now-defunct
death-row legal services program, began a top-to-bottom reinvestigation of
Fierro's case, gathering evidence for Fierro's third state habeas writ. The
attorneys uncovered what they felt was strong proof that Fierro's confession
had been coerced, his conviction resting precariously on perjured police

Even though the Texas Court of Criminal Appeals agreed in 1996 that the
coerced confession rose to the level of constitutional error, the 5-4
majority ruled that it was harmless error, creating a new legal standard to
do so. Even though the 5th U.S. Circuit Court of Appeals authorized the
filing of a successive federal habeas petition under the newly enacted
Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), it never
reached the merits of the claim. Instead, it poured Fierro out of court
procedurally, narrowly interpreting AEDPA's statute-of-limitations
provisions and deciding Fierro's attorneys inexcusably had let it run.

And even though the ICJ litigation was resolved in Fierro's favor, Dow felt
President George W. Bush would "demean its significance." But now that Bush
signed an executive determination on Feb. 28, in which he decided that the
United States would abide by the Avena ruling and ordered the state courts
to review the capital cases of the Mexican nationals, Dow admits he was
"spectacularly wrong."

Yet Fierro's 25-year journey through the criminal justice system is far from
over. After a direct appeal, three state habeas applications, four federal
habeas petitions and four cert petitions, Fierro filed another state habeas
writ in March, citing the Avena decision and the executive determination as
grounds for granting him a new trial.

Fierro has always contended that he confessed to a crime he didn't commit
because he believed his parents were being illegally detained and tortured
by the police in Juarez, Mexico. He felt that the El Paso police colluded
with their Juarez counterparts to convince him that his parents would be
released unharmed if he confessed. His attorneys now argue that if Fierro
had been informed of his right to consult with the Mexican consulate under
the Vienna Convention, the consulate would have secured his parents' release
and eliminated the coercive elements of Fierro's interrogation.

Yet even in the face of Avena and the executive determination, the state of
Texas refuses to give ground. The El Paso District Attorney's Office, citing
the pending litigation, refuses to comment on the Fierro case, other than to
say it is taking a "wait and see" approach. Texas Solicitor General Ted
Cruz, however, has taken the position that Avena is not binding on the state
courts and the executive determination exceeds the bounds of federal
authority. "No nation in the world gives the decisions of the International
Court of Justice the force of law in their own domestic courts," Cruz
argues. "To say that the U.S. Supreme Court can be overruled by the World
Court would create substantial constitutional problems."

The Fierro case presents a textbook study of zealous death-penalty
representation on both sides of the docket. The defense lawyers, working
tirelessly and without adequate compensation, believe they are fighting the
good fight for a man who has been wrongly convicted. Absent a coerced
confession, the case against him would be too weak to try * or so admits
Gary Weiser, the former El Paso first assistant district attorney who
prosecuted Fierro in 1979. And yet a gross injustice committed by the
state's highest criminal court, Dow argues, and procedural barriers in the
federal courts have kept his client on death row.

Opposing Fierro's attorneys are the forces of uniformity and finality that
have coalesced around courts that often seem hostile to death-penalty issues
and the lawyers who raise them. These courts strictly interpret the AEDPA,
which Congress designed to give closure to the seemingly endless and
sometimes frivolous habeas process in capital cases.

Habeas lawyers may have engendered the antipathy of the courts and Congress,
in part, because of the way they measure their victories. "A small win means
getting a stay of execution, keeping a client alive for longer than he would
otherwise be alive," Dow says. "A big win means getting him off of death row

>From the beginning, Fierro's defense team felt as though they had a shot at
a big win.

Anatomy of the Murder

Dow says he is always hopeful about his clients' chances for success, but
seldom optimistic; the facts, the law, the percentages are just too stacked
against them. But in 1991, after he was first appointed to represent Fierro
on his second federal writ of habeas corpus, he felt Fierro would be his
first death-penalty client to be exonerated.

Dow raised numerous constitutional objections in his unsuccessful writ, but
the issue that has always driven the habeas litigation was the defensive
theory that Fierro's confession had been coerced, Dow says. What had yet to
be proved was a key fact about the coercion: that the El Paso police knew
that the Juarez police were wrongfully holding Fierro's parents in custody
and then exploited that fact to force him to confess.

The facts that are known are as follows: On Feb. 27, 1979, border patrol
agents discovered the body of Nicholas Castanon, a taxicab driver who had
been shot in the back of the head and dumped in an El Paso park. Sometime
after the shooting, eyewitnesses identified two men exiting the taxi in
Juarez * one a driver, the other the passenger. Based partly on these
identifications, two suspects, neither of whom were Fierro, were arrested
for capital murder, but the El Paso District Attorney's Office refused to
indict them.

The case turned cold until five months later when 16-year-old Gerardo Olague
presented himself to the El Paso police and implicated Fierro in the
homicide. In his July 31, 1979, statement to police, Olague said Fierro had
joined him when Olague hailed a cab to drive him home. During the ride,
Fiero surprised Olague when Fierro suddenly shot the cab driver in the neck.
After dumping the body in a park, Fierro shot the cabbie again. Olague said
he remained with Fierro over the next few weeks, traveling into the interior
of Mexico with him and back to Juarez and El Paso because he was fearful
Fierro might kill him. In a pang of conscience, he finally came forward and
decided to tell the police what he knew.

None of the original eyewitnesses identified Fierro as either of the men who
exited the cab, and the police recovered no physical evidence to connect
Fierro to the crime. Instead, the police hoped to secure a confession from
Fierro. But first they had to find him.

According to the testimony of El Paso police Detective Al Medrano, Olague
led Medrano and a Juarez municipal police commander named Jorge Palacios to
a house in Juarez to point out where Fierro lived with his parents. No one,
however, knocked on the door to see if Fierro was home.

On the following day, Aug. 1, Medrano received a 5 a.m. phone call from
Palacios who invited Medrano to meet him for breakfast in Juarez so Palacios
could disclose the information he had learned about Fierro's whereabouts.
Medrano testified that it was only during this breakfast meeting that
Palacios revealed he had interviewed Fierro's mother at her home and she
admitted that her son was already incarcerated in the El Paso County Jail.

Shortly after the Juarez breakfast, Medrano retrieved Fierro, who was being
held for a probation violation, and began his interrogation. Medrano
testified he did not know whether Fierro's parents were in Juarez police
custody; he only knew they had been contacted by the Juarez police * and
told Fierro as much during the interrogation. Nonetheless, Fierro grew
anxious about his mother, and said he would only confess if he knew his
parents were all right. To ease his fear, Medrano said he phoned Palacios,
who spoke with Fierro. After their conversation, which Medrano said he
didn't hear, Fierro confessed to the murder.

In Fierro's Defense

The defense offered a different version of the facts, which it developed
during its pre-trial motion to suppress the confession.

Fierro's mother testified that she and her husband were arrested after the
Juarez police seized two letters from her home, one of which was written by
Fierro from the El Paso County jail. Fierro's stepfather testified that the
Juarez police threatened to torture him while in custody, placing an
electric cattle prod near his genitals. His mother further testified she and
her husband were released only after they were told her son had confessed.

Cesar then testified that Medrano had shown him the two letters (which the
defense suggested Palacios had given Medrano during their breakfast meeting)
to convince him that his parents were in Juarez police custody. Fearful of
his parents' incarceration and possible torture, Fierro says he only
confessed so they would be released.

Despite defense arguments that both police departments colluded to coerce
Fierro's false confession, the trial court refused to suppress the
confession, which became a pivotal piece of evidence at trial. Prosecutors
used it to corroborate the other thread of evidence tying Fierro into the
murder: the testimony of Olague, which the defense argued was riddled with
contradictions and revealed Olague to be more than an unwitting witness to

At trial, Olague admitted. that in the hours before the murder, he committed
his first-ever burglary, breaking into a car and stealing a CB radio, which
he said he and Fierro later pawned. Oddly, he identified one of the jurors
as the pawnbroker, which she wasn't. In his police statement, Olague claimed
he had only known Fierro for two weeks prior to the murder; at trial,
however, he testified that Fierro and his brother had forced him to commit
around 10 burglaries during the several months prior to the CB radio theft.
Asked how many burglaries he had committed, he estimated around 40, though
he testified he had only been arrested for one of them. To explain away a
discrepancy between his police statement and his trial testimony, Olague
admitted he had "psychological problems."

Prosecutor Weiser recognized that the state's case raised the issue of
whether or not Olague was an accomplice to murder. Weiser asked the judge to
instruct the jury that Texas law required the independent corroboration of
an accomplice's testimony to support a conviction. To do otherwise, he said,
"would be committing reversible error." The judge gave the instruction.

In his closing arguments, Weiser urged the jury to focus on the confession,
which he contended was voluntary because the El Paso police were not
complicit in whatever actions the Juarez police might have taken. He argued
that even if the jury didn't believe Olague's testimony, it would still have
to convict Fierro based on his own words. On Feb. 12, 1980, the jury, after
reviewing the confession during its deliberations, found Fierro guilty of
capital murder and later sentenced him to death.

It took another 14 years for Dow and his defense team to uncover proof that
Fierro's conviction may have rested on a lie.