The American way of death
Another Death Row prisoner, Juan Raul Garza, is due to die in the US next week, but it's the death penalty itself that should be on trial, his British legal team tells Robert Verkaik
For free real time breaking news alerts sent straight to your inbox sign up to our breaking news emails
Sign up to our free breaking news emails
Sign up to our free breaking news emails
The ghoulish media circus surrounding the execution of Timothy McVeigh yesterday morning is expected to be repeated in eight days time when another US murderer is scheduled to die.
Juan Raul Garza, a convicted drug dealer and killer from Texas, is also to be executed by lethal injection at the new federal death chamber in Terre Haute, Indiana. He will be only the second person in nearly 40 years to be put to death under rules governed by federal law. McVeigh was the first.
Garza's lawyers, including a team from Michael Mansfield's chambers in London, are to pull out all the stops to save his life. He will not, as McVeigh did, waive his final rights to go to the Supreme Court.
Hugh Southey, a Death Row lawyer from Mansfield's Tooks Court chambers, had been liaising with the McVeigh team right until up until the end in case McVeigh decided he wanted to petition the Inter-American Commission on Human Rights. The commission has a similar role in America and other Death Row countries to that of the European Court of Human Rights. Mr Southey successfully argued on behalf of Garza that his right to life, right to a fair trial and right to due process of law would be violated by his execution.
Mr Southey says that although the reasons for this finding are technical, it is crucial because the commission ruled that the US death penalty process is unfair by the standards of international human rights. He says that even before the Human Rights Act 1998 entered into force, there was in the UK a recognition of the importance of international human rights instruments such as the European Convention on Human Rights.
"It is highly unlikely," says Mr Southey, "that a UK government would refuse to follow a decision of the European Court of Human Rights. That, however, is precisely what the US is doing. As far as the death penalty is concerned, the US is willing to isolate itself and ignore the standards adopted by the rest of the democratic world."
Garza claims he was denied a fair opportunity to fight his death sentence earlier in his trial and appeals process. He also claims a pending Supreme Court case could affect his own case.
Garza has had a complicated path through the federal Death Row system, and his case has often been overshadowed by McVeigh, who was responsible for killing 168 people in Oklahoma City in 1995. But Garza's American lawyers said last week that: "Mr Garza's petition presents a claim worthy of consideration on the merits that should not be rushed to resolution because of the fast-approaching execution date."
It takes five votes to grant a delay, or "stay" of an execution. Although traditionally conservative in dealing with last-minute appeals, the Supreme Court has recently agreed to two such requests. Garza has also asked President George W Bush to commute his sentence to life in prison without a chance for parole. Bush supports the death penalty.
Garza was scheduled to die before McVeigh, but former president Bill Clinton postponed his execution last year pending a review of a US Justice Department study showing racial and geographical disparities in the federal death penalty system.
Clinton, also a death penalty supporter, said that the government should look at whether racism plays a role in the federal death penalty system before carrying out Garza's execution.
Lawyers for Garza, who is Hispanic, say that their client should be granted clemency because it's still an open question as to whether the sentence was the result of bias against minorities in federal death penalty prosecutions.
The United States has a criminal justice system that permits criminal prosecutions to take place under both state and federal jurisdictions. Although some states, such as Texas, regularly execute people, the last federal execution before McVeigh's was in 1963. Indeed, the federal government had no jurisdiction to seek the death penalty between 1972 and 18 November, 1988.
Mr Southey says these first federal executions for many years are important because they represent a significant step in the opposite direction to the worldwide trend towards abolition of the death penalty. The Inter-American Commission on Human Rights has expressed its disquiet. It has said that: "The commission is deeply troubled by the fact that the United States has not only chosen to re-introduce the death penalty at the federal level after an interruption of over 35 years, but has also chosen to extend the penalty on at least two occasions to additional crimes."
The commission also noted that "these courses of action" are inconsistent with the "spirit and purpose of numerous international human rights instruments to which the state is a signatory or a party, and are at odds with a demonstrable international trend toward more restrictive application of the death penalty."
Mr Southey believes that the problems in the McVeigh and Garza cases illustrate aspects of the flaws in the American death penalty system. And he says that there are others.
"People who were juveniles at the date of their offence and the mentally ill are executed in violation of international human rights standards. The standards of trial lawyers are often abysmal. Those flaws are the reason why the re-introduction of federal executions is a retrograde step."
Procedural flaws have been cruelly exposed in the McVeigh case, where the defendant's guilt was never in issue.
In the last few weeks, McVeigh's legal team had been struggling to come to terms with the large number of documents that has been handed to them. But in a ruling last week greeted with widespread surprise, Judge Richard Matsch said that more than 4,000 pages of previously undisclosed Federal Bureau of Investigation documents failed to cast doubt on the case against McVeigh.
McVeigh's American lawyers, who had accused the FBI of perpetrating "a fraud upon the court" by not submitting the documents earlier, immediately announced they would appeal against the federal court's decision. But later McVeigh instructed them to end all legal challenges so that he could concentrate on preparing for his death. But Mr Southey says that the "material non-disclosure" was a breach of McVeigh's human rights.
Yesterday, 30 official witnesses watched on as McVeigh was injected with a fatal cocktail of drugs that first caused him to lose consciousness, then collapsed his lungs and finally stopped his heart.
Another 300 bombing survivors and relatives of victims watched on closed-circuit television in Oklahoma City. The phone line, opened to the Department of Justice in Washington in case of an unexpected pardon, did not ring.
Now Mr Southey will do all he can to make sure Juan Garza does not meet a similar fate.