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Arte Público Press Houston, Texas
Mexicans on Death Row is made possible through grants from the City of Houston through the Houston Arts Alliance. Recovering the past, creating the future Arte Público Press University of Houston 452 Cullen Performance Hall Houston, Texas 77204-2004 Cover design by Mora Des!gn Ampudia, Ricardo, 1949[Mexicanos al grito de muerte. English] Mexicans on Death Row / by Ricardo Ampudia; English translation by Susan Rascón. p. cm. Includes bibliographical references. ISBN 978-1-55885-548-9 (alk. paper) 1. Capital punishment—United States—Cases. 2. Mexicans— Legal status, laws, etc.—United States. I. Rascón, Susan Giersbach. II. Title. HV8699.U5A7713 2010 364.66092'36872073—dc22 2010033484 CIP The paper used in this publication meets the requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984. © 2010 by Ricardo Ampudia Printed in the United States of America
10 11 12 13 14 15 16 10 9 8 7 6 5 4 3 2 1
To Scott Atlas, Sandra Babcock, Carlos Marín, for their part in securing Ricardo Aldape’s freedom
Table of Contents
Prologue by Fernando Solana | xi Introduction | xv
1 | THE DEATH PENALTY
Acknowledgments | ix
Definition and history of the death penalty;The death penalty debate The legal evolution of the death penalty; Death penalty and legislation cases; The legal procedure of the death penalty; Life on death row and the execution of a convict.
50 | THE DEATH PENALTY IN THE UNITED STATES
104 | CONSULAR PROTECTION OF MEXICANS SENTENCED TO DEATH IN THE UNITED STATES History of the consular protection provided by the government of Mexico to its citizens abroad; The situation of Mexicans sentenced to death in the United States; The work of the Mexican government in the protection of Mexican citizens sentenced to death in the United States Background; The case concerning Avena and other Mexican nationals (Mexico v. United States) before the International Court of Justice
143 | THE AVENA CASE
168 | THE ALDAPE CASE
The murders; Writ of Habeas corpus; Evidentiary hearing; Vindication
230 | FINAL REFLECTIONS AND CONCLUSIONS
261 | Appendix 1-C.
256 | Appendix 1-B. Global categories regarding the death penalty a] Anti-death penalty organizations and groups in the United States; b] International legislation regarding the right to life and opposed to the death penalty
241 | Appendix 1-A. The death penalty worldwide
Appendices | 241
Appendix 2-A. Minors executed under the death penalty
Glossary | 235 Bibliography |
O JORGE ACERO, LEGAL DIRECTOR OF THE MEXICAN Consulate General in Houston from 1990 to 1992, and to the legal directors of the Mexican Consulates abroad, excellent attorneys who practice their profession in another country, under different legal codes. To public defenders and private law firms in the United States that defend Mexicans sentenced to death. To the non-governmental organizations that support the causes of the defense of Mexicans in the United States. To Dr. Hermilo López Bassols and Quetzalli Padilla, for their unwavering support in the work on the subject matter of this book. To José Paoli Medellín, for the documentary research he helped me conduct, and to Adriana Bosada Ramírez de Arellano for the Spanish translation of various texts that are part of this document. To Fernando Solana, Andrés Rozental and Aurora Adame of the Mexican Council on International Affairs for their support in the publication of this book. To Emma, Roberta, Leandro and Ricardo, who with their customary enthusiasm supported me throughout the writing of this book.
ICARDO AMPUDIA, WHO COMES FROM A WELL-KNOWN journalistic family, has extensive experience in business, communications and public relations. I have personally witnessed his work on behalf of better relations between Mexico and other countries. Ricardo did outstanding work as Mexican Consul in Houston. Not only was he a great promoter of business and our national image, but he also actively participated in the tasks of persuasion and information on behalf of the North American Free Trade Agreement (NAFTA). This responsibility was extremely complex, but he managed to convince those whom he needed to convince in Texas, and particularly in Houston, of the benefits of the treaty for both countries. Another project in which he participated actively was the communications system of the Secretariat of Foreign Relations, which provided information so that all representatives of Mexico abroad would be fully apprised of the Secretariat’s positions. As a result of this joint effort, diplomats and consuls played an active role in promoting Mexican opinion across very diverse areas. He also participated in organizing the first Bush-Salinas interview, whose relevance goes without saying. In short, he was a witness and a leader in some key moments in our relationship with the United States. Among the problems that Ricardo experienced firsthand as a consular official, the death penalty is one of the most complex. This extreme punishment that has caused so much international controversy allows him to delve into a wide range of subjects, including civil and criminal rights, limits on government power and the daily functioning of the justice system.
With his personal and professional experience as a point of departure, Ricardo undertakes a profound, well-researched reflection on the topic. He is particularly concerned with reporting the practical and financial implications of this form of punishment, and demonstrating that executions are at times due more to causes such as racism and xenophobia than to solid evidence of the defendant’s guilt. Thus the overview begins with death as a historical human penalty, later it is taken up again in criminal procedure in the United States and finally it becomes an opportunity for a detailed analysis of that country’s judicial system. Consular protection of Mexicans sentenced to death has not been, nor will it ever be, a trivial matter. The number of people, and the amount of material and political resources required to defend all those sentenced to death can be overwhelming, but so is the evidence that judicial systems are adapted and constructed upon interests and identities that are far from impartial. Article 36 of the Vienna Convention, the Aldape case, and the Avena case are always useful references for close observation of the functioning and the difficulties of justice. It is essential to distinguish the death penalty as a government policy from that extreme punishment when the motive is personal. If we think of our loved ones being harmed by a criminal act, it is logical and could even be reasonable to wish that the guilty party pay with his life. However, the distance between that just (perhaps vengeful) impulse and a government position should, as a matter of principle, be very great. In order to fully understand the other side of the story, it is worthwhile to consider the bias in the dispensing of justice. The influence of public opinion and the media over judges can be one valid source of concern. If one intends to examine the subject seriously, in addition to questions on the effectiveness of this measure, the relevant contexts must also be set forth. Judges and courts, in addition to possessing their own set of values, empathies and stereotypes, are systematically permeated by public opinion. Therefore let us recall the economic necessity that at times moves our fellow citizens to emigrate, the difficulties of the U.S. environment for Mexicans and discrimination, present in an increasing number of academic, legislative and civil voices. If in the United States the citizens charged with dispensing justice feel closer to the threat per-
ceived by Huntington and the Minute Man Project than to the dream of the inclusive melting pot, it is possible that their decisions may be less impartial than they should be. The execution of Mexicans has not come out of the binational agenda. The situations of Jaime Elizalde and Angel Maturino demonstrate that, although the death penalty is on the decline worldwide, the United States is the exception. The risks of a national discourse that is weak on this subject, as on many others (let us think, for example of the International Criminal Court), may determine the future of relations. Mexico’s Supreme Court of Justice determined that when there is an extradition treaty with another country, the International Extradition Law is not applicable. Let us not forget, then, that on a more general level, the debate may be that of multilateral institutions and international law versus national sovereignty. May this book serve, therefore, as a stimulus for reflection on the present and the future of bilateral relations, criminal justice systems and the risks of making the death penalty a government policy. —Fernando Solana
EALING WITH THE TOPIC OF THE DEATH PENALTY IS A daunting task. Remembering the look in the eyes of my Mexican compatriots who were about to lose their lives at the hands of our northern neighbor’s government, controller of legal violence, is an experience that leads to profound reflection on life and death. As Consul General of Mexico in Houston, Texas, my mission was to follow the cases of several Mexicans who had been sentenced to death. This situation provided me with, among other things, the opportunity to examine the phenomenon from a special position: not only was I to advocate for these people but also I was to make them feel, through my actions and attitudes, that they were not completely alone in a strange land, and that their own nation had not abandoned them. The Ricardo Aldape case, which will be covered in this book, is part of my life. Between 1989 and 1992, as part of my consular duties, I had to pick up the case, interview Aldape, examine the facts and arrange for a U.S. law firm to take on his defense. As a Mexican government official, my country’s representative before a foreign power, my duty was to support and defend my fellow citizens. This duty required conscientious work, since the facts clearly showed that Aldape was innocent—a mere victim of irrationality, xenophobia and a legal system that wanted to find a scapegoat. Aldape’s defense was primarily handled by Scott Atlas, an attorney from the firm Vinson & Elkins. He handled the case for more than five years and at tremendous cost. Also of great importance was the participation of Sandra Babcock, a court-appointed attorxv
ney in the Houston court system. I mention them here because, fortunately, their efforts bore fruit. After fifteen years in a maximumsecurity prison, having had four different execution dates, Ricardo Aldape was released. The district attorney’s office dropped the charges due to procedural issues as well as the merits of the case. Sadly, Aldape died four months later in a terrible car accident while he was traveling from Mexico City to his native Monterrey. All of this made me question this law: What does the death penalty solve? Does the death of the killer bring back the lost life or the lost years? Does it erase the suffering and the pain? Is it true that such a punishment will prevent crimes from being committed? What is it about human nature that leads us to take the life of another human being? What is the nature of crime? Is it truly just to take one life to pay for another? What about involuntary manslaughter, killing in self-defense, state assassination? To what point is it valid to take the lives of others, whether they are criminals or not? Is justice blind? How many innocents have been killed in the name of justice and law? Beyond our religious beliefs, the ethical dilemma involved in taking a position on the death penalty leads to radicalization. Those who have seen people on death row witness the anguish, not only of the condemned but also of their family. This anguish is even worse when the condemned are poor immigrants in a highly developed country, victims of contempt, intolerance and often injustice. While I do not believe that the situation is easy for those sentenced to death in their own countries, I do believe that it is much worse for a Mexican sentenced to death in the United States. My experience in carrying out my consular duties led me to write down my reflections and analyze this controversial issue. Although initially, and in a way involuntarily, I had to approach the phenomenon with an almost anthropological methodology, the years have allowed me to gather and study a multitude of documents and testimonies regarding the death penalty. Unlike my prior research on the Church, and the Mexico-U.S. bilateral relationship reflected in presidential reports, on this occasion I had the opportunity to consult specialized bibliographical sources. These tools have a virtue: they allow us to see what the discussion of the topic is at this time and who its main actors are. The number of biblio-
graphical sources dealing with the death penalty is astonishing, most of them against it, but more amazing is the number of organizations devoted to its study, many of them dedicated to fighting for its eradication. There is one fundamental reason I decided to write about the death penalty and Mexicans sentenced to death in the United States. I would like Mexican citizens to be aware of the dilemmas involved in capital punishment. It is terrifying that many Mexicans, because of Mexico’s lack of security, are considering implementing the death penalty in Mexico. Although the death penalty has not been used in many years, it was included in several recent Mexican laws. Fortunately, recognizing that life is the most important human right, in March 2005, the Senate of the Republic passed a constitutional reform that explicitly prohibits the death penalty in Mexico.1 The Chamber of Deputies ratified this reform in June 2005.2 Since the reform was of a constitutional nature, it was sent to the thirty-one state congresses. It can be stated, however, that the message sent by the Mexican government with this proposal not only means reaffirming Mexico’s continuing adherence to the international treaties and accords,3 but also “the most significant commitment that we today celebrate and agree on with society and with the Mexican people.”4
The reform of Article 22 of the Constitution establishes that “Punishment by death, mutilation and infamy, branding, flogging, beating with sticks, torture of any kind, excessive fines, confiscation of property and any other unusual or extreme penalties are prohibited.” The measure also deletes the language that no one shall be deprived of life without a trial, previously established in Article 14 of the Magna Carta. 2 The reform of Articles 14 and 22 of the Constitution, expressly indicating that “the death penalty is prohibited” in Mexico, was approved in the session of the special term, with 412 votes in favor and two abstentions. 3 PRD Deputy Arturo Nahle García said that with this reform the nation complies with different international treaties and accords that Mexico has signed and in which the use of capital punishment is rejected. He emphasized the importance of this reform, since there still remained gaps in the law that would allow a person in Mexico to be subject to sanctions that would lead to the death penalty, especially for crimes of a military nature or treason. Notimex, “Aprueban reforma que prohíbe pena de muerte en México,” 23 Jun 2005 <noticias.aol.com.mx/ nacional/notas/sfcg/?id=1804>. 4 These are the words of PRI senator and president of the Human Rights Comission, Satot Sánchez Carreño cited in Arturo Sánchez: “Elimina Senado la pena de muerte en México,” 17 Mar 2005 <www.canaldelcongreso.gob.mx>.
Upon searching in different media for the Mexican people’s reaction to the constitutional reform prohibiting the death penalty in Mexico, I was very concerned when I read some of the comments of my fellow citizens. There was someone who claimed not to understand “because this being the time when [the citizenry in general], is suffering from a lack of security and abuse at the hands of murderers, rapists, kidnappers, etc., the authorities [. . .] succeed, almost unanimously, in eliminating the death penalty from the Constitution.”5 In my opinion, it is cause for concern that society does not take into account the many occasions on which an innocent person has been executed pursuant to the death penalty and, likewise, that it is unaware of the practical implications and the costs of the death penalty. These are two aspects about which this book seeks to inform. On the other hand, from Mexico’s earliest days as an independent country, it has had a humanitarian tradition that molds its values and culture and makes Mexicans a people averse to corporal punishment. We can say that, as a majority Christian country, we value life and have a sense of the transcendent; we do not believe that we return anything to the victim by killing the murderer. Therefore, I insist that the idea of an eye for an eye cannot be legitimized, because it has not reduced crime in those countries that use the death penalty. It is true that the judicial and prison system, even in Mexico, suffers from enormous deficiencies and irregularities. It might seem simple for society to attempt to reinstate the capacity for legal murder and take justice into its own hands. However, it must not be forgotten that laws are for everyone to follow. So, if people took the law into their own hands, how could we guarantee justice? I believe that the experience of having seen people who have been sentenced to death waiting in subhuman conditions for up to twenty years to be executed gives me the right to do what I can to prevent the death penalty from ever being implemented in my country. At the same time, although this book does not claim to provide a solution to the problems faced by Mexican citizens abroad, it does seek to raise awareness of the suffering experienced by those (unjustly) sentenced to death.
Comment to the article “Eliminan Pena de Muerte de la Constitutión,” 17 Mar 2005 <esmas.com/noticierostelevisa/mexico/4406661.html>.
In order to achieve this objective, the book has been divided into five chapters. The first consists of a brief introduction about the death penalty: some of the methods utilized to apply it throughout history, useful statistics to give the phenomenon a global dimension, the legal and historical situation of the death penalty in Mexico, the debate surrounding this punishment, as well as a brief description of organizations opposed to the death penalty. With that, the intent is to present to the reader the context in which the discussion of the death penalty in the United States is framed, and the assistance provided by the Mexican government to its citizens who have received this sentence. The second chapter is devoted to understanding the phenomenon of the death penalty in the United States. Some historical, statistical data is provided to show the dimensions of the problem in the United States. The goal is to explain how the death penalty is carried out in the United States, from the legal aspects to the practical aspects of an execution. Both general explanations and some descriptions of specific cases are provided for this purpose. The main goal of this chapter, however, is to make the reader aware of the problems inherent in the U.S. legal system, especially the risk of innocent people being executed. The third chapter explores the work done by the Mexican government to protect its citizens abroad. The practical and legal evolution of the general consular function of protection is shown through a historical study. This section is followed by the specific analysis of cases of Mexicans sentenced to death in the United States, and the assistance provided to them by the Mexican government in order to guarantee their rights. Finally, two chapters are devoted to the analysis and description of two special cases in which the Mexican government has participated, successfully, in the protection of its citizens sentenced to death in the United States. The Aldape case, not only because the author experienced it personally, but also because of the forcefulness with which it exposes the flaws in the U.S. legal system and the importance of consular protection in the defense of those sentenced to death, described in this book by attorney Michael Mucchetti. The Avena case, for its part, is considered Mexico’s greatest achievement in recent years in the area of consular protection and a victory for international law in the quest for respect of human rights.
The Aldape Case
They stole 15 years of my life. I’d have to be crazy to go back to the United States. —RICARDO ALDAPE GUERRA
N ISSUE OF EXTREME IMPORTANCE FOR THE MEXICAN government, and one that drew major national and international attention due to the indisputable proof of his innocence was, without a doubt, the experience of Mexican citizen Ricardo Aldape Guerra. An undocumented immigrant, Aldape spent fifteen years in Unit 1 of Ellis maximum-security prison in Huntsville, Texas; he was freed following intensive work by the Mexican government and U.S. attorneys to prove his innocence. Ricardo Aldape Guerra, a native of Monterrey, Nuevo León, Mexico, was sentenced to death on October 14, 1982 for the firstdegree murder of Houston Police Officer James Donald Harris, which took place the night of July 13 of that same year. His defense attorney, Scott J. Atlas, of the prestigious Houston law firm Vinson & Elkins, defended this Mexican citizen through the presentation of various legal documents. Also extremely valuable was the participation of the Mexican government—the Ministry of Foreign Relations and the Mexican Consulate General in Houston—, the National Human Rights Commission and the state government of Nuevo León, as well as the Texas Resource Center,1 through dis1
An institution devoted to providing assistance to those sentenced to death in the state of Texas.
Mexicans on Death Row
tinguished attorney Sandra L. Babcock. Finally, in 1996, the Fifth Circuit Court of Appeals in New Orleans decided to reverse the trial in which Ricardo Aldape Guerra was sentenced to capital punishment. This case undoubtedly strengthened the Mexican government’s position in the sense of offering assistance to its citizens sentenced to death in the United States. It also represented a clear example of how, through errors in legal proceedings, there exists the possibility of innocent people being executed, which is the main argument used against the imposition of the death penalty. Pursuant to the foregoing, it is appropriate to include in this chapter the account of the trials and tribulations of Mexican citizen Ricardo Aldape Guerra, as well as the mark left upon the Mexican government and this author by having known and aided this fellow countryman during those times of anguish and distress. It is important to point out that the account presented in this chapter was written by Scott J. Atlas and Michael Mucchetti, both attorneys from the firm Vinson & Elkins, in October of 1998. Without a doubt, their outstanding participation in the case was a key factor in overturning Ricardo Aldape Guerra’s death sentence.
WILL YOU HELP US?
In the spring of 1992, when Aldape had already spent ten years in prison, Ricardo Ampudia, Consul General of Mexico in Houston, first contacted Scott Atlas, an attorney with Vinson & Elkins, to ask him to take on the defense of Ricardo Aldape Guerra. Aldape had been imprisoned since 1982 for the murder of Houston Police Officer James D. Harris. The State had set Aldape’s execution for May 12, 1992 at 12:01 a.m. The then head of the Mexican Consulate in Houston asked Scott Atlas, “Will you help free Aldape?” A few short days before Aldape’s scheduled execution, that phone call would be the first step in a legal odyssey that would consume him and a team of lawyers for the next five years. The reopened investigation of the crime would uncover evidence that the jury never heard when Aldape was convicted, a shocking pattern of police and prosecutorial in-
timidation, misconduct and abuse. Over the next half decade, the legal case would wind its way from state district court to the state’s highest criminal tribunal, through the federal legal system and back again to state court. More than fifteen judges would ostensibly review the matter. While Aldape lingered on death row, the ensuing uproar over his impending date with death would create a diplomatic incident. Atlas could not know then of the victory and defeat, joy and sorrow, hope and despair this single call would precipitate. For Scott Atlas, a partner in the business litigation section of the law firm of Vinson & Elkins L.L.P the request to discuss his possi., ble representation of a death row prisoner came as a surprise. Vinson & Elkins, or “V&E” as it is called colloquially, is one of the largest and oldest Texas law firms. Except for some white-collar criminal representation, the scope of V&E’s practice is predominantly devoted to the transactional and litigation problems of corporate and government clients. Atlas himself had never represented anyone facing execution, although he had handled a few pro bono criminal matters. As chairperson of V&E’s pro bono committee, he was proud of V&E’s tradition of accepting matters, free of charge, for indigent clients as well as certain artistic and humanitarian endeavors. Atlas was raised in McAllen, Texas, only a few miles from the Mexican border. He learned Spanish as a young boy. An informal exchange program with a family in Mexico City when he was fifteen helped Atlas become fluent and gain a deeper appreciation of Mexican culture. Except for the summer in Mexico and four years at Yale University where he obtained a bachelor of arts in math and economics, Atlas was rarely absent from Texas for any length of time. After graduation from the University of Texas School of Law in 1975, Atlas served as a law clerk to the Honorable Thomas Gibbs Gee, a judge on the United States Court of Appeals for the Fifth Circuit.2 The clerkship provided Atlas some exposure to criminal matters, including capital murder cases. Atlas developed a close relationship with his mentor, who in early 1977 asked Atlas, now an attorney, to represent a criminal defendant on appeal before the
The Fifth Circuit is the federal appellate court that hears challenges to federal district court opinions issued from the states within its jurisdiction. The Fifth Circuit currently hears cases from Texas, Louisiana and Mississippi.
Mexicans on Death Row
Fifth Circuit. His pro bono representation of Bill Rummel would foreshadow the obstacles he would soon confront for Aldape. In late 1980, Atlas obtained a finding that Rummel’s trial attorney was so ineffective in assisting Rummel that he was denied his constitutional right to counsel.3 When the Mexican Consulate contacted Atlas, he accepted the invitation to attend the meeting to discuss his possible representation of Aldape, although he thought he would almost certainly decline the Mexican consulate’s offer to spearhead Aldape’s legal defense. A supporter of the death penalty himself, Atlas believed society deserved to protect itself and to inflict retribution in the appropriate cases by meting out the ultimate punishment. At the meeting held in mid-May in his office, Atlas was greeted by Mexican Consul General Ricardo Ampudia, the legal advisor to the consulate, Jorge Cicero, and Sandra Babcock, a recently licensed graduate of Harvard Law School who worked for the Texas Resource Center. The Center had been established with federal funds to represent inmates on death row who were challenging their convictions. She had already prepared and filed Aldape’s state district court petition for writ of habeas corpus.4
A court sentenced Rummel to spend his life behind bars for committing three bad-check-type crimes. His criminal misconduct totaled approximately $230. Atlas contended that the Texas statute, which mandated a life sentence upon a third felony conviction, was cruel and unusual punishment in violation of the 8th Amendment as applied to Rummel. Following an en banc hearing, where the Fifth Circuit judges were split, and presenting the facts to the Supreme Court, Rummel’s sentence was affirmed. Rummel secured his freedom only after the case was remanded to federal district court. 4 Once convicted, Texas state prisoners may appeal the judgment to the State’s highest criminal court, the Texas Court of Criminal Appeals. If unsuccessful, the prisoner may then seek review by the U.S. Supreme Court, which has the discretion to decide whether it will hear the matter. Very few cases are reviewed by the Supreme Court. If the petition for review to the Supreme Court proves unsuccessful, then the last chance for freedom, a lesser punishment or retrial, lies with a petition for writ of habeas corpus. A state inmate like Aldape, as opposed to a federal prisoner, must first file a petition for habeas relief in state court. If the state courts deny habeas relief, a prisoner may seek habeas relief in the federal court system. In 1992, Aldape had just begun to exercise his habeas rights. The right to challenge a sentence by a writ of habeas corpus is guaranteed by the U.S. Constitution and is often said to stem from the Magna Charta (Article 1 Section 9, Clause 2).
Atlas was the consulate’s choice, if he were willing, to assume Aldape’s habeas defense. The Consulate explained that Aldape’s arrest was a case of mistaken identity. Aldape was merely the murderer’s unwitting companion; the police killed the guilty man as he tried to avoid capture the night of the shootout. Aldape surrendered peacefully and always proclaimed his innocence. Further, the consulate explained that the State had argued that Aldape’s status as an illegal immigrant could be considered when determining whether he should be sentenced to die. Aldape, a young, poor, illegal alien from Monterrey, had been railroaded because the police already shot the real killer. The review of the case that Atlas heard during the two-hour meeting piqued his interest, and he asked to read the record—seventeen volumes containing a total of 4,776 pages. The record would allow Atlas to decide for himself whether Texas afforded Aldape a fair trial before sentencing him to die.5 The record contained other materials for Atlas to review. From Aldape’s direct appeal, Atlas could read the opinion entered by the Texas Court of Criminal Appeals. In addition, he could study Sandra Babcock’s prior legal research. Just reviewing the extensive record to determine if it supported the Mexican government’s characterization of the case took Atlas a month. He discovered that there was no shortage of purported witnesses to the crime. The witnesses’ stories in the trial transcripts, statements to police, and the offense reports, though, were often contradictory. The identification of the shooter varied from witness to witness, and the statements were internally inconsistent as well. Atlas worked through the web of accusations and counter accusations. As he studied the mountain of material, a disturbing picture unfolded of the justice Aldape had received from his northern neighbor.
FROM MONTERREY TO TEXAS
Ricardo Aldape Guerra was born on April 3, 1962 in Monterrey, Mexico. Monterrey is the capital of Nuevo León, a Mexican state
In a capital case, the trial itself is divided into two parts. First, the jury must decide whether the accused is guilty or not guilty. This is usually called the “guilt/innocence” phase. Then, if jury finds the defendant guilty, the “sentencing” phase begins.
Mexicans on Death Row
that shares its northern border with Texas. From a humble family, which consisted of his parents and three siblings, Aldape left school at age seventeen to support his family by working in a cardboard box factory. Despite these circumstances, his life was normal and calm, with a close-knit family and free time playing soccer. He was a normal student and worker. Neither he—nor any member of his family—ever found themselves in trouble with the law. In at least two instances, Ricardo demonstrated his unique character. Aldape, though, was not content with his life in Monterrey. He yearned for more for himself and for his aging parents. On April 3, 1982, when Aldape turned twenty, he then made a decision to enter the United States illegally. Aldape and two friends jumped a train that took them over the border. In San Antonio they located a friend who offered shelter and another drove them to Houston. Aldape quickly found employment—installing sheetrock, and although he earned substandard wages at $3.00 an hour, it was more than he earned in Mexico ($35 per week). He also found a place to live in a predominately lower-income Hispanic neighborhood, sharing his cramped living quarters (an apartment on Rusk Street in the Magnolia neighborhood) with several others. Most, but not all, were undocumented Mexican laborers. Because they crossed the Rio Grande River to enter Texas illegally, they were derisively called “wetbacks.” The Spanish language equivalent is mojado, which means “wet.” A couple of months after Aldape arrived in Houston, a new man introduced himself to the group. In addition, undocumented, this twenty-seven-year-old was known by Aldape and his roommates as El Güero, and later, by the police, as Carrasco.6 In addition to
This mysterious, charismatic stranger went by many names. To some, he was only “Antonio.” Although unknown to Aldape, El Güero sometimes assumed another identity he obtained after robbing James Joseph Kosmerl at gunpoint on June 24, 1982. El Güero became “James Kosmerl” by taking Kosmerl’s driver’s license and gluing his picture over Kosmerl’s. To police, however, this stranger would later be called by another name, Roberto Carrasco Flores, after taking his fingerprints and requesting a search of the Texas Department of Public Safety. But, a call to the people listed on the driver’s license application as relatives reached people who professed not to know him. To some, he bragged of taking the name “Roberto Carrasco Flores” from a taxi driver he had killed. To this day, no one has been able to identify who this man with so many aliases really was.
boasting of having killed a taxi driver and a convenience store clerk, Carrasco bragged that he was saving his money to fly to Cuba to assassinate Fidel Castro, whom he hated. Carrasco always carried a gun that he cherished, a 9 mm pistol.7 Among the anecdotes told about him, it is said that on one occasion, when a police officer was driving by the Rusk Street apartment, Carrasco pointed his finger at the patrol car and, acting as if his hand were a pistol, made a “pop pop pop” sound of a gun firing, as he hated police officers. Even without Carrasco’s menacing presence, Magnolia was not a bucolic neighborhood. In 1982, street fights and the sounds of gunfire were routine. Aldape, like many in the neighborhood, carried a gun for protection. Aldape had a .45 Detonics pistol. He only acquired it after entering Texas when Carrasco sold it to him.8 In addition to the enigmatic visitor, other factors, beyond Magnolia, were conspiring to alter Aldape’s life. The year 1982 was a tragic one for the Houston Police Department. Four HPD officers died in the line of duty in 1982. In addition, anti-immigrant sentiment filled Texans. Congress was debating a new bill targeting illegal immigration—the Immigration Reform and Control Act of 1982.9 Its controversial provisions included penalties against employers who knowingly hired undocumented workers and an amnesty program that would offer permanent resident status for millions of undocumented aliens. The Houston newspapers reflected the thought that illegal immigration was “causing a national crime wave.” In additional, the unemployment rate then stood at 9.4 percent, increasing anti-immigrant sentiment, given the fear of U.S. citizens losing their jobs.
Carrasco had acquired the 9 mm pistol and ammunition on June 19, 1982, shortly before he began visiting the Rusk Street apartment and met Aldape for the first time. Carrasco did not buy the gun himself. Instead he approached Alfredo Maldonado, Jr., introducing himself as “Luis,” outside Carter’s Country Gun Store in Pasadena, Texas. 8 After Aldape’s arrest, the .45 caliber pistol would be traced to the robbery of the Rebel Gun Store, located in Houston. The DA never arrested, charged or prosecuted Aldape for the store’s robbery. 9 The Immigration Reform and Control Act was also known as the Simpson-Rodino Bill, the names of its principal authors, Senator Alan K. Simpson and Representative Peter Rodino.
Mexicans on Death Row
On the evening of Tuesday, July 13, 1982, Aldape asked a friend to lend him his car to go buy sodas. Carrasco, who was visiting the residents of the Rusk Street apartment that evening, offered to go along. The two men left at 9:00 p.m. on the dot. Aldape drove fast, and after buying the soda, nearly hit a teenager, George Brown, who was taking his dog for a late night walk. Brown jumped into a ditch to avoid getting hit. Picking himself out of the gully, Brown flagged down a passing police car. It was Officer James D. Harris, who came upon Brown only seconds after the near miss. Officer Harris was a model police officer. He joined the HPD in 1976 after serving in the U.S. Air Force. At age twenty-nine, he had already received several letters from citizens commending his police work. For the previous two years, he had received the highest marks from the police department for his job performance. He was also a devoted husband and father, with two young daughters. In all respects, he was the epitome of HPD’s finest. Officer Harris pulled his patrol car over in response to Brown’s beckoning. Harris quickly noted Brown’s description of the erratic car and drove off in pursuit. Meanwhile, Aldape and Carrasco had not traveled far. Their car had stalled at the corner of Edgewood and Walker, still in Magnolia, a few blocks from the Rusk Street apartment. It was now nearly ten o’clock in the evening. When he arrived at the corner of Edgewood and Walker, Officer Harris had only one hour left in his shift. The police car pulled in behind the stranded car. Its two former occupants were standing by the car. Aldape wore a green shirt and blue jeans. Carrasco was dressed in a maroon shirt and brown pants. Aldape had long, black hair, a beard and mustache. Carrasco had short brown hair and was clean-shaven. The different clothing, hair length and color, and facial hair would later become critical as witnesses tried to recall what they saw that evening. The uniformed officer exited his car and, in English, ordered Aldape and Carrasco to approach and place their hands on the police car. Only one man complied, putting his hands on the hood of the police vehicle. The other emerged from the shadows, walked up to the patrol car and pulled out a 9 mm Browning pistol. He shot
Officer Harris three times in the head, almost at point-blank range. The pistol was so close that it left powder burns on the officer’s face. The three bullets, after exiting the victim, burrowed into a home on the northwest corner of Edgewood and Walker. After downing Officer Harris, the gunman retrieved the officer’s pistol. Both the gunman and his acquaintance fled, running down opposite sides of Walker Street. The shooter ran on the north side of Walker, the second man on the south side of Walker. The man on the south side of the street fired two shots into the air with a .45 caliber pistol. Shortly before Officer Harris was shot, a Ford pulled up just short of the stalled Buick. José Armijo, Sr. drove the Ford. Two young children shared the car with him—Armijo’s ten-year-old son and namesake, José, Jr., and his three-year-old daughter, Guadalupe. Once Office Harris was shot, Armijo threw the Ford into reverse and pushed his son out of harm’s way. The shooter ran toward his car and leveled the 9 mm pistol at Armijo’s head. Trapped in the car, unable to move forward through the intersection, unable to back up quickly enough, Armijo offered an easy target. A single shot pierced the windshield, mortally wounding him. His daughter, Lupita, suffered glass cuts on the shoulder and neck. The Ford lurched into a culvert along the road. A short time later, dozens of detectives and officers arrived on the scene and joined the frantic search for the two Hispanic suspects. Officer Lawrence Trepagnier approached a darkened garage and shined his flashlight into its corners. Emerging from the gloom where he hid, Carrasco fired his 9 mm pistol, hitting Trepagnier five times in the chest and abdomen. Alerted by the gunshots, several officers rushed to the garage. Carrasco ran around a corner of the house directly into the path of the oncoming police officers. The officers fired, peppering him with shotgun blasts to the head, chest and back. The 9 mm pistol dropped from Carrasco’s hand and fell between his legs. The clip was empty. Aldape could clearly hear the gunfire from Carrasco’s unsuccessful attempt to blast his way to freedom. Cowering behind a horse trailer in the backyard of 4911 Rusk, Aldape listened as the officers and detectives closed in on him. Within minutes of Carrasco’s death, Aldape was located, unarmed. Hands raised, Aldape
Mexicans on Death Row
surrendered without a struggle. Aldape’s hands were manacled and then bagged with paper sacks by the officers. The bags were meant to preserve any evidence of gunpowder or trace metal left by a gun. About two feet away from where Aldape had crouched, detectives found Aldape’s .45 caliber pistol under the horse trailer. The gun was wrapped in a bandana. Aldape’s pistol had one round in the chamber and three bullets in the magazine. After being detained, Aldape was driven to the police station where, at 3:30 a.m., he gave a statement without the benefit of counsel present. “Soy inocente,”—I am innocent. No one told Aldape he had the right to contact the Mexican Consulate. The Vienna Convention on Consular Affairs, signed and ratified by the United States in 1969, afforded him this privilege.10 At the station in the early morning hours after his arrest, Aldape was photographed, fingerprinted and then stood in a lineup at six o’clock in the morning, already dressed in a jail uniform. Aldape could not see the witnesses, who had spent the whole night and morning at the station, as they peered through the one-way glass and attempted to make a positive identification. Back on Edgewood and Walker, detectives and officers collected the physical evidence. At the northeast corner of the intersection, three spent 9 mm cartridges were found. The three bullets entered the left side of Officer Harris’s face and traveled across the patrol car “in an almost perpendicular position” from the driver’s to the passenger’s side. On top of the patrol car, blood was splattered at the same, perpendicular angle. Officers traced the bullet holes to the house on the northwest corner of Walker and Edgewood. From the physical evidence, detectives concluded that Officer Harris was standing by the open door of his car when he was shot at close range. The shooter stood east and slightly south of the officer. The medical examiner who performed the autopsy later divulged that Officer Harris had gunpowder burns on and near his wounds. A police ballistics expert testified that, given the powder burns, the murder weapon was between eighteen inches and four feet away from Officer Harris, and probably less than two feet away.
Recall Articles 5 and 36 of this convention, which were analyzed in our study of the Avena case, and their repercussions in that case.
Cartridges from a 9 mm were also found elsewhere at the scene. One was located in the passenger seat of the Buick, and others on the north side of Walker—one in a ditch in front of 4925 Walker (close to the car driven by José Armijo, Sr.), and two in the driveway of the same house. Police recovered two .45 caliber casings on the south side of Walker Street, almost a full block east of the Harris shooting. No bullet holes for the .45 were located, which was consistent with Aldape’s insistence that he had only shot his weapon in the air. From the evidence, detectives concluded that the murderer of Officer Harris used a 9 mm pistol and then fled east down the north side of Walker. On Walker, the shooter murdered José Armijo, Sr. and continued running east. The other person also ran east on Walker, but on the south side, firing his .45 pistol at least twice. More physical evidence was discovered on Carrasco’s body. Carrasco drew his last breath holding the 9 mm pistol. The clip inside his gun, with a capacity of thirteen to fifteen rounds, was depleted. At the morgue, Officer Harris’s .357 Colt Python was found stuffed in the front of Carrasco’s waistband under his belt. Carrasco also had another clip for the Browning 9 mm pistol containing twenty rounds of ammunition in a military-type magazine double pouch attached to his belt, eleven loose rounds of 9 mm ammunition in his pants pocket and a leather holster on the inside of his front waistband. All the physical evidence implicated Carrasco. Admittedly though, Aldape failed to render aid to the mortally wounded Officer Harris, and Aldape did possess an unregistered .45 pistol, a weapon police would later determine was stolen. Aldape was also an undocumented alien, and he was undoubtedly at the murder scene. The most likely suspect, however, was Carrasco. Carrasco owned and carried the murder weapon and bore the pistol belonging to Officer Harris. But he was dead. On July 23, 1982, Aldape was indicted for capital murder. Aldape was not charged as the gunman’s accomplice. He could not be. As one of the trial prosecutors acknowledged years later, the evidence showed that the shooter acted independently and without warning or assistance. Instead, Aldape was accused of murdering a uniformed police officer. Aldape was charged as the triggerman. A conviction could be punishable by death.
Mexicans on Death Row
Upon reviewing the police reports, Atlas observed that all the physical evidence pointed to Carrasco, not Aldape, as the killer. Nevertheless, in his first trial in 1982, Aldape faced a capital murder charge. Unable to afford an attorney, the state district court appointed counsel for him, Candelario Elizondo and Joe Hernandez. Elizondo, lead counsel for Aldape, had several years of experience with capital murder cases. Before representing criminal defendants, Elizondo served as an assistant district attorney for approximately five-and-one-half years. Hernandez had only practiced law for three years and had never tried a capital case. The defense’s limited resources and the unwillingness of some of the witnesses to speak with them made it difficult to prepare Aldape’s case. The defense team faced other pressures. Elizondo had to try another murder trial in August 1982 as Aldape’s trial date drew nearer. The defense attorneys had no funds to hire expert witnesses to help reconstruct the crime or to dispute the interpretation of the physical evidence given by the State’s experts. Aldape saw his overworked courtappointed attorneys only a few times before the trial for his life. On the second meeting, they told Aldape that he should accept a life sentence. Aldape refused, insisting he was innocent. Aldape entered a plea of not guilty. The prosecution, on the other hand, consisted of two accomplished assistant district attorneys, Robert Moen, the thirty-fiveyear-old chief prosecutor of the 248th District Court (where the case had been assigned), and Richard Bax, a thirty-three-year-old chief of one of the four felony divisions in the Harris County district attorney’s office. On August 30, Judge Henry Oncken called the courtroom to order as the jury selection process began. During voir dire, attorneys have an opportunity to question potential jurors to determine if they have any biases. If the court believes a potential juror’s bias is so strong that he or she could not be fair, the person will be removed from the jury panel. In addition, each side may strike a limited number of jurors from the panel without providing a reason. Such a challenge that is made without showing a cause for dismissal is called a “peremptory strike.” Voir dire is also the first chance to convince those eventually chosen for the jury of the accused’s innocence or guilt.
The prosecution used voir dire to emphasize repeatedly that Aldape was an “illegal alien.” Although the defense also noted that Aldape entered the country illegally, the State exceeded the bounds of zealous prosecution. To find the death penalty is appropriate, the jury must assess the future dangerousness of the defendant. The prosecutors expressly instructed several members of Aldape’s jury that, if they convicted him, then during the punishment phase of the trial, the jury could consider Aldape’s status as an “illegal alien.” For example, over the objection of Aldape’s trial counsel, the prosecution instructed one juror that “the fact that a person is in someone else’s country unlawfully or has come into a country illegally could be evidence the jury could consider about what type of person he is.” Prosecutors informed another juror that Aldape’s status as an “illegal alien” might help in answering the sentencing questions that would determine whether Aldape would be executed. Voir dire lasted through September and into October 1982. Each side voiced their objections, hoping the court would agree that a biased juror could be dismissed for cause. Both people with Hispanic surnames were struck by the State. The first twelve voir dire panelists who were not removed by either the prosecution or defense team became the jury. On October 4, 1982, the trial began. The prosecution’s theory was that a double-gun switch occurred. The prosecution speculated that Aldape and Carrasco kept their weapons on the Buick’s front seat. When they left the vehicle, they accidentally retrieved each other’s weapons. That was the first switch. Aldape supposedly shot Officer Harris, took the officer’s weapon and then shot Armijo with the 9 mm. According to the prosecutors, at some point thereafter, but before Carrasco shot at officers with his 9 mm, Carrasco took back from Aldape his own weapon and the .357 belonging to Officer Harris. That was the second switch. As is obvious, not only did the State lack any evidence supporting its double-gun switch theory, it lacked any physical evidence linking Aldape to the crime. Then, with no physical evidence, the State relied on five people it called as eyewitnesses to the shooting. Most were teenagers. Many had a poor grasp of English and enjoyed little education. None of the witnesses saw a gun switch, and none consistently stated that they saw Aldape shoot the officer. Although five wit-
Mexicans on Death Row
nesses placed Aldape at the scene of the murder, only one, ten-yearold José Armijo, Jr., eventually testified that he actually saw Aldape shoot Officer Harris. The prosecution’s whole case was built on these young witnesses being able to distinguish between two Hispanic men of similar height and build, in the late evening, with poor lighting. Carrasco and Aldape’s differing clothing and facial hair would prove to be the critical distinction in determining who murdered Officer Harris. The State understood this and conceived an unprecedented technique to overcome this obstacle. All the witnesses benefited from an unusual aid during their trial testimony. At the cost of $7,000, the prosecution had prepared life-sized mannequins of Aldape and Carrasco. The custom-made head of each mannequin cost $3,500 apiece. The bodies were donated by a local department store. District Attorney John B. Holmes, Jr. said the cost would be covered by money collected by the worthless check division. Holmes admitted that the mannequins’ use was “unusual” and credited the idea to Bax and Moen. The mannequins were molded into astonishing likenesses of the two men as they looked on July 13, 1982. Each wore the actual clothes taken from the men on the night of the shooting. Thus, Carrasco’s shirt was bullet-riddled and bloodstained, while Aldape’s was spotless. During the witnesses’ testimony, there could be no mistaking which man had long hair and wore a green shirt and which had short hair, a purple shirt . . . and was dead. At the 1982 trial, the State first called Patricia Diaz to the stand. She was only seventeen years old. In short, Diaz testified that she saw Aldape pointing west toward the patrol car just before the shots were fired, but she never actually saw anyone shoot Officer Harris. Herlinda Garcia then took the stand. The fifteen-year-old was on Walker Street, with her baby, headed to the store when she saw the Buick halt in the middle of the street. She said she was running when she heard the gunshots. Although Garcia identified Aldape as the shooter, she conceded that in her initial statement she had described the shooter as a blond-haired man who wore a brown shirt and brown pants. Carrasco, not Aldape, wore brown pants on the night of the shootings. Neither wore a brown shirt. Near the end of her testimony, Garcia stated that she never saw the man in brown
clothes raise his hand or shoot anyone. Garcia had not gone to the store alone that night. She was accompanied by her sixteen-yearold sister Elvira “Vera” Flores. The State called Flores to the stand. Flores thought Aldape was the shooter, but she admitted that she hid behind a car when the shooting started. She also conceded that she failed to identify Aldape at the lineup, but she attributed that to her fear of retribution. She testified that she did not actually see the man who shot Officer Harris and Armijo, Sr. She saw no gun until after Officer Harris had been shot and after the man she assumed was the shooter had begun to run down the street. Hilma Galvan, who lived on the north side of Walker not far from the shooting, testified next. At forty-four, she was the only adult among all the alleged eyewitnesses called by the State. On July 13, 1982, she testified that she was walking with Jose Heredia and his brother, Armando. Galvan heard two shots. She never saw a gun, but she saw a flash. She said the shooter had blond hair and wore a black or dark brown shirt and brown pants. In court, she identified Aldape as the shooter. She said she never saw Carrasco. Galvan testified that the person she believed to be the shooter then ran toward her side of the street, the north side. The prosecution then called young José Armijo, Jr. who, sitting in the front passenger seat of his father’s car, saw Officer Harris standing beside his open patrol car door. Two other men were standing by the hood of the police car, with their hands on the hood. One man “acted like he was scratching his back” when he took out a gun and shot Officer Harris. José, Jr. could see fire coming out of the gun. Officer Harris fell to the ground. The shooter wore a green shirt, the other man a purple shirt, José, Jr. stated as he faced the mannequins. He said the shooter had a beard and long hair. He then made an in-court identification of Aldape as the shooter. On the night of the shooting, José, Jr. had told police that the shooter used his left hand to retrieve and shoot the gun. Neither the prosecution nor defense elicited this fact during José, Jr.’s trial testimony. The information about which hand the shooter used might have helped the jury decide whether Aldape was innocent, based on information Atlas would only later uncover. On cross-examination, José, Jr. admitted that he gave a sworn statement to police on the night of the shooting that said he did
Mexicans on Death Row
not see the shooter clearly. Before the lineup, he told police that he did not know who shot the police officer. He also stated that he did not know what clothing Aldape and Carrasco were wearing the night of the shooting. At a lineup, hours after his first statement, he still could not identify Aldape. Even though the police assured him at the time that the men in the lineup could not see him, José, Jr. said he had earlier been afraid to identify Aldape. To rehabilitate José, Jr.’s testimony, the State called his mother to the stand. She had sat in the courtroom for most of the proceeding. Marie Estelle Armijo testified that her son returned home from the police station at 8:30 in the morning on July 14, 1982 and told her he had seen the shooter but was afraid to tell the police. She testified that she waited a further six weeks, only days before the trial, to tell the prosecutors that José, Jr. could identify Aldape as the shooter. Over defense objections, she also detailed how José, Jr.’s behavior had changed since his father’s death. She explained that José, Jr. “used to go out and play a lot and he would ride his bicycle on the sidewalk and going around the block.” But that had changed since the shooting. “[N]ow he doesn’t want to go out to play and he just comes home and he wants to lie down and sleep, and he doesn’t even want to eat.” This testimony, while compelling, was irrelevant to the question of Aldape’s guilt. The State called other witnesses for their emotional impact. For example, the medical examiner who performed the autopsy on Officer Harris described the officer’s injuries. The State introduced several grisly autopsy photographs showing the entrance and exit wounds on the officer’s face and head and several pictures showing rods entering one side of his face and exiting the other. As its final witness, the prosecutors called the widow of Officer Harris. The court overruled objections that her moving testimony about her husband’s life, work and marriage was immaterial to Aldape’s guilt or innocence. The court allowed her to describe how she met her husband and how he regularly worked extra jobs so that she could devote all her time to raising their two daughters. At the end of the State’s case, only one witness, José Armijo, Jr., claimed to have actually seen Aldape shoot Officer Harris. No witnesses placed Aldape in the location where the shooter had to be —east of the officer. The defense began its case.
The defense initially presented the testimony of four witnesses, two who saw the shooting and two who heard Carrasco confess to the crime. Jacinto Vega, who was seventeen at the time of trial, testified that on the evening of July 13, 1982 he sat on Hilma Galvan’s porch as the Buick drove by her house and stopped at the intersection. He saw the driver approach Herlinda Garcia and Vera Flores. He noticed that the passenger in the Buick had short hair. Then the police car parked behind the Buick. Officer Harris called to the driver, and the driver walked over to the police car and placed his hands on its hood. The passenger walked behind the driver, and while standing behind, and to the east of, the driver, he “took something out” and shot Officer Harris. He held the weapon with two hands. On cross-examination, Vega stated that the driver was closer to Officer Harris, but the shorthaired passenger shot from behind the driver. The defense then called Jose Heredia. He and his brother, Armando, were with Hilma Galvan on the night of the shooting. He, too, saw Aldape put his hands on the police car’s hood. While Officer Harris stood next to his car door, the Buick’s passenger approached and shot Officer Harris. Jose Heredia identified the shooter as “Güero, the light-colored one.” On cross-examination, the prosecution questioned Heredia about a “killing” that allegedly occurred in a nearby cemetery forty minutes before Officer Harris was murdered. The prosecutor’s first eight questions—using such phrases as “this woman killed,” “they had killed a woman” and the “woman’s body”—were intended to convey to the jury that Aldape and Carrasco had committed a murder. Defense counsel objected. The prosecutor promised to “spell out” the relevancy later to the court, but never did. Elizondo, Aldape’s attorney, did not know then that the murder never occurred. The police had investigated the rumor on approximately July 22, 1982 and confirmed it to be a complete hoax. Curiously, the assistant district attorney pursued this line of testimony even though he knew no cemetery murder occurred. Two of Aldape’s roommates were then called by the defense, Jose Manuel Barrosa Esparza and Jose Luis Torres Luna. Both young men, testifying in Spanish, stated they were in their apartment when Carrasco ran into the residence at 4907 Rusk and bragged about killing a police officer. Esparza testified that at approximately 10:00 or 10:30 p.m. that night he heard gunshots. Three or four
Mexicans on Death Row
minutes later, Carrasco tore into the apartment, agitated and out of breath. Carrasco showed Esparza the police officer’s gun and stated that he had killed the gun’s owner. Esparza saw that Carrasco carried two pistols, one in his hand and one in his belt. Later, Torres Luna testified that Carrasco offered to give him the police officer’s revolver “as a present.” Torres Luna refused this “gift.” Carrasco then removed a clip from the pistol in his hand and replaced it with a loaded clip. Shortly after Carrasco arrived, Aldape ran into the house. Aldape told Torres that Carrasco had just killed a police officer. Carrasco announced he would defend himself, preferring death to surrender. Esparza, not wanting to get involved, told the men to leave. Shortly afterward, Carrasco and Aldape departed through the rear door. When the police later entered the house with their guns drawn, they forced the remaining occupants to lie face down and interrogated them while training pistols at their heads. Both Torres and Esparza admitted they did not tell the police about Carrasco’s confession while being interrogated, but claimed they were scared. During rebuttal, the prosecution called a police officer who testified that Torres and Esparza told him they had left home shortly after Carrasco and Aldape departed and had not returned until the officer saw them. The officer insisted that he saw no one point a gun at Torres or Esparza while they were questioned. The defense called its final witness, the accused himself, Ricardo Aldape Guerra. Testifying in Spanish through an interpreter, Aldape said he knew Carrasco only as “Güero” and that he had known him for only two or three weeks. On July 13, Carrasco joined Aldape when he left to go to the store to purchase a soda; as usual, Carrasco brought his 9 mm pistol. Aldape drove around the neighborhood, spinning the Buick’s tires, before the car stalled. Shortly after it broke down, he asked some girls for jumper cables. Then the police car arrived. Aldape heard the officer say something, but he only understood “Come on.” He obeyed the command and placed his hands on the patrol car’s hood. Officer Harris told Carrasco to “come on,” but Aldape could no longer see Carrasco. “Suddenly,” Aldape testified, shots rang out “almost in my ears.” He witnessed the officer’s gun drop and Carrasco’s retrieval of it. Both men then turned and fled. Aldape ran down the right side of
the street (the south side) heading east on Walker. Out of fear, he twice fired his own .45 into the air to keep Carrasco from following him. He ran home and found Carrasco already inside. Carrasco said he had also shot at another car. With Aldape’s testimony, the defense rested. Each side then presented its closing argument to the jury. The State, as always, proceeded first and, after the defense argument, would be permitted the final word in rebuttal. The prosecution advanced its gun-switch theory. The State insisted that five people—José Armijo, Jr., Galvan, Diaz, Garcia and Flores—immediately went to the police station, gave written statements without having a chance to confer, viewed the lineup while being told not to discuss what they saw, were asked individually whether they recognized anyone and identified Aldape as the shooter. Regarding the key testimony of José, Jr. identifying Aldape, the prosecution stated that José, Jr. knew that “God would get after him if he told a lie.” The prosecution called the scientific evidence “inconclusive” and that the testimony of Jose Heredia, whose testimony that he saw Carrasco kill Officer Harris was critical to Aldape’s defense, could not be considered true. To justify this, the prosecutor offered this opinion of the fourteen-year-old Heredia’s mental state during his trial testimony: “I think he was probably under the influence of some type of alcoholic beverage, or narcotic drug.” The prosecution also invoked Aldape’s immigration status in closing argument as it had during voir dire, stating, “[Y]our answers will demonstrate what type of person . . . Aldape was while he was in our community for less than two months after coming here from Monterrey, Mexico.” A message had to be sent, the prosecutor urged: “Let the other residents of 4907 Rusk know just exactly what we as citizens of Harris County think about this kind of conduct.” The defense argued in closing that each witness had changed their statement in numerous ways. In addition, the defense contrasted Carrasco’s conduct on July 13 with Aldape’s. Carrasco reacted violently; Aldape surrendered. Carrasco fired on officers at 4911 Rusk; Aldape shot no one even though his loaded weapon lay within easy reach. On rebuttal, the prosecution asked for a verdict fair to Officer Harris and his family and insisted again that five witnesses had said,
Mexicans on Death Row
without reservation, that Aldape killed Officer Harris. Torres Luna and Esparza were simply liars, argued the State. The case went to the jury on October 12. The jurors reviewed the testimony of Galvan and José, Jr. that described who shot Officer Harris. They also studied José, Jr.’s testimony concerning who shot his father. After the jury had deliberated for less than six hours, the judge asked to be told whether they had voted. After being informed that they had, he asked how they were split. The foreperson answered that the vote stood at eleven to 1, without indicating whether the majority favored conviction or acquittal. The trial court questioned if further deliberations that evening would prove productive. In response, the foreperson requested one more hour. Fifteen minutes later, the jury returned a unanimous verdict: “We, the Jury, find the defendant, Ricardo Aldape Guerra, ‘Guilty’ of the offense of Capital Murder, as charged in the indictment.”
The jury had convicted Aldape of capital murder. But their service was not yet complete. They had to sentence Aldape. Given the brutal crime of which they convicted him, the only choice would be between life imprisonment and death. The sentencing proceedings would afford an opportunity for Aldape’s attorneys to offer mitigating evidence to demonstrate that he did not deserve to die. Sentencing proceedings began on October 13, 1982, one day after Aldape’s conviction. In order to sentence Aldape to death, the State had to convince the jury that Aldape committed the crime deliberately and with the reasonable expectation that death would result and that Aldape would probably commit violent criminal acts in the future that would constitute a continuing threat to society. These two questions, called “special issues” would each have to be answered “yes” for Aldape to receive the death penalty. During the State’s case, the prosecution accused Aldape of participating in a robbery at the Rebel Gun store in Houston a week before the Harris and Armijo murders. Aldape’s .45 caliber pistol was taken in the heist, as were many other weapons, including an Uzi. In all, $15,000 worth of guns and ammunition were stolen. One of the four witnesses to the crime identified Aldape as one of the robbers. A police expert claimed Aldape’s fingerprint was found on the
outside of a canister of adhesive tape used to tie the hands of the store employees and customers during the robbery. None of these witnesses identified Aldape when they saw his picture, but in an astonishing development, two prosecution witnesses identified Enrique Torres Luna, a spectator at the trial and brother of Jose Torres Luna, as a robbery participant. Sheriff’s deputies arrested Enrique based on these identifications. The State made a decision, though, not to call either of two witnesses who had told police that the suspect had a tattoo of a Mexican caballero on his right bicep and that Aldape was not one of the robbers. At the time, neither Torres nor Aldape had tattoos. The State would later drop all robbery charges against Torres because of insufficient evidence. Aldape’s lawyers called only a single witness in his defense, his mother. The defense brought none of Aldape’s former teachers, employers or friends from Monterrey. It introduced no records demonstrating that Aldape did not have a criminal record in Mexico or the United States. The defense did not show how arduously Aldape worked on his family’s behalf. To be sure, the defense lacked the money to obtain much of this material or to fly the witnesses to Houston on a day’s notice. Finally, it was time for the attorneys’ closing arguments. Prosecutor Moen used this opportunity to explain to the jury the biblical source of the State’s power to execute those guilty of murder. After the State invoked the Bible to assuage the jury’s conscience and argued that the dearth of evidence on Aldape’s character spoke volumes, the defense presented its closing argument. Elizondo asked the jury to consider the possibility of the State learning later that Aldape was not the killer. He noted that a man serving a life sentence could be set free, “But how are you going to bring a dead person back?” Two and a half hours after beginning deliberation, the jury reached its verdict. It answered both special issues with “yes.” The Court then addressed the defendant. “Ricardo Aldape Guerra, the jury having found you guilty of the capital offense of murder and having answered special issues 1 and 2 ‘yes,’ it is . . . the sentence of this Court that you be given death as a penalty in this case.” The verdict stunned both Aldape and his parents, who all wept openly
Mexicans on Death Row
as the judge read the sentence of death. When asked by the judge if he had anything to say before he was formally sentenced by the court, Aldape tearfully said in Spanish, “I am not guilty.”
Three weeks after the jury assessed the death penalty, the Ku Klux Klan demonstrated outside the Harris County Courthouse as the defense attorneys argued Aldape should receive a new trial. Some Klan members were dressed in their customary white sheets; others wore black shirts. They carried signs reading, “Guerra Got Justice,” “No Sympathy for Cop Killers” and “For Once Justice Has Been Served.” Another read, “Houston Will Not Tolerate Illegal Alien Crimes.” Even though the jury had convicted Aldape and sentenced him to die, the motion for new trial presented one more opportunity for Aldape, while still before the district court, to escape the death sentence. His defense attorneys located a juror, Donna Monroe, who signed an affidavit stating that she believed Carrasco killed Officer Harris. She also attested that the mannequins made her nervous and influenced her verdict. It was a sudden, unexpected change of heart by one of the jurors. Aldape’s attorney, Elizondo, said that, frankly, he did not know why Monroe changed her mind. He told reporters, “She just says that she cannot sleep at night.” Her about-face could not alter the judgment, however. The Court denied Aldape’s motion for new trial, and deputies transferred him to death row in Huntsville, Texas. Aldape was now appointed a new attorney for the next round of his defense. Michael B. Charlton appealed Aldape’s conviction to the Texas Court of Criminal Appeals. After filing Aldape’s appellate brief with the court on August 16, 1984, Aldape and Charlton waited to see if the verdict would be overturned. Aldape’s appeal languished in the high court until 1988, nearly six years after his conviction, a scandalous delay. Finally, on May 4, 1988, the nine justices decided to address Aldape’s request for relief. Aldape lost again. Over a strong dissent by two justices, the court affirmed his conviction. Writing for the dissent, Justice Sam Houston Clinton, joined by another justice, noted that José Armijo, Jr. was the State’s only
witness who claimed to see both Carrasco and Aldape. José Armijo, Jr.’s testimony alone “stood between Aldape and an acquittal for insufficient evidence.” In a footnote, Judge Clinton stated that “even with Armijo, Jr.’s testimony, I personally have substantial doubt that Aldape was the triggerman here.” He recognized, however, that the high court “has no authority to pass upon the weight and preponderance of the evidence.” The State’s double-gun switch theory worried the dissent. “[I]t is utterly inconceivable to me,” Judge Clinton wrote, “that in the time between the killing of Harris and the subsequent gun battle with police, when the murder weapon was discovered on [Carrasco’s] person, that [Aldape] and [Carrasco] would have traded weapons!” Although it provided meager consolation to Aldape as he languished on death row, the dissent concluded that “a genuine miscarriage of justice has occurred.” With this defeat, Aldape had only one avenue of appellate relief left, a petition for writ of certiorari to the U.S. Supreme Court. The country’s highest court enjoys the discretion to decide whether to hear a “cert petition,” as the phrase is commonly abbreviated. Thousands of cert petitions, in civil and criminal cases, are filed every year with the Supreme Court. In only a handful of cases does the Supreme Court grant review. A Supreme Court victory would require Aldape to clear two hurdles. First, he must convince four of the nine Supreme Court justices to hear his case. Second, he must persuade a majority of the justices that his conviction should be overturned. Aldape did not even clear the first hurdle. One day before the Fourth of July in 1989, the Supreme Court issued its one-page response: “IT IS ORDERED by this Court that the said petition be, and the same is hereby, denied.” Aldape had lost again. Justices Brennan and Marshall dissented. “Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments,” they wrote, “we would grant certiorari and vacate the death sentence in this case.” Aldape, convict number 727, received the news in the Ellis I Unit on death row in Huntsville. Now, nothing blocked the State of Texas from setting an appointment for Aldape to die.