Beverley Lumpkin: Halls of Justice

ByBeverley Lumpkin

W A S H I N G T O N, June 1, 2001 -- As it grows ever more likely that U.S. District Judge Richard Matsch will grant some form of stay to Timothy McVeigh, it's increasingly likely that Juan Raul Garza will end up with the dubious distinction of being the subject of the first federal execution in 38 years.

Garza was convicted and sentenced to death in 1993 under the federal kingpin statute for three murders committed as part of a drug-trafficking organization.

There had been some indications that one reason McVeigh dropped his appeals last year was to achieve the notoriety of being No.1.

Now he's apparently decided he'd rather crusade against the incompetence and alleged corruption of the FBI; his attorneys say he nobly has decided the most important thing in his life is to bring integrity to the criminal justice system. (And by the way did you notice this was the first time McVeigh ever cited any concern for the victims? His attorney Rob Nigh said he regrets that any stay might cause them "further pain." Previously McVeigh had dismissed them as the "'woe is me' crowd" or "collateral damage.")

As the spotlight inevitably shifts to Garza, now set to die June 19, it raises some sticky questions for Attorney General John Ashcroft and the administration that McVeigh's execution would not.

You may recall that President Clinton granted Garza a six-month reprieve last December at a time when Justice had released disturbing statistics about apparent racial and geographic disparities in the imposition of the federal death penalty. (To sum up, 70 percent of federal death defendants are minorities, and less than one-third of the states are responsible for over half the federal death cases.)

McVeigh's case does not implicate those questions at all, but with Garza — a Hispanic sentenced to death in Texas — they must be faced.

Clinton said he granted the reprieve because "the examination of possible racial and regional bias should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department's continuing study."

But there are very real questions whether any study of these questions has occurred or is planned.

In September when then-Attorney General Janet Reno released the statistics, in addition to asking for additional data from U.S. Attorneys' offices and renewed scrutiny of the numbers, she also indicated she believed "[a]n even broader analysis must therefore be undertaken to determine if bias does play any role in the federal death penalty system."

She said she had ordered the Justice research arm, the National Institute of Justice, to solicit research proposals to study why and how homicide cases in both the state and federal systems were sometimes charged as capital cases and sometimes not. And the President in staying Garza's execution specifically stated it was "to allow the Justice Department to gather and properly analyze more information about racial and geographic disparities in the federal death penalty system."

But as USA Today pointed out Thursday, after an initial meeting convened in January by NIJ during Reno's waning days, nothing more has occurred.

At his confirmation hearing, Ashcroft agreed that there is a need for continuing study of possible racial and regional bias. But Justice sources have told me there are no plans to proceed with any such study.

Attorneys Wage Campaign To Save His Life

Garza's attorneys have continued to wage a desperate campaign to save his life, fighting on several fronts at once. In various venues, they have pursued three basic arguments:

1. Garza's human rights were violated because at his sentencing prosecutors introduced evidence of four murders in Mexico for which Garza had not been arrested, charged, prosecuted or convicted. (This issue is usually shorthanded as the "unadjudicated foreign murders.")

Recently Garza's attorneys have presented a ruling from the Inter-American Commission on Human Rights that Garza's rights under both the Organization of American States charter and the American Declaration of the Rights and Duties of Man were violated by the introduction of this evidence.

They argue that because the United States is a signatory to these treaties the U.S. courts should recognize and enforce the commission's ruling.

2. At his trial the judge failed to instruct the jury with the "critically relevant information" that they had an alternative sentence to death; ie, they could have sentenced him to life without possibility of parole.

Garza argues that a recent Supreme Court ruling, Shafer vs. South Carolina, which applies retroactively, requires the lower courts to consider his appeal. Garza's attorneys note that he is the only inmate on federal death row whose jury did not receive this instruction.

3. A supplemental clemency petition was sent to the president asking that Garza's sentence be commuted to life in prison without the possibility of parole. It argues that "Mr. Garza should be granted clemency because no one can have any confidence that the government's decision to seek the death penalty against him was not based on his ethnicity or state of prosecution."

Garza's attorneys maintain that, absent any NIJ study, "[t]he same disparities and concerns, therefore, that provided the basis for a reprieve for Mr. Garza in Dec. 2000 exist, unameliorated, today."

They quote a written response from Ashcroft to Sen. Russell Feingold, D-Wis.: "I fully agree that the Department of Justice should do everything necessary to eliminate any racial bias from the federal death penalty system, including undertaking all reasonably and appropriate research necessary to understand the nature of the problem." Nevertheless, "to date no requests for proposals have been issued by NIJ for this project."

The attorneys also point out that "it is far from a foregone conclusion that the government will seek the death penalty against a defendant charged [as was Garza] with multiple homicides as part of a drug ring, regardless of race or geography."

They contend that in many such cases either death is not sought, or the defendant is allowed to enter a plea to avoid capital punishment.

The petition declares, "Our government should not execute Juan Garza unless it can be fully confident that his ethnicity and state of prosecution did not play a role in the decision to seek the death penalty in his case. If it cannot achieve the high degree of confidence necessary where the death penalty is at issue, Mr. Garza's sentence must be commuted."

Perhaps paradoxically, some of Garza's supporters are hopeful that the renewed spotlight on their client may actually help. One of them told me that's because "his issues have broader appeal than just himself; these are system-wide issues that resonate throughout the communities."

Not without some bitterness, he noted that the attorney general's failure to move forward on the steps promised at his confirmation, and the president's (apparent) failure to take any steps to inform himself on the issues, both suggest an "insensitivity."

OMIGOD It's No-Comment Thursday Again

Denizens of the Justice pressroom were hooting with laughter when an unwary CNN anchor attempted to interview former Attorney General Janet Reno on Thursday and actually dared to ask her about ongoing criminal cases.

For many painful minutes the desperate anchor tried one way after another to get Reno to say something — anything — about either McVeigh or Hanssen. Of course, as loyal readers could have predicted, Reno repeatedly replied with variations of the no-comment theme.

And all this on a Thursday, the same day of the week on which we sat through eight years of weekly briefings trying to pry information out of her.

Ultimately, the anchor gave up and inquired about Reno's political plans. She had shocked many of her closest associates by announcing two weeks ago she's considering running for governor of Florida.

Reno acknowledged she had bought her precious red pickup truck and fully intended to go out West and see the country. But then, she said, "people approached me" and importuned her to consider the run. She explained that if she urges young people to get involved in their community, "I suddenly thought, how can I be critical if I stand on the sidelines?"

When asked about the controversies she had weathered in Washington, she replied with her classic plainspoken truculence: "When people are asked, they're going to want people who call it like they see it, regardless of what's involved."

Beverley Lumpkin has covered the Justice Department for 15 years for ABCNEWS. Halls of Justice appears every Friday.

ABC News Live

ABC News Live

24/7 coverage of breaking news and live events