Puerto Rico Association of Criminal Defense Lawyers

Jury Refuses to Impose Death Penalty

Again a federal jury refuses to impose the death penalty in the District of Puerto Rico, this time in the case of Carlos Ayala-López, found guilty of murdering a federal security guard. The defense was made up by Bill Matthewman (of Florida) and PRACDL member Juan A. Pedrosa.  They both did an exemplary job.

Since the advent of the modern day federal death penalty, the Government has not once been able to convince a Puerto Rico jury to vote for death. Capital punishment is banned under the Constitution of the Commonwealth of Puerto Rico.  Perhaps the time has come for the Department of Justice to give up its effort to seek capital punishment in Puerto Rico.

As a curious aside, sources tell me that the Government moved to have defense counsel precluded from mentioning God during penalty phase closing arguments.

REMINDER: ACLU-PR's Capital Punishment Panel Conference Tonight at 7:00 p.m.

This is to remind all of ACLU of Puerto Rico invitation to attend their Capital Punishment Panel Conference tonight --May 24th-- at 7:00 p.m. at the Inter American University, School of Law - Theater.

The conference participants will be:

• Alvin J. Bronstein - Director Emeritus, ACLU Prison Reform Project; Board member of Penal Reform International (London); World Organization Against Torture (Geneva);
• Jeff Gamso - Legal Director, ACLU of Ohio; Capital Punishment Defense Bar;
• Juan Meléndez - Puerto Rican sentenced to the Death Penalty, 17 years on Death Row

The moderator will be Juan Ramón Acevedo, Esq. (who is also PRACDL's Vice President).

Hope to see many PRACDL members there.

Texas House Passes Life Without Parole

According to Injustice Anywhere the Texas House has finally passed its version of life without parole which now must be reconciled with the Senate's version and then sent to the Governor. See also Life without parole approved by House - Opponents say proposal would create more dangerous prisons, by Mike Ward, American-Statesman Staff, Tuesday, May 24, 2005.

Update: Texas Life Without Parole Option Still Not a Reality in Capital Cases

We thought that Texas was finally coming around to passing legislation that would have allowed juries the choice in capital cases of death and life without parole (a third option, life with parole, had been eliminated in a compromise bill). While the Texas Senate passed the compromise bill, it now appears to be stuck in the Texas House, despite the reportedly majority support for the bill.  Injustice Anywhere blames it on the lobbying by Harris County DA Chuck Rosenthal, who is against the life without parole option, apparently fearing that juries will opt for that more frequently than they do under the current death or life with parole system. The "concerns" voiced by DA Rosenthal are that it would be more difficult to control prisoners serving a life without parole sentence, due to the fact that they had no hope of ever getting out of prison.  Read the Houston Chronicle's Life sentence bill may stall under DA's opposition.  Maybe it's time for an up or down vote in Texas too?

Of the 38 states that execute convicted killers, only Texas and New Mexico do not give juries the option of sentencing an inmate to life without parole. Texas is the national leader in executions, with 23 in 2004 and eight so far this year.

DA Rosenthal's second "concern" is that eliminating life with parole would result in more capital trials, since those accused would not see life without parole as a real option, but he does not advocate inclusion of life with parole (which presently exists) as a third option. This, in particular, makes his concerns sound hollow. The Injustice Anywhere post debunks this argument as well.

Our previous posts on this:

• Life Without Parole Not an Alternative in Texas Capital Cases (April 13, 2005)
• Texas Senate Passes Compromise Bill for Life Without Parole as An Alternative in Capital Cases (April 14, 2005)

UPDATE TO UPDATE: It now appears that the Texas House will in fact debate the bill. Things move faster at times than I can post. See House to debate life without parole at Houston Chronicle.com, and Injustice Anywhere.

First Circuit Reverses Judge Gertner's Order to Empanel Two Juries in Capital Case (One "Non-Death-Qualified" for Guilt Phase, Another "Death Qualified" for Penalty Phase)

Today in US v. Green, No. 05-1014 (1st Cir. May 12, 2005) the First Circuit reversed Judge Gertner's decision in US v. Green, Criminal No. 02-10301-NG (D.Mass) (see Memorandum and Order Re: Bifurcation of November 3, 2004 and Additional Findings Re: Bifurcation of December 29, 2004) to empanel 2 juries in a capital case, one non-death-qualified to hear the guilt phase, and another death-qualified to hear the penalty phase if necessary.

Another Circuit to address this issue was the 5th Circuit in  U.S. v. Williams, No. 05-20080 (5th Cir. Feb. 14, 2005). See our previous posts on Williams here, and on Green here and here.

Update: As noted by Appellate Law & Practice here, the First Circuit did decline the Government's "invitation to review to pass upon the validity of the district court's suggestion that it might defer death-qualification altogether until after it takes a verdict on the issue of guilt or innocence." It concluded there was no live controversy as to that issue at the moment. Will Green be back to the First Circuit if Judge Gertner decides to postpone death-qualifying the jury until after the guilt phase? I would venture to say yes.

Puerto Rico Capital Case Results

Yesterday the jury returned its verdict as to the second defendant facing death in the first capital case to be tried to a penalty phase in Puerto Rico's recent history with the federal death penalty, and the Court then announced the penalty phase verdicts as to both defendants. See previous posts here and here. As to the first defendant, whose penalty phase verdict had been kept sealed pending the presentation of penalty phase evidence and deliberations as to the second defendant, the jury voted to impose a life sentence.  As to the second defendant, the jury deadlocked, resulting in an automatic imposition of a life sentence.

The U.S. Attorney in San Juan, Puerto Rico --a Texan-- grabbed the deadlock to make a statement to the effect that no longer should people consider that it is not possible to get a jury to vote for the death penalty in Puerto Rico.  One of the defense attorneys answered that only someone from Texas where they execute people regularly could view the results of the case as an indication that the death penalty would be imposed by a jury in Puerto Rico.

Congratulations to Steve Potolsky, Gustavo Del Toro, Don West, and Juan Alvarez!

Second Defendant's Case Submitted to Jury in Penalty Phase of Capital Case in Puerto Rico

We reported earlier (see here) on how the penalty phase in a federal capital case --the first one to reach the penalty phase in Puerto Rico's recent history-- had been separated, so that the penalty phase evidence and jury deliberations against one defendant was carried out before any penalty phase evidence was presented as to the other defendant. The jury had returned a verdict as to defendant Lorenzo Catalán-Román and the verdict  has been kept sealed, pending conclusion of the penalty phase as to the co-defendant, Hernando Medina-Villegas.

Yesterday, the case as to the second defendant was submitted to the jury, with the jury being asked to return on Monday to commence deliberations as to Medina-Villegas. The case involves a robbery in which a security guard was killed. The Government has alleged the guard was pleading for his life, a fact disputed by the defense, who allege that such information did not appear in any of the FBI reports and was not provided to defendants until shortly before trial.

There is very strong opposition to the death penalty on the island, and the fact that it is the federal government seeking the death penalty makes the opposition turn very political as well.  I think most observers will be very surprised if the jury imposes the death penalty against either defendant. In the last capital case tried at the U.S. District Court in 2003, the jury acquitted both defendants in the guilt phase.

The strategy followed in both cases seems to be a common one in many capital cases. Recall that by mandate of federal law, anyone accused of a capital offense is entitled to be represented by two attorneys, and at least one of them has to be "learned in the law applicable to capital cases." As I indicated in my earlier post, this has required the U.S. District Court in San Juan to appoint attorneys (usually from Florida) experienced in federal capital cases. As you can imagine, the CJA payment of expenses for hotel, airfare, etc. can rapidly become rather steep. The guilt phase --at least as much as the jury can tell-- is handled mainly by the Puerto Rico attorneys who will serve as "associate counsel" in the case, with learned counsel then handling the penalty phase if necessary. In reality all the attorneys are deeply involved in both phases of the trial, but this apparent division of labor allows the learned counsel perhaps a bit more credibility with a jury that has already determined the defendant is guilty. It also allows him to use any lingering doubt in the jury's mind more effectively.

Sealed Penalty Phase Verdict Returned as to One of Two Defendants in Capital Case

There's an ongoing death penalty case being tried in the District of Puerto Rico before Judge Juan M. Pérez-Giménez. Only the two defendants certified for the death penalty are on trial in this round, with the non-death certified defendants to be tried at a later date.

The guilt phase concluded with guilty verdicts as to both defendants. Their attorneys had requested that the jurors deliberate separately as to each defendant in the penalty phase. Initially, the Court denied this request. Then the evidence as to the aggravating and mitigating factors was presented against defendant Lorenzo Catalán-Román, represented by Steve Potolsky (Florida) and Gustavo Del Toro (yes, that's Benicio Del Toro's father). Before any evidence was presented in the penalty phase against the other defendant, Hernando Medina-Villegas, represented by Donald West (Florida) and Juan Alvarez, Judge Pérez-Giménez reconsidered his earlier ruling, and decided that he would have the closing arguments, jury instructions and deliberations as to the first defendant before proceeding to have evidence presented as to the other defendant, but that the jury's verdict would not be made public until a verdict was returned as to the second defendant.

The jury commenced deliberations on Wednesday, and yesterday at about 4:00 p.m. returned a verdict as to defendant Lorenzo Catalán-Román.  Now evidence on aggravators and mitigators will be presented as to Hernando Medina-Villegas.

Puerto Rico's Constitution does not allow for the death penalty, so we have only gotten death penalty prosecutions as a result of federal prosecutions. The last death penalty case that was actually tried, back in 2003, ended up with acquittals as to both defendants on trial, and many believe that the jurors simply did not even want to get to the penalty phase.  In this case the evidence of guilt was apparently overwhelming, but I'll be very surprised if the jury imposes the death penalty as to either defendant.

To those who may be wondering why two Florida attorneys are representing the defendants in this case, it is because there are no "counsel learned in the law applicable to capital cases" in Puerto Rico, given our (until recent) complete unfamiliarity with death penalty litigation. As a matter of fact, this is the first capital case to reach the penalty phase since the feds reinstated the death penalty.

Texas Senate Passes Compromise Bill for Life Without Parole as An Alternative in Capital Cases

The Texas Senate has approved a compromise bill for Capital Sentencing. The previous proposed bill had 3 alternative sentences: death, life without parole, and life with parole. The compromise bill eliminates the option of life with parole.

Since, reportedly, 78% of Texans wanted to have the option of life without parole (see our previous post), this should result in less death sentences being imposed in Texas, I think.  Previously, the only options were death or life with parole, with the DA's objecting to inclusion of an option of life without parole. I would have preferred to have all three options, but this is still a marked improvement over the previous status, which most likely pushed jurors to sentence to death persons they would have otherwise allowed to live if only there was a certainty they would not come out again.

See TalkLeft.

Life Without Parole Not an Alternative in Texas Capital Cases

If you ever wondered why Texas has such a bad reputation for being the place where the largest number of persons are sentenced to death, check out what Injustice Anywhere - a blog recently started by a Texas Public Defender - has to say about this:

Many people are surprised to learn that Texas does not have a sentence of life without parole. Capital murderers who are not sentenced to death are eligible for parole in 40 years. For a state with a reputation for being so tough on crime, this seems out of character. But, in fact, the biggest opponents of a proposed life without parole option in Texas are not us bleeding-heart, liberal defense attorneys. Nope. It's the big-city DAs and victims' rights groups. Why? Because they worry (probably rightly) that fewer people would get the death penalty if the jury had the option of giving life without parole. It's much easier to convince a jury to take someone's life if you can scare them into believing the defendant might one day be free to kill again. A recent bill to institute life wtihout parole was shot down by a procedural hurdle in the state senate last week. This, despite the fact that 78% of Texans support having life without parole. I challenge lawmakers to finally stand up to DAs and victims' rights groups and enact some common-sense legislation supported by a super-majority of its citizens. And if it means fewer death sentences handed down, it won't surprise you that I'm all for that, too.

I can only imagine that the idea of having an alternative of life without parole never entered George Bush's radar screen when he was governor and he was honing his ideas on promoting "a culture of life."  Or perhaps it did, and was considered to be not politically advantageous.

We welcome Injustice Anywhere to the blogosphere.