Mexicans on Death Row by Ricardo Ampudia

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Arte Pblico Press

Houston, Texas

ENGLISH TRANSLATION BY SUSAN RASCN


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Mexicans on Death Row is made possible through grants from the Cityof Houston through the Houston Arts Alliance.

Recovering the past, creating the future

Arte Pblico 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 Rascn.

p. cm.Includes bibliographical references.

ISBN 978-1-55885-548-9 (alk. paper)

1. Capital punishmentUnited StatesCases. 2. Mexicans

Legal status, laws, etc.United States. I. Rascn, Susan Giers-

bach. II. Title.

HV8699.U5A7713 2010

364.66092'36872073dc22

2010033484

CIP

The paper used in this publication meets the requirements of the

American National Standard for Information SciencesPermanence

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


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To Scott Atlas,

Sandra Babcock,

Carlos Marn,

for their part in securing

Ricardo Aldapes freedom


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Table of Contents

Acknowledgments | ixPrologue by Fernando Solana | xi

Introduction | xv

1 | THE DEATH PENALTY

Definition and history of the death penalty;The death

penalty debate

50 | THE DEATH PENALTY IN THE UNITED STATES

The legal evolution of the death penalty; Deathpenalty and legislation cases; The legal procedure ofthe death penalty; Life on death row and theexecution of a convict.

104 | CONSULAR PROTECTION OF MEXICANS SENTENCEDTO DEATH IN THE UNITED STATES

History of the consular protection provided by thegovernment of Mexico to its citizens abroad; Thesituation of Mexicans sentenced to death in theUnited States; The work of the Mexican governmentin the protection of Mexican citizens sentenced todeath in the United States

143 | THE AVENACASE

Background; The case concerning Avena and otherMexican nationals (Mexico v.UnitedStates) before theInternational Court of Justice

168 | THE ALDAPECASE

The murders; Writ of Habeas corpus; Evidentiary hear-ing;Vindication

230 | FINAL REFLECTIONS AND CONCLUSIONS


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Appendices | 241

241 | Appendix 1-A. The death penalty worldwide

256 | Appendix 1-B. Global categories regarding the death penalty

261 | Appendix 1-C.

a] Anti-death penalty organizations and groups in theUnited States; b] International legislation regarding theright to life and opposed to the death penalty

Appendix 2-A. Minors executed under the death penalty

Glossary | 235

Bibliography |


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Acknowledgments

TO JORGE ACERO, LEGAL DIRECTOR OF THE MEXICANConsulate General in Houston from 1990 to 1992, and to thelegal directors of the Mexican Consulates abroad, excellent attor-neys who practice their profession in another country, under dif-ferent legal codes.

To public defenders and private law firms in the United Statesthat defend Mexicans sentenced to death.

To the non-governmental organizations that support the causesof the defense of Mexicans in the United States.

To Dr. Hermilo Lpez Bassols and Quetzalli Padilla, for theirunwavering support in the work on the subject matter of this book.To Jos Paoli Medelln, for the documentary research he helped meconduct, and to Adriana Bosada Ramrez de Arellano for the Span-ish translation of various texts that are part of this document.

To Fernando Solana, Andrs Rozental and Aurora Adame of theMexican Council on International Affairs for their support in thepublication of this book.

To Emma, Roberta, Leandro and Ricardo, who with their cus-tomary enthusiasm supported me throughout the writing of thisbook.

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Prologue

RICARDO AMPUDIA, WHO COMES FROM A WELL-KNOWNjournalistic family, has extensive experience in business, commu-nications and public relations. I have personally witnessed his work onbehalf 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 infor-mation on behalf of the North American Free Trade Agreement(NAFTA). This responsibility was extremely complex, but he man-aged to convince those whom he needed to convince in Texas, andparticularly in Houston, of the benefits of the treaty for both countries.

Another project in which he participated actively was the com-munications system of the Secretariat of Foreign Relations, whichprovided information so that all representatives of Mexico abroad

would be fully apprised of the Secretariats positions. As a result ofthis joint effort, diplomats and consuls played an active role in pro-moting Mexican opinion across very diverse areas. He also partici-pated in organizing the first Bush-Salinas interview, whose relevancegoes without saying. In short, he was a witness and a leader in somekey moments in our relationship with the United States.

Among the problems that Ricardo experienced firsthand as aconsular official, the death penalty is one of the most complex. Thisextreme punishment that has caused so much international con-troversy allows him to delve into a wide range of subjects, includ-ing civil and criminal rights, limits on government power and thedaily functioning of the justice system.

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With his personal and professional experience as a point of de-parture, Ricardo undertakes a profound, well-researched reflection on

the topic. He is particularly concerned with reporting the practicaland financial implications of this form of punishment, and demon-strating that executions are at times due more to causes such as racismand xenophobia than to solid evidence of the defendants guilt.

Thus the overview begins with death as a historical humanpenalty, later it is taken up again in criminal procedure in theUnited States and finally it becomes an opportunity for a detailed

analysis of that countrys judicial system. Consular protection ofMexicans sentenced to death has not been, nor will it ever be, atrivial matter. The number of people, and the amount of materialand political resources required to defend all those sentenced todeath can be overwhelming, but so is the evidence that judicial sys-tems are adapted and constructed upon interests and identities thatare far from impartial.

Article 36 of the Vienna Convention, the Aldape case, and theAvena case are always useful references for close observation of thefunctioning and the difficulties of justice. It is essential to distin-guish the death penalty as a government policy from that extremepunishment when the motive is personal. If we think of our lovedones being harmed by a criminal act, it is logical and could even bereasonable 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. Theinfluence of public opinion and the media over judges can be onevalid source of concern. If one intends to examine the subject seri-ously, 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 andstereotypes, are systematically permeated by public opinion. There-fore let us recall the economic necessity that at times moves ourfellow citizens to emigrate, the difficulties of the U.S. environmentfor Mexicans and discrimination, present in an increasing numberof academic, legislative and civil voices. If in the United States thecitizens charged with dispensing justice feel closer to the threat per-

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ceived by Huntington and the Minute Man Project than to thedream of the inclusive melting pot, it is possible that their deci-

sions 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 Maturinodemonstrate that, although the death penalty is on the declineworldwide, 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. MexicosSupreme Court of Justice determined that when there is an extra-dition treaty with another country, the International ExtraditionLaw is not applicable. Let us not forget, then, that on a more gen-eral level, the debate may be that of multilateral institutions andinternational law versus national sovereignty.

May this book serve, therefore, as a stimulus for reflection on thepresent and the future of bilateral relations, criminal justice systems

and the risks of making the death penalty a government policy.

Fernando Solana

PROLOGUE xiii


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Introduction

DEALING WITH THE TOPIC OF THE DEATH PENALTY IS Adaunting task. Remembering the look in the eyes of my Mex-ican compatriots who were about to lose their lives at the hands ofour northern neighbors government, controller of legal violence, isan experience that leads to profound reflection on life and death.

As Consul General of Mexico in Houston, Texas, my missionwas to follow the cases of several Mexicans who had been sen-tenced to death. This situation provided me with, among otherthings, the opportunity to examine the phenomenon from a specialposition: not only was I to advocate for these people but also I wasto make them feel, through my actions and attitudes, that they werenot completely alone in a strange land, and that their own nationhad 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 du-ties, I had to pick up the case, interview Aldape, examine the factsand arrange for a U.S. law firm to take on his defense. As a Mexi-can government official, my countrys representative before a for-eign power, my duty was to support and defend my fellow citizens.This duty required conscientious work, since the facts clearlyshowed that Aldape was innocenta mere victim of irrationality,xenophobia and a legal system that wanted to find a scapegoat.

Aldapes defense was primarily handled by Scott Atlas, an attor-ney from the firm Vinson & Elkins. He handled the case for morethan five years and at tremendous cost. Also of great importancewas the participation of Sandra Babcock, a court-appointed attor-

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ney in the Houston court system. I mention them here because, for-tunately, their efforts bore fruit. After fifteen years in a maximum-

security prison, having had four different execution dates, RicardoAldape was released. The district attorneys office dropped thecharges due to procedural issues as well as the merits of the case.Sadly, Aldape died four months later in a terrible car accident whilehe was traveling from Mexico City to his native Monterrey.

All of this made me question this law: What does the deathpenalty 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 truethat such a punishment will prevent crimes from being commit-ted? What is it about human nature that leads us to take the life ofanother human being? What is the nature of crime? Is it truly justto take one life to pay for another? What about involuntarymanslaughter, killing in self-defense, state assassination? To whatpoint is it valid to take the lives of others, whether they are crimi-nals or not? Is justice blind? How many innocents have been killedin the name of justice and law?

Beyond our religious beliefs, the ethical dilemma involved intaking a position on the death penalty leads to radicalization. Thosewho have seen people on death row witness the anguish, not onlyof the condemned but also of their family. This anguish is evenworse when the condemned are poor immigrants in a highly de-veloped country, victims of contempt, intolerance and often injus-

tice. While I do not believe that the situation is easy for thosesentenced to death in their own countries, I do believe that it ismuch worse for a Mexican sentenced to death in the United States.

My experience in carrying out my consular duties led me towrite down my reflections and analyze this controversial issue. Al-though initially, and in a way involuntarily, I had to approach thephenomenon with an almost anthropological methodology, the

years have allowed me to gather and study a multitude of docu-ments and testimonies regarding the death penalty. Unlike my priorresearch on the Church, and the Mexico-U.S. bilateral relationshipreflected in presidential reports, on this occasion I had the oppor-tunity to consult specialized bibliographical sources. These toolshave a virtue: they allow us to see what the discussion of the topicis at this time and who its main actors are. The number of biblio-

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1 The reform of Article 22 of the Constitution establishes that Punishment bydeath, mutilation and infamy, branding, flogging, beating with sticks, torture ofany kind, excessive fines, confiscation of property and any other unusual or ex-treme penalties are prohibited. The measure also deletes the language that noone shall be deprived of life without a trial, previously established in Article 14of the Magna Carta.

2 The reform of Articles 14 and 22 of the Constitution, expressly indicating thatthe death penalty is prohibited in Mexico, was approved in the session of thespecial term, with 412 votes in favor and two abstentions.

3 PRD Deputy Arturo Nahle Garca said that with this reform the nation complieswith different international treaties and accords that Mexico has signed and inwhich the use of capital punishment is rejected. He emphasized the importanceof this reform, since there still remained gaps in the law that would allow a per-son in Mexico to be subject to sanctions that would lead to the death penalty, es-pecially for crimes of a military nature or treason. Notimex, Aprueban reformaque prohbe pena de muerte en Mxico, 23 Jun 2005 .

4 These are the words of PRI senator and president of the Human Rights Comis-sion, Satot Snchez Carreo cited in Arturo Snchez: Elimina Senado la pena demuerte en Mxico, 17 Mar 2005 .

graphical sources dealing with the death penalty is astonishing,most of them against it, but more amazing is the number of organ-

izations devoted to its study, many of them dedicated to fightingfor its eradication.

There is one fundamental reason I decided to write about thedeath penalty and Mexicans sentenced to death in the United States.I would like Mexican citizens to be aware of the dilemmas involvedin capital punishment. It is terrifying that many Mexicans, becauseof Mexicos lack of security, are considering implementing the death

penalty in Mexico. Although the death penalty has not been used inmany years, it was included in several recent Mexican laws.

Fortunately, recognizing that life is the most important humanright, in March 2005, the Senate of the Republic passed aconstitutional reform that explicitly prohibits the death penalty inMexico.1 The Chamber of Deputies ratified this reform in June2005.2 Since the reform was of a constitutional nature, it was sentto the thirty-one state congresses. It can be stated, however, thatthe message sent by the Mexican government with this proposalnot only means reaffirming Mexicos continuing adherence to theinternational treaties and accords,3 but also the most significantcommitment that we today celebrate and agree on with society andwith the Mexican people.4

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5 Comment to the article Eliminan Pena de Muerte de la Constitutin, 17 Mar2005 .

Upon searching in different media for the Mexican peoples reac-tion to the constitutional reform prohibiting the death penalty in

Mexico, I was very concerned when I read some of the comments ofmy fellow citizens. There was someone who claimed not to under-stand because this being the time when [the citizenry in general], issuffering from a lack of security and abuse at the hands of murderers,rapists, kidnappers, etc., the authorities [. . .] succeed, almost unan-imously, 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 hasbeen executed pursuant to the death penalty and, likewise, that it isunaware of the practical implications and the costs of the deathpenalty. These are two aspects about which this book seeks to inform.

On the other hand, from Mexicos earliest days as an inde-pendent country, it has had a humanitarian tradition that molds itsvalues and culture and makes Mexicans a people averse to corpo-ral punishment. We can say that, as a majority Christian country,

we value life and have a sense of the transcendent; we do not be-lieve that we return anything to the victim by killing the murderer.

Therefore, I insist that the idea of an eye for an eye cannot belegitimized, because it has not reduced crime in those countriesthat use the death penalty. It is true that the judicial and prison sys-tem, even in Mexico, suffers from enormous deficiencies and ir-regularities. 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 fol-low. So, if people took the law into their own hands, how could weguarantee justice?

I believe that the experience of having seen people who havebeen sentenced to death waiting in subhuman conditions for up totwenty years to be executed gives me the right to do what I can toprevent the death penalty from ever being implemented in mycountry. At the same time, although this book does not claim toprovide a solution to the problems faced by Mexican citizensabroad, it does seek to raise awareness of the suffering experiencedby those (unjustly) sentenced to death.

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In order to achieve this objective, the book has been dividedinto five chapters. The first consists of a brief introduction about

the death penalty: some of the methods utilized to apply it through-out history, useful statistics to give the phenomenon a global di-mension, the legal and historical situation of the death penalty inMexico, the debate surrounding this punishment, as well as a briefdescription of organizations opposed to the death penalty. Withthat, the intent is to present to the reader the context in which thediscussion of the death penalty in the United States is framed, andthe assistance provided by the Mexican government to its citizens

who have received this sentence.The second chapter is devoted to understanding the phenom-

enon of the death penalty in the United States. Some historical, sta-tistical data is provided to show the dimensions of the problem inthe United States. The goal is to explain how the death penalty iscarried out in the United States, from the legal aspects to the prac-tical aspects of an execution. Both general explanations and somedescriptions of specific cases are provided for this purpose. The

main goal of this chapter, however, is to make the reader aware ofthe problems inherent in the U.S. legal system, especially the riskof innocent people being executed.

The third chapter explores the work done by the Mexican gov-ernment to protect its citizens abroad. The practical and legal evo-lution of the general consular function of protection is shownthrough a historical study. This section is followed by the specificanalysis of cases of Mexicans sentenced to death in the UnitedStates, and the assistance provided to them by the Mexican gov-ernment in order to guarantee their rights.

Finally, two chapters are devoted to the analysis and descriptionof two special cases in which the Mexican government has partic-ipated, successfully, in the protection of its citizens sentenced todeath in the United States. The Aldape case, not only because theauthor experienced it personally, but also because of the forceful-ness with which it exposes the flaws in the U.S. legal system and theimportance 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 Mexicos greatest achieve-ment in recent years in the area of consular protection and a victoryfor international law in the quest for respect of human rights.

INTRODUCTION xix


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The Aldape Case

They stole 15 years of my life. Id have to be crazy to go

back to the United States.

RICARDO ALDAPE GUERRA

AN ISSUE OF EXTREME IMPORTANCE FOR THE MEXICAN

government, and one that drew major national and interna-tional attention due to the indisputable proof of his innocence was,without a doubt, the experience of Mexican citizen Ricardo AldapeGuerra. An undocumented immigrant, Aldape spent fifteen years inUnit 1 of Ellis maximum-security prison in Huntsville, Texas; hewas freed following intensive work by the Mexican governmentand U.S. attorneys to prove his innocence.

Ricardo Aldape Guerra, a native of Monterrey, Nuevo Len,Mexico, was sentenced to death on October 14, 1982 for the first-degree murder of Houston Police Officer James Donald Harris,which took place the night of July 13 of that same year. His defenseattorney, Scott J. Atlas, of the prestigious Houston law firm Vinson& Elkins, defended this Mexican citizen through the presentationof various legal documents. Also extremely valuable was the par-ticipation of the Mexican governmentthe Ministry of Foreign Re-

lations and the Mexican Consulate General in Houston, theNational Human Rights Commission and the state government ofNuevo Len, as well as the Texas Resource Center,1 through dis-

1An institution devoted to providing assistance to those sentenced to death in thestate of Texas.

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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 pun-

ishment.

This case undoubtedly strengthened the Mexican governments

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 possibil-

ity 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, bothattorneys from the firm Vinson & Elkins, in October of 1998. With-

out a doubt, their outstanding participation in the case was a key

factor in overturning Ricardo Aldape Guerras death sentence.

THE MURDERS

WILL YOU HELP US?

In the spring of 1992, when Aldape had already spent ten yearsin 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 Aldapes execution for

May 12, 1992 at 12:01 a.m.

The then head of the Mexican Consulate in Houston askedScott Atlas, Will you help free Aldape? A few short days before Al-

dapes 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-

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timidation, misconduct and abuse. Over the next half decade, the

legal case would wind its way from state district court to the states

highest criminal tribunal, through the federal legal system and back

again to state court. More than fifteen judges would ostensibly re-

view the matter. While Aldape lingered on death row, the ensuing

uproar over his impending date with death would create a diplo-

matic 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&Es practice is predominantly devoted

to the transactional and litigation problems of corporate and gov-

ernment clients. Atlas himself had never represented anyone facing

execution, although he had handled a few pro bono criminal matters.As chairperson of V&Es pro bono committee, he was proud of V&Es

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 ex-

change program with a family in Mexico City when he was fifteen

helped Atlas become fluent and gain a deeper appreciation of Mex-

ican culture. Except for the summer in Mexico and four years at Yale

University where he obtained a bachelor of arts in math and eco-

nomics, 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 re-lationship with his mentor, who in early 1977 asked Atlas, now an

attorney, to represent a criminal defendant on appeal before the

2The Fifth Circuit is the federal appellate court that hears challenges to federaldistrict court opinions issued from the states within its jurisdiction. The FifthCircuit currently hears cases from Texas, Louisiana and Mississippi.

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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 Rummels trial attorney was

so ineffective in assisting Rummel that he was denied his constitu-

tional right to counsel.3

When the Mexican Consulate contacted Atlas, he accepted the

invitation to attend the meeting to discuss his possible representa-

tion of Aldape, although he thought he would almost certainly de-

cline the Mexican consulates offer to spearhead Aldapes legal

defense. A supporter of the death penalty himself, Atlas believed

society deserved to protect itself and to inflict retribution in the ap-

propriate 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 Re-

source Center. The Center had been established with federal funds

to represent inmates on death row who were challenging their con-

victions. She had already prepared and filed Aldapes state district

court petition for writ of habeas corpus.4

3A court sentenced Rummel to spend his life behind bars for committing threebad-check-type crimes. His criminal misconduct totaled approximately $230.Atlas contended that the Texas statute, which mandated a life sentence upon athird felony conviction, was cruel and unusual punishment in violation of the8th Amendment as applied to Rummel. Following an en banc hearing, where theFifth Circuit judges were split, and presenting the facts to the Supreme Court,Rummels sentence was affirmed. Rummel secured his freedom only after the casewas remanded to federal district court.

4Once convicted, Texas state prisoners may appeal the judgment to the States high-est criminal court, the Texas Court of Criminal Appeals. If unsuccessful, the pris-oner may then seek review by the U.S. Supreme Court, which has the discretionto decide whether it will hear the matter. Very few cases are reviewed by theSupreme Court. If the petition for review to the Supreme Court proves unsuc-cessful, then the last chance for freedom, a lesser punishment or retrial, lies witha petition for writ of habeas corpus. A state inmate like Aldape, as opposed to afederal prisoner, must first file a petition for habeas relief in state court. If thestate courts deny habeas relief, a prisoner may seek habeas relief in the federalcourt system. In 1992, Aldape had just begun to exercise his habeas rights. Theright 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 Section9, Clause 2).



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Atlas was the consulates choice, if he were willing, to assume

Aldapes habeas defense. The Consulate explained that Aldapes ar-

rest was a case of mistaken identity. Aldape was merely the mur-

derers 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 con-

sulate explained that the State had argued that Aldapes status as

an illegal immigrant could be considered when determining

whether he should be sentenced to die. Aldape, a young, poor, il-

legal alien from Monterrey, had been railroaded because the policealready shot the real killer.

The review of the case that Atlas heard during the two-hour meet-

ing piqued his interest, and he asked to read the recordseventeen

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 Aldapes direct appeal, Atlas could read theopinion entered by the Texas Court of Criminal Appeals. In addition,

he could study Sandra Babcocks prior legal research.

Just reviewing the extensive record to determine if it supported

the Mexican governments characterization of the case took Atlas a

month. He discovered that there was no shortage of purported wit-

nesses to the crime. The witnesses stories in the trial transcripts,

statements to police, and the offense reports, though, were often con-tradictory. 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 Len, a Mexican state

5 In a capital case, the trial itself is divided into two parts. First, the jury must de-cide whether the accused is guilty or not guilty. This is usually called theguilt/innocence phase. Then, if jury finds the defendant guilty, the sentenc-ing phase begins.

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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 cardboardbox factory. Despite these circumstances, his life was normal andcalm, with a close-knit family and free time playing soccer. He wasa normal student and worker. Neither henor any member of hisfamilyever found themselves in trouble with the law. In at leasttwo 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 enterthe United States illegally. Aldape and two friends jumped a trainthat took them over the border. In San Antonio they located a friendwho offered shelter and another drove them to Houston. Aldapequickly found employmentinstalling sheetrock, and although heearned substandard wages at $3.00 an hour, it was more than heearned in Mexico ($35 per week). He also found a place to live ina predominately lower-income Hispanic neighborhood, sharing hiscramped living quarters (an apartment on Rusk Street in the Mag-nolia neighborhood) with several others. Most, but not all, wereundocumented Mexican laborers. Because they crossed the RioGrande River to enter Texas illegally, they were derisively calledwetbacks. The Spanish language equivalent is mojado, whichmeans wet.

A couple of months after Aldape arrived in Houston, a new manintroduced himself to the group. In addition, undocumented, thistwenty-seven-year-old was known by Aldape and his roommatesas El Gero, and later, by the police, as Carrasco.6 In addition to

6This mysterious, charismatic stranger went by many names. To some, he was onlyAntonio. Although unknown to Aldape, El Gero sometimes assumed anotheridentity he obtained after robbing James Joseph Kosmerl at gunpoint on June 24,

1982. El Gero became James Kosmerl by taking Kosmerls drivers license andgluing his picture over Kosmerls. To police, however, this stranger would later becalled by another name, Roberto Carrasco Flores, after taking his fingerprints andrequesting a search of the Texas Department of Public Safety. But, a call to the peo-ple listed on the drivers license application as relatives reached people who pro-fessed not to know him. To some, he bragged of taking the name Roberto CarrascoFlores from a taxi driver he had killed. To this day, no one has been able to iden-tify who this man with so many aliases really was.



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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 as-

sassinate 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 Carrascos menacing presence, Magnolia was not

a bucolic neighborhood. In 1982, street fights and the sounds ofgunfire were routine. Aldape, like many in the neighborhood, car-

ried 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 Aldapes 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 sentimentfilled Texans. Congress was debating a new bill targeting illegal im-

migrationthe 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 undoc-

umented aliens. The Houston newspapers reflected the thought

that illegal immigration was causing a national crime wave. Inadditional, the unemployment rate then stood at 9.4 percent, in-

creasing anti-immigrant sentiment, given the fear of U.S. citizens

losing their jobs.

7Carrasco had acquired the 9 mm pistol and ammunition on June 19, 1982, shortlybefore he began visiting the Rusk Street apartment and met Aldape for the firsttime. Carrasco did not buy the gun himself. Instead he approached Alfredo Mal-

donado, Jr., introducing himself as Luis, outside Carters Country Gun Store inPasadena, Texas.

8After Aldapes arrest, the .45 caliber pistol would be traced to the robbery of theRebel Gun Store, located in Houston. The DA never arrested, charged or prose-cuted Aldape for the stores robbery.

9The Immigration Reform and Control Act was also known as the Simpson-RodinoBill, the names of its principal authors, Senator Alan K. Simpson and Represen-tative Peter Rodino.

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CARRASCOS RAMPAGE

On the evening of Tuesday, July 13, 1982, Aldape asked a friendto lend him his car to go buy sodas. Carrasco, who was visiting theresidents of the Rusk Street apartment that evening, offered to goalong. 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, whowas taking his dog for a late night walk. Brown jumped into a ditchto avoid getting hit. Picking himself out of the gully, Brown flaggeddown a passing police car.

It was Officer James D. Harris, who came upon Brown only sec-onds 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. Atage twenty-nine, he had already received several letters from citi-zens commending his police work. For the previous two years, hehad received the highest marks from the police department for hisjob performance. He was also a devoted husband and father, with

two young daughters. In all respects, he was the epitome of HPDsfinest.Officer Harris pulled his patrol car over in response to Browns

beckoning. Harris quickly noted Browns description of the erraticcar and drove off in pursuit. Meanwhile, Aldape and Carrasco hadnot traveled far. Their car had stalled at the corner of Edgewoodand Walker, still in Magnolia, a few blocks from the Rusk Streetapartment. It was now nearly ten oclock in the evening.

When he arrived at the corner of Edgewood and Walker, Offi-cer Harris had only one hour left in his shift. The police car pulledin behind the stranded car. Its two former occupants were standingby the car. Aldape wore a green shirt and blue jeans. Carrasco wasdressed in a maroon shirt and brown pants. Aldape had long, blackhair, a beard and mustache. Carrasco had short brown hair and wasclean-shaven. The different clothing, hair length and color, and fa-

cial hair would later become critical as witnesses tried to recall whatthey saw that evening.The uniformed officer exited his car and, in English, ordered

Aldape and Carrasco to approach and place their hands on the po-lice car. Only one man complied, putting his hands on the hood ofthe police vehicle. The other emerged from the shadows, walked upto the patrol car and pulled out a 9 mm Browning pistol. He shot



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Officer Harris three times in the head, almost at point-blank range.The pistol was so close that it left powder burns on the officers

face. The three bullets, after exiting the victim, burrowed into ahome on the northwest corner of Edgewood and Walker.

After downing Officer Harris, the gunman retrieved the offi-cers pistol. Both the gunman and his acquaintance fled, runningdown opposite sides of Walker Street. The shooter ran on the northside of Walker, the second man on the south side of Walker. Theman 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. Jos Armijo, Sr. drove the Ford. Twoyoung children shared the car with himArmijos ten-year-old sonand namesake, Jos, Jr., and his three-year-old daughter,Guadalupe. Once Office Harris was shot, Armijo threw the Fordinto reverse and pushed his son out of harms way. The shooter rantoward his car and leveled the 9 mm pistol at Armijos head.Trapped in the car, unable to move forward through the intersec-tion, unable to back up quickly enough, Armijo offered an easy tar-get. 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 onthe scene and joined the frantic search for the two Hispanic sus-

pects. Officer Lawrence Trepagnier approached a darkened garageand shined his flashlight into its corners. Emerging from the gloomwhere he hid, Carrasco fired his 9 mm pistol, hitting Trepagnierfive times in the chest and abdomen. Alerted by the gunshots, sev-eral officers rushed to the garage. Carrasco ran around a corner ofthe 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 Carrascos hand andfell between his legs. The clip was empty.Aldape could clearly hear the gunfire from Carrascos unsuc-

cessful attempt to blast his way to freedom. Cowering behind ahorse trailer in the backyard of 4911 Rusk, Aldape listened as theofficers and detectives closed in on him. Within minutes of Ca-rrascos death, Aldape was located, unarmed. Hands raised, Aldape

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surrendered without a struggle. Aldapes 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 Aldapes .45 caliber pistol under the horse trailer. The gun

was wrapped in a bandana. Aldapes 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 Al-dape he had the right to contact the Mexican Consulate. The Vi-

enna 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 pho-

tographed, fingerprinted and then stood in a lineup at six oclock

in the morning, already dressed in a jail uniform. Aldape could not

see the witnesses, who had spent the whole night and morning atthe station, as they peered through the one-way glass and attempted

to make a positive identification.

Back on Edgewood and Walker, detectives and officers col-

lected the physical evidence. At the northeast corner of the inter-

section, three spent 9 mm cartridges were found. The three bullets

entered the left side of Officer Harriss face and traveled across the

patrol car in an almost perpendicular position from the drivers to

the passengers side. On top of the patrol car, blood was splatteredat 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 Har-

ris 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.

10Recall Articles 5 and 36 of this convention, which were analyzed in our study ofthe Avena case, and their repercussions in that case.



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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 Walkerone in a ditch in front of 4925 Walker(close to the car driven by Jos Armijo, Sr.), and two in the drive-way of the same house. Police recovered two .45 caliber casings onthe south side of Walker Street, almost a full block east of the Har-ris shooting. No bullet holes for the .45 were located, which wasconsistent with Aldapes insistence that he had only shot hisweapon in the air. From the evidence, detectives concluded that

the murderer of Officer Harris used a 9 mm pistol and then fledeast down the north side of Walker. On Walker, the shooter mur-dered Jos Armijo, Sr. and continued running east. The other per-son also ran east on Walker, but on the south side, firing his .45pistol at least twice.

More physical evidence was discovered on Carrascos body. Ca-rrasco drew his last breath holding the 9 mm pistol. The clip insidehis gun, with a capacity of thirteen to fifteen rounds, was depleted.At the morgue, Officer Harriss .357 Colt Python was found stuffedin the front of Carrascos waistband under his belt. Carrasco also hadanother clip for the Browning 9 mm pistol containing twenty roundsof ammunition in a military-type magazine double pouch attached tohis belt, eleven loose rounds of 9 mm ammunition in his pantspocket 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 Offi-cer Harris, and Aldape did possess an unregistered .45 pistol, aweapon police would later determine was stolen. Aldape was alsoan undocumented alien, and he was undoubtedly at the murderscene. The most likely suspect, however, was Carrasco. Carrascoowned and carried the murder weapon and bore the pistol belong-ing to Officer Harris. But he was dead. On July 23, 1982, Aldape

was indicted for capital murder. Aldape was not charged as the gun-mans accomplice. He could not be. As one of the trial prosecutorsacknowledged years later, the evidence showed that the shooteracted independently and without warning or assistance. Instead,Aldape was accused of murdering a uniformed police officer. Al-dape was charged as the triggerman. A conviction could be pun-ishable by death.

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The prosecution used voir dire to emphasize repeatedly thatAldape was an illegal alien. Although the defense also noted that

Aldape entered the country illegally, the State exceeded the boundsof zealous prosecution. To find the death penalty is appropriate,the jury must assess the future dangerousness of the defendant. Theprosecutors expressly instructed several members of Aldapes jurythat, if they convicted him, then during the punishment phase ofthe trial, the jury could consider Aldapes status as an illegal alien.For example, over the objection of Aldapes trial counsel, the pros-

ecution instructed one juror that the fact that a person is in some-one elses country unlawfully or has come into a country illegallycould be evidence the jury could consider about what type of per-son he is. Prosecutors informed another juror that Aldapes statusas an illegal alien might help in answering the sentencing ques-tions 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 agreethat a biased juror could be dismissed for cause. Both people withHispanic surnames were struck by the State. The first twelve voirdire panelists who were not removed by either the prosecution ordefense team became the jury. On October 4, 1982, the trial began.

The prosecutions theory was that a double-gun switch oc-curred. The prosecution speculated that Aldape and Carrasco kepttheir weapons on the Buicks front seat. When they left the vehicle,

they accidentally retrieved each others weapons. That was the firstswitch. Aldape supposedly shot Officer Harris, took the officersweapon and then shot Armijo with the 9 mm. According to theprosecutors, at some point thereafter, but before Carrasco shot at of-ficers with his 9 mm, Carrasco took back from Aldape his ownweapon and the .357 belonging to Officer Harris. That was the sec-ond switch. As is obvious, not only did the State lack any evidence

supporting its double-gun switch theory, it lacked any physical ev-idence linking Aldape to the crime.Then, with no physical evidence, the State relied on five peo-

ple 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 consistentlystated that they saw Aldape shoot the officer. Although five wit-

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nesses placed Aldape at the scene of the murder, only one, ten-year-old Jos Armijo, Jr., eventually testified that he actually saw Aldape

shoot Officer Harris.The prosecutions whole case was built on these young wit-

nesses being able to distinguish between two Hispanic men of sim-ilar height and build, in the late evening, with poor lighting.Carrasco and Aldapes differing clothing and facial hair would proveto be the critical distinction in determining who murdered OfficerHarris. The State understood this and conceived an unprecedented

technique to overcome this obstacle. All the witnesses benefitedfrom an unusual aid during their trial testimony. At the cost of$7,000, the prosecution had prepared life-sized mannequins of Al-dape and Carrasco. The custom-made head of each mannequin cost$3,500 apiece. The bodies were donated by a local departmentstore. District Attorney John B. Holmes, Jr. said the cost would becovered by money collected by the worthless check division.Holmes admitted that the mannequins use was unusual and cred-ited the idea to Bax and Moen. The mannequins were molded intoastonishing likenesses of the two men as they looked on July 13,1982. Each wore the actual clothes taken from the men on the nightof the shooting. Thus, Carrascos shirt was bullet-riddled and blood-stained, while Aldapes was spotless. During the witnesses testi-mony, there could be no mistaking which man had long hair andwore 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 shesaw Aldape pointing west toward the patrol car just before the shotswere fired, but she never actually saw anyone shoot Officer Harris.Herlinda Garcia then took the stand. The fifteen-year-old was onWalker Street, with her baby, headed to the store when she saw the

Buick halt in the middle of the street. She said she was runningwhen she heard the gunshots. Although Garcia identified Aldape asthe shooter, she conceded that in her initial statement she had de-scribed the shooter as a blond-haired man who wore a brown shirtand brown pants. Carrasco, not Aldape, wore brown pants on thenight of the shootings. Neither wore a brown shirt. Near the end ofher testimony, Garcia stated that she never saw the man in brown



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clothes raise his hand or shoot anyone. Garcia had not gone to thestore alone that night. She was accompanied by her sixteen-year-

old sister Elvira Vera Flores. The State called Flores to the stand.Flores thought Aldape was the shooter, but she admitted that shehid behind a car when the shooting started. She also conceded thatshe failed to identify Aldape at the lineup, but she attributed thatto her fear of retribution. She testified that she did not actually seethe man who shot Officer Harris and Armijo, Sr. She saw no gununtil after Officer Harris had been shot and after the man she as-

sumed 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 onlyadult among all the alleged eyewitnesses called by the State. OnJuly 13, 1982, she testified that she was walking with Jose Herediaand his brother, Armando. Galvan heard two shots. She never sawa gun, but she saw a flash. She said the shooter had blond hair andwore a black or dark brown shirt and brown pants. In court, sheidentified Aldape as the shooter. She said she never saw Carrasco.Galvan testified that the person she believed to be the shooter thenran toward her side of the street, the north side.

The prosecution then called young Jos Armijo, Jr. who, sittingin the front passenger seat of his fathers car, saw Officer Harrisstanding beside his open patrol car door. Two other men werestanding by the hood of the police car, with their hands on the

hood. One man acted like he was scratching his back when hetook out a gun and shot Officer Harris. Jos, Jr. could see fire com-ing out of the gun. Officer Harris fell to the ground. The shooterwore a green shirt, the other man a purple shirt, Jos, Jr. stated ashe faced the mannequins. He said the shooter had a beard and longhair. He then made an in-court identification of Aldape as theshooter. On the night of the shooting, Jos, Jr. had told police that

the shooter used his left hand to retrieve and shoot the gun. Nei-ther the prosecution nor defense elicited this fact during Jos, Jr.strial testimony. The information about which hand the shooter usedmight have helped the jury decide whether Aldape was innocent,based on information Atlas would only later uncover.

On cross-examination, Jos, Jr. admitted that he gave a swornstatement to police on the night of the shooting that said he did

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not see the shooter clearly. Before the lineup, he told police that hedid not know who shot the police officer. He also stated that he did

not know what clothing Aldape and Carrasco were wearing thenight of the shooting. At a lineup, hours after his first statement, hestill could not identify Aldape. Even though the police assured himat the time that the men in the lineup could not see him, Jos, Jr.said he had earlier been afraid to identify Aldape.

To rehabilitate Jos, Jr.s testimony, the State called his motherto the stand. She had sat in the courtroom for most of the pro-

ceeding. Marie Estelle Armijo testified that her son returned homefrom the police station at 8:30 in the morning on July 14, 1982 andtold her he had seen the shooter but was afraid to tell the police.She testified that she waited a further six weeks, only days beforethe trial, to tell the prosecutors that Jos, Jr. could identify Aldapeas the shooter. Over defense objections, she also detailed how Jos,Jr.s behavior had changed since his fathers death. She explainedthat Jos, Jr. used to go out and play a lot and he would ride hisbicycle on the sidewalk and going around the block. But that hadchanged since the shooting. [N]ow he doesnt want to go out toplay and he just comes home and he wants to lie down and sleep,and he doesnt even want to eat. This testimony, while compelling,was irrelevant to the question of Aldapes guilt.

The State called other witnesses for their emotional impact. Forexample, the medical examiner who performed the autopsy on Of-

ficer Harris described the officers injuries. The State introducedseveral grisly autopsy photographs showing the entrance and exitwounds on the officers face and head and several pictures showingrods entering one side of his face and exiting the other. As its finalwitness, the prosecutors called the widow of Officer Harris. Thecourt overruled objections that her moving testimony about herhusbands life, work and marriage was immaterial to Aldapes guilt

or innocence. The court allowed her to describe how she met herhusband and how he regularly worked extra jobs so that she coulddevote all her time to raising their two daughters.

At the end of the States case, only one witness, Jos Armijo, Jr.,claimed to have actually seen Aldape shoot Officer Harris. No wit-nesses placed Aldape in the location where the shooter had to beeast of the officer. The defense began its case.



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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, tes-tified that on the evening of July 13, 1982 he sat on Hilma Galvansporch as the Buick drove by her house and stopped at the intersec-tion. He saw the driver approach Herlinda Garcia and Vera Flores. Henoticed that the passenger in the Buick had short hair. Then the po-lice 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 stand-ing behind, and to the east of, the driver, he took something outand shot Officer Harris. He held the weapon with two hands. Oncross-examination, Vega stated that the driver was closer to OfficerHarris, but the shorthaired passenger shot from behind the driver.

The defense then called Jose Heredia. He and his brother, Ar-mando, were with Hilma Galvan on the night of the shooting. He,too, saw Aldape put his hands on the police cars hood. While Offi-cer Harris stood next to his car door, the Buicks passenger ap-proached and shot Officer Harris. Jose Heredia identified the shooteras Gero, the light-colored one. On cross-examination, the pros-ecution questioned Heredia about a killing that allegedly occurredin a nearby cemetery forty minutes before Officer Harris was mur-dered. The prosecutors first eight questionsusing such phrases asthis woman killed, they had killed a woman and the womans

bodywere intended to convey to the jury that Aldape and Car-rasco had committed a murder. Defense counsel objected. The pros-ecutor promised to spell out the relevancy later to the court, butnever did. Elizondo, Aldapes attorney, did not know then that themurder never occurred. The police had investigated the rumor onapproximately July 22, 1982 and confirmed it to be a complete hoax.Curiously, the assistant district attorney pursued this line of testi-

mony even though he knew no cemetery murder occurred.Two of Aldapes roommates were then called by the defense,Jose Manuel Barrosa Esparza and Jose Luis Torres Luna. Both youngmen, testifying in Spanish, stated they were in their apartmentwhen Carrasco ran into the residence at 4907 Rusk and braggedabout killing a police officer. Esparza testified that at approximately10:00 or 10:30 p.m. that night he heard gunshots. Three or four

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minutes later, Carrasco tore into the apartment, agitated and outof breath. Carrasco showed Esparza the police officers gun and

stated that he had killed the guns owner. Esparza saw that Ca-rrasco carried two pistols, one in his hand and one in his belt. Later,Torres Luna testified that Carrasco offered to give him the police of-ficers revolver as a present. Torres Luna refused this gift. Ca-rrasco then removed a clip from the pistol in his hand and replacedit with a loaded clip. Shortly after Carrasco arrived, Aldape ran intothe house. Aldape told Torres that Carrasco had just killed a police

officer. Carrasco announced he would defend himself, preferringdeath to surrender. Esparza, not wanting to get involved, told themen to leave. Shortly afterward, Carrasco and Aldape departedthrough the rear door.

When the police later entered the house with their guns drawn,they forced the remaining occupants to lie face down and interro-gated them while training pistols at their heads. Both Torres andEsparza admitted they did not tell the police about Carrascos con-fession while being interrogated, but claimed they were scared.During rebuttal, the prosecution called a police officer who testifiedthat Torres and Esparza told him they had left home shortly afterCarrasco and Aldape departed and had not returned until the offi-cer saw them. The officer insisted that he saw no one point a gunat Torres or Esparza while they were questioned.

The defense called its final witness, the accused himself, Ri-

cardo Aldape Guerra. Testifying in Spanish through an interpreter,Aldape said he knew Carrasco only as Gero and that he hadknown him for only two or three weeks. On July 13, Carrascojoined Aldape when he left to go to the store to purchase a soda; asusual, Carrasco brought his 9 mm pistol. Aldape drove around theneighborhood, spinning the Buicks 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 andplaced his hands on the patrol cars hood. Officer Harris told Ca-rrasco to come on, but Aldape could no longer see Carrasco.Suddenly, Aldape testified, shots rang out almost in my ears.He witnessed the officers gun drop and Carrascos retrieval of it.Both men then turned and fled. Aldape ran down the right side of



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the street (the south side) heading east on Walker. Out of fear, hetwice fired his own .45 into the air to keep Carrasco from follow-

ing him. He ran home and found Carrasco already inside. Carrascosaid he had also shot at another car.

With Aldapes testimony, the defense rested. Each side then pre-sented its closing argument to the jury. The State, as always, pro-ceeded first and, after the defense argument, would be permittedthe final word in rebuttal. The prosecution advanced its gun-switchtheory. The State insisted that five peopleJos Armijo, Jr., Gal-

van, Diaz, Garcia and Floresimmediately went to the police sta-tion, 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 iden-tified Aldape as the shooter. Regarding the key testimony of Jos,Jr. identifying Aldape, the prosecution stated that Jos, Jr. knewthat God would get after him if he told a lie.

The prosecution called the scientific evidence inconclusiveand that the testimony of Jose Heredia, whose testimony that hesaw Carrasco kill Officer Harris was critical to Aldapes defense,could not be considered true. To justify this, the prosecutor offeredthis opinion of the fourteen-year-old Heredias mental state duringhis trial testimony: I think he was probably under the influence ofsome type of alcoholic beverage, or narcotic drug. The prosecutionalso invoked Aldapes immigration status in closing argument as it

had during voir dire, stating, [Y]our answers will demonstratewhat type of person . . . Aldape was while he was in our commu-nity for less than two months after coming here from Monterrey,Mexico. A message had to be sent, the prosecutor urged: Let theother residents of 4907 Rusk know just exactly what we as citizensof 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 con-trasted Carrascos conduct on July 13 with Aldapes. Carrasco re-acted violently; Aldape surrendered. Carrasco fired on officers at4911 Rusk; Aldape shot no one even though his loaded weapon laywithin easy reach.

On rebuttal, the prosecution asked for a verdict fair to OfficerHarris and his family and insisted again that five witnesses had said,

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without reservation, that Aldape killed Officer Harris. Torres Lunaand Esparza were simply liars, argued the State. The case went to

the jury on October 12. The jurors reviewed the testimony of Gal-van and Jos, Jr. that described who shot Officer Harris. They alsostudied Jos, Jr.s testimony concerning who shot his father. Afterthe jury had deliberated for less than six hours, the judge asked tobe told whether they had voted. After being informed that they had,he asked how they were split. The foreperson answered that thevote stood at eleven to 1, without indicating whether the majority

favored conviction or acquittal. The trial court questioned if fur-ther deliberations that evening would prove productive. In re-sponse, the foreperson requested one more hour. Fifteen minuteslater, the jury returned a unanimous verdict: We, the Jury, find thedefendant, Ricardo Aldape Guerra, Guilty of the offense of Capi-tal Murder, as charged in the indictment.

SENTENCING

The jury had convicted Aldape of capital murder. But their serv-ice was not yet complete. They had to sentence Aldape. Given thebrutal crime of which they convicted him, the only choice wouldbe between life imprisonment and death. The sentencing proceed-ings would afford an opportunity for Aldapes attorneys to offer mit-igating evidence to demonstrate that he did not deserve to die.Sentencing proceedings began on October 13, 1982, one day after

Aldapes conviction. In order to sentence Aldape to death, the Statehad to convince the jury that Aldape committed the crime deliber-ately and with the reasonable expectation that death would resultand that Aldape would probably commit violent criminal acts inthe future that would constitute a continuing threat to society.These two questions, called special issues would each have to beanswered yes for Aldape to receive the death penalty.

During the States case, the prosecution accused Aldape of par-ticipating in a robbery at the Rebel Gun store in Houston a week be-fore the Harris and Armijo murders. Aldapes .45 caliber pistol wastaken in the heist, as were many other weapons, including an Uzi.In all, $15,000 worth of guns and ammunition were stolen. One ofthe four witnesses to the crime identified Aldape as one of the rob-bers. A police expert claimed Aldapes fingerprint was found on the



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outside of a canister of adhesive tape used to tie the hands of thestore employees and customers during the robbery.

None of these witnesses identified Aldape when they saw hispicture, but in an astonishing development, two prosecution wit-nesses identified Enrique Torres Luna, a spectator at the trial andbrother of Jose Torres Luna, as a robbery participant. Sheriffsdeputies arrested Enrique based on these identifications. The Statemade a decision, though, not to call either of two witnesses whohad 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. Atthe time, neither Torres nor Aldape had tattoos. The State wouldlater drop all robbery charges against Torres because of insufficientevidence.

Aldapes lawyers called only a single witness in his defense, hismother. The defense brought none of Aldapes former teachers, em-ployers or friends from Monterrey. It introduced no records demon-strating that Aldape did not have a criminal record in Mexico orthe United States. The defense did not show how arduously Aldapeworked on his familys behalf. To be sure, the defense lacked themoney to obtain much of this material or to fly the witnesses toHouston on a days notice.

Finally, it was time for the attorneys closing arguments. Pros-ecutor Moen used this opportunity to explain to the jury the bibli-cal source of the States power to execute those guilty of murder.

After the State invoked the Bible to assuage the jurys conscienceand argued that the dearth of evidence on Aldapes character spokevolumes, the defense presented its closing argument. Elizondoasked the jury to consider the possibility of the State learning laterthat Aldape was not the killer. He noted that a man serving a lifesentence could be set free, But how are you going to bring a deadperson back?

Two and a half hours after beginning deliberation, the juryreached its verdict. It answered both special issues with yes. TheCourt then addressed the defendant. Ricardo Aldape Guerra, thejury having found you guilty of the capital offense of murder andhaving answered special issues 1 and 2 yes, it is . . . the sentenceof this Court that you be given death as a penalty in this case. Theverdict stunned both Aldape and his parents, who all wept openly

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as the judge read the sentence of death. When asked by the judgeif he had anything to say before he was formally sentenced by the

court, Aldape tearfully said in Spanish, I am not guilty.

APPELLATE LOSSES

Three weeks after the jury assessed the death penalty, the KuKlux Klan demonstrated outside the Harris County Courthouse asthe 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 GotJustice, No Sympathy for Cop Killers and For Once Justice HasBeen Served. Another read, Houston Will Not Tolerate IllegalAlien Crimes.

Even though the jury had convicted Aldape and sentenced himto die, the motion for new trial presented one more opportunityfor 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 killedOfficer Harris. She also attested that the mannequins made hernervous and influenced her verdict. It was a sudden, unexpectedchange of heart by one of the jurors. Aldapes 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 Aldapes motion for new trial, and deputies transferred himto death row in Huntsville, Texas.

Aldape was now appointed a new attorney for the next roundof his defense. Michael B. Charlton appealed Aldapes convictionto the Texas Court of Criminal Appeals. After filing Aldapes ap-pellate brief with the court on August 16, 1984, Aldape and Charl-ton waited to see if the verdict would be overturned.

Aldapes appeal languished in the high court until 1988, nearlysix years after his conviction, a scandalous delay. Finally, on May 4,1988, the nine justices decided to address Aldapes request for re-lief. Aldape lost again. Over a strong dissent by two justices, thecourt affirmed his conviction.

Writing for the dissent, Justice Sam Houston Clinton, joinedby another justice, noted that Jos Armijo, Jr. was the States only



45/45

witness who claimed to see both Carrasco and Aldape. Jos Armijo,

Jr.s testimony alone stood between Aldape and an acquittal for in-

sufficient 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 prepon-

derance of the evidence.

The States 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 battlewith police, when the murder weapon was discovered on [Ca-

rrascos] 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. Thecountrys highest court enjoys the discretion to decide whether to

hear a cert petition, as the phrase is commonly abbreviated. Thou-

sands 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 amajority 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 re-

sponse: 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

190 RICARDO AMPUDIA

Documents

Mexicans on Death Row by Ricardo Ampudia