Mexican officials try to stop execution
                                  04/27/97 10:53 PM:  Lubbock Avalanche-Journal 1997

PHOENIX (AP) - Unless a court finds that Ramon Martinez-Villareal is mentally ill and unfit to die, he will become the second Mexican citizen to be executed in the United States since the death penalty resumed in 1976.

The Mexican government has joined the battle to stop the May 21 execution, though its legal avenues are limited. Mexico has no death penalty.

''We consider it an excessive and cruel punishment,'' said Luis Cabrera, Mexico's consul general in Phoenix. ''The state has to preserve human rights and needs to respect the most human right, which is life.''

The condemned man has at least two more shots at a reprieve. A Pinal County judge will hear arguments May 6-7 on whether Martinez-Villareal is mentally fit to be executed.

If he is ruled fit, representatives of the Mexican government plan to speak on his behalf when the Arizona Board of Executive Clemency meets May 16. The board meets before every execution to decide whether to recommend a reprieve.

The Mexican government has helped the defense by finding Martinez-Villareal's relatives in Mexico and paying expenses for his attorney to visit and interview those relatives, said defense attorney Sean Bruner.

Martinez-Villareal, 51, is scheduled to die for the October 1982 murders of a rancher and his employee in southern Arizona. Prosecutors said he shot James Thomas McGrew, 57, and Fernando Estrada-Babichi, 26, to prove his manhood.

Bruner contends his client should not be executed because he hears voices, has mental problems and cannot comprehend why he has been sentenced to die.

''The guy's crazy and he's illiterate,'' said Bruner, who will make the same arguments in the Pinal County hearing.

''He's deteriorated significantly in past years because of the very isolated condition he's in. He's in his cell 23 hours a day and doesn't have anyone to talk to.''

Martinez-Villareal was originally scheduled to be executed April 16, but the Arizona Supreme Court granted a stay so Bruner could argue his client is mentally impaired.

If the Pinal County court agrees with Bruner, it would be unconstitutional to execute Martinez-Villareal.

A death row inmate for 14 years, Martinez-Villareal narrowly escaped death in June 1986. Just 10 hours before he was to die in the gas chamber, a federal judge stayed the execution to give defense lawyers time to determine whether their client had gotten competent legal counsel.

Bruner claims Martinez-Villareal doesn't remember the slayings and was an unwilling participant.

Prosecutors allege Martinez-Villareal and another man were returning to Mexico after a burglary in Arizona when they spotted their victims grading a road. The two waited overnight for the ranch men to return, then robbed and shot them with rifles stolen from a Tumacacori ranch.

The last Mexican citizen to be executed in the United States was Ramon Montoya in Texas. He was put to death by injection in March 1993 for killing a Dallas police officer.

That execution drew front-page denunciations from Mexican newspapers, and forced American inmates in Montoya's home state of San Luis Potosi to be segregated for fear of reprisals.

From:  http://www.lubbockonline.com/news/042897/mexican.htm

New York Times
Wed., 2-25-98

WASHINGTON, D.C.:

The US Supreme Court struggled Wednesday while trying to determine the scope of a federal law intended to speed the pace of prisoner executions.

The law, the Antiterrorism and Effective Death Penalty Act, generally limits state prisoners to a single federal appeal.  The court must decide in an Arizona dispute whether that one-bite-of-the-apple rule
makes, or must provide, an exception for claims of insanity.

In numerous questions and comments, the justices indicated they may be deeply divided.

"Is there any reason to think Congress wanted to...totally bar such a claim?  I can't think of one," Justice Stephen G. Breyer said at 1 point during the 60-minute argument session.

But Justice Antonin Scalia suggested that the law seems to close the federal courthouse door to all second-bite claims except those asserting actual innocence.

A disputed provision in the law appears to say "Congress doesn't care about certain claims" Scalia said.

Justice Sandra Day O'Connor wondered aloud whether Congress intended to close off some insanity claims even though the court ruled 12 years ago that execution of an insane person violates the constitutional ban on cruel and unusual punishment.

Ramon Martinez-Villareal, a Mexican citizen, was convicted in Arizona of killing James Thomas McGrew and Fernando Estrada-Babichi in 1982. Prosecutors said he shot the 2 to prove his manhood.

The 9th U.S. Circuit Court of Appeals halted his execution hours before it was to occur last May, ruling later that his sanity should be considered by a federal trial judge despite the 1996 federal law.

Other federal appeals by Martinez-Villareal had been rejected previously. His 1st federal appeal had tried to raise the insanity issue but it was dismissed as premature because no execution date had been set.

Tucson public defender Denise Young argued that Martinez-Villareal's repeated request to postpone his execution because of his asserted insanity was not really a 2nd petition because he never received a
ruling on the merits of his 1st 1.

"The question," she said, "is '2nd to what?'"

But Bruce Ferg, an assistant state attorney general, urged the court to reverse the appeals court ruling.

A decision is expected by July.

The case is Stewart vs. Martinez-Villareal, 97-300.

(source:  New York Times)
 

ACLU legal action: http://www.aclu.org/court/stewartvmartinez-villareal.html

  From Public Interest Litigation Clinic

  RAMON MARTINEZ-VILLAREAL
  Ramon Martinez-Villareal is a Mexican citizen who suffers from psychosis, dementia and has mental
  retardation. He was sentenced to death as an accomplice to felony murder; his incompetence to be
  executed is now the only claim being considered by the courts. Dr. George J. O'Connor, his treating
  psychiatrist at the Arizona Department of Corrections describes Mr. Martinez Villareal as "a seriously
  ill man, who functions at best with the mental capacity of a small child." DOC psychiatrists have
  medicated Mr. Martinez-Villareal for schizophrenia since 1986. Dr. O'Connor recently signed a
  declaration describing Mr. Martinez-Villareal's impairments:

  Mr. Martinez-Villareal could not accurately report his age (he said that he was thirty years old,
  obviously much younger than his actual age as judged by his official records). He did not know where
  he was born, and complained of constant voices in his head that prevented him from sleeping. I noted
  "severe anxiety and inability to know where he is or why he is here." I also noted that "his thoughts
  were simple and childlike."

Mr. Martinez-Villareal is a very sick man. He is in nearly constant physical pain from complications of
his diabetes, including gastro-intestinal pain, diabetic retinopathy (impaired vision) and diabetic
neuropathy, which causes extreme pain in his lower extremities. He has had various infections, including tuberculosis. Nerve damage has left him deaf in one ear. He is less than five feet tall, and behaves in a bizarre manner, making him a target of abuse by other inmates. He is "bulldogged" by other inmates for his medication and his property. His single coping device for all these problems is a temper tantrum eventually leading to self mutilation.

The jury that convicted Mr. Martinez-Villareal and the judge who sentenced him to die knew nothing of
his mentaldisabilities. William Rothstein, the court-appointed lawyer who defended Mr.
Martinez-Villareal, honorably admitted the mistakes that he made as a result of being thrust into a death
penalty case before he had the necessary knowledge and experience. At a federal court hearing, Mr.
Rothstein testified "I messed up. I mean I did, you know, and I feel bad about it. I have for all these
years. Because if I had . . . done more at the sentencing, . . . [the judge] wouldn't have given him the
death penalty." Martinez-Villareal v. Lewis, No. CIV-86-296 TUC-RMB (D. Ariz. May 16, 1994)
slip op. at 24-25, 29.

In 1994, the late U.S. District Court Judge Richard Bilby found, after an evidentiary hearing, that Mr.
Martinez-Villareal's trial lawyer was constitutionally ineffective when he failed to investigate and present
evidence of Mr. Martinez?Villareal's obvious mental deficiencies in mitigation of punishment. DCR86
#136 at 20?30. Judge Bilby issued the writ of habeas corpus, but that decision was overturned on a
procedural technicality that arose when Mr. Martinez-Villareal's trial lawyer failed to argue at the
appropriate time that his own performance was incompetent. At the conclusion of that appeal, the only
issue remaining before the courts is whether Mr. Martinez-Villareal's mental impairments are so severe
that he cannot understand that his impending execution is the result of a conviction for murder.

Arizona Superior Court Judge Boyd T. Johnson conducted a competency hearing, and decided that
although the evidence of Mr. Martinez-Villareal's mental retardation, brain damage and mental illness
was credible, he is nevertheless mentally fit to be executed under Arizona law. State v.
Martinez-Villareal, No. 97-22291 (Pinal County Super. Ct. May 9, 1997). The Arizona Supreme
Court denied review of that decision on May 16, 1997, with two of the five justices writing separately
expressing "serious doubts about the propriety of the death sentence" in light of the fact that "the
evidence makes it clear that [Martinez?Villareal] is mildly retarded and seriously mentally ill," and urging that Mr. Martinez-Villareal's sentence be reduced by the parole board to life. In a related law suite,
Mr. Martinez-Villareal's lawyers argued the Arizona law should forbid the execution of persons with
mental retardation. Although Superior Court Judge Wallace Hoggat concluded that he was bound by
law to reject that argument, he declared, "If this case could be legally decided on the issue of what this
Court would like to see, the Court would without hesitation declare that Martinez-Villareal should not
be executed." State v. Martinez-Villareal, No. CR-4628-A; 4641-A; 4653-A (Minute Entry, May 15, 1998).

The case then returned to Judge Bilby's court. Although he found that recent restrictions on the federal
writ of habeas corpus deprived him of jurisdiction over the case, he expressed "serious concerns . . .
as to whether Petitioner is presently capable of understanding 1) that he is to be punished by execution,
and 2) why he is being punished[,]" and noted that "it had the opportunity to observe the Petitioner in
1994" and "that its observations of Petitioner in 1994 called into serious doubt [Martinez?Villareal's]
competence." The Ninth Circuit Court of Appeals and the United States Supreme Court eventually
ruled that Judge Bilby did indeed have jurisdiction, and remanded the case to the district court.
Martinez-Villareal v. Stewart, 118 F.3d 628, 629, 634-35 (9th Cir. 1997), aff'd Stewart v.
Martinez?Villareal, 523 U.S. 637 (1998). Upon Judge Bilby's death, the case was reassigned to Judge
William Fremming Neilson, who ordered that Mr. Martinez-Villareal be thoroughly tested for mental
retardation and dementia, which the Arizona Superior Court had refused to allow.

Dr. Denis Keyes, a nationally recognized expert on mental retardation, evaluated Ramon in 1998, and
confirmed that he has mental retardation to a degree which renders him mentally incompetent. On
standardized testing, Ramon's IQ is 50, far below level of intellectual functioning used to identify
persons with mental retardation. Dr. Keyes also noted that Ramon's adaptive behavior skills, i.e. his
ability to learn and solve problems, are extremely deficient. When frustrated, Ramon typically reacts
like a small child, shouting and beating his head against the walls of his cell, or pulling his covers over his head. Dr. O'Connor agrees; Ramon is easily frustrated because he lacks the ability to follow
multiple-step commands. Dr. Keyes concluded that Ramon has "a severe cognitive and adaptive
disability," and that his "overall mental capacities" "place[] him below the lowest percentile of intellectual
functioning in the nation." He has "short[] attention spans, poor memory, poor planning ability, [and a]
lack of ability to appreciate the consequences of [his] actions..." Neuropsychologist Ricardo
Weinstein's testing supports Dr. Keyes's assessment of mental retardation, and also establishes that Mr. Martinez-Villareal suffers from dementia. His cognitive abilities are progressively worsening, and he
suffers severe memory loss. Like a person with Alzheimer's disease, Mr. Martinez-Villareal's demented
state impairs his ability from day to day to reliably recall events, names, or faces of people he has met.
Dr. Harry S. Tamm, a mental health expert hired by the Arizona Attorney General to testify against
Ramon at a 1997 competency hearing, has changed his mind after considering the supplemental
evidence. In a declaration recently filed with the court, Dr.Tamm stated, "If I had been provided with
information of this nature and quality, I would have testified that in my opinion Mr. Martinez-Villareal is
not competent for execution."

Based on all the evidence now available, even the trial judge and prosecutor agree that Ramon should
not be executed. Former prosecutor Bruce Stirling readily acknowledged that because he was unaware
of Mr. Martinez-Villareal's mental capacity, he misinterpreted many facts about the case, including his
assumption that Ramon was responsible for behavior of his accomplices because he was much older
then them. Stirling had also been bothered that Ramon smiled inappropriately at jurors and spectators
during the trial, and upon being sentenced to death asked the trial judge for the return of the boots he
had been wearing upon his arrest. In a statement to the Arizona Clemency Board, Stirling said, "I
interpreted Ramon Martinez-Villareal's remarks as disinterested bravado rather than appreciating that
they might be evidence of a mental disorder." He would have waived the death penalty if he had
correctly surmised Mr. Martinez-Villareal's condition.

At the same clemency hearing, Judge Roberto Montiel, who presided over Mr. Martinez?Villareal's
trial and sentencing, testified that he "had some concerns" about Ramon's mental condition, but did not
act on them because he assumed that a competent lawyer would have raised the issue if there had been
any basis for it. Judge Montiel provided the Clemency Board with his current assessment of the case:
 

                   Q. Is it fair to say that Mr. Rothstein was both
                   out-numbered and out-lawyered in that case?
                   A. Yes.

                   Q. And having seen the materials that were
                   available to Mr. Rothstein at the time of that trial,
                   do you have an opinion now as to whether Mr.
                   Rothstein provided ineffective assistance of
                   counsel?
                   A. I think there is no question at least that at the
                   sentencing stage that he did not provide adequate
                   lawyering.

                        From Public Interest Litigation Clinic: http://www.pilc.net/clients6.html

             Ramon Martinez-Villareal

                Ramon Martinez-Villareal has been on death row since 1983, convicted of the
                murder of a rancher and a ranch hand.178 He does not know how old he is,
                although his current lawyer believes he may be in his mid-fifties. He comes from
                rural Mexico, and his family recalls that he did not walk or talk until he was five
                and was never able to learn the use of even simple tools such as hoes and shovels.
                In addition to being retarded -- Martinez-Villareal has an I.Q. of 50 -- he is
                mentally ill, probably schizophrenic.

                Martinez-Villareal, a Mexican national who speaks no English, was never
                informed of his Vienna Convention right to contact the Mexican consulate when
                he was arrested in the U.S., and he ultimately got a trial lawyer who spoke no
                Spanish.179 Because of his retardation, compounded by the language barrier, he
                had trouble understanding what was happening to him during his interrogation and
               trial. When he was told, during his interrogation, that he had the right to remain
                silent, and was asked by the interpreter if he understood that right, he replied,
                "Yes, I must be silent."180

                When he was arrested, Martinez-Villareal was wearing a new pair of boots,
                which the police took from him. Barely comprehending his situation, he focused
                on the one aspect he understood: his new boots had been taken. He asked
                repeatedly for his boots, unable to understand that something more serious was at
                stake. This childlike focus on the concrete is typical of those with mental
                retardation. During the trial -- at which Martinez-Villareal could not tell the
                difference between the spectators and the jury -- the prosecutors cited his
                obsession with his boots as evidence of his callous attitude toward his crime. Also,
                like many people with mental retardation, Martinez-Villareal tended to smile
                incessantly and inappropriately; during his trial, he frequently bestowed wide
                smiles on the victim's family. This too was used by the prosecutor as evidence of
                his cold-bloodedness, while in reality it showed how little he understood his
                situation.181

                Martinez-Villareal's lawyer presented no expert testimony about his retardation
                during his trial. The two people of normal intelligence who were also involved in
                the crime were never prosecuted; they claimed Martinez-Villareal alone was to
                blame.182 He was sentenced to death despite his insistence that he took no part in
                the crime.183

                Since then, Martinez-Villareal's new attorneys have appealed to Arizona's
                clemency board, presenting evidence of his retardation and other mental
                problems. His extreme disability made even this evidence-gathering difficult,
                however. Martinez-Villareal was incapable of comprehending the legal issues at
                stake or helping his lawyers make important choices. He was even frightened by
                the psychologist who came to test him, saying, "The doctor's mad at me because I
                don't know the answers. When I don't know, he gets mad!"184 The trial judge
                who originally sentenced Martinez-Villareal to death has subsequently testified that
                if he had known of his mental impairments, he would not have imposed the death
                penalty. The state's attorney who prosecuted him has said that he would never
                have sought the death penalty if he had known how mentally impaired he was.
                Nonetheless, he remains on death row.

From Human Rights Watch: http://www.hrw.org/reports/2001/ustat/ustat0301-07.htm#P867_152327

A federal law intended to speed the pace of executions does not restrict some claims by death-row inmates that they are too insane to be put to death, the Supreme Court said today.

The court's 7-2 ruling in an Arizona case said inmates whose previous claims of insanity were dismissed as premature can raise the issue again when their execution is imminent.

The Antiterrorism and Effective Death Penalty Act generally limits state inmates to one federal appeal.  But the court said Ramon Martinez-Villareal's insanity claim should not be considered a 2nd appeal and
therefore, is not barred by the federal law.

"To hold otherwise would mean that a dismissal of a 1st...petition for technical procedural reasons would bar the prisoner from ever obtaining federal...review," Chief Justice William H. Rehnquist wrote for the
court.

Today's ruling upheld a decision by the 9th U.S. Circuit Court of Appeals that halted Martinez-Villareal's execution hours before it was to occur in May 1997 and gave him a chance to pursue his insanity claim.

The Supreme Court ruled in 1986 that the execution of an insane person would violate the Constitution's ban on cruel and unusual punishment.

Martinez-Villareal, a Mexican citizen, was convicted in Arizona of killing James Thomas McGrew and Fernando Estrada-Babichi in 1982. Prosecutors said he shot the 2 to prove his manhood.

Other federal appeals by Martinez-Villareal had been rejected previously.  His 1st federal appeal had tried to raise the insanity issue but it was dismissed as premature because no execution date had been set.

When the claim was renewed, a federal judge ruled that under the new death penalty law, Martinez-Villareal must get approval from a federal appeals court to file a second appeal on the insanity issue.

But the 9th Circuit court ruled that the federal law did not bar Martinez-Villareal from raising the insanity issue again, and the Supreme Court agreed.

The inmate's 1st claim was dismissed as premature "because his execution was not imminent and therefore his competency to be executed could not be determined at that time," Rehnquist wrote.

Because Martinez-Villareal did not get a ruling the 1st time he raised the insanity issue, his new claim cannot be considered a 2nd petition under federal law, Rehnquist said.

His opinion was joined by Justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Justices Antonin Scalia and Clarence Thomas dissented, contending the law bars inmates from filing claims that previously had been presented to a federal court.

The case is Stewart vs. Martinez-Villareal, 97-300.

(source:  Associated Press)
 

ACLU legal action: http://www.aclu.org/court/stewartvmartinez-villareal.html

From Christian Science Monitor
Thursday October 30, 1997 Edition

                     Suspects, Convicts See Rights Recede
                        Robert Marquand, Staff writer of The Christian Science Monitor

     WASHINGTON -- In Hollywood and TV crime shows, the criminal justice system often
     seems set up to coddle crooks - presenting elaborate legal hurdles for police and prosecutors.

     Yet such popular perceptions often now defy reality. For years, a quiet pattern of US
     Supreme Court criminal law decisions has given law-enforcement officials a stronger basis to
     act more aggressively without fear of illegality.

     The shift is evident in a death-row case the high court agreed to hear last week. It deals with
     an area of law perhaps least familiar to the public - habeas corpus, the time-honored right of
     inmates to seek relief in federal court. But it also profoundly affects the area that often touches
     the average citizen - Fourth Amendment laws governing police in the search and seizure of
     property. To many observers, how a nation negotiates this realm of citizen's rights is symbolic
     of the overall civilizing tone and temper of a society.

                      'The main idea is simple: Why  should guilty people go free
                                          when the evidence shows they did it?'
                                                               - Akhil Amar, Yale University

     By themselves, the recent Supreme Court rulings deal with technical issues that rarely make
     headlines: Is there a difference between the search of a car and the search of a house? (There
     is.) Can a house search for, say, illegal drugs, be extended by police into a search for stolen
     property. (Usually, no.) Can police racial bias in a street search of a car or a person be
     grounds for excluding evidence in court? (Not any more.)

     Moreover, criminal law changes are shaped both by new rulings, and by the high court's
     refusal to take cases that would uphold the more liberal Warren court of the 1960s.

     For example, the high court has not in the past half-decade upheld a single case allowing the
     exclusion of evidence in trial. Criminal defenses often hinge on how well police have followed
     the law in gathering evidence. "At a subterranean level, the foundation of the Warren court
     logic is being washed away," says Akhil Amar, a Yale University law professor. "We are
     moving from an emphasis on warrants and exclusion of evidence in court to a new standard of
     'reasonableness' that gives police more latitude to investigate. The main idea is simple: Why
     should guilty people go free when the evidence shows they did it?"

     Civil libertarians shudder at changes that give civil authorities more power without oversight.
     They also lament the loss of voices on the court like the late William Brennan, who felt
     civilization was judged by treatment of its outsiders, and who once said that those in "the
     netherworld of the prison" should not be accorded fewer basic rights than anyone else. None
     of the current justices has a criminal defense background.

     "The court has taken so many teeth out of the Fourth Amendment that there aren't any teeth
     left," says David Cole, a law expert at Georgetown University here. "There's really no one on
     the court who feels sensitive to the claims of criminal defendants."

     Yet other factors weigh heavily in the direction of the court. Clearly the mood of the nation
     has been toward tougher enforcement, the rights of crime victims, and against the Warren
     court's expansion of exclusion of evidence in the 1960s to crimes like rape, murder, and
     robbery.

     That sentiment was strongly expressed in the 1996 Anti-Terrorism and Effective Death
     Penalty Act. It limited to one year the amount of time death-row prisoners could appeal their
     sentences and, most controversially, took away much of the power of federal courts to review
     prisoners' petitions.

     How much that power has shifted will be tested by the Martinez-Villareal case coming
     before the Supreme Court this session. When he was sentenced to death in Arizona,
     Ramon Martinez-Villareal's lawyers were not allowed to claim incompetence for their
     client, a Mexican citizen who killed two people and has an IQ of 64. The state judge
     said the claim, which could reduce the sentence to life in prison, was premature.

     Yet on the eve of his execution last May, prosecutors argued it was too late to hear Mr.
     Martinez-Villareal's claim of mental retardation - citing the 1996 death penalty act.

     The Supreme Court will decide not just if Martinez-Villareal has a claim, but also whether
     Congress can pass a law that forces a state court to limit its ability to execute a prisoner,
     even if the inmate has not been given a traditional review of habeas corpus.

     Part of Congress's motivation for passing the act was the premise that the justice system was
     "choked" with habeas petitions. But a Justice Department study released yesterday shows that
     the number of death-row petitions is lower than widely assumed. Only 21 percent of
     death-row inmates in state prisons (648) have active habeas petitions, representing 2 percent
     of all such claims in federal court. "The study shows what most of us knew all along," says a
     Justice Department source, "that talk of all these claims bogging down the courts is a joke."

     Meanwhile, three high-court rulings in the past two years have expanded the rights of police to
     search cars. A 1996 ruling in the case of a traffic stop of two young blacks in a poor section
     of Washington eliminated nearly all legal hurdles to a search without a warrant. The court
     ruled that police may search someone if they have a "reasonable" excuse to suspect
     wrongdoing, or a "probable cause." How reasonableness will now be interpreted is a large
     question. "The public doesn't realize how scary and even dangerous some of these police
     searches are for ordinary, law-abiding blacks and minorities," says David Sklansky, a Fourth
     Amendment expert at the UCLA law school.

        From Christian Science Monitor:  http://www.csmonitor.com/durable/1997/10/30/us/us.5.html

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