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Puerto Rico Clashes With U.S. Justice Department, PA. Over Death Penalty…Acquittal Averts Fight Over Death Penalty…Exonerated Remain Jailed

Puerto Rico Clashes With U.S. Justice Department, Pennsylvania Over Death Penalty

By Leonard Post

July 22, 2003
Copyright © 2003 Miami Daily Business Review, ALM Properties, Inc. All rights reserved.

A clash of cultures and governments over the death penalty has erupted in Puerto Rico, pitting the commonwealth against the United States and the state of Pennsylvania.

A capital trial has begun in a federal court in Puerto Rico and, next month, a public defender is set to fight the extradition from Puerto Rico of a man facing a murder charge in Pennsylvania, because it might be charged as a capital crime.

Both situations stir the passions of Puerto Rican nationals, and a large segment of the island's legal community. The commonwealth outlawed the death penalty in 1929. Its constitution, ratified by Congress in 1952, provides: "The death penalty shall not exist."

In the federal case, the Department of Justice ignored Puerto Rico's ban on the death penalty when it charged two reputed gang members with capital crimes and sought the death penalty. Later, that contention won the support of the 1st U.S. Circuit Court of Appeals.

Hector Oscar Acosta-Martinez and Joel Rivera-Alejandro, the reputed gang leaders, are accused of the 1998 kidnapping of a grocer, Jorge Hernandez Diaz, who was shot to death then dismembered, allegedly because his family had called the police after receiving a ransom demand.

The federal jurisdiction for the local crime is based on a killing in retaliation for cooperating with the government and on an intentional crime of violence resulting in a death by a firearm.

Kevin McNally, a federal death penalty counsel, believes that in asserting federal jurisdiction, Attorney General John Ashcroft is "imposing his personal preference regarding capital punishment on areas ... that are less hospitable to the death penalty than, say, Texas, but without much success."

He noted that in the United States, 15 of the last 16 federal juries that have had the opportunity to consider it have voted for life sentences rather than the death penalty.

Policy questions telephoned to the DOJ public affairs office were answered in a generic e-mail from Barbara Comstock, director of public affairs, that didn't mention Puerto Rico.

"The death penalty is the law of the land, provided for as the ultimate punishment for heinous crimes," it said. "A process exists for seeking the death penalty and reviewing plea agreements in capital cases" that "is designed to ensure consistency and fairness in the application of the death penalty in all U.S. attorney districts across the country."

Joint understanding

Puerto Rican authorities had agreed in a memorandum of understanding with the local U.S. attorney's office that local violent crime often would be prosecuted by the federal government when federal jurisdiction existed, a federal judge noted. In the past, however, those charged with federal capital crimes had been allowed to plea to a sentence other than death, local lawyers said.

In 2000, the defendants in the grocer's death challenged the applicability of the death penalty in the commonwealth in U.S. v. Acosta-Martinez.

District Court Judge Salvador Casellas granted their motion, declaring that the Federal Death Penalty Act was inapplicable to Puerto Rico because it conflicted with Section 9 of the Puerto Rican Federal Relations Act.

That section states that "the statutory laws of the United States, not locally inapplicable ... shall have the same force and effect in Puerto Rico as the United States."

Casellas pointed to particular internal revenue law and federal maritime law that has been held to be locally inapplicable as examples of the section's application. He acknowledged that some federal law that conflicted with Puerto Rico's does control, such as the Omnibus Crime Control and Safe Streets Act. It trumps Puerto Rico's prohibition against wiretapping. But, he declared, "Death is different ... unique in its irrevocability."

He was overruled by the 1st Circuit Court of Appeals, which rejected his contentions. Citing its own precedent, it held that "Congress maintains similar powers over Puerto Rico as it possesses over the federal states," and that the island's constitution only governs its own courts "as state constitutions govern state courts."

While accepting the "strength of Puerto Rico's ... moral and cultural sentiment against the death penalty," it called the issue before it a strictly legal one of congressional intent. That intent, it held, was to include Puerto Rico under the Death Penalty Act.

The Supreme Court denied certiorari. It could still visit the issue on appeal if the defendants are sentenced to death.

The issues will be raised anew on Aug. 7, when Pennsylvania attempts to extradite Juan Martinez-Cruz for murder. In 2000, he allegedly shot a 32-year-old man multiple times in an argument over a woman in a bar.

Cathie Abookire, the Philadelphia district attorney's communications director, said Martinez's was "a potential capital case, but no decision has been made on whether to seek the death penalty."

Luis Russi, Martinez's San Juan-based Legal Aid lawyer, said he will fight the extradition under international legal principles, the first such challenge on the island, unless Martinez is guaranteed in writing that he will not be subject to the death penalty.

"If we have to, we'll take it to the Commission on Human Rights in Geneva or the international court in the Hague. We are a different nation than the United States - the death penalty does not apply here."

Rosa Alexandrino, chief of the Extradition Division of Puerto Rico's Department of Justice, had no doubt that a court would issue a governor's warrant that allowed the extradition.

While the commonwealth's Justice Department opposed the federal capital trial, filing an amicus brief in the U.S. Supreme Court, it is not opposing the extradition.

"Extradition is a constitutional mandate - there is no discretion," Alexandrino said.

She distinguishes the department's positions regarding the two cases as the difference between "importing the death penalty," having it on its sovereign soil and "exporting it."

"There is a presumption that a defendant's due process rights will be preserved by the state requesting extradition," she said.

Both the hope that this was true and the reality that, sometimes, it was not, was apparent in her voice.

Arturo Luis Davila-Toro, president of the Puerto Rico Bar Association, insists that the extradition violates the compact between Puerto Rico and the United States.

"If Puerto Rico doesn't recognize capital punishment as a way of punishing felonies, this means that there can't be an extradition that approves and utilizes the death penalty to punish an alleged crime," Davila said.

He called it a serious constitutional confrontation between the United States and the commonwealth, which have "a sui generis political relationship."

Wilma Reveron, a founder of Ciudadanos Contra la Pena de Muerte (Citizens Against the Death Penalty) and a former vice president of the Puerto Rico Bar Association, wants Congress to step in.

Reveron noted that the Death Penalty Act excludes Native Americans for acts committed on Indian soil, unless a tribe elects to opt in. Her group wants the same treatment for Puerto Rico, and wants her government to take a more affirmative stance.

"They have been too shy in defending the constitution," Reveron said.

She also wants the local Justice Department to abrogate its Memorandum of Understanding with U.S. prosecutors.

On the international front, the citizens' group has filed an initiative with the Commission on Human Rights.

Reveron said that matter had been referred to a confidential committee. On June 9, she made a presentation on the federal prosecution to the Decolonization Committee of the United Nations.

"It's not only a question of human rights, it's a question of self-determination," she said.

Last week, Anabelle Rodriguez, the Secretary of Justice of Puerto Rico, Alexandrino's boss, and the island's highest ranking law enforcement official, said it would not be proper for her to comment on a pending prosecution, "a matter for the courts to determine," she said of the federal case.

But she had no reluctance to speak about the commonwealth's prohibition against the death penalty, which she "wholeheartedly" supports. "It is reflective of our collective consciousness." u

Leonard Post reports for the National Law Journal, an affiliate of the Daily Business Review.

Acquittal In Puerto Rico Averts Fight Over Death Penalty


August 1, 2003
Copyright © 2003 THE NEW YORK TIMES. All rights reserved.

Jurors in a closely watched federal death penalty case in Puerto Rico acquitted the two defendants yesterday, elating many Puerto Ricans who had bitterly opposed the trial and accused the Justice Department of callously betraying their culture and constitution, which outlaws capital punishment.

The jury of seven men and five women cleared the men, Joel Rivera Alejandro and Héctor Óscar Acosta Martínez, of all charges after three days of deliberation. Mr. Alejandro and Mr. Acosta Martínez had been accused of shooting to death and dismembering a grocery store owner in February 1998 after kidnapping him and not receiving the $1 million ransom they demanded. The two men were released from federal custody after the acquittal, while several dozen of the men's relatives wept in the courtroom after the verdicts were read.

The jury had been sequestered since Tuesday, and it was not immediately clear whether questions about the federal government's right to have jurisdiction in the case affected their decision. The jury had sent out several questions to the judge, Héctor Laffitte, about one of the charges – conspiracy to interfere with interstate commerce – that the Justice Department had used in its attempt to get jurisdiction over the case.

William D. Matthewman, a lawyer for Mr. Acosta Martínez, said last night that the acquittal was a blow to the Justice Department's attempts to administer the death penalty even in regions that oppose or outlaw it for nonfederal trials. In addition to Puerto Rico, 12 states and the District of Columbia do not have the death penalty.

Under Attorney General John Ashcroft, the department has been seeking the death penalty more often and in more places than earlier administrations had, and officials in Washington regularly override local recommendations not to seek the death penalty. The idea, Justice Department officials have said, was to treat those charged with serious crimes similarly regardless of where the crime took place.

"Imposing the death penalty in Puerto Rico is like pouring oil on one of their beautiful beaches," Mr. Matthewman said in a phone interview. "It's unnecessary, and the federal government has been dealt a severe blow in their attempt to nationalize the death penalty."

Mr. Matthewman added, however, that he believed the jury acquitted the defendants primarily because of a lack of evidence. For example, he said, none of more than 200 DNA samples collected from the crime scene matched his client.

Attempts to reach Gov. Sila Calderon of Puerto Rico, who has said she vigorously opposes the death penalty but who was reluctant to intervene during the trial, were unsuccessful last night. Charles Miller, a spokesman for the Justice Department, said the department had no comment.

Eudaldo Baez Galib, a Puerto Rican senator who is the chairman of the Senate's judiciary committee, said that the verdict rendered the death penalty debate on the island moot, at least for now.

"It would have been interesting to see if they were found guilty," Mr. Galib said. "Then we would have had an issue on our hands."

Some Puerto Rico residents yesterday suggested the trial was just the latest reason why the island should seek independence. The controversy over the death penalty case came just months after the United States Navy shut down its bombing range on the Puerto Rican island of Vieques, which for years had been a major source of friction between Puerto Ricans and the United States federal government.

Puerto Rico abolished capital punishment in 1929 and has not had an execution since 1927, when a farm worker found guilty of beheading his boss with a machete was hanged.

Polls also have found that much of the heavily Catholic population opposes the death penalty on religious and moral grounds.

On the other hand, politicians who advocate Puerto Rican independence received only 5 percent of the vote in the most recent elections. The island's four million residents are American citizens, but they have no voting representation in Congress and cannot vote in presidential elections.

Exonerated Men Will Not Be Released From Prison For Now

August 1, 2003
Copyright © 2003 ASSOCIATED PRESS. All rights reserved.

SAN JUAN (AP) — The Puerto Ricans exonerated Thursday night in the first trial on the island that could have ended with the death penalty will not be released from prison for now.

This was confirmed Friday by U.S. District Attorney Humberto Garcia and family members of Joel Rivera Alejandro and Hector Acosta Martinez, exonerated from the kidnapping and murder of businessman Jorge Diaz Hernandez in 1998.

Rivera Alejandro and Acosta Martinez remained in the federal jail in Guaynabo and are expected to be transferred to Prison 308 in Bayamon on Friday, according to Milagros Llompart, prison control coordinator of the Corrections & Rehabilitation Administration.

Llompart, however, could not specify what judicial processes Rivera Alejandro and Acosta Martinez have pending in the state sphere.

Garcia said in a press conference that he was "disappointed" with the not guilty verdict against the two men and said they will not be released from prison because they "have previous cases" pending at the state level.

Meanwhile, Acosta Martinez’s father, Hector Manuel Acosta, said the lawyers told him that the inmates themselves asked not to be released from prison until their prison status in the state sphere is cleared up.

"They asked the bailiffs," Acosta told reporters in front of the federal jail, where he arrived early in wait of his son’s release.

Family members of the two men denied that the pair refuse to leave the jail for fear that someone would threaten their lives.

Meanwhile, Police Superintendent Victor Rivera Gonzalez said the unofficial information he has received is that one of the men has a state sentence pending, but he could not say why the other one has not been released.

"What I have been told, and it is not official, is that apparently one of them was serving a state sentence, and if that’s the case, they will not immediately release him, but he will be taken to the state prison facility where he was serving his time," Rivera Gonzalez said.

According to published reports, only Acosta Martinez is waiting for a motion for a new trial in a second-degree murder case at the state level.

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