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staff reporter 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 (DOJ) 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 & 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. U.S. v. Acosta-Martinez, 106 F. Supp. 2d 311 (U.S.D.C., Puerto Rico). 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. U.S. v. Acosta-Martinez 252 F.3d 13 U.S. Ct. of App., 1st dist. (2001). 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. In Pennsylvania 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 D.A.’s communications director, said Martinez’s was “a potential capital case, but no decision had 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 an ex-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.” Post’s e-mail address is [email protected].

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