Stopped at the Border

When four people were killed in a San Bruno apartment, shot over an apparent drug debt, investigators arrested two of four suspects. The others, including the alleged ringleader, fled to Mexico. San Mateo County District Attorney James Fox had to decide: Should he extradite the suspects and invoke a 1978 U.S.-Mexico treaty that would limit their punishment? Or should he allow Mexican authorities to bring the men to trial, risking acquittal, under the same sentencing restrictions? Fox’s dilemma is well known among prosecutors. For years, they’ve had to agree to cut deals to get extraditions from countries that oppose the death penalty. But there’s a new wrinkle from Mexico. Ever since an October 2001 decision from Mexico’s Supreme Court, authorities there also will not extradite in cases where life imprisonment without parole is a possibility. For his strategy in the multiple homicide case, Fox picked door No. 3. He decided to forgo extradition and Mexican prosecution and now hopes the wanted men will sneak back into the United States. If they do, Fox wants them arrested and prosecuted in his county. The strategy keeps Fox from prosecuting under Mexico’s sentencing conditions. It also means the suspects might never be brought to justice. “The present situation rewards and encourages people to flee to Mexico for any serious crime,” Fox said. “I don’t think that’s good public policy for Mexico, and it affects law enforcement here. There’s a real incentive [for suspects] not to be taken [alive].” Fox’s choice is becoming more common among district attorneys, who are growing increasingly upset at what they see as Mexican intrusion into the U.S. judicial system. Mexico and its supporters point out that Mexico, like the United States, is a sovereign nation with laws other countries should respect. If its highest court says death and indeterminate sentences are unconstitutional, then officials dealing with extradition must abide. “Mexico, when it comes to extraditions, is following the law,” said Sandra Babcock, a Minneapolis solo who represents Mexico at the International Court of Justice in the Hague. Besides, she added, “on the issue of the death penalty, Mexico is squarely in line with the rest of the western world.” Canada, which is also opposed to the death penalty, can be a problem for DAs, too. But it’s Mexico’s sentencing conditions beyond capital punishment that rankle prosecutors. Because of the court decision, DAs would have to agree to seek no more than 60 years. That’s a condition Fox and others say is unpalatable. Not only do the DAs dislike what they see as another country meddling in U.S. cases, they also don’t like the idea of criminals escaping punishments allowed under state law. More than 40 crimes in California qualify for life sentences. The DAs, led by Los Angeles District Attorney Steve Cooley, are trying to change the situation. They’ve written a letter to Attorney General John Ashcroft urging him to pressure the Bush administration to come up with a remedy that would allow DAs to extradite without the conditions imposed by the treaty and the Mexican court decision. The DAs are also backing a bill in California, AB 1432, to roll back a provision in state law that added an additional protection against double jeopardy. Assemblyman Marco Firebaugh, D-South Gate, is sponsoring the bill, and the California District Attorneys Association has thrown its weight behind the measure. The DA group believes the proposal would allow prosecutors to put people on trial even if they’ve already been convicted of the same crime in another country. California Attorneys for Criminal Justice opposes the measure, saying it violates double jeopardy and international treaties. Other legislators have joined the DAs’ fight and are pressuring the top levels of both the U.S. and Mexican governments to reverse the Mexican Supreme Court decision or figure out a way around it. U.S. Rep. Howard “Buck” McKeon, R-Santa Clarita, has a resolution pending, HCR 93, that would urge President Bush to renegotiate the extradition treaty. At the state level, Assemblyman Dennis Mountjoy, R-Monrovia, has introduced a measure urging passage of McKeon’s resolution. Both legislators were spurred by the 2002 shooting death of Los Angeles County sheriff’s deputy David March. The suspect in that case also fled to Mexico. Even Democratic Sen. Dianne Feinstein is involved. She wrote a letter in July asking Mexican President Vicente Fox to help resolve the issue. But the legislators’ activities don’t carry any force of law — in the United States or Mexico. Only President Bush has the power to renegotiate the treaty; but even if he did, the Mexican Supreme Court decision was based on the Mexican Constitution, which trumps any treaty. Unless that court decision is overturned, the policy will stand. The DAs’ best hope rests with the Mexican attorney general’s office, which has asked the court to reconsider its decision. The court is scheduled to settle the issue this fall or by early next year, said Alberto Gonzalez, a special assistant attorney general who heads law enforcement affairs with Mexico for state AG Bill Lockyer. In the meantime, district attorneys aren’t the only ones coping with the extradition policy. Defense attorneys say not prosecuting suspects can affect their side, too. The San Mateo shooting case is a prime example. “It is frustrating for us,” said David Goldstein, a Redwood City attorney who represents Raul Campos, one of two defendants who are in custody. “I think that everyone agrees that the two people in Mexico are the two most culpable defendants.” Goldstein works through the county Private Defender Program. His client was under 18 when the shooting happened Jan. 11, 2002, so he isn’t eligible for the death penalty. Campos is being prosecuted alongside Alfredo Valenzuela on murder with special circumstances charges. At first, DA Fox sought death for Valenzuela, but now both defendants face life imprisonment without the possibility of parole. The trial is scheduled for February. The defendants are accused of taking part in shooting to death Jose Alberto Munoz-Lopez, Emilio Alba-Flores, Roberto Ramos-Guerra and Javier Vaca. Investigators believe the motive for the killings was a drug debt. They say Jorge Hernandez is a known dealer and believe he led the shooting and fled to Mexico along with another suspect, Lazaro Perez. Hernandez was captured and briefly detained by Mexican authorities but released when Fox declined to seek extradition. If he had tried to extradite and failed, Mexican officials would automatically have prosecuted him for the crime. That would have ended Fox’s hope that Hernandez eventually will be arrested and prosecuted in the United States. Goldstein said he would like the two fugitives brought back because he’s afraid that their absence means his client will be held more responsible in the crime than if the DA had the opportunity to hold everyone accountable. Also, Goldstein and Eric Liberman, who represents Valenzuela, wonder what Hernandez and Perez might say if they were brought back — although they concede it’s unlikely that either man would exonerate their clients. Campos and Valenzuela waived their Miranda rights and spoke to police about the shootings. “I was greatly troubled when I heard they caught this guy and lost the chance to bring him back,” said Liberman, a Millbrae solo who also works through the Private Defenders Program. Besides not wanting to be controlled by another country’s judicial policy, DA Fox said there was another important reason why he chose not to extradite. “It’s a question of equal protection,” Fox said. To abide by the conditions of the Mexican Supreme Court, Fox would have to agree that neither man would get more than 60 years in prison. That means he’d have to reduce the charges on the extradited defendants while the two arrested in the United States — who could be less culpable — would face harsher terms. Of course, Fox could apply that deal to the entire case and prosecute the other defendants under those same conditions. But he doesn’t like that option, either. “We don’t think that two people in the U.S. should be rewarded by facing a lesser penalty because someone got to Mexico. Nor do we believe they should be punished more severely than someone who is a ringleader,” Fox said. “Frankly, I don’t understand why the Mexican authorities would rather have a stone cold murderer � putting their own citizens at risk.” Lawyers at the Mexican Embassy in Washington, D.C., did not return calls seeking comment. Babcock, the lawyer who represents Mexico, believes the country is being unfairly criticized for its judicial policies. “I think what the United States should do is look at its laws and figure out why we are out of step with the rest of the world” when it comes to punishment and incarceration, she said. Babcock said there is nothing unusual about Mexico’s imposing its policies on extraditions. Gonzalez, of the state AG’s office, agreed and pointed out that the United States makes sure other countries follow the Fourth Amendment before it agrees to extradite. Babcock said she sees the extradition controversy as another example of the United States’ lack of respect for Mexican and international laws. She’s also working on the Mexican government’s complaint to the International Court of Justice regarding U.S. authorities’ alleged failure to allow Mexican nationals to contact their consulates. Mexico alleges that 54 people now on death row — 28 of them in California — were denied that right, which was granted under the 1969 Vienna Convention on consular relations. She hopes a 15-judge panel of the Hague court will grant some kind of remedy, such as ordering new trials in the cases. A decision is expected in 2004. For their part, the San Mateo defense attorneys appreciate the district attorney’s position. Even so, Goldstein said it would be better to get the men back, even if that means agreeing to 60 years, which “is better than nothing.” Taking off his lawyer hat and speaking as a taxpayer, Liberman said it troubled him that Mexico is able to hold such sway in a U.S. case. But at the same time, he said, just as Fox said he worries about people not wanting to be taken alive while trying to flee to Mexico, his policy raises another public safety concern. “Are we more concerned about bringing this person to justice in San Mateo,” Liberman asked, “or are we more concerned with bringing this person to justice for the greater good?”