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The tiny church on San Juan, Puerto Rico’s San Francisco Avenue is 250 years old. Older than almost anything in the city. Older, it must be said, than the United States of America. The church, La Capilla Franciscana, established by the Third Order of Saint Francis in 1756, is nearly full. It’s noon on a steaming day in November, the temperatures here still clinging to the 80s. But there is no mass being said now. The people are mostly old, modestly dressed, crouched, their hands clenched together in prayer, some holding rosaries. It is almost entirely silent, save for the whirring of the overhead fans and an occasional soft murmur in Spanish. Surrounding the churchgoers are the stations of the cross, chronicling the suffering of Jesus Cristo on the last day of his life. It is a tale that the majority of people on this predominantly Catholic island know — and believe — by heart. Standing there, it doesn’t escape your notice that the sight of Jesus at the crucifixion, nailed to the cross, might make for the most dramatic illustration of capital punishment in history. THE WILL OF THE PEOPLE Executing criminals is illegal here. There hasn’t been an execution in Puerto Rico since 1927; its commonwealth constitution, enacted in 1952, bans the practice entirely. But this is Puerto Rico. Local law doesn’t carry the day. This island, a U.S. territory, has been agonizing through an identity crisis for decades. But now things are becoming even more fractured. Statehood, it seems, is less of a prospect than ever. In November, the electorate picked an anti-statehood candidate, Sila Calderon, as its new governor, replacing the U.S.-friendly Pedro Rosello. Anti-American sentiment is running high. Much of it is a result of the U.S. Navy’s use of the neighboring island of Vieques as a bombing range. Large-scale citizen protests at Vieques led to a flood of arrests by the FBI in May of this year. The death penalty is very much at the heart of the controversy regarding Puerto Rico’s fraying tether to the United States. It never used to be an issue. Before 1994, when Congress established a new set of federal crimes warranting death, capital cases weren’t tried here. Since 1994, however, things have shifted dramatically. According to a Justice Department study released in September, the U.S. attorney’s office in Puerto Rico has asked for the death penalty more often than any other federal court district in the country, except for one, the Eastern District of Virginia. Puerto Rico currently has eight defendants facing death in pending cases, the highest number of anywhere in the United States. Surveys show that the island’s 3.8 million residents overwhelmingly are against the death penalty. Most politicians do not support it. The Catholic Church has vocally opposed it. Earlier this year, the Puerto Rico Bar Association passed a resolution condemning it. “The people are adamantly opposed to the death penalty,” says Jorge Arroyo, a criminal lawyer in San Juan. Despite the federal government’s efforts, not a single capital jury in Puerto Rico has returned a death sentence since 1994. That disparity — the gulf between the will of the people and the hand of the federal government — came to a head in July when a federal judge in San Juan expressly prohibited prosecutors from seeking the death penalty for two defendants in a kidnapping and murder case. U.S. District Judge Salvador Casellas ruled that the 1994 federal death penalty law was not binding because Puerto Rico had no vote in Congress. “It shocks the conscience to impose the ultimate penalty, death, upon American citizens who are denied the right to participate directly or indirectly in the government that enacts and authorizes the imposition of such government,” Casellas wrote. “Puerto Rico’s characteristic culture and traditions,” he added, “must not be overlooked.” The Justice Department has appealed Casellas’ ruling to the 1st U.S. Circuit Court of Appeals. “We’re talking about setting Puerto Rico apart from all other states, and we can’t allow that to happen because it’s going to affect the applicability of the federal justice system,” said the acting U.S. attorney in San Juan, Guillermo Gil, when the appeal was filed. The plight of the District of Columbia — also without a real vote in Congress — mirrors Puerto Rico’s. Earlier this year, the U.S. attorney in the District, Wilma Lewis, clashed with Attorney General Janet Reno over Carl Cooper, the defendant in the 1997 Starbucks triple murder in Washington D.C.’s Georgetown neighborhood. Lewis didn’t want the death penalty, but she was overruled by the Justice Department. Sen. Fernando Martin, a member of the Puerto Rico Independence Party, echoes some sentiments about the District’s situation when he talks about the federal government’s role on his island. “It smacks of tyranny,” Martin says. LEARNED HANDS William Matthewman has the skyline of Miami for his office backdrop, but has Puerto Rico on his mind. “I don’t understand why the federal government feels compelled to try and impose the death penalty on a people who don’t want it,” the criminal defense lawyer says. “It makes no sense.” Matthewman isn’t objective about it. He has evolved into a federal death penalty specialist in Puerto Rico. The Miami lawyer estimates he has handled more than 15 potential capital cases on the island. Mainland lawyers like Matthewman — dubbed “learned counsels” in death penalty parlance — are necessary to the process in Puerto Rico, because few lawyers on the island have experience trying death penalty cases. “There is a total lack of death penalty law experience,” says San Juan lawyer Arroyo. “That means we need to get some assistance.” Earlier this year, Matthewman was able to convince a San Juan federal judge to strike a death penalty charge for his client, Nicholas Pena-Gonzalez, accused of murder. Matthewman contended that medical tests proved Pena-Gonzalez was mentally retarded. The federal government appealed. Matthewman went to Washington to seek mercy from the Justice Department’s Capital Case Review Committee, a body created by Reno in 1995 in an attempt to ensure all federal death penalty cases were thoroughly reviewed. The department acquiesced, but not because of anything to do with Puerto Rico’s misfit political status. “They really seem to be oblivious or unconcerned about the Puerto Rico constitution issue and the sovereignty issue,” says Matthewman, who has appeared before the review committee more than a dozen times. “I’ve made the point to the point where I feel like I’m arguing to a wall.” Ray Velarde, general counsel to the League of United Latin American Citizens, a Hispanic advocacy group, says cultural factors should play a role. “These people [on the review committee] have no connection with minority people,” he says. “How can you impose your values on me when I’ve lived them and you haven’t?” THE GREAT DIVIDE There is little indication that the Justice Department treats Puerto Rico any better than other states. And maybe even worse. According to the September Justice Department report, the death penalty is pursued in greater numbers here than almost any place else in America. Between 1995 and this year, Gil, the U.S. attorney in Puerto Rico, sought the death penalty in 14 of 72 potential cases. Pursuant to death penalty protocol, all 72 cases were submitted to the DOJ and the Review Committee. Reno, who must approve all federal death sentences, ultimately marked 13 defendants for execution. Again, only the Eastern District of Virginia featured higher totals. The Justice Department study, commissioned by Deputy Attorney General Eric Holder Jr., also showed a disproportionate impact on minorities. Nationwide, 72 percent of defendants sentenced to death were nonwhites. Currently, on federal death row there are 20 men — 16 of them minorities. “At this point, we are troubled by the figures but we have not found the bias” in the department’s procedures, Reno said in September. President Bill Clinton last week stayed the Dec. 12 execution of Juan Raul Garza, citing concerns raised by the Justice Department study. Garza would have been the first federal execution in 37 years. Reno personifies the tension that exists in a place like Puerto Rico. She personally opposes the death penalty, but has sworn to enforce it. Shortly after her confirmation in 1993, she delivered a speech at the National Press Club in which she explained why. “I think that the whole purpose of law as I know it is to value human life. And for government to legally take human life is inconsistent with that ultimate approach,” Reno said. “I think that the only purpose for the death penalty, as I see it, is vengeance, pure and simple vengeance. I always used to say while my mother was alive that, if I had walked into that house and found that somebody had killed her and they were still there, I’d tear those people apart from limb to limb with my own hands. But I think vengeance is a very personal feeling, and I don’t think it’s something a civilized government should engage in.” As AG, Reno hasn’t hesitated to exercise her discretion in signing off on death cases. Ultimately, she has approved only about one-fourth of the cases sent her way (the most notable being Oklahoma City bomber Timothy McVeigh), although she follows the recommendations of the review committee the great majority of the time. But prosecutors in Puerto Rico have yet to obtain a single death penalty conviction. Arroyo doesn’t think they ever will get a unanimous jury to render a death sentence. Matthewman has a trial scheduled to begin here next month. Gil’s tenure as U.S. attorney in Puerto Rico has also been problematic. He was appointed on an interim basis by the federal court in San Juan in 1993. His name has never been submitted to the Senate by the White House for confirmation. Instead, he has served in an acting capacity for seven years. Earlier this year, U.S. District Judge Carmen Consuelo Vargas threw out a drug trafficking indictment because of Gil’s status, holding that Gil had held the position too long without confirmation. She ruled that Gil no longer had the authority to prosecute in the name of the government. That decision was overturned by the 1st Circuit in July. But Maria Sandoval, a San Juan lawyer defending one of the drug-trafficking defendants, has petitioned the U.S. Supreme Court for certiorari in the matter. To death penalty critics like Arroyo, the fact that Gil, while serving on an interim basis, has approved as many capital cases as he has “makes it all the more grievous.” PACKING THE JURY San Juan is emblematic of Puerto Rico’s political status. The old section of the city features buildings from the days of Spanish colonization. Beyond that, the feel is of a modern Latin American capital. One foot in the old. One in the new. Juan Pablo De Leon’s faith is what pushes him to rail against capital punishment. That’s what makes meeting him in a hotel casino in Old San Juan, with cruise ships anchored in the distance, all the stranger. A golden crucifix shimmering at his throat, De Leon contends that “it is impossible for a Christian person to think of death as a solution to the criminal situation in a civilized society.” De Leon is the coordinator for Los Ciudadanos Contra la Pena de Muerte, citizens against the death penalty. In uncertain English, with the slot machines ching-chinging behind him, he says, “Don’t tell us the problem is our status. We cannot wait to solve that problem. Someone will be killed in the meantime.” He says that the controversy over the U.S. Navy’s presence in Vieques has altered the way that many residents view the United States. “Before Vieques, people saw the federal government as infallible, untouchable, bigger than us, part of our colonialistic history,” he says. “After Vieques, the society has been confronted with their power to change things.” That November day, De Leon held a press conference in an attempt to draw attention to his cause during the gubernatorial campaign. Most of his time is spent giving speeches against the death penalty and encouraging residents to action. The next time a death penalty trial is held, he and other protesters will rally outside the federal courthouse. “The most important thing,” he says, “is to educate the people, because the jurors are going to the Puerto Rican people. We have to put them in a position to make an oriented decision.” To Arroyo, the most ironic aspect of the federal government’s presence here is that if a conviction is ever obtained, the death sentence would be carried out in a federal prison on the mainland. “They would not be killed in Puerto Rico,” he says. “That sort of adds insult to injury.”

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