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Juan Raul Garza is set to take a final walk in early August, but he won’t be coming back to Texas. Guards will escort him from his cell on death row in Indiana. A van is likely to be waiting at the back of the building to take Garza to a holding cell in a small, new building nearby. There, Garza is to eat his last meal and receive last rites, if that is what he wants. At 6 a.m. on Aug. 5, Garza, 43, is scheduled to be put to death with a lethal injection. Death sentences and executions are common in Texas and nationwide, but they are performed by individual states. Garza’s will be the first carried out by the federal government since 1963. Garza has exhausted his appeals, but lawyers in Texas continue legal action aiming to delay or stop the death sentence while federal agencies prepare to administer the execution. On May 26, U.S. District Judge Filemon Vela of Brownsville ordered the execution. An accused drug-smuggling leader, Garza was convicted in Brownsville, Texas, on federal murder charges nearly seven years ago, and prosecutors sought the death penalty under a rarely used 1988 “kingpin” law. It allows for the death penalty if someone kills to further an illegal drug enterprise. Garza was portrayed by prosecutors as a crime boss running a major marijuana-smuggling ring and as someone who killed and ordered killings as he saw fit. Garza was found guilty of three murders, and testimony during the punishment phase of his trial pointed to Garza carrying out or ordering five more — four of those in Mexico and one of them against his son-in-law. Garza is one of 20 inmates being held in a Terre Haute, Ind., prison that houses the federal government’s only death row. Among the other death row inmates is Timothy McVeigh, convicted of the Oklahoma City bombing that killed 168 people and injured hundreds of others five years ago. They are jailed in a unit that formerly held federal Cuban detainees. The new death chamber is nearby — with a holding cell and viewing area — built by the government at a cost of $475,000, according to Bureau of Prisons spokesman Scott Wolfson. While the last federal execution was in 1963, no further executions occurred for nearly a decade after that, and, in 1972, the U.S. Supreme Court ruled the death penalty had been unfairly applied. The court restored the death penalty to individual states later in that decade — Texas was among the first — and then on the federal level in 1988. LEADER OF THE PACK Prosecutors leaped through a number of legal hoops to get Garza’s death sentence under the “kingpin” statute. Assistant U.S. Attorney Mark Patterson, lead prosecutor in the case, says they had to prove that Garza killed while standing as leader and organizer of a continuing criminal drug enterprise that transported a series of loads as part of a conspiracy. The indictment against Garza alleged he led the smuggling of tons of marijuana into America between 1983 and 1993. And prosecutors had to show specifically that Garza managed five or more people and made a substantial personal income from the illegal business. Houston sole practitioner Douglas C. McNabb, who specializes in federal criminal-defense cases, was hired by Garza after his arrest. At first, Garza was charged only for a drug conspiracy, but the charges were later upgraded to include murder. “He asked me, ‘Can I get a death sentence?’ ” McNabb says. “ I told him that was largely a state thing and not a federal thing.” But the possibility of prosecutors seeking a death sentence soon appeared, and McNabb says he asked Patterson to talk with him first before seeking authorization to press for that punishment and thought they had a deal. But he says a few days before Christmas 1992, he got a call from Patterson saying that authorization had been granted to seek the death penalty. “I am upset that Mark sought and received the death penalty against Garza when I thought I had an understanding with him that we would talk before he did that,” McNabb says. The defense attorney says he would have liked the chance to talk the prosecutor out of it or to see if they could strike another agreement. McNabb says Patterson recalled making no such deal. “It just kind of chaps me,” McNabb says. While Patterson says he does not recall the incident, he does say that he could not have made such a deal with McNabb. “At the time, there was a prohibition against using the possibility of a death penalty charge as a hammer to get a plea,” Patterson says. With his client facing the death penalty, McNabb turned to fellow Houston lawyer Philip H. Hilder, of Hilder & Associates, for help. Hilder tried the case and complains that the path from indictment to trial and to punishment was a “whirlwind.” “It was crazy,” Hilder says. “It was a rush to judgment for sure.” The case went to trial the following July. Along the way, Hilder says the government kept amending the indictment and adding victims. He complains the addition of the five additional murders, including the allegations of killings in Mexico, gave him too much to defend against in the time he had to prepare for trial. And he says the government struck deals with numerous Garza associates, including the triggermen in some of the murders, giving them relatively light sentences in exchange for their testimony against Garza. “The government made deals with the devil,” Hilder says. “I think the government wanted to make Juan Raul Garza the poster child of the federal death penalty statute.” Patterson says he does not recall any motions for continuance that were not granted. But Hilder says a motion to continue filed to let Garza listen to hundreds of hours of government surveillance tapes led to a “bare minimum” delay of a bit more than a month and sent a message to him that the trial would not be continued. And he says a motion for continuance of 30 days — made in June when the government added one of the alleged murders in Mexico to its case — was denied. PREPARATIONS UNDER WAY Houston’s Greg Wiercioch of the Texas Defender Service, a nonprofit agency that represents indigents appealing death sentences, stepped in to handle Garza’s habeas corpus appeals. Wiercioch unsuccessfully appealed the unadjudicated offenses from a foreign country that were introduced during the punishment phase of Garza’s trial. He is still at work in the waning weeks before the death sentence is to be carried out, having filed a motion to reconsider the death penalty date with Judge Vela. Wiercioch is also preparing to seek a presidential delay or commutation of Garza’s sentence. In his motion to Vela, Wiercioch says the defense has a pending Freedom of Information Act request to the Department of Justice, seeking information on how it reached death penalty authorization for Garza. Wiercioch says the defense is watching for the results of a Department of Justice study, announced in February, examining potential racial disparities in the death sentence authorization process. He says a case before the U.S. Supreme Court involving sentencing instructions to jurors might impact the Garza case. And Wiercioch is asking the judge to delay the sentence because of a pending international law complaint filed on behalf of Garza with the Inter-American Commission on Human Rights, a complaint focused on the use of those unadjudicated allegations of murders committed in Mexico. Wiercioch is waiting for Vela to rule, and if he sticks to the current execution date, Wiercioch will then petition the president. He is prepared to seek presidential help about one month before the execution date if Vela has not ruled by then. In Terre Haute, preparations are being made for the execution to be performed as scheduled. The Bureau of Prisons’ Wolfson says specific steps for the execution are being put in place. Preparation is also under way for dealing with media coverage and death penalty protesters or supporters who may be there. He says federal employees over the years have met with officials in states that carry out executions and have even viewed them. Wolfson says the execution of Garza will be “humane, appropriate and expeditious.” For his part, Patterson is satisfied that justice will be served. He says Garza is thoroughly cold blooded; he points to testimony by a federal prison warden saying Garza although incarcerated, could continue to order killings inside and outside of the prison if he wanted. Notes Patterson, “Since he’s being put away [with a death sentence] maybe somebody else will live that might not have.”

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