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Until last week, Timothy McVeigh had been keeping company on death row with the likes of Billie Jerome Allen, Jeffrey William Paul, and Juan Raul Garza. The similarities between McVeigh and the other men were few and end with their mutual final destination, the cushioned slab in the execution chamber at the federal prison in Terre Haute, Ind. McVeigh, a white male from Buffalo and former Army gunner, committed a sweeping act of domestic terrorism that took 168 lives. Allen, an African-American, was convicted of killing a bank guard in an armed robbery in Missouri. Paul, a white teen-ager, murdered an elderly man in a national park in Arkansas. And Garza, who’s scheduled to die this week, is a Hispanic from the Mexican borderland and a large-scale marijuana dealer who murdered three members of his drug operation. Garza filed a second appeal with the U.S. Supreme Court Friday, requesting his execution be delayed. Barring a last-minute reprieve, he will die the same way McVeigh did a week before him, with three sets of lethal chemicals traversing his veins. McVeigh’s case was the exception on the federal death row. Garza, on the other hand, is emblematic of the 19 remaining defendants who await execution in Terre Haute. A minority male convicted of crimes that, while uncontestably severe, don’t significantly differ from those that have landed other defendants a lifetime in prison — or a time-reducing plea bargain. “That’s the way the death penalty works,” says Gerald Zerkin, a capital crimes defense attorney in Richmond. “The distinction between who gets death and who doesn’t is somewhat arbitrary. That’s endemic to all death rows, state and federal.” It wasn’t supposed to be that way. When federal capital punishment was revived in limited fashion in 1988, the idea was to provide the ultimate remedy for the most brutal of offenses, a sparsely used measure reserved for drug kingpins. That changed along the way, as lawmakers expanded the categories of federal crime. “Everyone thinks everyone on [federal] death row is like Tim McVeigh and had the same representation and the same certainty about his guilt,” says Atlanta defense attorney Jack Martin. “A lot of these cases are run-of-the-mill. It’s the same odd assortment of people you get on state death rows. Where’s the compelling federal interest?” Martin represents another convict on the row at Terre Haute, Anthony Battle, an African-American inmate convicted of murdering a federal prison guard while serving time for the murder of his wife. But when Martin recently represented an accused multiple murderer in Detroit, he cut a plea deal where his client will serve a mere 10 years. And he represented David Ronald Chandler, an Alabama man who was convicted of murder on testimony that was later recanted. Chandler was pardoned by President Bill Clinton earlier this year. “If you took 100 people who all committed the same kinds of crime, I would challenge you to determine which 10 or 15 will end up with the death penalty,” Martin says. THE TICKING CLOCK If Garza is executed this week, his death will come at a time when concerns over the fairness of the federal death penalty continue to accelerate. Last year, Clinton postponed Garza’s execution after the Justice Department found that four-fifths of those considered for federal death prosecutions were minorities. Moreover, most of those on federal death row come from states such as Texas and Virginia, where executions in the state system are commonplace, sparing federal defendants in states where sentiment against the death penalty runs high. Earlier this month, a follow-up study conducted by the newly Republican administration at Main Justice reached similar results, but insisted that the death penalty was not being applied in a racially biased manner. Instead, officials maintain that minorities commit more death-eligible federal crimes. To rebut that presumption, Garza’s lawyers filed a petition with the Bush administration last week contending that federal prosecutors failed to seek death in 15 large-scale organized crime prosecutions involving white gangs. They have asked for a commutation of his death sentence. “Garza really exemplifies the racial and geographic bias in the death penalty,” says Audrey Anderson, a partner with Hogan & Hartson in Washington and a member of Garza’s legal team. “He is Hispanic and was prosecuted in the state of Texas.” Garza, who was accused of heading up a multistate marijuana smuggling ring that reached across the border into Mexico, was convicted of having several members of his operation murdered. He was one of a handful of federal defendants in Texas in the early 1990s who were given death sentences. All were Hispanic. His lawyers were also relying on several legal issues particular to his case in their attempt to prevent his execution. The federal jury in Garza’s case was never told that Garza would spend the rest of his life in prison if the death penalty was not applied. The U.S. Supreme Court ruled in March that such an instruction must be given. “It makes a difference to juries if they know that,” Anderson says. They were also petitioning the 7th U.S. Circuit Court of Appeals for help. During the sentencing phase of his trial, Garza was linked by prosecutors to several unsolved murders in Mexico. Earlier this year, the Inter-American Committee for Human Rights, a body under the purview of the Organization of American States, found that use of that evidence violated the International Declaration of Human Rights. Garza’s lawyers were hoping to use that finding to convince the 7th Circuit to block the execution. LEARNED COUNSELS Historically, in states such as Texas and Virginia that have regularly executed prisoners, concerns about effective defense counsel have been predominant. But that is one thing that neither Tim McVeigh nor Juan Garza could complain about. Both were aided by a team of high-priced lawyers and experienced death penalty advocates. Part of the reason for that was the high-profile nature of their cases. But another factor was federal law, which requires that each federal capital defendant be appointed two trial lawyers. One of those lawyers must have significant experience in capital cases. Counsel in death penalty cases are also paid better at $125 per hour — twice the going federal rate for criminal defense appointments. And they are given wide latitude by judges for expenses in hiring investigators, obtaining expert opinions, and other critical functions of a death penalty defense. “The quality of representation is better than in the states,” says David Bruck of the Federal Death Penalty Resource Counsel Project, a referral and support group for federal capital defense lawyers. Bruck says 85 percent of capital defendants have been provided experienced, court-appointed lawyers. The majority of the 20 on death row have had competent, experienced counsel handling their cases. “By and large, the federal courts have provided the resources that have been needed,” Bruck says. Often, the most desirable lawyers come from the state criminal justice system, he says, and some “have never set foot in a federal court.” They are primarily from the South — the hotbed of state capital punishment. Atlanta’s Jack Martin jokes that, in direct contrast to the civil rights movement of the 1960s, when Northern lawyers came to the South to press civil rights issues, Southern lawyers are now traveling north to safeguard defendant rights. But even those lawyers backed by federal funds say they face an uphill struggle. “It’s not like the FBI is working for us all of the sudden,” says Richmond’s Gerald Zerkin. “We might get one investigator, and they’ve got 20 agents.” Adds Craig Stover Cooley, another Richmond defense lawyer, “Without question the federal system is a very one-sided system that is designed to favor the prosecution. Federal prosecutors tell you to jump on board and cooperate and, if you don’t, they have all the cards.” Jack Martin says that, in his experience, “judges are still very reluctant to authorize a lot of expenses. McVeigh got millions of dollars, but Joe Blow in Alabama isn’t gonna get that.” AWAITING THE REAPER The men on federal death row (there are no women) have been convicted of heinous crimes, of sometimes brutal murders. But, as with many capital cases, questions about their prosecutions remain. Zerkin’s client, Richard Stitt, an African-American drug dealer in Norfolk, Va., was sentenced to death for ordering three separate murders. Four of his co-defendants never faced the death penalty. As in Garza’s case, Stitt’s jury was not told that he would receive life in prison without parole if it did not return a death sentence. Jack Martin’s client, Anthony Battle, who was convicted of killing a federal prison guard, took the stand in his own defense against the advice of his trial counsel. Martin believes Battle was incompetent to testify. “He made terrible decisions based on his own mental illness,” Martin says. And then there is the case of Billie Jerome Allen. Allen was convicted of murdering a bank guard during an armed robbery in St. Louis in 1997. During questioning by police, Allen, who was chained to a desk in an interrogation room, asked for a lawyer. Police kept him chained for six hours after his request, took blood, hair, and saliva samples, and placed him in a lineup. Allen broke down and confessed. That was enough for one judge on the 8th Circuit, Richard Arnold, to find Allen’s confession suspect. In a strong dissent to the majority’s decision to affirm Allen’s conviction, Arnold wrote, “His confession was tainted by unconstitutional conduct and was inadmissible. Although other evidence linked Mr. Allen to the crime, the admission of his confession was not harmless beyond a reasonable doubt.” Says Allen’s appellate lawyer, Michael Gross, “The police in St. Louis did not scrupulously honor Billie Allen’s request for an attorney. They kept this 19-year-old kid chained to a table from 2:30 a.m. to 10 a.m.” Louis Jones is also on death row. He was a 22-year African-American Army veteran who was convicted of abducting and murdering a young white soldier. Jones confessed to the crime and sought a life sentence. Residents of San Angelo, Texas, home to the Army base where the kidnapping occurred, signed a petition in support of Jones’ execution. The jury, all white except for one, returned a death verdict. The lone black juror had held out for a life sentence. “I have no doubt race was a factor in this case,” says Jones’ appellate lawyer, Timothy Floyd, a law professor at Texas Tech University. At the same time that Jones was getting the death penalty in a federal court in Lubbock, Texas, three white and Hispanic Texans convicted of the hate-related drive-by shooting of an African-American man received life sentences. Federal prosecutors dropped their demand for the death penalty in the case. “In the federal government, just like on every other death row, people who kill white people are more likely to get the death penalty,” Floyd says. While Jones committed what Floyd calls the kind of kidnap and murder that is prosecuted “in state courts all the time,” it ended up in federal court because the crime occurred on a military base. Christopher Vialva and Brandon Bernard were two black West Texas teenagers who landed on federal death row for similar reasons. Last year, they were convicted of the carjacking and murder of a white couple from Iowa whose bodies were found on federal property near Ft. Hood, Texas. Cases don’t always fall cleanly into the federal or state system. For example, when Mir Aimai Kasi murdered one man and wounded two others outside Central Intelligence Agency headquarters in Langley, Va., in 1993 in protest of the Persian Gulf War, the case seemed tailor-made for federal court. But federal and local prosecutors decided to try the case in Virginia state court in Fairfax. Kasi, whom the Federal Bureau of Investigation caught after he fled to Pakistan, was given a death sentence by the state court jury in 1997. FAR-REACHING FEDS Those kinds of decisions are made daily between federal and state officials, in what Andrew McBride, a former assistant U.S. Attorney in the Eastern District of Virginia, calls “a very cooperative process.” Typically, he says, federal law enforcement gets involved at the request of local authorities. “The feds don’t just ride in and say, ‘We’re taking this thing over,’ ” says McBride, now a partner at Washington, D.C.’s Wiley, Rein & Fielding. But McBride, a supporter of the death penalty, believes the federal government has a significant role to play in prosecuting capital crimes, particularly, he says, in the case of drug gangs that work in multiple states. “It’s very difficult for one state to investigate and uncover a multistate and international organization,” he says. One such gang was the infamous Newtowne Gang in Richmond, Va. Federal prosecutors convicted three African-American men — James Roane, Cory Johnson, and Richard Tipton — of 11 drug-related murders over a bloody 45-day period in 1992. All three are now on federal death row. “The death penalty was clearly appropriate,” McBride says. “You can’t tell me they wouldn’t be on Virginia’s death row.” Craig Cooley is Cory Johnson’s lawyer. He believes his client would not have received a death sentence if he had been able to have a separate trial. But federal law allows multiple defendants to be tried together. “There were three death penalties involved in the case. When they got to the sentencing stage, the mitigation evidence for each of them was probably sufficient [to avoid death], but much of the effect was lost,” Cooley says. “I think the jury just got impatient.” The Associated Press contributed to this report.

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