Gerardo Valdez
Mexico
Scheduled Execution Date: The Oklahoma Court of Criminal Appeals Has Vacated Gerardo Valdez's Death Sentence and Remanded the Case for Re-Sentencing
Offense: April, 1989
Case Overview
Panorama del Caso
Letters Asking for Clemency
News
Case Overview
Offense: April, 1989
Gerardo Valdez, a Mexican citizen, was convicted of first degree murder on March, 16 1990, in Oklahoma and sentenced to death. In April,1989, Mr. Valdez encountered the victim, Juan Barron, at a bar in rural Oklahoma. Mr. Barron, evidently showed a sexual interest in Mr. Valdez. Mr. Valdez rejected Mr. Barron's sexual advances. The testimony at trial revealed that throughout the course of the evening Mr. Valdez consumed approximately fourteen beers. When the bar closed, Mr. Barron, Mr. Valdez, and his friend, Martin Orduna, went to Mr. Valdez's house. Mr. Valdez began sermonizing to Mr. Barron from the Bible, seeking to convince Mr. Barron of the sinfulness of homosexuality. When Mr. Barron rejected this proselytizing, Mr. Valdez brought out a gun. He began slapping Mr. Barron, telling him he was going to kill him, as according to the Bible, homosexuals do not deserve to live. Ordering Mr. Barron to remove his clothes, Mr. Valdez gave him the option of death or castration, continuing to slap and hit Mr. Barron repeatedly. When Mr. Barron began to fight back, Mr. Valdez shot him twice in the forehead and then proceeded to hit him in the head with the gun. While Mr. Barron lay on the couch, Mr. Valdez retrieved a knife and cut his throat, finally killing him. Mr. Valdez threatened to kill Mr. Orduna if he told anyone of the murder, and demanded Mr. Orduna's assistance in disposing of the body. The two men carried Mr. Barron, the couch, and the surrounding rug to the backyard, where they set them on fire.
When Valdez was arrested, he did not receive his rights under the Vienna Convention on Consular Relations (VCCR) Article 36, an error Governor Keating later acknowledged as a "clear violation" of the Vienna Convention. Earlier this year, the Oklahoma pardons board voted to recommend that Keating commute Valdez's death sentence, but on July 19, 2001 the Oklahoma Governor denied clemency. Keating's decision came despite a personal appeal from Mexico's President, Vincente Fox, requesting that Valdez's sentence be commuted to life in prison. Mexico's foreign relations department said the country "will take all available legal actions in the U.S., as well as international tribunals... in order to preserve the life of our fellow citizen and obtain clemency." (New York Times, 7/21/01 and Associated Press, 7/22/01).
Valdez was represented by a court-appointed attorney conducting his first death penalty trial. Although the defense was temporary insanity, his attorney utterly failed to investigate Valdez's medical history or conduct a routine background check, never discovering the easily obtained evidence that Valdez had sustained numerous head injuries. The defense psychologist has since stated that knowing of this history would have completely altered his testing, diagnosis and trial testimony. Virtually no mitigating evidence was presented to the jury during the sentencing phase. Recent neuropsychological testing has confirmed that Valdez suffers from extensive brain damage, of a kind often associated with "hyper-religiosity": the irrational belief by the patient that their aberrant behavior is dictated by divine instructions. The testing methods used and the diagnosis obtained through them were both readily available at the time of the trial.
If just one juror had been persuaded by this evidence of Valdez's diminished responsibility for his actions, he could not have been sentenced to death. In at least 80 cases, the appellate courts have reversed death sentences on the grounds that the failure to develop and produce mitigating evidence such as brain damage constitutes ineffective assistance of counsel. As the US Fifth Circuit Court recently held, "while juries tend to distrust claims of insanity, they are more likely to react sympathetically when their attention is drawn to organic brain problems..." (Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000)). Even more tellingly, the Seventh Circuit has determined that "Where it is apparent from evidence concerning the crime itself, from conversation with the defendant, or from other readily available sources of information, that the defendant has some mental or other condition that would likely qualify as a mitigating factor, the failure to investigate will be ineffective assistance." (Hall v. Washington, 106 F.3d 742, 749 (7th Cir.), cert. denied, 522 U.S. 907 (1997)).
Just days after learning of the case, Mexican consular authorities had facilitated the discovery of this powerful mitigating evidence, which neither the jury nor the appellate courts have ever heard--a new factor which must seriously undermine confidence in the reliability of the jury's sentence.
On August 1st 2001, the Oklahoma Court of Criminal Appeals set a new execution date of August 30th for Gerardo Valdez.
For the European Union demarche on Valdez link to http://www.eurunion.org/legislat/DeathPenalty/ValdezBelgLett.htm
Letters Asking for Clemency
July
13, 2001 - The European Union has issued a demarche asking Governor Keating to grant Gerardo Valdez clemency.
News
Amnesty International Urgent Action
August 24, 2001
Following Governor Keating's decision to deny clemency, a new execution date was set for Valdez for 30 August 2001. However, on 17 August, citing the 'complicated questions of international law which have been presented by this case', Governor Keating granted a second 30-day reprieve, to take effect from 29 August, in order for 'the Government of Mexico and attorneys for Valdez to conduct a thorough review of potential legal avenues available to them'. A spokesperson stressed that the stay 'is absolutely no indication that Governor Keating is reconsidering his earlier decision' to deny clemency.
On 22 August, defense attorneys filed a petition with the Court of Criminal appeals, arguing that the 27 June binding judgment of the International Court of Justice (ICJ) in LaGrande (Germany v USA) should be applied by the US courts. The ICJ in LaGrande affirmed that the USA had violated its obligations under the VCCR by failing to inform German nationals Karl and Walter LaGrande of their consular rights following their arrest in Arizona on a capital murder charge. As in the case of Gerardo Valdez, consular assistance was delayed by more than a decade due to the failure of local authorities to comply with their binding treaty obligations. Both men were executed in 1999, after unsuccessful clemency reviews which took the treaty violation into account. The ICJ also ruled that the USA's procedural barriers to legal appeals must not prevent the domestic courts from providing the necessary 'review and reconsideration' of such sentences.
On 20 July, Governor Keating rejected the parole board's recommendation for clemency. In a letter to the President of Mexico, the governor wrote that, having reviewed the case and consulted with the US Departments of State and Justice: 'No compelling reason exists to undermine the confidence and integrity of the jury and the courts'. Governor Keating further stated that he had taken into account the ICJ decision by providing 'review and reconsideration' of the VCCR violation in the Valdez case. The governor described the violation as 'regrettable and inexcusable', but dismissed it as resulting in 'harmless errors'. The governor also stressed that there was no doubt concerning Valdez's guilt, that he had been represented by an experienced attorney, and that the jury had determined Valdez knew right from wrong based on expert psychiatric testimony.
The defense have since produced new information. In fact, one of the two state psychiatrists who testified at the trial that Valdez was sane and knew the difference between right and wrong has now withdrawn that diagnosis. After reviewing extensive new testing confirming Valdez's brain damage, the psychiatrist has concluded that Valdez was not sane at the time of the crime and that the jury could not reliably assess his punishment without knowledge of this evidence. Valdez's trial attorney has also conceded that he failed to adequately investigate his client's background and medical history, resulting in a failure to present the brain damage evidence.
(Information taken from sources including Amnesty International-Urgent Action, 24 August 2001 and see EXTRA 32/01 issued 29 May 2001 and re- issued 8 June; 18 June)
Governor grants execution stay
August 17, 2001
By John Greiner
Capitol Bureau
The Oklahoman
Gov. Frank Keating granted a Mexican national a 30-day stay of execution
today to give Mexican officials and the convicted slayer's lawyers time to
explore additional appeals. Gerardo Valdez was scheduled to be executed Aug.
30 for the 1989 slaying of a man in Grady County. "This stay is absolutely no
indication that Governor Keating is reconsidering his earlier decision that
the death sentence should be carried out," Phil Bacharach, spokesman for
Keating, said. "Out of courtesy to the Mexican government and Mr. Valdez's
attorneys, the governor has granted their request for more time to pursue
legal issues." The Mexican government previously said Valdez's sentence
should be commuted because he wasn't notified of his right to contact the
Mexican consulate. The Mexican government said this was a violation of
international law. Valdez, 41, was convicted of first-degree murder in the
April 1, 1989, slaying of Juan Barron, 26. Barron was killed at Valdez's home
in Minco, Attorney General Drew Edmondson said. For more, click here.
New Evidence Questions Valdez's Sanity
August 23, 2001
The Oklahoman
Attorneys for a Mexican national on Oklahoma's death row want to overturn his conviction as well as his death sentence, based in part on an international court's ruling and new evidence questioning his sanity.
In court papers filed Wednesday a state psychiatrist recanted his testimony, saying new information shows Mexican national Gerardo Valdez suffered from brain damage, paranoia and "homosexual panic" when he killed another man in 1989.
This is the 1st time attorneys have attacked Valdez's conviction since the Mexican government got involved in the case this year and international issues were raised, said Robert Nance, one of Valdez's attorneys.
In the appeal filed Wednesday with the Oklahoma Court of Criminal Appeals, his attorneys said Valdez is entitled to a new trial.
A new element in the appeal is the affidavit of a psychiatrist reversing his 1990 assessment that Valdez was mentally competent to stand trial.
Dr. Cecil F. Mynatt Jr., an Ada psychiatrist who testified at Valdez's 1990 trial, has now concluded that Valdez was legally insane at the time he killed Juan Barron at Valdez's home in Minco on April 1, 1989, according to his affidavit.
Mynatt reversed himself after reviewing evidence indicating Valdez has severe organic brain damage caused by injuries suffered in his youth in Mexico, according to the appeal.
The Mexican government has accused Oklahoma of violating international law by not notifying Valdez of his right to contact the Mexican consulate after his arrest.
Nance said the international law argument involves Article 36 of the Vienna Convention, which says a foreigner arrested in a country must be notified of his right to contact his government.
An International Court of Justice ruling in June cleared up disputes over Article 36's effect on nations, including the United States, which are parties to the convention, Nance said.
The Washington, D.C., law firm of Sullivan & Cromwell is working with Nance on this case.
Last week, Gov. Frank Keating granted Valdez a second 30-day stay of execution so his attorneys and Mexican officials could review legal and diplomatic alternatives available to them in light of the international implications.
Valdez's 1st stay was granted by Keating in June after the governor spoke with Mexican President Vicente Fox, who asked that Valdez's death sentence be commuted to life without parole.
The evidence about Valdez's brain injuries was gathered by the Mexican government in the past few months, the appeal said.
"Thus, the additional evidence developed by the Mexican consulate but absent at trial was crucial," Valdez's attorneys said in their appeal.
They said that Mynatt stated in an affidavit this month that he "could not have concluded that there was no medical explanation for Mr. Valdez's violent behavior if (he) had known of his organic impairments."
Mynatt said he indicated during the trial that he was uncomfortable providing expert opinion on Valdez's sanity with the information he was provided.
"It is the most powerful possible evidence that, had Mexico been involved from the outset, no rational jury would have convicted Gerardo Valdez of 1st-degree murder," the appeal states.
The Mexican government did not learn about Valdez until April 19 - after he had been in prison more than 11 years.
The Mexican government then began taking steps it would have taken years earlier if the United States and Oklahoma had complied with international law requiring a person to be notified he can contact his government, the attorneys said.
Since becoming involved in the case, the Mexican government has learned that Valdez had a history of head injuries that affected his mental condition, Valdez's attorneys said.
The Mexican government found that Valdez was born into "wretched poverty, had received limited education in 1-room schoolhouses and grew up in a family plagued by alcohol abuse and instability," the appeal states.
The Mexican government learned Valdez had a number of head injuries in his youth that went untreated or received only marginal medical attention, according to the appeal.
The most serious injury was incurred in a 4-wheel drive vehicle accident for which he was hospitalized and after which his family reported that Valdez's behavior was forever altered, the attorneys said in the appeal.
The Mexican government then contacted Mynatt, who had been the state's psychiatric expert at Valdez's trial.
Mynatt since has concluded that Valdez was legally insane at the time of the offense, the appeal said.
"In summary, had Mexico been involved at the outset, the jury would have heard from the state's own expert, (Mynatt) that Valdez suffered from a number of serious head injuries that had left him with severe damage to that portion of the brain that allows a normal adult to foresee and consider the consequences of his actions, and that, with the exacerbating effect of alcohol at the time of the crime, Mr. Valdez was unable to control his behavior to such a degree that he was 'temporarily insane,'" the appeal states.
Valdez claimed that Barron made homosexual advances toward him, Oklahoma's attorney general said. Barron was shot twice in the forehead. His throat then was cut and his body burned.
Oklahoma Appeals Court Grants Stay
September 10, 2001
By Associated Press
OKLAHOMA CITY The Oklahoma Court of Criminal Appeals on Monday granted Mexican national Gerardo Valdez an indefinite stay of his execution for killing an Oklahoma man in 1989.
"The court has before it a unique and serious matter involving novel legal issues and international law," the court said in granting the entry of Mexican attorneys in the case.
Attorneys are seeking a new trial for Valdez, whose earlier clemency bid was supported by Mexican President Vincente Fox. The latest appeal is based partly on a recent decision of the International Court of Justice that condemned the 1999 execution in Arizona of German bothers Walter and Karl LaGrande.
The international court held that the execution violated the Vienna Convention because the brothers were not given the right to contact their consul after their arrest. The same applies to the Valdez case, said Robert Nance, his Oklahoma attorney.
Nance also presented evidence to show Valdez was mentally impaired when he killed Juan Barron in Chickasha, Okla., in 1989.
May 1, 2002
The Oklahoma Court of Criminal Appeals Has Vacated Gerardo Valdez's Death Sentence and Remanded the Case for Re-Sentencing. Oklahoma Court of Criminal Appeals-Opinion
|
