Second Reply of the Government of the United States

**[to August 21, 2000 Response by Petitioner]{.underline}**

# Case No. 12.243 Juan Raul Garza

The Government of the United States submits this Second Reply in the
case of [Juan Raul Garza]{.underline}, Case No. 12.243, and requests
that the Inter-American Commission on Human Rights (the "Commission")
declare the petition inadmissible. Petitioner's Reply fails to remedy
either the factual or legal insufficiency of the petition, and on this
basis the Commission should dismiss the petition in its entirety.

I.  **[The Commission's Authority Is Limited To Making
    Recommendations]{.underline}**.

The Commission should note that Petitioner has failed entirely to
address the basis of the United States' argument that the Commission's
request for precautionary measures is not binding: that is, that the
Commission [has no power]{.underline} to issue legally binding orders.
Purporting to rely on "purposive" interpretations of "the language of
international diplomacy," Petitioner asks the Commission to ignore both
the plain meaning and the legal effect of its organic documents.

It is a basic axiom of juridical theory and practice that a judicial or
quasi-judicial body has only those powers given to it by its organic
documents. As noted in the United States' previous response, the
American Convention on Human Rights and the Statute of Inter-American
Commission on Human Rights give the Commission the power to make
recommendations only, [not]{.underline} to issue binding orders.
[See]{.underline} Convention, art. 41(b); Statute, art. 18-20.
Accordingly, the Commission's request for provisional measures is, at
the very most, a "recommendation."[^1]

II. **[Garza's Sentencing Did Not Violate Any Rights Set Forth In The
    American Declaration]{.underline}.**

Still failing to present any cognizable factual or legal basis for the
petition's allegations, Petitioner reasserts violations of the right to
life (Article 1), the right to a due process of law (Article 26), and
the right to a fair trial (Article 18) of the American Declaration. As
detailed briefly below, Petitioner's claims are meritless and should be
declared inadmissible.

A.  [The Death Penalty Does Not Violate The Right To Life]{.underline}.

Petitioner again asks the Commission to ignore the plain language of the
American Declaration, the intent of the drafters, and the intent of the
United States, and accept Petitioner's so-called, "living document"
interpretation of the American Declaration. This approach has not basis
in international law or judicial practice. Further, even if the
Commission were to accept this approach to interpreting the American
Declaration -- which it should not -- Petitioner fails even to provide
the factual support for his claim that the right to life precludes use
of the death penalty.

First, it is hornbook law that international law relies on the consent
of sovereign nations. In other words, a state cannot be bound to legal
obligations it has not explicitly accepted.[^2] This principle applies
both to treaties and to customary international law. So, one cannot
claim that agreed language in an instrument negotiated in 1948 has taken
on a different meaning fifty years later -- the states who agreed to the
original language must also consent to its modification. This, of
course, is why protocols are negotiated. Indeed, in this very context,
the OAS negotiated an Optional Protocol to the American Convention on
Human Rights to Abolish the Death Penalty in order to modify language
agreed to in the Convention. The United States has neither signed nor
ratified this protocol, and therefore, has no obligation not to impose
the death penalty for the most serious crimes.

In any event, even if the Commission were to accept this flawed view of
international legal interpretation, Petitioner has failed to establish
that international law precludes use of the death penalty. While four
additional states may have ratified treaties prohibiting the death
penalty since preparation of the U.N. report cited by the United States
in its Response, the fact remains that a majority of nations retain the
option of imposing the death penalty. This fact is undisputed. The
United States has consistently maintained that international law does
not prohibit use of the death penalty for the most serious crimes, and
this case is certainly no exception.

B.  [The Petition Does Not Allege A Violation Of The Right To Due
    Process Of Law]{.underline}.

Now that Petitioner has expanded upon the short, conclusory allegation
provided in the petition, the United States will respond to this claim
in substance. Apparently, it is Petitioner's position that it is a
violation of due process for the jury who found Garza guilty of three
brutal murders to decide on an appropriate sentence because the jury was
somehow "prejudiced" by evidence proffered during the guilt stage of the
trial. This claim is patently meritless.

It belies reason to suggest that a man should not be sentenced by the
jury that decided his guilt. The jury is best positioned to understand
the nature and severity of the crimes committed -- here, three
execution-style murders -- and, hence, the appropriate punishment. The
previous trial does not make the jury prejudiced, only better
informed.[^3]

Notably, Petitioner provides no legal authority in support of this claim
-- either in international or municipal law. On this independent basis,
the Commission should declare the claim inadmissible.

C.  [The Petition Does Not Allege A Violation Of The Right To A Fair
    Trial]{.underline}.

Petitioner continues to labor under a misperception of the principle of
equality of arms -- that it requires substantive equality. In other
words, Petitioner appears to believe that unless both the prosecution
and defense have equal resources and abilities, the prosecution should
not be permitted to present aggravating evidence at sentencing. This is
wrong. As indicated by the court in [Prosecutor v. Tadic]{.underline}
(and as provided for by federal law), equality of arms requires
[procedural]{.underline} equality, not substantive equality.

First, Petitioner repeats his reliance on the prosecution's "enhanced
ability" to obtain evidence against Garza to support his claim of a
violation of the principle of equality of arms. As indicated by the
United States in its previous submission, this is the case in [almost
every]{.underline} [criminal trial]{.underline}. The fact that, in this
case, this evidence was accumulated in Mexico is of no legal import.
Nothing prevented Garza from collecting mitigating evidence on his
behalf -- whether in Mexico or in the United States -- and proffering
that evidence at his sentencing hearing.

Second, Petitioner claims that Garza was disadvantaged by U.S. law that
permits liberal submission of evidence during sentencing by both
parties.[^4] According to Petitioner, because it is the prosecution's
burden to prove guilt, the rules of evidence more often benefit a
defendant. Thus, Petitioner contends that federal law which provides for
permissive introduction of evidence resulted in a denial of due process
during Garza's sentencing. Petitioner's position lacks merit.

Petitioner clearly misunderstands the purpose of a sentencing hearing.
It is [not]{.underline} to prove guilt. The sentencing hearing is meant
to determine, taking account of [all]{.underline} relevant evidence,
what the appropriate punishment for the defendant's crimes. Indeed, this
concept developed principally to protect [the defendant]{.underline} in
capital cases, not the prosecution. As the U.S. Supreme Court noted in
[Lockett v. Ohio]{.underline}:

> the sentencer, in all but the rarest kind of capital case, \[should\]
> not be precluded from considering, as a mitigating factor, any aspect
> of the defendant's character or record and any of the circumstances of
> the offense that the defendant proffers as a basis for a sentence less
> than death. 438 U.S. 586, 604 (1978).

The fact that, in this case, Garza was unable to marshal sufficient
mitigating evidence to avoid the death sentence does not require a
finding that federal law does not provide equality of arms.

In sum, even given its most liberal interpretation -- as done in
[Tadic]{.underline} and as Petitioner urges this Commission to do here
-- the principle of equality of arms was not violated in this case.
Garza had every opportunity to present evidence at sentencing under the
same conditions as the prosecution. Accordingly, there was no violation
of Garza's right to a fair trial, and, the United States respectfully
requests that the Commission declare the petition inadmissible.

The United States looks forward to presenting oral argument on this
matter, and will submit a summary of its argument in writing to the
Secretariat shortly.

[^1]: There can be little dispute as to the meaning of the word
    "recommendation." A recommendation is not a binding order, and the
    repeated use of this word in each of the Commission's organic
    instruments cannot be dismissed as "language of international
    diplomacy." The member states of the OAS chose and agreed to this
    language with its plain meaning in mind. To conclude otherwise would
    render international law and diplomacy meaningless.

[^2]: Arguably, this principle does not apply to certain *jus cogens*
    norms which some argue bind states without consent. However,
    Petitioner does not claim -- nor can he with any credibility -- that
    there is a *jus cogens* norm that prohibits imposition of the death
    penalty.

[^3]: Petitioner also appears to claim that the task of answering
    "complex" questions during sentencing increased also prejudiced them
    against Garza. While Petitioner may doubt the mental acuity of
    individual federal jurors, he alleges no facts to support such a
    proposition. Accordingly, it would be highly inappropriate for this
    Commission to conclude Garza was in any way prejudiced by an
    impliedly incompetent jury without factual basis.

[^4]: 21 U.S.C. section 848 permits both the Government and the
    defendant to present "any other information relevant to . . .
    mitigating or aggravating factors" at the defendant's sentencing
    hearing, without regard for ordinary rules of evidence.