ENGLISH TRANSLATION BY SUSAN RASCÓN

Arte Público Press

Houston, Texas
Mexicans on Death Row is made possible through grants from the City
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Ampudia, Ricardo, 1949-

[Mexicanos al grito de muerte. English]
Mexicans on Death Row / by Ricardo Ampudia; English
translation by Susan Rascón.
p. cm.
Includes bibliographical references.
ISBN 978-1-55885-548-9 (alk. paper)
1. Capital punishment—United States—Cases. 2. Mexicans—
Legal status, laws, etc.—United States. I. Rascón, Susan Giers-
bach. II. Title.
HV8699.U5A7713 2010
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2010033484
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The paper used in this publication meets the requirements of the

American National Standard for Information Sciences—Permanence
of Paper for Printed Library Materials, ANSI Z39.48-1984.

© 2010 by Ricardo Ampudia

Printed in the United States of America

10 11 12 13 14 15 16 10 9 8 7 6 5 4 3 2 1
 To Scott Atlas,
Sandra Babcock,
Carlos Marín,
for their part in securing
Ricardo Aldape’s freedom
 Table of Contents
Acknowledgments | ix
Prologue by Fernando Solana | xi
Introduction | xv

1 | THE DEATH PENALTY

Definition and history of the death penalty;The death
penalty debate

50 | THE DEATH PENALTY IN THE UNITED STATES

The legal evolution of the death penalty; Death
penalty and legislation cases; The legal procedure of
the death penalty; Life on death row and the
execution of a convict.

104 | CONSULAR PROTECTION OF MEXICANS SENTENCED

TO DEATH IN THE UNITED STATES
History of the consular protection provided by the
government of Mexico to its citizens abroad; The
situation of Mexicans sentenced to death in the
United States; The work of the Mexican government
in the protection of Mexican citizens sentenced to
death in the United States

143 | THE AVENA CASE

Background; The case concerning Avena and other
Mexican nationals (Mexico v. United States) before the
International Court of Justice

168 | THE ALDAPE CASE

The murders; Writ of Habeas corpus; Evidentiary hear-
ing; Vindication

230 | FINAL REFLECTIONS AND CONCLUSIONS

 Appendices | 241
241 | Appendix 1-A. The death penalty worldwide
256 | Appendix 1-B. Global categories regarding the death penalty
261 | Appendix 1-C.
a] Anti-death penalty organizations and groups in the
United States; b] International legislation regarding the
right to life and opposed to the death penalty
Appendix 2-A. Minors executed under the death penalty

Glossary | 235

Bibliography |
 Acknowledgments

T O JORGE ACERO, LEGAL DIRECTOR OF THE MEXICAN

Consulate General in Houston from 1990 to 1992, and to the
legal directors of the Mexican Consulates abroad, excellent attor-
neys who practice their profession in another country, under dif-
ferent legal codes.
To public defenders and private law firms in the United States
that defend Mexicans sentenced to death.
To the non-governmental organizations that support the causes
of the defense of Mexicans in the United States.
To Dr. Hermilo López Bassols and Quetzalli Padilla, for their
unwavering support in the work on the subject matter of this book.
To José Paoli Medellín, for the documentary research he helped me
conduct, and to Adriana Bosada Ramírez de Arellano for the Span-
ish translation of various texts that are part of this document.
To Fernando Solana, Andrés Rozental and Aurora Adame of the
Mexican Council on International Affairs for their support in the
publication of this book.
To Emma, Roberta, Leandro and Ricardo, who with their cus-
tomary enthusiasm supported me throughout the writing of this
book.

ix
 Prologue

R ICARDO AMPUDIA, WHO COMES FROM A WELL-KNOWN

journalistic family, has extensive experience in business, commu-
nications and public relations. I have personally witnessed his work on
behalf of better relations between Mexico and other countries.
Ricardo did outstanding work as Mexican Consul in Houston.
Not only was he a great promoter of business and our national image,
but he also actively participated in the tasks of persuasion and infor-
mation on behalf of the North American Free Trade Agreement
(NAFTA). This responsibility was extremely complex, but he man-
aged to convince those whom he needed to convince in Texas, and
particularly in Houston, of the benefits of the treaty for both countries.
Another project in which he participated actively was the com-
munications system of the Secretariat of Foreign Relations, which
provided information so that all representatives of Mexico abroad
would be fully apprised of the Secretariat’s positions. As a result of
this joint effort, diplomats and consuls played an active role in pro-
moting Mexican opinion across very diverse areas. He also partici-
pated in organizing the first Bush-Salinas interview, whose relevance
goes without saying. In short, he was a witness and a leader in some
key moments in our relationship with the United States.
Among the problems that Ricardo experienced firsthand as a
consular official, the death penalty is one of the most complex. This
extreme punishment that has caused so much international con-
troversy allows him to delve into a wide range of subjects, includ-
ing civil and criminal rights, limits on government power and the
daily functioning of the justice system.

xi
xii FERNANDO SOLANA

With his personal and professional experience as a point of de-

parture, Ricardo undertakes a profound, well-researched reflection on
the topic. He is particularly concerned with reporting the practical
and financial implications of this form of punishment, and demon-
strating that executions are at times due more to causes such as racism
and xenophobia than to solid evidence of the defendant’s guilt.
Thus the overview begins with death as a historical human
penalty, later it is taken up again in criminal procedure in the
United States and finally it becomes an opportunity for a detailed
analysis of that country’s judicial system. Consular protection of
Mexicans sentenced to death has not been, nor will it ever be, a
trivial matter. The number of people, and the amount of material
and political resources required to defend all those sentenced to
death can be overwhelming, but so is the evidence that judicial sys-
tems are adapted and constructed upon interests and identities that
are far from impartial.
Article 36 of the Vienna Convention, the Aldape case, and the
Avena case are always useful references for close observation of the
functioning and the difficulties of justice. It is essential to distin-
guish the death penalty as a government policy from that extreme
punishment when the motive is personal. If we think of our loved
ones being harmed by a criminal act, it is logical and could even be
reasonable to wish that the guilty party pay with his life. However,
the distance between that just (perhaps vengeful) impulse and a
government position should, as a matter of principle, be very great.
In order to fully understand the other side of the story, it is
worthwhile to consider the bias in the dispensing of justice. The
influence of public opinion and the media over judges can be one
valid source of concern. If one intends to examine the subject seri-
ously, in addition to questions on the effectiveness of this measure,
the relevant contexts must also be set forth. Judges and courts, in
addition to possessing their own set of values, empathies and
stereotypes, are systematically permeated by public opinion. There-
fore let us recall the economic necessity that at times moves our
fellow citizens to emigrate, the difficulties of the U.S. environment
for Mexicans and discrimination, present in an increasing number
of academic, legislative and civil voices. If in the United States the
citizens charged with dispensing justice feel closer to the threat per-
 PROLOGUE xiii

ceived by Huntington and the Minute Man Project than to the

dream of the inclusive melting pot, it is possible that their deci-
sions may be less impartial than they should be.
The execution of Mexicans has not come out of the binational
agenda. The situations of Jaime Elizalde and Angel Maturino
demonstrate that, although the death penalty is on the decline
worldwide, the United States is the exception.
The risks of a national discourse that is weak on this subject,
as on many others (let us think, for example of the International
Criminal Court), may determine the future of relations. Mexico’s
Supreme Court of Justice determined that when there is an extra-
dition treaty with another country, the International Extradition
Law is not applicable. Let us not forget, then, that on a more gen-
eral level, the debate may be that of multilateral institutions and
international law versus national sovereignty.
May this book serve, therefore, as a stimulus for reflection on the
present and the future of bilateral relations, criminal justice systems
and the risks of making the death penalty a government policy.

—Fernando Solana
 Introduction

D EALING WITH THE TOPIC OF THE DEATH PENALTY IS A

daunting task. Remembering the look in the eyes of my Mex-
ican compatriots who were about to lose their lives at the hands of
our northern neighbor’s government, controller of legal violence, is
an experience that leads to profound reflection on life and death.
As Consul General of Mexico in Houston, Texas, my mission
was to follow the cases of several Mexicans who had been sen-
tenced to death. This situation provided me with, among other
things, the opportunity to examine the phenomenon from a special
position: not only was I to advocate for these people but also I was
to make them feel, through my actions and attitudes, that they were
not completely alone in a strange land, and that their own nation
had not abandoned them.
The Ricardo Aldape case, which will be covered in this book, is
part of my life. Between 1989 and 1992, as part of my consular du-
ties, I had to pick up the case, interview Aldape, examine the facts
and arrange for a U.S. law firm to take on his defense. As a Mexi-
can government official, my country’s representative before a for-
eign power, my duty was to support and defend my fellow citizens.
This duty required conscientious work, since the facts clearly
showed that Aldape was innocent—a mere victim of irrationality,
xenophobia and a legal system that wanted to find a scapegoat.
Aldape’s defense was primarily handled by Scott Atlas, an attor-
ney from the firm Vinson & Elkins. He handled the case for more
than five years and at tremendous cost. Also of great importance
was the participation of Sandra Babcock, a court-appointed attor-

xv
xvi INTRODUCTION

ney in the Houston court system. I mention them here because, for-
tunately, their efforts bore fruit. After fifteen years in a maximum-
security prison, having had four different execution dates, Ricardo
Aldape was released. The district attorney’s office dropped the
charges due to procedural issues as well as the merits of the case.
Sadly, Aldape died four months later in a terrible car accident while
he was traveling from Mexico City to his native Monterrey.
All of this made me question this law: What does the death
penalty solve? Does the death of the killer bring back the lost life
or the lost years? Does it erase the suffering and the pain? Is it true
that such a punishment will prevent crimes from being commit-
ted? What is it about human nature that leads us to take the life of
another human being? What is the nature of crime? Is it truly just
to take one life to pay for another? What about involuntary
manslaughter, killing in self-defense, state assassination? To what
point is it valid to take the lives of others, whether they are crimi-
nals or not? Is justice blind? How many innocents have been killed
in the name of justice and law?
Beyond our religious beliefs, the ethical dilemma involved in
taking a position on the death penalty leads to radicalization. Those
who have seen people on death row witness the anguish, not only
of the condemned but also of their family. This anguish is even
worse when the condemned are poor immigrants in a highly de-
veloped country, victims of contempt, intolerance and often injus-
tice. While I do not believe that the situation is easy for those
sentenced to death in their own countries, I do believe that it is
much worse for a Mexican sentenced to death in the United States.
My experience in carrying out my consular duties led me to
write down my reflections and analyze this controversial issue. Al-
though initially, and in a way involuntarily, I had to approach the
phenomenon with an almost anthropological methodology, the
years have allowed me to gather and study a multitude of docu-
ments and testimonies regarding the death penalty. Unlike my prior
research on the Church, and the Mexico-U.S. bilateral relationship
reflected in presidential reports, on this occasion I had the oppor-
tunity to consult specialized bibliographical sources. These tools
have a virtue: they allow us to see what the discussion of the topic
is at this time and who its main actors are. The number of biblio-
 INTRODUCTION xvii

graphical sources dealing with the death penalty is astonishing,

most of them against it, but more amazing is the number of organ-
izations devoted to its study, many of them dedicated to fighting
for its eradication.
There is one fundamental reason I decided to write about the
death penalty and Mexicans sentenced to death in the United States.
I would like Mexican citizens to be aware of the dilemmas involved
in capital punishment. It is terrifying that many Mexicans, because
of Mexico’s lack of security, are considering implementing the death
penalty in Mexico. Although the death penalty has not been used in
many years, it was included in several recent Mexican laws.
Fortunately, recognizing that life is the most important human
right, in March 2005, the Senate of the Republic passed a
constitutional reform that explicitly prohibits the death penalty in
Mexico.1 The Chamber of Deputies ratified this reform in June
2005.2 Since the reform was of a constitutional nature, it was sent
to the thirty-one state congresses. It can be stated, however, that
the message sent by the Mexican government with this proposal
not only means reaffirming Mexico’s continuing adherence to the
international treaties and accords,3 but also “the most significant
commitment that we today celebrate and agree on with society and
with the Mexican people.”4
1
The reform of Article 22 of the Constitution establishes that “Punishment by
death, mutilation and infamy, branding, flogging, beating with sticks, torture of
any kind, excessive fines, confiscation of property and any other unusual or ex-
treme penalties are prohibited.” The measure also deletes the language that no
one shall be deprived of life without a trial, previously established in Article 14
of the Magna Carta.
2
The reform of Articles 14 and 22 of the Constitution, expressly indicating that
“the death penalty is prohibited” in Mexico, was approved in the session of the
special term, with 412 votes in favor and two abstentions.
3
PRD Deputy Arturo Nahle García said that with this reform the nation complies
with different international treaties and accords that Mexico has signed and in
which the use of capital punishment is rejected. He emphasized the importance
of this reform, since there still remained gaps in the law that would allow a per-
son in Mexico to be subject to sanctions that would lead to the death penalty, es-
pecially for crimes of a military nature or treason. Notimex, “Aprueban reforma
que prohíbe pena de muerte en México,” 23 Jun 2005 <noticias.aol.com.mx/
nacional/notas/sfcg/?id=1804>.
4
These are the words of PRI senator and president of the Human Rights Comis-
sion, Satot Sánchez Carreño cited in Arturo Sánchez: “Elimina Senado la pena de
muerte en México,” 17 Mar 2005 <www.canaldelcongreso.gob.mx>.
xviii INTRODUCTION

Upon searching in different media for the Mexican people’s reac-

tion to the constitutional reform prohibiting the death penalty in
Mexico, I was very concerned when I read some of the comments of
my fellow citizens. There was someone who claimed not to under-
stand “because this being the time when [the citizenry in general], is
suffering from a lack of security and abuse at the hands of murderers,
rapists, kidnappers, etc., the authorities [. . .] succeed, almost unan-
imously, in eliminating the death penalty from the Constitution.”5
In my opinion, it is cause for concern that society does not take
into account the many occasions on which an innocent person has
been executed pursuant to the death penalty and, likewise, that it is
unaware of the practical implications and the costs of the death
penalty. These are two aspects about which this book seeks to inform.
On the other hand, from Mexico’s earliest days as an inde-
pendent country, it has had a humanitarian tradition that molds its
values and culture and makes Mexicans a people averse to corpo-
ral punishment. We can say that, as a majority Christian country,
we value life and have a sense of the transcendent; we do not be-
lieve that we return anything to the victim by killing the murderer.
Therefore, I insist that the idea of an eye for an eye cannot be
legitimized, because it has not reduced crime in those countries
that use the death penalty. It is true that the judicial and prison sys-
tem, even in Mexico, suffers from enormous deficiencies and ir-
regularities. It might seem simple for society to attempt to reinstate
the capacity for legal murder and take justice into its own hands.
However, it must not be forgotten that laws are for everyone to fol-
low. So, if people took the law into their own hands, how could we
guarantee justice?
I believe that the experience of having seen people who have
been sentenced to death waiting in subhuman conditions for up to
twenty years to be executed gives me the right to do what I can to
prevent the death penalty from ever being implemented in my
country. At the same time, although this book does not claim to
provide a solution to the problems faced by Mexican citizens
abroad, it does seek to raise awareness of the suffering experienced
by those (unjustly) sentenced to death.
5
Comment to the article “Eliminan Pena de Muerte de la Constitutión,” 17 Mar
2005 <esmas.com/noticierostelevisa/mexico/4406661.html>.
 INTRODUCTION xix

In order to achieve this objective, the book has been divided

into five chapters. The first consists of a brief introduction about
the death penalty: some of the methods utilized to apply it through-
out history, useful statistics to give the phenomenon a global di-
mension, the legal and historical situation of the death penalty in
Mexico, the debate surrounding this punishment, as well as a brief
description of organizations opposed to the death penalty. With
that, the intent is to present to the reader the context in which the
discussion of the death penalty in the United States is framed, and
the assistance provided by the Mexican government to its citizens
who have received this sentence.
The second chapter is devoted to understanding the phenom-
enon of the death penalty in the United States. Some historical, sta-
tistical data is provided to show the dimensions of the problem in
the United States. The goal is to explain how the death penalty is
carried out in the United States, from the legal aspects to the prac-
tical aspects of an execution. Both general explanations and some
descriptions of specific cases are provided for this purpose. The
main goal of this chapter, however, is to make the reader aware of
the problems inherent in the U.S. legal system, especially the risk
of innocent people being executed.
The third chapter explores the work done by the Mexican gov-
ernment to protect its citizens abroad. The practical and legal evo-
lution of the general consular function of protection is shown
through a historical study. This section is followed by the specific
analysis of cases of Mexicans sentenced to death in the United
States, and the assistance provided to them by the Mexican gov-
ernment in order to guarantee their rights.
Finally, two chapters are devoted to the analysis and description
of two special cases in which the Mexican government has partic-
ipated, successfully, in the protection of its citizens sentenced to
death in the United States. The Aldape case, not only because the
author experienced it personally, but also because of the forceful-
ness with which it exposes the flaws in the U.S. legal system and the
importance of consular protection in the defense of those sentenced
to death, described in this book by attorney Michael Mucchetti.
The Avena case, for its part, is considered Mexico’s greatest achieve-
ment in recent years in the area of consular protection and a victory
for international law in the quest for respect of human rights.
 The Aldape Case

They stole 15 years of my life. I’d have to be crazy to go

back to the United States.
—RICARDO ALDAPE GUERRA

A N ISSUE OF EXTREME IMPORTANCE FOR THE MEXICAN

government, and one that drew major national and interna-
tional attention due to the indisputable proof of his innocence was,
without a doubt, the experience of Mexican citizen Ricardo Aldape
Guerra. An undocumented immigrant, Aldape spent fifteen years in
Unit 1 of Ellis maximum-security prison in Huntsville, Texas; he
was freed following intensive work by the Mexican government
and U.S. attorneys to prove his innocence.
Ricardo Aldape Guerra, a native of Monterrey, Nuevo León,
Mexico, was sentenced to death on October 14, 1982 for the first-
degree murder of Houston Police Officer James Donald Harris,
which took place the night of July 13 of that same year. His defense
attorney, Scott J. Atlas, of the prestigious Houston law firm Vinson
& Elkins, defended this Mexican citizen through the presentation
of various legal documents. Also extremely valuable was the par-
ticipation of the Mexican government—the Ministry of Foreign Re-
lations and the Mexican Consulate General in Houston—, the
National Human Rights Commission and the state government of
Nuevo León, as well as the Texas Resource Center,1 through dis-
1
An institution devoted to providing assistance to those sentenced to death in the
state of Texas.
168
 Mexicans on Death Row 169

tinguished attorney Sandra L. Babcock. Finally, in 1996, the Fifth

Circuit Court of Appeals in New Orleans decided to reverse the
trial in which Ricardo Aldape Guerra was sentenced to capital pun-
ishment.
This case undoubtedly strengthened the Mexican government’s
position in the sense of offering assistance to its citizens sentenced
to death in the United States. It also represented a clear example of
how, through errors in legal proceedings, there exists the possibil-
ity of innocent people being executed, which is the main argument
used against the imposition of the death penalty.
Pursuant to the foregoing, it is appropriate to include in this
chapter the account of the trials and tribulations of Mexican citizen
Ricardo Aldape Guerra, as well as the mark left upon the Mexican
government and this author by having known and aided this fellow
countryman during those times of anguish and distress.
It is important to point out that the account presented in this
chapter was written by Scott J. Atlas and Michael Mucchetti, both
attorneys from the firm Vinson & Elkins, in October of 1998. With-
out a doubt, their outstanding participation in the case was a key
factor in overturning Ricardo Aldape Guerra’s death sentence.

THE MURDERS
WILL YOU HELP US?
In the spring of 1992, when Aldape had already spent ten years
in prison, Ricardo Ampudia, Consul General of Mexico in Houston,
first contacted Scott Atlas, an attorney with Vinson & Elkins, to
ask him to take on the defense of Ricardo Aldape Guerra. Aldape
had been imprisoned since 1982 for the murder of Houston Police
Officer James D. Harris. The State had set Aldape’s execution for
May 12, 1992 at 12:01 a.m.
The then head of the Mexican Consulate in Houston asked
Scott Atlas, “Will you help free Aldape?” A few short days before Al-
dape’s scheduled execution, that phone call would be the first step
in a legal odyssey that would consume him and a team of lawyers
for the next five years. The reopened investigation of the crime
would uncover evidence that the jury never heard when Aldape
was convicted, a shocking pattern of police and prosecutorial in-
170 RICARDO AMPUDIA

timidation, misconduct and abuse. Over the next half decade, the
legal case would wind its way from state district court to the state’s
highest criminal tribunal, through the federal legal system and back
again to state court. More than fifteen judges would ostensibly re-
view the matter. While Aldape lingered on death row, the ensuing
uproar over his impending date with death would create a diplo-
matic incident. Atlas could not know then of the victory and defeat,
joy and sorrow, hope and despair this single call would precipitate.
For Scott Atlas, a partner in the business litigation section of the
law firm of Vinson & Elkins L.L.P., the request to discuss his possi-
ble representation of a death row prisoner came as a surprise. Vinson
& Elkins, or “V&E” as it is called colloquially, is one of the largest
and oldest Texas law firms. Except for some white-collar criminal
representation, the scope of V&E’s practice is predominantly devoted
to the transactional and litigation problems of corporate and gov-
ernment clients. Atlas himself had never represented anyone facing
execution, although he had handled a few pro bono criminal matters.
As chairperson of V&E’s pro bono committee, he was proud of V&E’s
tradition of accepting matters, free of charge, for indigent clients as
well as certain artistic and humanitarian endeavors.
Atlas was raised in McAllen, Texas, only a few miles from the
Mexican border. He learned Spanish as a young boy. An informal ex-
change program with a family in Mexico City when he was fifteen
helped Atlas become fluent and gain a deeper appreciation of Mex-
ican culture. Except for the summer in Mexico and four years at Yale
University where he obtained a bachelor of arts in math and eco-
nomics, Atlas was rarely absent from Texas for any length of time.
After graduation from the University of Texas School of Law in
1975, Atlas served as a law clerk to the Honorable Thomas Gibbs
Gee, a judge on the United States Court of Appeals for the Fifth
Circuit.2 The clerkship provided Atlas some exposure to criminal
matters, including capital murder cases. Atlas developed a close re-
lationship with his mentor, who in early 1977 asked Atlas, now an
attorney, to represent a criminal defendant on appeal before the
2
The Fifth Circuit is the federal appellate court that hears challenges to federal
district court opinions issued from the states within its jurisdiction. The Fifth
Circuit currently hears cases from Texas, Louisiana and Mississippi.
 Mexicans on Death Row 171

Fifth Circuit. His pro bono representation of Bill Rummel would

foreshadow the obstacles he would soon confront for Aldape. In
late 1980, Atlas obtained a finding that Rummel’s trial attorney was
so ineffective in assisting Rummel that he was denied his constitu-
tional right to counsel.3
When the Mexican Consulate contacted Atlas, he accepted the
invitation to attend the meeting to discuss his possible representa-
tion of Aldape, although he thought he would almost certainly de-
cline the Mexican consulate’s offer to spearhead Aldape’s legal
defense. A supporter of the death penalty himself, Atlas believed
society deserved to protect itself and to inflict retribution in the ap-
propriate cases by meting out the ultimate punishment.
At the meeting held in mid-May in his office, Atlas was greeted
by Mexican Consul General Ricardo Ampudia, the legal advisor to
the consulate, Jorge Cicero, and Sandra Babcock, a recently licensed
graduate of Harvard Law School who worked for the Texas Re-
source Center. The Center had been established with federal funds
to represent inmates on death row who were challenging their con-
victions. She had already prepared and filed Aldape’s state district
court petition for writ of habeas corpus.4
3
A court sentenced Rummel to spend his life behind bars for committing three
bad-check-type crimes. His criminal misconduct totaled approximately $230.
Atlas contended that the Texas statute, which mandated a life sentence upon a
third felony conviction, was cruel and unusual punishment in violation of the
8th Amendment as applied to Rummel. Following an en banc hearing, where the
Fifth Circuit judges were split, and presenting the facts to the Supreme Court,
Rummel’s sentence was affirmed. Rummel secured his freedom only after the case
was remanded to federal district court.
4
Once convicted, Texas state prisoners may appeal the judgment to the State’s high-
est criminal court, the Texas Court of Criminal Appeals. If unsuccessful, the pris-
oner may then seek review by the U.S. Supreme Court, which has the discretion
to decide whether it will hear the matter. Very few cases are reviewed by the
Supreme Court. If the petition for review to the Supreme Court proves unsuc-
cessful, then the last chance for freedom, a lesser punishment or retrial, lies with
a petition for writ of habeas corpus. A state inmate like Aldape, as opposed to a
federal prisoner, must first file a petition for habeas relief in state court. If the
state courts deny habeas relief, a prisoner may seek habeas relief in the federal
court system. In 1992, Aldape had just begun to exercise his habeas rights. The
right to challenge a sentence by a writ of habeas corpus is guaranteed by the U.S.
Constitution and is often said to stem from the Magna Charta (Article 1 Section
9, Clause 2).
172 RICARDO AMPUDIA

Atlas was the consulate’s choice, if he were willing, to assume

Aldape’s habeas defense. The Consulate explained that Aldape’s ar-
rest was a case of mistaken identity. Aldape was merely the mur-
derer’s unwitting companion; the police killed the guilty man as he
tried to avoid capture the night of the shootout. Aldape surrendered
peacefully and always proclaimed his innocence. Further, the con-
sulate explained that the State had argued that Aldape’s status as
an illegal immigrant could be considered when determining
whether he should be sentenced to die. Aldape, a young, poor, il-
legal alien from Monterrey, had been railroaded because the police
already shot the real killer.
The review of the case that Atlas heard during the two-hour meet-
ing piqued his interest, and he asked to read the record—seventeen
volumes containing a total of 4,776 pages. The record would allow
Atlas to decide for himself whether Texas afforded Aldape a fair trial
before sentencing him to die.5 The record contained other materials
for Atlas to review. From Aldape’s direct appeal, Atlas could read the
opinion entered by the Texas Court of Criminal Appeals. In addition,
he could study Sandra Babcock’s prior legal research.
Just reviewing the extensive record to determine if it supported
the Mexican government’s characterization of the case took Atlas a
month. He discovered that there was no shortage of purported wit-
nesses to the crime. The witnesses’ stories in the trial transcripts,
statements to police, and the offense reports, though, were often con-
tradictory. The identification of the shooter varied from witness to
witness, and the statements were internally inconsistent as well. Atlas
worked through the web of accusations and counter accusations. As
he studied the mountain of material, a disturbing picture unfolded of
the justice Aldape had received from his northern neighbor.

FROM MONTERREY TO TEXAS

Ricardo Aldape Guerra was born on April 3, 1962 in Monterrey,
Mexico. Monterrey is the capital of Nuevo León, a Mexican state
5
In a capital case, the trial itself is divided into two parts. First, the jury must de-
cide whether the accused is guilty or not guilty. This is usually called the
“guilt/innocence” phase. Then, if jury finds the defendant guilty, the “sentenc-
ing” phase begins.
 Mexicans on Death Row 173

that shares its northern border with Texas. From a humble family,
which consisted of his parents and three siblings, Aldape left school
at age seventeen to support his family by working in a cardboard
box factory. Despite these circumstances, his life was normal and
calm, with a close-knit family and free time playing soccer. He was
a normal student and worker. Neither he—nor any member of his
family—ever found themselves in trouble with the law. In at least
two instances, Ricardo demonstrated his unique character.
Aldape, though, was not content with his life in Monterrey. He
yearned for more for himself and for his aging parents. On April 3,
1982, when Aldape turned twenty, he then made a decision to enter
the United States illegally. Aldape and two friends jumped a train
that took them over the border. In San Antonio they located a friend
who offered shelter and another drove them to Houston. Aldape
quickly found employment—installing sheetrock, and although he
earned substandard wages at $3.00 an hour, it was more than he
earned in Mexico ($35 per week). He also found a place to live in
a predominately lower-income Hispanic neighborhood, sharing his
cramped living quarters (an apartment on Rusk Street in the Mag-
nolia neighborhood) with several others. Most, but not all, were
undocumented Mexican laborers. Because they crossed the Rio
Grande River to enter Texas illegally, they were derisively called
“wetbacks.” The Spanish language equivalent is mojado, which
means “wet.”
A couple of months after Aldape arrived in Houston, a new man
introduced himself to the group. In addition, undocumented, this
twenty-seven-year-old was known by Aldape and his roommates
as El Güero, and later, by the police, as Carrasco.6 In addition to

6
This mysterious, charismatic stranger went by many names. To some, he was only
“Antonio.” Although unknown to Aldape, El Güero sometimes assumed another
identity he obtained after robbing James Joseph Kosmerl at gunpoint on June 24,
1982. El Güero became “James Kosmerl” by taking Kosmerl’s driver’s license and
gluing his picture over Kosmerl’s. To police, however, this stranger would later be
called by another name, Roberto Carrasco Flores, after taking his fingerprints and
requesting a search of the Texas Department of Public Safety. But, a call to the peo-
ple listed on the driver’s license application as relatives reached people who pro-
fessed not to know him. To some, he bragged of taking the name “Roberto Carrasco
Flores” from a taxi driver he had killed. To this day, no one has been able to iden-
tify who this man with so many aliases really was.
174 RICARDO AMPUDIA

boasting of having killed a taxi driver and a convenience store clerk,

Carrasco bragged that he was saving his money to fly to Cuba to as-
sassinate Fidel Castro, whom he hated. Carrasco always carried a
gun that he cherished, a 9 mm pistol.7 Among the anecdotes told
about him, it is said that on one occasion, when a police officer was
driving by the Rusk Street apartment, Carrasco pointed his finger
at the patrol car and, acting as if his hand were a pistol, made a
“pop pop pop” sound of a gun firing, as he hated police officers.
Even without Carrasco’s menacing presence, Magnolia was not
a bucolic neighborhood. In 1982, street fights and the sounds of
gunfire were routine. Aldape, like many in the neighborhood, car-
ried a gun for protection. Aldape had a .45 Detonics pistol. He only
acquired it after entering Texas when Carrasco sold it to him.8 In
addition to the enigmatic visitor, other factors, beyond Magnolia,
were conspiring to alter Aldape’s life. The year 1982 was a tragic
one for the Houston Police Department. Four HPD officers died in
the line of duty in 1982. In addition, anti-immigrant sentiment
filled Texans. Congress was debating a new bill targeting illegal im-
migration—the Immigration Reform and Control Act of 1982.9 Its
controversial provisions included penalties against employers who
knowingly hired undocumented workers and an amnesty program
that would offer permanent resident status for millions of undoc-
umented aliens. The Houston newspapers reflected the thought
that illegal immigration was “causing a national crime wave.” In
additional, the unemployment rate then stood at 9.4 percent, in-
creasing anti-immigrant sentiment, given the fear of U.S. citizens
losing their jobs.

7
Carrasco had acquired the 9 mm pistol and ammunition on June 19, 1982, shortly
before he began visiting the Rusk Street apartment and met Aldape for the first
time. Carrasco did not buy the gun himself. Instead he approached Alfredo Mal-
donado, Jr., introducing himself as “Luis,” outside Carter’s Country Gun Store in
Pasadena, Texas.
8
After Aldape’s arrest, the .45 caliber pistol would be traced to the robbery of the
Rebel Gun Store, located in Houston. The DA never arrested, charged or prose-
cuted Aldape for the store’s robbery.
9
The Immigration Reform and Control Act was also known as the Simpson-Rodino
Bill, the names of its principal authors, Senator Alan K. Simpson and Represen-
tative Peter Rodino.
 Mexicans on Death Row 175

CARRASCO’S RAMPAGE
On the evening of Tuesday, July 13, 1982, Aldape asked a friend
to lend him his car to go buy sodas. Carrasco, who was visiting the
residents of the Rusk Street apartment that evening, offered to go
along. The two men left at 9:00 p.m. on the dot. Aldape drove fast,
and after buying the soda, nearly hit a teenager, George Brown, who
was taking his dog for a late night walk. Brown jumped into a ditch
to avoid getting hit. Picking himself out of the gully, Brown flagged
down a passing police car.
It was Officer James D. Harris, who came upon Brown only sec-
onds after the near miss. Officer Harris was a model police officer.
He joined the HPD in 1976 after serving in the U.S. Air Force. At
age twenty-nine, he had already received several letters from citi-
zens commending his police work. For the previous two years, he
had received the highest marks from the police department for his
job performance. He was also a devoted husband and father, with
two young daughters. In all respects, he was the epitome of HPD’s
finest.
Officer Harris pulled his patrol car over in response to Brown’s
beckoning. Harris quickly noted Brown’s description of the erratic
car and drove off in pursuit. Meanwhile, Aldape and Carrasco had
not traveled far. Their car had stalled at the corner of Edgewood
and Walker, still in Magnolia, a few blocks from the Rusk Street
apartment. It was now nearly ten o’clock in the evening.
When he arrived at the corner of Edgewood and Walker, Offi-
cer Harris had only one hour left in his shift. The police car pulled
in behind the stranded car. Its two former occupants were standing
by the car. Aldape wore a green shirt and blue jeans. Carrasco was
dressed in a maroon shirt and brown pants. Aldape had long, black
hair, a beard and mustache. Carrasco had short brown hair and was
clean-shaven. The different clothing, hair length and color, and fa-
cial hair would later become critical as witnesses tried to recall what
they saw that evening.
The uniformed officer exited his car and, in English, ordered
Aldape and Carrasco to approach and place their hands on the po-
lice car. Only one man complied, putting his hands on the hood of
the police vehicle. The other emerged from the shadows, walked up
to the patrol car and pulled out a 9 mm Browning pistol. He shot
176 RICARDO AMPUDIA

Officer Harris three times in the head, almost at point-blank range.

The pistol was so close that it left powder burns on the officer’s
face. The three bullets, after exiting the victim, burrowed into a
home on the northwest corner of Edgewood and Walker.
After downing Officer Harris, the gunman retrieved the offi-
cer’s pistol. Both the gunman and his acquaintance fled, running
down opposite sides of Walker Street. The shooter ran on the north
side of Walker, the second man on the south side of Walker. The
man on the south side of the street fired two shots into the air with
a .45 caliber pistol.
Shortly before Officer Harris was shot, a Ford pulled up just
short of the stalled Buick. José Armijo, Sr. drove the Ford. Two
young children shared the car with him—Armijo’s ten-year-old son
and namesake, José, Jr., and his three-year-old daughter,
Guadalupe. Once Office Harris was shot, Armijo threw the Ford
into reverse and pushed his son out of harm’s way. The shooter ran
toward his car and leveled the 9 mm pistol at Armijo’s head.
Trapped in the car, unable to move forward through the intersec-
tion, unable to back up quickly enough, Armijo offered an easy tar-
get. A single shot pierced the windshield, mortally wounding him.
His daughter, Lupita, suffered glass cuts on the shoulder and neck.
The Ford lurched into a culvert along the road.
A short time later, dozens of detectives and officers arrived on
the scene and joined the frantic search for the two Hispanic sus-
pects. Officer Lawrence Trepagnier approached a darkened garage
and shined his flashlight into its corners. Emerging from the gloom
where he hid, Carrasco fired his 9 mm pistol, hitting Trepagnier
five times in the chest and abdomen. Alerted by the gunshots, sev-
eral officers rushed to the garage. Carrasco ran around a corner of
the house directly into the path of the oncoming police officers.
The officers fired, peppering him with shotgun blasts to the head,
chest and back. The 9 mm pistol dropped from Carrasco’s hand and
fell between his legs. The clip was empty.
Aldape could clearly hear the gunfire from Carrasco’s unsuc-
cessful attempt to blast his way to freedom. Cowering behind a
horse trailer in the backyard of 4911 Rusk, Aldape listened as the
officers and detectives closed in on him. Within minutes of Ca-
rrasco’s death, Aldape was located, unarmed. Hands raised, Aldape
 Mexicans on Death Row 177

surrendered without a struggle. Aldape’s hands were manacled and

then bagged with paper sacks by the officers. The bags were meant
to preserve any evidence of gunpowder or trace metal left by a gun.
About two feet away from where Aldape had crouched, detectives
found Aldape’s .45 caliber pistol under the horse trailer. The gun
was wrapped in a bandana. Aldape’s pistol had one round in the
chamber and three bullets in the magazine.
After being detained, Aldape was driven to the police station
where, at 3:30 a.m., he gave a statement without the benefit of
counsel present. “Soy inocente,”—I am innocent. No one told Al-
dape he had the right to contact the Mexican Consulate. The Vi-
enna Convention on Consular Affairs, signed and ratified by the
United States in 1969, afforded him this privilege.10 At the station
in the early morning hours after his arrest, Aldape was pho-
tographed, fingerprinted and then stood in a lineup at six o’clock
in the morning, already dressed in a jail uniform. Aldape could not
see the witnesses, who had spent the whole night and morning at
the station, as they peered through the one-way glass and attempted
to make a positive identification.
Back on Edgewood and Walker, detectives and officers col-
lected the physical evidence. At the northeast corner of the inter-
section, three spent 9 mm cartridges were found. The three bullets
entered the left side of Officer Harris’s face and traveled across the
patrol car “in an almost perpendicular position” from the driver’s to
the passenger’s side. On top of the patrol car, blood was splattered
at the same, perpendicular angle. Officers traced the bullet holes
to the house on the northwest corner of Walker and Edgewood.
From the physical evidence, detectives concluded that Officer Har-
ris was standing by the open door of his car when he was shot at
close range. The shooter stood east and slightly south of the officer.
The medical examiner who performed the autopsy later divulged
that Officer Harris had gunpowder burns on and near his wounds.
A police ballistics expert testified that, given the powder burns, the
murder weapon was between eighteen inches and four feet away
from Officer Harris, and probably less than two feet away.

10
Recall Articles 5 and 36 of this convention, which were analyzed in our study of
the Avena case, and their repercussions in that case.
178 RICARDO AMPUDIA

Cartridges from a 9 mm were also found elsewhere at the scene.

One was located in the passenger seat of the Buick, and others on
the north side of Walker—one in a ditch in front of 4925 Walker
(close to the car driven by José Armijo, Sr.), and two in the drive-
way of the same house. Police recovered two .45 caliber casings on
the south side of Walker Street, almost a full block east of the Har-
ris shooting. No bullet holes for the .45 were located, which was
consistent with Aldape’s insistence that he had only shot his
weapon in the air. From the evidence, detectives concluded that
the murderer of Officer Harris used a 9 mm pistol and then fled
east down the north side of Walker. On Walker, the shooter mur-
dered José Armijo, Sr. and continued running east. The other per-
son also ran east on Walker, but on the south side, firing his .45
pistol at least twice.
More physical evidence was discovered on Carrasco’s body. Ca-
rrasco drew his last breath holding the 9 mm pistol. The clip inside
his gun, with a capacity of thirteen to fifteen rounds, was depleted.
At the morgue, Officer Harris’s .357 Colt Python was found stuffed
in the front of Carrasco’s waistband under his belt. Carrasco also had
another clip for the Browning 9 mm pistol containing twenty rounds
of ammunition in a military-type magazine double pouch attached to
his belt, eleven loose rounds of 9 mm ammunition in his pants
pocket and a leather holster on the inside of his front waistband.
All the physical evidence implicated Carrasco. Admittedly
though, Aldape failed to render aid to the mortally wounded Offi-
cer Harris, and Aldape did possess an unregistered .45 pistol, a
weapon police would later determine was stolen. Aldape was also
an undocumented alien, and he was undoubtedly at the murder
scene. The most likely suspect, however, was Carrasco. Carrasco
owned and carried the murder weapon and bore the pistol belong-
ing to Officer Harris. But he was dead. On July 23, 1982, Aldape
was indicted for capital murder. Aldape was not charged as the gun-
man’s accomplice. He could not be. As one of the trial prosecutors
acknowledged years later, the evidence showed that the shooter
acted independently and without warning or assistance. Instead,
Aldape was accused of murdering a uniformed police officer. Al-
dape was charged as the triggerman. A conviction could be pun-
ishable by death.
 Mexicans on Death Row 179

TRIAL
Upon reviewing the police reports, Atlas observed that all the
physical evidence pointed to Carrasco, not Aldape, as the killer.
Nevertheless, in his first trial in 1982, Aldape faced a capital mur-
der charge. Unable to afford an attorney, the state district court ap-
pointed counsel for him, Candelario Elizondo and Joe Hernandez.
Elizondo, lead counsel for Aldape, had several years of experience
with capital murder cases. Before representing criminal defendants,
Elizondo served as an assistant district attorney for approximately
five-and-one-half years. Hernandez had only practiced law for three
years and had never tried a capital case. The defense’s limited re-
sources and the unwillingness of some of the witnesses to speak
with them made it difficult to prepare Aldape’s case. The defense
team faced other pressures. Elizondo had to try another murder
trial in August 1982 as Aldape’s trial date drew nearer. The defense
attorneys had no funds to hire expert witnesses to help reconstruct
the crime or to dispute the interpretation of the physical evidence
given by the State’s experts. Aldape saw his overworked court-
appointed attorneys only a few times before the trial for his life. On
the second meeting, they told Aldape that he should accept a life
sentence. Aldape refused, insisting he was innocent. Aldape entered
a plea of not guilty.
The prosecution, on the other hand, consisted of two accom-
plished assistant district attorneys, Robert Moen, the thirty-five-
year-old chief prosecutor of the 248th District Court (where the
case had been assigned), and Richard Bax, a thirty-three-year-old
chief of one of the four felony divisions in the Harris County dis-
trict attorney’s office. On August 30, Judge Henry Oncken called
the courtroom to order as the jury selection process began. During
voir dire, attorneys have an opportunity to question potential jurors
to determine if they have any biases. If the court believes a poten-
tial juror’s bias is so strong that he or she could not be fair, the per-
son will be removed from the jury panel. In addition, each side may
strike a limited number of jurors from the panel without providing
a reason. Such a challenge that is made without showing a cause for
dismissal is called a “peremptory strike.” Voir dire is also the first
chance to convince those eventually chosen for the jury of the ac-
cused’s innocence or guilt.
180 RICARDO AMPUDIA

The prosecution used voir dire to emphasize repeatedly that

Aldape was an “illegal alien.” Although the defense also noted that
Aldape entered the country illegally, the State exceeded the bounds
of zealous prosecution. To find the death penalty is appropriate,
the jury must assess the future dangerousness of the defendant. The
prosecutors expressly instructed several members of Aldape’s jury
that, if they convicted him, then during the punishment phase of
the trial, the jury could consider Aldape’s status as an “illegal alien.”
For example, over the objection of Aldape’s trial counsel, the pros-
ecution instructed one juror that “the fact that a person is in some-
one else’s country unlawfully or has come into a country illegally
could be evidence the jury could consider about what type of per-
son he is.” Prosecutors informed another juror that Aldape’s status
as an “illegal alien” might help in answering the sentencing ques-
tions that would determine whether Aldape would be executed.
Voir dire lasted through September and into October 1982.
Each side voiced their objections, hoping the court would agree
that a biased juror could be dismissed for cause. Both people with
Hispanic surnames were struck by the State. The first twelve voir
dire panelists who were not removed by either the prosecution or
defense team became the jury. On October 4, 1982, the trial began.
The prosecution’s theory was that a double-gun switch oc-
curred. The prosecution speculated that Aldape and Carrasco kept
their weapons on the Buick’s front seat. When they left the vehicle,
they accidentally retrieved each other’s weapons. That was the first
switch. Aldape supposedly shot Officer Harris, took the officer’s
weapon and then shot Armijo with the 9 mm. According to the
prosecutors, at some point thereafter, but before Carrasco shot at of-
ficers with his 9 mm, Carrasco took back from Aldape his own
weapon and the .357 belonging to Officer Harris. That was the sec-
ond switch. As is obvious, not only did the State lack any evidence
supporting its double-gun switch theory, it lacked any physical ev-
idence linking Aldape to the crime.
Then, with no physical evidence, the State relied on five peo-
ple it called as eyewitnesses to the shooting. Most were teenagers.
Many had a poor grasp of English and enjoyed little education.
None of the witnesses saw a gun switch, and none consistently
stated that they saw Aldape shoot the officer. Although five wit-
 Mexicans on Death Row 181

nesses placed Aldape at the scene of the murder, only one, ten-year-
old José Armijo, Jr., eventually testified that he actually saw Aldape
shoot Officer Harris.
The prosecution’s whole case was built on these young wit-
nesses being able to distinguish between two Hispanic men of sim-
ilar height and build, in the late evening, with poor lighting.
Carrasco and Aldape’s differing clothing and facial hair would prove
to be the critical distinction in determining who murdered Officer
Harris. The State understood this and conceived an unprecedented
technique to overcome this obstacle. All the witnesses benefited
from an unusual aid during their trial testimony. At the cost of
$7,000, the prosecution had prepared life-sized mannequins of Al-
dape and Carrasco. The custom-made head of each mannequin cost
$3,500 apiece. The bodies were donated by a local department
store. District Attorney John B. Holmes, Jr. said the cost would be
covered by money collected by the worthless check division.
Holmes admitted that the mannequins’ use was “unusual” and cred-
ited the idea to Bax and Moen. The mannequins were molded into
astonishing likenesses of the two men as they looked on July 13,
1982. Each wore the actual clothes taken from the men on the night
of the shooting. Thus, Carrasco’s shirt was bullet-riddled and blood-
stained, while Aldape’s was spotless. During the witnesses’ testi-
mony, there could be no mistaking which man had long hair and
wore a green shirt and which had short hair, a purple shirt . . . and
was dead.
At the 1982 trial, the State first called Patricia Diaz to the stand.
She was only seventeen years old. In short, Diaz testified that she
saw Aldape pointing west toward the patrol car just before the shots
were fired, but she never actually saw anyone shoot Officer Harris.
Herlinda Garcia then took the stand. The fifteen-year-old was on
Walker Street, with her baby, headed to the store when she saw the
Buick halt in the middle of the street. She said she was running
when she heard the gunshots. Although Garcia identified Aldape as
the shooter, she conceded that in her initial statement she had de-
scribed the shooter as a blond-haired man who wore a brown shirt
and brown pants. Carrasco, not Aldape, wore brown pants on the
night of the shootings. Neither wore a brown shirt. Near the end of
her testimony, Garcia stated that she never saw the man in brown
182 RICARDO AMPUDIA

clothes raise his hand or shoot anyone. Garcia had not gone to the
store alone that night. She was accompanied by her sixteen-year-
old sister Elvira “Vera” Flores. The State called Flores to the stand.
Flores thought Aldape was the shooter, but she admitted that she
hid behind a car when the shooting started. She also conceded that
she failed to identify Aldape at the lineup, but she attributed that
to her fear of retribution. She testified that she did not actually see
the man who shot Officer Harris and Armijo, Sr. She saw no gun
until after Officer Harris had been shot and after the man she as-
sumed was the shooter had begun to run down the street.
Hilma Galvan, who lived on the north side of Walker not far
from the shooting, testified next. At forty-four, she was the only
adult among all the alleged eyewitnesses called by the State. On
July 13, 1982, she testified that she was walking with Jose Heredia
and his brother, Armando. Galvan heard two shots. She never saw
a gun, but she saw a flash. She said the shooter had blond hair and
wore a black or dark brown shirt and brown pants. In court, she
identified Aldape as the shooter. She said she never saw Carrasco.
Galvan testified that the person she believed to be the shooter then
ran toward her side of the street, the north side.
The prosecution then called young José Armijo, Jr. who, sitting
in the front passenger seat of his father’s car, saw Officer Harris
standing beside his open patrol car door. Two other men were
standing by the hood of the police car, with their hands on the
hood. One man “acted like he was scratching his back” when he
took out a gun and shot Officer Harris. José, Jr. could see fire com-
ing out of the gun. Officer Harris fell to the ground. The shooter
wore a green shirt, the other man a purple shirt, José, Jr. stated as
he faced the mannequins. He said the shooter had a beard and long
hair. He then made an in-court identification of Aldape as the
shooter. On the night of the shooting, José, Jr. had told police that
the shooter used his left hand to retrieve and shoot the gun. Nei-
ther the prosecution nor defense elicited this fact during José, Jr.’s
trial testimony. The information about which hand the shooter used
might have helped the jury decide whether Aldape was innocent,
based on information Atlas would only later uncover.
On cross-examination, José, Jr. admitted that he gave a sworn
statement to police on the night of the shooting that said he did
 Mexicans on Death Row 183

not see the shooter clearly. Before the lineup, he told police that he
did not know who shot the police officer. He also stated that he did
not know what clothing Aldape and Carrasco were wearing the
night of the shooting. At a lineup, hours after his first statement, he
still could not identify Aldape. Even though the police assured him
at the time that the men in the lineup could not see him, José, Jr.
said he had earlier been afraid to identify Aldape.
To rehabilitate José, Jr.’s testimony, the State called his mother
to the stand. She had sat in the courtroom for most of the pro-
ceeding. Marie Estelle Armijo testified that her son returned home
from the police station at 8:30 in the morning on July 14, 1982 and
told her he had seen the shooter but was afraid to tell the police.
She testified that she waited a further six weeks, only days before
the trial, to tell the prosecutors that José, Jr. could identify Aldape
as the shooter. Over defense objections, she also detailed how José,
Jr.’s behavior had changed since his father’s death. She explained
that José, Jr. “used to go out and play a lot and he would ride his
bicycle on the sidewalk and going around the block.” But that had
changed since the shooting. “[N]ow he doesn’t want to go out to
play and he just comes home and he wants to lie down and sleep,
and he doesn’t even want to eat.” This testimony, while compelling,
was irrelevant to the question of Aldape’s guilt.
The State called other witnesses for their emotional impact. For
example, the medical examiner who performed the autopsy on Of-
ficer Harris described the officer’s injuries. The State introduced
several grisly autopsy photographs showing the entrance and exit
wounds on the officer’s face and head and several pictures showing
rods entering one side of his face and exiting the other. As its final
witness, the prosecutors called the widow of Officer Harris. The
court overruled objections that her moving testimony about her
husband’s life, work and marriage was immaterial to Aldape’s guilt
or innocence. The court allowed her to describe how she met her
husband and how he regularly worked extra jobs so that she could
devote all her time to raising their two daughters.
At the end of the State’s case, only one witness, José Armijo, Jr.,
claimed to have actually seen Aldape shoot Officer Harris. No wit-
nesses placed Aldape in the location where the shooter had to be
—east of the officer. The defense began its case.
184 RICARDO AMPUDIA

The defense initially presented the testimony of four witnesses,

two who saw the shooting and two who heard Carrasco confess to
the crime. Jacinto Vega, who was seventeen at the time of trial, tes-
tified that on the evening of July 13, 1982 he sat on Hilma Galvan’s
porch as the Buick drove by her house and stopped at the intersec-
tion. He saw the driver approach Herlinda Garcia and Vera Flores. He
noticed that the passenger in the Buick had short hair. Then the po-
lice car parked behind the Buick. Officer Harris called to the driver,
and the driver walked over to the police car and placed his hands on
its hood. The passenger walked behind the driver, and while stand-
ing behind, and to the east of, the driver, he “took something out”
and shot Officer Harris. He held the weapon with two hands. On
cross-examination, Vega stated that the driver was closer to Officer
Harris, but the shorthaired passenger shot from behind the driver.
The defense then called Jose Heredia. He and his brother, Ar-
mando, were with Hilma Galvan on the night of the shooting. He,
too, saw Aldape put his hands on the police car’s hood. While Offi-
cer Harris stood next to his car door, the Buick’s passenger ap-
proached and shot Officer Harris. Jose Heredia identified the shooter
as “Güero, the light-colored one.” On cross-examination, the pros-
ecution questioned Heredia about a “killing” that allegedly occurred
in a nearby cemetery forty minutes before Officer Harris was mur-
dered. The prosecutor’s first eight questions—using such phrases as
“this woman killed,” “they had killed a woman” and the “woman’s
body”—were intended to convey to the jury that Aldape and Car-
rasco had committed a murder. Defense counsel objected. The pros-
ecutor promised to “spell out” the relevancy later to the court, but
never did. Elizondo, Aldape’s attorney, did not know then that the
murder never occurred. The police had investigated the rumor on
approximately July 22, 1982 and confirmed it to be a complete hoax.
Curiously, the assistant district attorney pursued this line of testi-
mony even though he knew no cemetery murder occurred.
Two of Aldape’s roommates were then called by the defense,
Jose Manuel Barrosa Esparza and Jose Luis Torres Luna. Both young
men, testifying in Spanish, stated they were in their apartment
when Carrasco ran into the residence at 4907 Rusk and bragged
about killing a police officer. Esparza testified that at approximately
10:00 or 10:30 p.m. that night he heard gunshots. Three or four
 Mexicans on Death Row 185

minutes later, Carrasco tore into the apartment, agitated and out
of breath. Carrasco showed Esparza the police officer’s gun and
stated that he had killed the gun’s owner. Esparza saw that Ca-
rrasco carried two pistols, one in his hand and one in his belt. Later,
Torres Luna testified that Carrasco offered to give him the police of-
ficer’s revolver “as a present.” Torres Luna refused this “gift.” Ca-
rrasco then removed a clip from the pistol in his hand and replaced
it with a loaded clip. Shortly after Carrasco arrived, Aldape ran into
the house. Aldape told Torres that Carrasco had just killed a police
officer. Carrasco announced he would defend himself, preferring
death to surrender. Esparza, not wanting to get involved, told the
men to leave. Shortly afterward, Carrasco and Aldape departed
through the rear door.
When the police later entered the house with their guns drawn,
they forced the remaining occupants to lie face down and interro-
gated them while training pistols at their heads. Both Torres and
Esparza admitted they did not tell the police about Carrasco’s con-
fession while being interrogated, but claimed they were scared.
During rebuttal, the prosecution called a police officer who testified
that Torres and Esparza told him they had left home shortly after
Carrasco and Aldape departed and had not returned until the offi-
cer saw them. The officer insisted that he saw no one point a gun
at Torres or Esparza while they were questioned.
The defense called its final witness, the accused himself, Ri-
cardo Aldape Guerra. Testifying in Spanish through an interpreter,
Aldape said he knew Carrasco only as “Güero” and that he had
known him for only two or three weeks. On July 13, Carrasco
joined Aldape when he left to go to the store to purchase a soda; as
usual, Carrasco brought his 9 mm pistol. Aldape drove around the
neighborhood, spinning the Buick’s tires, before the car stalled.
Shortly after it broke down, he asked some girls for jumper cables.
Then the police car arrived. Aldape heard the officer say something,
but he only understood “Come on.” He obeyed the command and
placed his hands on the patrol car’s hood. Officer Harris told Ca-
rrasco to “come on,” but Aldape could no longer see Carrasco.
“Suddenly,” Aldape testified, shots rang out “almost in my ears.”
He witnessed the officer’s gun drop and Carrasco’s retrieval of it.
Both men then turned and fled. Aldape ran down the right side of
186 RICARDO AMPUDIA

the street (the south side) heading east on Walker. Out of fear, he
twice fired his own .45 into the air to keep Carrasco from follow-
ing him. He ran home and found Carrasco already inside. Carrasco
said he had also shot at another car.
With Aldape’s testimony, the defense rested. Each side then pre-
sented its closing argument to the jury. The State, as always, pro-
ceeded first and, after the defense argument, would be permitted
the final word in rebuttal. The prosecution advanced its gun-switch
theory. The State insisted that five people—José Armijo, Jr., Gal-
van, Diaz, Garcia and Flores—immediately went to the police sta-
tion, gave written statements without having a chance to confer,
viewed the lineup while being told not to discuss what they saw,
were asked individually whether they recognized anyone and iden-
tified Aldape as the shooter. Regarding the key testimony of José,
Jr. identifying Aldape, the prosecution stated that José, Jr. knew
that “God would get after him if he told a lie.”
The prosecution called the scientific evidence “inconclusive”
and that the testimony of Jose Heredia, whose testimony that he
saw Carrasco kill Officer Harris was critical to Aldape’s defense,
could not be considered true. To justify this, the prosecutor offered
this opinion of the fourteen-year-old Heredia’s mental state during
his trial testimony: “I think he was probably under the influence of
some type of alcoholic beverage, or narcotic drug.” The prosecution
also invoked Aldape’s immigration status in closing argument as it
had during voir dire, stating, “[Y]our answers will demonstrate
what type of person . . . Aldape was while he was in our commu-
nity for less than two months after coming here from Monterrey,
Mexico.” A message had to be sent, the prosecutor urged: “Let the
other residents of 4907 Rusk know just exactly what we as citizens
of Harris County think about this kind of conduct.”
The defense argued in closing that each witness had changed
their statement in numerous ways. In addition, the defense con-
trasted Carrasco’s conduct on July 13 with Aldape’s. Carrasco re-
acted violently; Aldape surrendered. Carrasco fired on officers at
4911 Rusk; Aldape shot no one even though his loaded weapon lay
within easy reach.
On rebuttal, the prosecution asked for a verdict fair to Officer
Harris and his family and insisted again that five witnesses had said,
 Mexicans on Death Row 187

without reservation, that Aldape killed Officer Harris. Torres Luna

and Esparza were simply liars, argued the State. The case went to
the jury on October 12. The jurors reviewed the testimony of Gal-
van and José, Jr. that described who shot Officer Harris. They also
studied José, Jr.’s testimony concerning who shot his father. After
the jury had deliberated for less than six hours, the judge asked to
be told whether they had voted. After being informed that they had,
he asked how they were split. The foreperson answered that the
vote stood at eleven to 1, without indicating whether the majority
favored conviction or acquittal. The trial court questioned if fur-
ther deliberations that evening would prove productive. In re-
sponse, the foreperson requested one more hour. Fifteen minutes
later, the jury returned a unanimous verdict: “We, the Jury, find the
defendant, Ricardo Aldape Guerra, ‘Guilty’ of the offense of Capi-
tal Murder, as charged in the indictment.”

SENTENCING
The jury had convicted Aldape of capital murder. But their serv-
ice was not yet complete. They had to sentence Aldape. Given the
brutal crime of which they convicted him, the only choice would
be between life imprisonment and death. The sentencing proceed-
ings would afford an opportunity for Aldape’s attorneys to offer mit-
igating evidence to demonstrate that he did not deserve to die.
Sentencing proceedings began on October 13, 1982, one day after
Aldape’s conviction. In order to sentence Aldape to death, the State
had to convince the jury that Aldape committed the crime deliber-
ately and with the reasonable expectation that death would result
and that Aldape would probably commit violent criminal acts in
the future that would constitute a continuing threat to society.
These two questions, called “special issues” would each have to be
answered “yes” for Aldape to receive the death penalty.
During the State’s case, the prosecution accused Aldape of par-
ticipating in a robbery at the Rebel Gun store in Houston a week be-
fore the Harris and Armijo murders. Aldape’s .45 caliber pistol was
taken in the heist, as were many other weapons, including an Uzi.
In all, $15,000 worth of guns and ammunition were stolen. One of
the four witnesses to the crime identified Aldape as one of the rob-
bers. A police expert claimed Aldape’s fingerprint was found on the
188 RICARDO AMPUDIA

outside of a canister of adhesive tape used to tie the hands of the

store employees and customers during the robbery.
None of these witnesses identified Aldape when they saw his
picture, but in an astonishing development, two prosecution wit-
nesses identified Enrique Torres Luna, a spectator at the trial and
brother of Jose Torres Luna, as a robbery participant. Sheriff’s
deputies arrested Enrique based on these identifications. The State
made a decision, though, not to call either of two witnesses who
had told police that the suspect had a tattoo of a Mexican caballero
on his right bicep and that Aldape was not one of the robbers. At
the time, neither Torres nor Aldape had tattoos. The State would
later drop all robbery charges against Torres because of insufficient
evidence.
Aldape’s lawyers called only a single witness in his defense, his
mother. The defense brought none of Aldape’s former teachers, em-
ployers or friends from Monterrey. It introduced no records demon-
strating that Aldape did not have a criminal record in Mexico or
the United States. The defense did not show how arduously Aldape
worked on his family’s behalf. To be sure, the defense lacked the
money to obtain much of this material or to fly the witnesses to
Houston on a day’s notice.
Finally, it was time for the attorneys’ closing arguments. Pros-
ecutor Moen used this opportunity to explain to the jury the bibli-
cal source of the State’s power to execute those guilty of murder.
After the State invoked the Bible to assuage the jury’s conscience
and argued that the dearth of evidence on Aldape’s character spoke
volumes, the defense presented its closing argument. Elizondo
asked the jury to consider the possibility of the State learning later
that Aldape was not the killer. He noted that a man serving a life
sentence could be set free, “But how are you going to bring a dead
person back?”
Two and a half hours after beginning deliberation, the jury
reached its verdict. It answered both special issues with “yes.” The
Court then addressed the defendant. “Ricardo Aldape Guerra, the
jury having found you guilty of the capital offense of murder and
having answered special issues 1 and 2 ‘yes,’ it is . . . the sentence
of this Court that you be given death as a penalty in this case.” The
verdict stunned both Aldape and his parents, who all wept openly
 Mexicans on Death Row 189

as the judge read the sentence of death. When asked by the judge
if he had anything to say before he was formally sentenced by the
court, Aldape tearfully said in Spanish, “I am not guilty.”

APPELLATE LOSSES
Three weeks after the jury assessed the death penalty, the Ku
Klux Klan demonstrated outside the Harris County Courthouse as
the defense attorneys argued Aldape should receive a new trial.
Some Klan members were dressed in their customary white sheets;
others wore black shirts. They carried signs reading, “Guerra Got
Justice,” “No Sympathy for Cop Killers” and “For Once Justice Has
Been Served.” Another read, “Houston Will Not Tolerate Illegal
Alien Crimes.”
Even though the jury had convicted Aldape and sentenced him
to die, the motion for new trial presented one more opportunity
for Aldape, while still before the district court, to escape the death
sentence. His defense attorneys located a juror, Donna Monroe,
who signed an affidavit stating that she believed Carrasco killed
Officer Harris. She also attested that the mannequins made her
nervous and influenced her verdict. It was a sudden, unexpected
change of heart by one of the jurors. Aldape’s attorney, Elizondo,
said that, frankly, he did not know why Monroe changed her mind.
He told reporters, “She just says that she cannot sleep at night.”
Her about-face could not alter the judgment, however. The Court
denied Aldape’s motion for new trial, and deputies transferred him
to death row in Huntsville, Texas.
Aldape was now appointed a new attorney for the next round
of his defense. Michael B. Charlton appealed Aldape’s conviction
to the Texas Court of Criminal Appeals. After filing Aldape’s ap-
pellate brief with the court on August 16, 1984, Aldape and Charl-
ton waited to see if the verdict would be overturned.
Aldape’s appeal languished in the high court until 1988, nearly
six years after his conviction, a scandalous delay. Finally, on May 4,
1988, the nine justices decided to address Aldape’s request for re-
lief. Aldape lost again. Over a strong dissent by two justices, the
court affirmed his conviction.
Writing for the dissent, Justice Sam Houston Clinton, joined
by another justice, noted that José Armijo, Jr. was the State’s only
190 RICARDO AMPUDIA

witness who claimed to see both Carrasco and Aldape. José Armijo,
Jr.’s testimony alone “stood between Aldape and an acquittal for in-
sufficient evidence.” In a footnote, Judge Clinton stated that “even
with Armijo, Jr.’s testimony, I personally have substantial doubt that
Aldape was the triggerman here.” He recognized, however, that the
high court “has no authority to pass upon the weight and prepon-
derance of the evidence.”
The State’s double-gun switch theory worried the dissent. “[I]t
is utterly inconceivable to me,” Judge Clinton wrote, “that in the
time between the killing of Harris and the subsequent gun battle
with police, when the murder weapon was discovered on [Ca-
rrasco’s] person, that [Aldape] and [Carrasco] would have traded
weapons!” Although it provided meager consolation to Aldape as
he languished on death row, the dissent concluded that “a genuine
miscarriage of justice has occurred.”
With this defeat, Aldape had only one avenue of appellate relief
left, a petition for writ of certiorari to the U.S. Supreme Court. The
country’s highest court enjoys the discretion to decide whether to
hear a “cert petition,” as the phrase is commonly abbreviated. Thou-
sands of cert petitions, in civil and criminal cases, are filed every year
with the Supreme Court. In only a handful of cases does the Supreme
Court grant review. A Supreme Court victory would require Aldape
to clear two hurdles. First, he must convince four of the nine
Supreme Court justices to hear his case. Second, he must persuade a
majority of the justices that his conviction should be overturned.
Aldape did not even clear the first hurdle. One day before the
Fourth of July in 1989, the Supreme Court issued its one-page re-
sponse: “IT IS ORDERED by this Court that the said petition be,
and the same is hereby, denied.” Aldape had lost again. Justices
Brennan and Marshall dissented. “Adhering to our views that the
death penalty is in all circumstances cruel and unusual punishment
prohibited by the Eighth and Fourteenth Amendments,” they
wrote, “we would grant certiorari and vacate the death sentence in
this case.” Aldape, convict number 727, received the news in the
Ellis I Unit on death row in Huntsville. Now, nothing blocked the
State of Texas from setting an appointment for Aldape to die.