PETITION FOR EXECUTIVE CLEMENCY
of
ANGEL FRANCISCO BREARD
INTRODUCTION
Angel Francisco Breard is a Paraguayan citizen on Virginia's Death Row.
He committed a terrible crime which he deeply regrets, and which he
firmly believes, based upon his religious and cultural background, was
caused by a satanic curse placed upon him by his ex-father-in-law.
Raised in the Roman Catholic faith,
Angel was reborn in Jesus Christ early on during the course of his
imprisonment, a redemption which he believes purged him of the satanic
curse.
While the specifics of Angel's
religious beliefs may not be of great importance in terms of the
decision whether to grant him clemency, the effect of those beliefs upon
his character and actions during the course of his imprisonment is.
Angel has become deeply involved with Beth Messiah Congregation, an
evangelical Jewish-Christian group (Jews for Jesus) based in
Gaithersburg, Maryland, and has spoken many times to the radio audience
of Apolstolos y Profetas (Apostles and Prophets) on a program called
Camino al Cielo (the Way to Heaven), which reaches out to people in
prison and hospitals, about his conversion and beliefs.
He participated in Bible study
groups while incarcerated in Arlington, and has studied the Bible with
individual death row prisoners at Mecklenburg in an effort to develop
their and his own spiritual lives. He has authored many writings
proclaiming the word and the love of God and Jesus. See, e.g., Ex. 1. He
has become deeply committed to, and on October
18, 1996, married, a member of his Maryland church congregation, and has
become stepfather to her two children. See Ex. 2.
Affidavits from family and friends
in Paraguay who knew Angel prior to a serious automobile accident which
resulted in damage to the left fronto-temporal region of his brain, the
region associated with discontrol symptoms, especially in conjunction
with the intake of alcohol, see Ex. 3, show that his current conduct is
far closer to his true personality than were the crimes he committed in
1992. See Exs. 4-11. Imprisoned and without access to alcohol, Angel
poses no threat to society, and he in fact serves as a positive
influence in the prison environment. Moreover, he has become an
important force in the spiritual lives of his wife and step-children.
See Ex. 2.
Breard, His Crime and Trial
Angel Breard was born in Argentina, his father's native land, in 1966.
In 1978 his family moved to his mother's family's home in Paraguay, and
Mr. Breard later adopted Paraguayan citizenship. His father died when
Angel was 17. The automobile accident in which Angel suffered injury to
his brain occurred in 1985. In 1986, at the age of 20, he came to the
United States, where he soon found work and began to send money home to
help support his family. Exs. 4; 12, && 23, 156. He married in 1987, but
the marriage lasted less than six months and had a disastrous ending
caused by his father-in-law. Ex. 12, & 17, 22.
In the years following his divorce,
Angel began drinking to excess on a daily basis. In 1992, depressed and
drunk, Angel committed a murder in the course of an attempted rape.
Angel was arrested on September 1,
1992 and charged with capital murder and attempted rape. Id., && 4-7.
Virginia has stipulated that he was not, at the time of his arrest or at
any time thereafter, informed by Virginia or local authorities of his
right pursuant to Article 36 of the Vienna Convention on Consular
Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (the Vienna
Convention or the Convention or the treaty) to contact the Paraguayan
and/or the Argentine consulates for assistance in his defense. Ex. 13.
He did not become aware of that right until his direct appeal and state
habeas corpus proceedings had been concluded.
Prior to trial, the Commonwealth Amade it clear to [Angels attorneys]
that the Commonwealth would forego the death penalty if Mr. Breard would
plead guilty. Affidavit of trial counsel, Ex. 14, & 5. This affidavit
was procured by the Commonwealth and introduced by it against Breard in
his state habeas proceeding. Trial counsel had investigated the
Commonwealths evidence against Mr. Breard and satisfied [themselves]
that the prosecution would be able to prove Breard's guilt beyond a
reasonable doubt. Id., & 4.
Nevertheless, against the advice of
his counsel, Angel refused the offer of a life sentence
and pled not guilty. Unfamiliar with the law and culture of the United
States, he had decided instead to testify and admit his guilty to the
jury in the hope that the jury would set him free upon learning that a
satanic curse, now lifted, had been responsible for the crime. Id., &
16, and attached memorandum.
The Commonwealth's case against
Angel was based entirely on DNA. The prosecution introduced no
incriminating statements. After the prosecution rested, Angel took the
stand in order to confess his crime to the jury. He testified that a
satanic curse had been placed upon him by his former father-in-law, that
the curse had caused him to commit the murder, and that the curse had
been lifted upon his finding Jesus Christ after his arrest.
On direct examination, he described
the curse and his release from it as follows:
A. What I was going through is full
of thought that came to my mind and keep coming to my mind and more than
that, that I know now, is that everything is a spiritual thing, it's --
it's a warfare, it's a bitter warfare, it's something that you can't see,
you can't touch it, but it's there. You feel it and it's powerful.
Q. What was causing these thoughts
to your --
A. Was causing?
Q. Yes.
A. Well, I believe deeply
everything was causing all that, it is Satanic practice against myself.
Q. And who initiated this Satanic
practice against you?
A. My father-in-law.
*****
All I was doing is seeking for
myself, destruction for myself. In doing so I kill someone else.
*****
Q. [N]ow, is this curse still
affecting you?
A. No.
Q. Why not?
A. It was very simple, because now
I found Jesus, I just have him in my heart and my life, so now I'm free
of all that. And in a way there is many things that I learned, and I
learned speaking to him here in jail. And one thing that he said, if you
keep my commandments you shall know the truth, and the truth shall make
you free. If you keep my commandments you'll be truly my disciple.
So that does not affect me any
more.
Q. Is there anything also about
what happened that night that you want this jury to know?
A. Well, one important thing is
that I never ever thought -- intend to kill her or to kill anyone. No, I
did it as the fact. I did it, but I -- no, that's the best way I can
explain to you. How it happened. I didn't want to do it, but it happened.
The Arlington County jury,
predictably, did not set him free. He was convicted on all charges.
After finding Angel guilty, the jury heard evidence pertinent to
sentencing.
The jury deliberated for
approximately 62 hours on the question of penalty. During its
deliberations, the jury twice sent out notes to the judge asking
questions that showed its struggle with the decision between life
imprisonment and death. The first question was, Awith life in prison how
long will he be there before he is eligible for parole? Ex. 16 at 115.
The trial judge instructed the jury
that he could not answer the question and the jury should not concern
itself with the possibility of parole. In colloquy with trial counsel,
the Court observed, Ait seems bizarre that we as a Commonwealth entrust
jurors with adecision like this and won=t tell them the reality of what
their choices are. Id.
The second question was whether the
jury can Arecommend the sentence of life without the possibility of
parole. Id. at 116. In response, the Court instructed the jury that it
must limit itself to the three choices previously outlined in the
instructions: death, life imprisonment, or life imprisonment plus a
fine. Ultimately, the jury fixed the sentence at death, and, on August
20, 1993, the trial judge held a sentencing hearing and imposed the
death sentence. Ex. 17.
In sum, throughout the trial
proceedings, due to his lack of understanding, Angel forced his American
court-appointed attorneys to take a number of steps, against their
advice, which were contrary to his best interest.
For example:
(a) Angel refused the proffered
plea agreement in which the Commonwealth would seek only a life sentence
if he would plead guilty, Ex. 14, & 5;
(b) Angel insisted upon testifying
on his own behalf, confessing his guilt, and explaining the events of
February 17, 1992 as the only eyewitness to them, id.;
(c) Angel urged his attorneys not
to call mitigation witnesses. They refused his directive on that
occasion, id., & 9;
(d) Angel refused to permit his
family members to be called as witnesses at the post-trial hearing on a
motion to set aside the death penalty, id.;
(e) Angel refused to permit his
attorneys to renew a pretrial motion to declare unconstitutional
Virginia=s method at that time of carrying out the death sentence, id.1
Never during the entirety of the
proceedings against him was Angel informed of his right to contact the
consulates of Paraguay and/or Argentina.
Nor were those consulates informed
of the detention and trial of their citizen or the imposition of the
death sentence upon him, despite the Commonwealths knowledge that Angel
was a foreigner. Ex. 13. Since becoming aware of his plight (from
sources other than American federal or state authorities), both Paraguay
and Argentina have made every effort to assist Angel and have made clear
that they would have done so sooner had they known of his arrest,
detention and trial.
Both nations have filed affidavits
in Angel's habeas corpus case describing the assistance they would have
provided to Angel. Exs. 19 & 20. Paraguay has also filed a separate
lawsuit in the courts of the United States and one in the International
Court of Justice in an effort to vindicate its own Vienna Convention
rights in connection with the proceedings against Angel. Argentina,
along with several other sovereign nations, submitted a brief amicus
curiae in support of Paraguay's Petition for Certiorari in the United
States Supreme Court. Virginia's Violation of the Vienna Convention
When a foreign national of a
signatory nation to the Vienna Convention on Consular Relations is
arrested in another signatory nation, the Convention requires the latter
to notify the arrested person of his right to contact his consulate.
Article 36 of the Vienna Convention provides, in pertinent part:
1. With a view to facilitating the
exercise of consular functions relating to nationals of the sending
state:
(a) consular officers shall be free
to communicate with nationals of the sending state and to have access to
them. Nationals of the sending state shall have the same freedom with
respect to communications with and access to consular officers of the
sending state;
(b) if he so requests, the
competent authorities of the receiving state shall, without delay,
inform the consular post of the sending state if, within its consular
district, a national of that state is arrested or committed to prison or
to custody pending trial or is detained in any other manner. Any
communication addressed to the consular post by the
person arrested, in prison, custody or detention shall also be forwarded
by the said authorities without delay. The said authorities shall inform
the person concerned without delay of his rights under this sub-paragraph;
*****
2. The rights referred to in
paragraph 1 of this article shall be exercised in conformity with the
laws and regulations of the receiving state, subject to the proviso,
however, that the said laws and regulations must enable full effect to
be given to the purposes for which the rights accorded under this
article are intended. Vienna Convention on Consular Relations, Apr. 24,
1963, 21 U.S.T. 77, 590 U.N.T.S. 261 (emphasis added).
The Convention was ratified with
the advice and consent of the United States Senate in 1969, and is, thus,
one of the laws of the United States.To reinforce the Convention's
obligations, the United States State Department regularly sends notices
to governors, state attorneys general, and mayors of cities having a
population in excess of 100,000 advising them of their duties under the
Vienna Convention and the importance of complying with its terms. Ex.
21. Of particular import with respect to Angel's September 1992 arrest,
the State Department sent such notices to Virginia's Governor and
Attorney General in August 1991 and October 1992. Id., Exs. A & B.
The Vienna Convention is of great
significance, not only to foreign nationals detained in the United
States, but also to United States citizens traveling abroad who depend
on the observance of their rights under the Convention by other nations.3
Indeed, our State Department, speaking on behalf of American citizens,
has described one of the rights provided by Article 36 of the Vienna
Convention as follows: . . . the host government must notify the
arrestee without delay of the arrestee's right to communicate with the
American consul.
*****
[This] provides an opportunity for
the consular officer to explain the legal and judicial procedures of the
host government . . . at a time when such information is most useful.
United States Department of State,
7 Foreign Affairs Manual && 411.1, 412 ("Chapter 400") (emphasis added).
Ex. 23. According to the State Department, immediate access allows the
consular official to act as a cultural bridge between the arrested
person and the arresting state at the time of the arrestee's greatest
need to understand his rights under the foreign government's system of
laws, the legal and judicial procedures facing him, and the local
cultural norms. See id., && 401, 412. The State Department notes that no
one needs that cultural bridge more than the [individual] . . . who has
been arrested in a foreign country. . . . Id.
Moreover, as Judge Butzner wrote in
his concurring opinion in Angel's case in the Court of Appeals:
The protections afforded by the
Vienna Convention go far beyond Breard's case. United States citizens
are scattered around the world -- as missionaries, Peace Corps
volunteers, doctors, teachers and students, as travelers for business
and for pleasure. Their freedom and safety are seriously endangered if
state officials fail to honor the Vienna Convention and other nations
follow their example. Public officials should bear in
mind that "international law is founded upon mutuality and reciprocity .
. . ." Hilton v. Guyot, 159 U.S. 113, 228 (1895).
*****
....The importance of the Vienna
Convention cannot be overstated. It should be honored by all nations
that have signed the treaty and all states of this nation. Breard v.
Pruett, 134 F.3d 615, 622 (4th Cir. 1998). Ex. 24.
The authorities of the Commonwealth
of Virginia have stipulated that Mr. Breard was not advised of his
rights to consular notification and access under Article 36 of the
Vienna Convention prior to being tried and sentenced to death in
Arlington County, Virginia in 1993. Ex. 13. The treaty explicitly
required that he be so advised. Notwithstanding the great weight
attached by the federal government to the Vienna Convention and to the
personal rights guaranteed by its provisions, the individual states have
long ignored legal obligations imposed upon them by the Convention.
Indeed, the District Court expressly found in Mr. Breard's case that
Virginia has engaged in a persistent refusal to abide by the Vienna
Convention. Breard v. Netherland, 949 F. Supp. 1255, 1263 (E.D. Va.
1996). Ex. 25.
It appears that violating the
requirements of Article 36 of the Vienna Convention is the norm, not
only in Virginia4, but throughout the United States.5 In fact, various
high state officials have publicly questioned the applicability and the
binding effect of the Convention with respect to the criminal law
enforcement activities of the states. Frank Green, a reporter for the
Richmond Times-Dispatch, wrote in an article in the September 17, 1997
edition concerning the murder conviction of Mexican Mario Murphy that
former Governor George F. Allen "disputed whether it was Virginia's
responsibility to notify Murphy of his Vienna Convention right." Ex. 27.
In that same case, the prosecutor
who oversaw the legal proceedings against Murphy was reported by The
Virginian-Pilot & Ledger Star of Norfolk to have described an assertion
of
rights under Article 36 as "completely ridiculous" and to question
whether such rights were enforceable: "I mean, what is the remedy? I
suppose Mexico could declare war on us." Ex. 28. The General Counsel to
Texas Governor George W. Bush reportedly protested a request by the U.S.
Department of State for information concerning possible violations of
Article 36 by Texas law enforcement officials on the ground that "the
State of Texas is not a signatory to the Vienna Convention." Al Kamen,
Virtually Blushing, The Wash. Post, June 23, 1997, at A17. Ex. 29. The
Executive Director of the Association of Retired Police Chiefs in
Washington, D.C. is reported to have stated about foreigners' Vienna
Convention rights that "[i]n my 47 years in law enforcement, I have
never seen anything from the State Department or FBI about this."
Margaret A. Jacobs, Some Convictions of Foreigners in U.S. Stir Debate
Over Rights, The Wall St. J., Nov. 4, 1997, at B5. Ex. 30.
It is apparent that Virginia
continues to violate the Vienna Convention despite the admonitions of
the court in two cases decided in 1996 by the United States District
Court and more recently affirmed by the Fourth Circuit where the
illegality of its Vienna Convention violations was a central issue. In
pre-trial proceedings held on March 3, 1998 in the first degree murder
case of Commonwealth of Virginia v. Elvia Garcia, Criminal No. 93264,
the Circuit Court of Fairfax County found that Virginia had violated Ms.
Garcia's Vienna Convention rights, but decided that it was unable to
provide her with any remedy for that violation. See Ex. 31 at 14-19.
Because the courts have found
themselves unable to remedy Virginia's defiant and continuing disregard
for the Vienna Convention, the Governor of Virginia must act to preserve
the fundamental protections provided by the Vienna Convention in this
country in order to prevent other signatories of the treaty from using
the conduct of Virginia and other states as a justification for similar
conduct. The United States interest in protecting these rights was
brought home by the lawlessness and barbarism of those who overran the
American Embassy in Tehran, Iran in 1979. Taking 52 American diplomats
and civilians hostage, Iran deprived them of all access to the outside
world for 444 days.
The United States reacted with
outrage and pressed its case before the International Court of Justice,
where it proclaimed to the world that Athe channel of communication
between consular officers and nationals must at all times remain open.
Indeed, such communication is so essential to the exercise of consular
functions that its preclusion would render meaningless the entire
establishment of consular relations. Memorial of the United States to
the International Court of Justice in the Case Concerning United States
Diplomatic and Consular Staff in Tehran filed in response to the 1979
storming of the American Embassy.
In an earlier incident, the United
States protested Syria's 1975 arrest of two American citizens and its
failure to notify the American Embassy. Ronan Doherty, Foreign Affairs
v. Federalism, 82 Va. L. Rev., 1281, 1318 n.165 (1996), citing Luke T.
Lee, Consular Law and Practice 145 (2d ed. 1991). In a telegram to the
Syrian authorities, the United States felt it necessary to remind them
that the Vienna Convention was a solemn treaty obligation, and stated
that [t]he Government of the Syrian Arab Republic can be confident that
if its nationals were detained in the United States the appropriate
Syrian officials would be promptly notified and allowed prompt access to
those nationals. Id., quoting Department of State Telegram 40298 to
Embassy Damascus, Feb. 21, 1975. As matters have developed, however, any
such Syrian confidence would have been misplaced.
While state officials in Virginia
and elsewhere have thus far failed to recognize the rights granted by
the Vienna Convention, other nations have made extremely clear that they
take those rights very seriously. Paraguay and Argentina have submitted
in Angel Breard's habeas corpus case affidavits detailing the assistance
they would have provided to him; Paraguay and Mexico have brought
lawsuits in the courts of the United States to attempt to remedy
violations of their own Vienna Convention rights; Paraguay has taken its
complaint against Virginia and the United States to the International
Court of Justice; and Argentina, Mexico, Brazil, Equador, and Canada
have filed briefs amicus curiae in cases in which violations of the
Vienna Convention have been alleged.
Paraguay's fledgling democracy is
dedicated to the implementation of democratic institutions and the rule
of law. Its perseverance in pursuing its Vienna Convention rights
signifies the depth of that commitment. A grant of clemency in this case
would thus support the cause of democracy abroad as well as the rule of
law at home in Virginia.
Angel Breard was offered a life
sentence in exchange for a guilty plea, and he rejected the bargain
because of his culturally based belief that the jurors would acquit him
once they understood that he had been under a satanic curse that had
been lifted when he found Christ. It is no answer that Angel had court-appointed
American trial counsel to advise him. He was deprived by the
Commonwealth of the cultural bridge he so desperately needed, a consular
official who had an understanding of both the North American and South
American cultures and legal systems.
While the courts have found
themselves unable to consider the merits of Angel's Vienna Convention
claim because of the doctrine of procedural default, the Governor is
under no such constraints. Now it is up to the Governor to assure that
Virginia abides by the rule of law, indeed, the Supreme law of the land.
The Virginia Supreme Court's
Defective Proportionality Review
Angel also requests clemency on the
grounds that his death sentence was the product of Virginia's
fundamentally flawed capital punishment system. Virginia, like many
states in the aftermath of Gregg v. Georgia, 428 U.S. 153 (1976),
adopted statutory procedures for capital punishment like those upheld in
Gregg. One of the procedures mandated by state law is a proportionality
review of the sentence by the Virginia Supreme Court. Under Virginia's
procedure, the Supreme Court of Virginia is required to determine
Awhether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the
defendant. Va. Code Ann. ' 17-110.1(C)(2).
With respect to the required
proportionality review, the statute provides:The Supreme Court may
accumulate the records of all capital felony cases for such period of
time as the Court may determine. The Court shall consider such records
as are available as a guide in determining whether the sentence imposed
in the case under review is excessive. Va. Code Ann. ' 17-110.1(E) (emphasis
added).
While the Virginia Supreme Court is
required in every case to compare the death sentence under review with
the sentences imposed in similar cases throughout the state, that court,
in fact, compares any given case only to the cases previously reviewed
on appeal by that court. The effect of the Supreme Court's arbitrary
mechanism is dramatically illustrated by Angel's case. The majority of
capital cases similar to Angel's during the period 1985-1995 resulted in
a sentence less than death; however, only a small portion of those cases
were included in the Virginia Supreme Courts review because most had not
been appealed to that court. The same systemic error may infect the
proportionality review of every death case. The review of a skewed pool
of cases effectively denies capital defendants the statutorily mandated
review of "similar cases," depriving them of their life and liberty
interests without due process of law.
The Supreme Court of Virginia
devoted but one paragraph to its proportionality review of Angel's death
sentence. The Court initially correctly stated the test:
The test we must apply in
conducting the proportionality review is whether other sentencing bodies
in this jurisdiction generally impose the supreme penalty for comparable
or similar crimes, considering both the crime and the defendant. Breard
v. Commonwealth, 445 S.E.2d 670, 682 (Va.1994), cert. denied, 513 U.S.
971 (1994) (citing Jenkins v. Commonwealth, 244 Va. 445, 462, 423 S.E.2d
360, 371 (1992), cert. denied, 507 U.S. 1036 (1993)) (emphasis added).
In the next sentence, the Court wrote:
To guide us in applying the test,
we have compiled and examined the records of all capital murder cases
reviewed by this Court, including those in which a life sentence was
imposed. Id. at 682 (emphasis added). A denial of due process occurs
because the set of cases reviewed by this Court, that is those
previously appealed to that court, does not equal the set of Acapital
murder cases decided by other sentencing bodies. The Virginia Supreme
Court omits from its review those cases not appealed to the court. Death
cases are appealed directly to the Supreme Court, bypassing the
intermediate state Court of Appeals. Life sentence cases, if appealed at
all, go instead to the Court of Appeals with a follow up appeal to the
Supreme Court by petition. Va. Code Ann. '' 17-110.1(A);
17-116.05:1(A)(i); 17-116.08.
It is imperative that the Governor
review this issue carefully, for the courts, with one exception,
neglected it dismally, and the court that took note of the point
dismissed it based upon an erroneous application of the law. While Angel
raised the issue on direct appeal, see Ex. 32, the Virginia Supreme
Court ignored the point at that time and later, in state habeas
proceedings, mistakenly treated it as if it had been previously
defaulted. Breard v. Commonwealth, 248 Va. 68, 89, 445 S.E.2d 670,682
(1994); Breard v. Angelone, Order refusing Petition for Appeal (Jan. 17,
1996, Va. S.Ct.), Exs. 33, 35.
The United States District Court
remedied that particular error, ruling that the claim had not been
defaulted and quoting the language from Angel's brief on direct appeal
setting forth that claim:[A] defendant's liberty interest in
proportionality review is violated by the consideration of only those
cases which are reviewed by the Virginia Supreme Court.
Thus, the Court does not consider
those cases in which the death penalty was not imposed, which prevents
the Court from reviewing the types of cases in which death was not the
appropriate sentence. For these reasons the proportionality review
conducted by the Court constitutes a violation of the Defendant's due
process rights under the Fourteenth Amendment. Breard v. Netherland, 949
F. Supp. at 1266.
The Court then, however, dismissed
the claim on other grounds. The Fourth Circuit Court of Appeals entirely
failed to address the issue, despite Angel's specific request in a
Petition for Rehearing that it do so. The United States Supreme Court
has not yet granted or denied Angel's Petition for Certiorari. The
Governor of Virginia is probably the only avenue to remedy this serious
deficiency in the Virginia Supreme Court's performance of the mandatory
proportionality review of death sentences. See Herrera v. Collins, 506
U.S. 390, 411-12 (1993) (clemency is the historic remedy for preventing
miscarriages of justice where judicial process has been exhausted); Ex
parte Grossman, 267 U.S. 87, 120-21 (1925) (executive clemency exists to
provide relief from harshness or mistake in the operation or enforcement
of the criminal law).
According to statistics in the
Presentence Investigation Database maintained by the Virginia Criminal
Sentencing Commission, an agency of the Commonwealth of Virginia (the
AVCSC Database), between January 1, 1985 and December 31, 1995, forty-three
persons were charged with capital murder under ' 18.2-31(5) of the Code
of Virginia (murder in the commission of, or subsequent to, rape, sodomy,
etc.) and convicted of some crime. Thirty-three of those individuals
were convicted of capital murder in violation of ' 18.2-31(5).
Of the thirty-three convicted of
capital murder, nineteen individuals (58%) were given a sentence other
than death and fourteen individuals (42%) were given the death penalty.
Of the life sentence cases, only two were ultimately appealed to the
Virginia Supreme Court. Thus, the Supreme Courts pool of similar cases
excludes the majority of all such convictions for the eleven year period
-- seventeen out of thirty-three (51%) -- and, more to the point,
excludes the vast majority of convictions in which a life sentence was
imposed -- seventeen out of nineteen (89%).
Angel had a due process right to a
proportionality review that conformed to the dictates of the Virginia
Code which requires the Supreme Court to determine whether the sentence
of death is Aexcessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the defendant.Va. Code Ann.
' 17-110.1(C)(2) (emphasis added). By limiting the pool to cases
previously appealed to the Supreme Court, that court so skewed the pool
that the required review was of no effect.
The effect of skewing the pool of
cases to be reviewed is apparent. The Virginia Supreme Court, in twenty
years of practice under the present death penalty statute, has never
reversed a death sentence because it was disproportionate. The Virginia
Supreme Courts procedures lead inexorably to this result.
An examination of the following
charts of cases in which a defendant was charged with capital murder
under ' 18.2-31(5) and convicted of a crime during the period 1985-1996
provides a glimpse at the universe of cases that should beconsidered by
the Virginia Supreme Court in its proportionality reviews. Such an
examination will also demonstrate that Angel's case does not fall within
a particular grouping of similar cases, in which the death penalty was
imposed, contrary to the dictates of the Code of Virginia for carrying
out the death penalty.
*****
Taking out the two cases decided in
1996, these cases represent approximately seventy percent of the forty-three
cases in the VSCS database referenced above. These cases demonstrate
that, in Virginia, the judge or jury does not generally impose the death
penalty for a certain type of crime or criminal defendant. Cf. Jenkins
v. Commonwealth, 244 Va. 445, 462, 423 S.E.2d 360, 371 (1992), cert.
denied, 507 U.S. 1036 (1993) ("On the question of disproportionality and
excessiveness, we determine whether other sentencing bodies in this
jurisdiction generally impose the supreme penalty for comparable or
similar crimes, considering both the crime and the defendant") (emphasis
added). Without minimizing the seriousness of Angel's crime, it is clear
that many cases involving facts more vile than those in this case and
defendants more dangerous than Angel have resulted in life sentences.
CONCLUSION
Angel has demonstrated his ability
to turn his life around and to become a spiritual leader and a
productive member of his religious and prison communities. He has
touched many lives in a positive way, and has brought spiritual healing
and consolation to people in prisons, hospitals, and the outside world
through his writings, his radio addresses, and his personal
relationships. He has demonstrated that he is a person who deserves to
live.
Moreover, the Commonwealth of
Virginia has engaged in a long-term pattern of misconduct that has
resulted in the denial of the Vienna Convention rights of foreigners, to
their severe detriment. As Judge Butzner observed, if other nations
follow the example of Virginia and other American states, the freedom
and safety of Americans traveling abroad will be seriously threatened.
In addition, Virginia failed to provide Angel with due process under its
own statutory procedures governing appellate judicial proceedings in
death penalty cases.
For these reasons, Angel Francisco
Breard respectfully requests that his death sentence be commuted to life
in prison.
Respectfully submitted,
ANGEL FRANCISCO BREARD
By Counsel
