Month: July 2010

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Reflections on the John Allen Rubio Capital Murder Trial in McAllen

By Nick Braune

[This essay was written earlier this week for my weekly column in the Mid-Valley Town Crier. Later this week, however, the Rubio trial concluded and the jury deliberation was quick. At the end of the essay, I will discuss the trial’s results and make some short comments on this closely watched case in the Rio Grande Valley. N.B.]

The retrial is in progress. Back in 2003 I urged my logic class to follow the case of John Allen Rubio, and the students were into it. A capital case, very interesting, lots of blood — Rubio and his common-law wife had killed their three children and the population was riled. But my students began peering behind the headlines. Although the insanity plea is a rare bird nowadays, the defense was using it, and it appeared to me and the students, after looking at definitions of insanity and some philosophy behind it, that Rubio indeed fit the definition.

Rubio’s wife, participating in the gruesome beheadings, was clearly insane too. (When I hear about a mom who does something like killing and mutilating her children, my first reaction following disgust is that there is something greatly unnatural there, undoubtedly serious mental problems. And as the trial proceeded, the class saw it that way.)

Psychiatrists at the first trial testified that Rubio had been clearly delusional, was schizophrenic, hearing voices; testimony showed that “for three days before the murders he scrubbed the apartment with bleach in order to keep evil away.” (The Monitor) His mental disorder was compounded during that period by frequent drug use.

The trouble started with Rubio’s mom. She hated children — that is my non-clinically trained, layman’s diagnosis. She introduced him to drugs and used him as a prostitute when he was 8 years old, according to testimony. (Subpoenaed for the current trial, she may provide interesting testimony. She also has a criminal record, drugs.) Abused through his childhood, teetering on the edge of sanity, huffing (putting chemicals or gasoline in a plastic bag and deep-breathing the fumes into the lungs until dizziness starts), what did Rubio do at 21? He shacked up with a woman just like mom, who had drug problems and destructive urges toward children.

But the jury in 2003 saw otherwise, finding Rubio sane and convicting him of murder, to the surprise of my class. He was sentenced to death.

Although America warehouses the mentally ill in prisons by the thousands and even executes some, basic civil norms urge that we help, not punish, severely sick people. Our legal system, rooted in the old common law traditions which evolved, with some lapses, in a progressive direction, has asked the jurors not simply to focus on who did the criminal act. Jurors have traditionally been charged with assessing the “mental element” involved in the act.

Example: Sir Edward Coke in 1593 reserved the term “murder” for those with “sound memory and discretion” (sanity) and who act with “malice aforethought” (premeditated evil), so juries were not just charged with deciding if the defendant “did it,” but whether there was a rationally deliberate, premeditating evil mind involved. The evolving humane law of England, when it looked at murderers to be punished, envisioned evil villains who calculate advantages and lay in wait to kill.

I picture some rich merchant in Chaucer’s time who had the opportunity to corner the market on fabulous jewels and plotted for weeks to murder his competitors, while throwing suspicion on someone else. To me, that merchant was the person that the common law would accuse of the highest crime before a jury of peers, not some raging peasant struck by the plague screaming incoherently and slashing at others with a knife. Rationally deliberated premeditated evil is what makes the crime so heinous. If the rich merchant killed the victims with slick poison instead of bloodying up the kitchen like delusional Rubio and his troubled wife did, a jury today might find the merchant’s actions less disgusting, but the spirit of the law and ethical considerations, I believe, should dictate otherwise. The merchant’s crime was worse.

On TV the criminals carefully scrub the apartment after the murder, but Rubio scrubbed it before the murder, trying to bleach away evil. But even this month, when Rubio is having his second trial, it is not because the appeals process reconsidered his sanity. (The retrial was granted because the eager prosecution was found to have improperly shown the jury a video of Rubio’s wife discussing the crime.)

If I were the prosecutor I would not have retried it; actually, I wouldn’t have tried it the first time. I would have saved fuss and money and gotten Rubio into a mental hospital where he could eat properly, remember to take his medications, talk through his life’s problems (his mom and wife) and stop huffing.

But no, our prosecutor brings in a New York consulting psychiatrist, Dr. Michael Welner last week, paying him over $110,000 to counter the defense psychologists. Welner interviewed Rubio six years after the murder and dutifully concluded that Rubio was cleverly faking his symptoms back then. (With his website advertising his services as very convincing, Welner received some $245,000 during the Andrea Yates retrial in Houston several years ago, testifying she was sane when she drowned her children. Thankfully, the jury didn’t believe him in the Andrea Yates case.)

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[The Trial Results: This week the jury deliberated for four hours and found Rubio guilty of capital murder. On Thursday, July 29th, Judge Noe Gonzalez sentenced him to lethal injection. The Monitor quoted the Judge:

“I have sentenced more people to death than any other judge in South Texas. I have never seen a case like this…A lot was said back and forth about forgiveness. A lot was said about apologies. None of that matters…If you want forgiveness, you will have to get it from a higher source.

“The jury has found you guilty of the capital murder of Julissa Quesada, Mary Jane Rubio, and little John Rubio. Critics of capital punishment say the wait is worse than the execution, that is if you have any feelings. We’ll see about that in this case…I can’t imagine anyone hurting their children, much less at that age…Bailiff, shackle Mr. Rubio and escort him out.”

Three quick notes: 1. The Monitor says that prior to Rubio, 15 offenders have been sentenced to death in Hidalgo County. Rubio and his common-law wife had killed their children in Brownsville, but the trial had been moved to McAllen because of all the publicity there. This week I spoke to Silvia Garza of the Texas Coalition Against the Death Penalty in McAllen. Her son was one of the 15. Although I knew she was trying to get a vigil set up at the court house before Rubio’s sentencing, I was unable to attend.

2. Rubio’s lawyer says that photographs of the murdered children proved to be the most disturbing part of the trial. “Jurors, research volunteers and assistants became physically ill when having to view them.” How conducive are photos like these for the deliberative process?

3. Rubio’s lawyer earlier in the trial said that Dr. Michael Welner advertises his victories like “trophies” on the internet. There are a lot of puff pieces about him there and about the classy New York consultation company he founded: The Forensic Panel. One article about his successful work said, “Dr. Welner was the principal prosecution mental health witness in all three of the first and only successful federal death penalty verdicts in the Northeast United States in decades: Gary Sampson (MA), Donald Fell (VT), and Ronell Wilson (NY).”)]

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Federal Entrapment of Ramsey Muniz

Dear Friends:

Below are excerpts of the last appeal submitted by Ramsey Muniz. The appeal cites the trial transcript and describes how the government maneuvered and set up Ramsey Muniz to obtain a conviction at any cost – intentionally, maliciously, and with deceit. Feel free to share this legal document. It is public court information.

The judge did not rule in our favor, but this does not change truth. It does not remove the manner in which the government maneuvered and set up Ramsey Muniz to obtain a wrongful conviction.

We send this information for the sake of our supporters, and to share the facts with the general public. The National Committee to Free Ramsey Muniz asks that readers forward this information to law students and organizations and that are concerned about freeing those who are wrongfully incarcerated.

STATEMENT OF FACTS

Ramsey Ramiro Muniz was arrested on March 11, 1994, in Lewisville, Texas. The events leading to his arrest began in Houston the day before that date. (T.R. 197-1990).

On March 10, 1994, Drug Enforcement Administration (DEA) Agent Kimberly Elliott received a telephone call in Dallas from the DEA Office in Houston asking her to maintain surveillance on a man (later identified as Donacio Medina) flying from Houston and arriving at Dallas’s Love field. (Id.). At approximately 6:00 p.m. on that date, Agent Elliott saw a man at Love Field airport fitting the description supplied by the Houston DEA office meet Muniz in the airport. The two of them were met at the curb by a man driving a gray car. (T.R. 100-200, 390). The gray car, with three people in it, was followed north from the airport to the Frisco, Texas, area when the surveillance was discontinued. (T.R. 200).

Soon after the surveillance had been discontinued, Agent Elliott received another phone call from the Houston DEA office during which she was given a telephone and a room number for a Ramada Inn in Lewisville, Texas. (T.R. 201-202). Agent Elliott went to the Ramada Inn at 10:30 p.m. on March 10, 1994, and spoke with some of its employees. (T.R. 202). She learned that Muniz had checked into the Ramada Inn under his own name. She took copies of his business card left by him at the front desk and of the telephone toll records for the motel’s rooms. (T.R. 204-206). Agent Elliott also wrote down the license plate of the car parked in the parking lot. (T.R. 202), Surveillance was discontinued until the following morning.

Page 2 of Appeal

B. Trial counsel failed to raise an entrapment defense when Movant-Appellant acting as a legal assistant became the target of a DEA investigation through his client acting as an informant.

Page 3 of Appeal

In this regard, and based on the facts of this case, Muniz’s initial contention is that the trial counsel failed to request the affirmative defense of entrapment. Muniz asserts that he was induced to violate the law by the activities of Donacio Medina, a government agent. Once Medina decided to cooperate with the DEA in Houston, he was, for the purposes of the entrapment doctrine, acting for the government. United States v. Martinez-Carcano, 557 F.2d 966, 970 (5th Cir. 1977).

Thereafter, there was ample evidence of government inducement in the limited sense applicable here. For example, prior to the fact that Muniz accepted the keys from Juan Gonzales and moved the white car from the Ramada Inn to the La Quinta Inn on the morning of March 11, 1994, there was a lot of speculation, innuendo, and conjecture that attempted to show that Muniz knew there was cocaine in the trunk of the white car. But the real issue here is the ultimate question basic to all claims of entrapment: Was Muniz ready and willing to commit the offense if given the opportunity to do so, or was Muniz just an innocent victim of a government set up?

Muniz claims the answers to these questions would have developed better at trial if counsel would have requested the defense of entrapment. Evidence adduced at trial clearly showed that Muniz was in Dallas to visit clients. Medina was a client recommended by [M.A.], a prominent businessman from Matamoros, Mexico. (T.R. 969). There is no evidence to show that Medina and Muniz were acquainted prior to their meeting at Dallas’ Love Field. In fact, the evidence proves contrary.

Thus, this transient relationship begs the questions: How often do drug dealers do an $800,000 deal with a perfect stranger? Who supplied the cocaine? Who was supposed to receive the cocaine? Ostensibly, the government is unconcerned. The conclusion is obvious. Medina was supposed to put the cocaine in the hands of Ramsey Muniz. Muniz was the target of the DEA sting operation from its inception. And Medina was the confidential informant who set up the deal.

In its opinion, the Fifth Circuit stated that Agents had reasonable suspicion justifying stop of defendants where agents knew that they were connected with activity of suspected drug trafficker with whom the DEA was negotiating a drug sale. United States v. Gonzales, 79 F.3d 413, 422 (5th Cir. 1996). Indeed, the deal was done insofar as the Dallas’ DEA agents were concerned. Their objective was accomplished. Dallas DEA agents knew from the beginning what was going to happen from the time Medina left Houston until the scheduled meeting with Muniz and the DEA at 10:00 a.m. on March 11, 1994.

The DEA through Medina acting as their agent were in complete control of the situation. There is no other explanation why DEA Agent Elliott was able to break off surveillance at 11:00 p.m. on March 10, 1994, and reassemble at 8:45 a.m. the following morning. They knew the cocaine had arrived and was stashed in the trunk of the white car. They knew the cocaine would not be transported during the night because they had scheduled the deal to go down at approximately 10:00 a.m. on the morning of March 11, 1994. They knew Medina would be taken to the airport at Love Field, and they knew that Muniz and Gonzales were supposed to move the car to the La Quinta Inn. They were just waiting for Muniz and Gonzales to get into the car and move it before they could make the arrest under a pretextual investigative stop.

Furthermore, Fed-Ex driver Gallardo testified that he took Medina to the Classic Inn. When Medina did not see the car he was looking for at the Classic Inn, he asked Gallardo to take him to the Ramada Inn in Lewisville, Texas. Presumably, Media was looking for the white car which had already been moved to the Ramada Inn by Hernandez who was registered at the Classic Inn from March 6 thru 10, 1994. Id. at 424, 425. The question of how the white car arrived at the parking lot of the Ramada Inn was never answered. However, it was confirmed later by Agent Elliott after she wrote down the license plates that the white car was indeed located at the Ramada Inn before she broke off surveillance at 11:00 p.m. on March 10, 1994.

Upon their arrival at the Ramada Inn around 10:30 p.m. on March 10, 1994, Gallardo and Medina saw Muniz carrying a bag of groceries. (T.R. 903). Muniz and Medina went into the lobby together where Medina was hailed by a young man in his mid-to-late twenties. At that time, Medina took leave of Muniz’s company and was not seen by Muniz again until the following morning at approximately 8:30 a.m. Apparently, the young man in his mid-to-late twenties was D—– Hernandez. After parking the white car in the parking lot, he waited for Medina to arrive. All these events that occurred prior to the time that Muniz was arrested after driving the white car happened without Muniz’s knowledge. Knowledge is precisely the element of the offenses charged that was not successfully challenged by defense counsel at trial.

The government has the burden to prove each element of the offenses, and that one element of the offense in question is the “knowing” action by Muniz. The word “knowingly” means that the act was done voluntarily and intentionally and not because of mistake or accident. United States v.Rubio, 834 F.2d 442, 448 (5th Cr. 1987).

For additional information, contact the National Committee to Free Ramsey Muniz at imuniz1310 (at) earthlink.net.

Irma Muniz

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Border Crackdown in Texas Private Prisons

Criminal prosecutions against border crossers in South Texas have come back up to historic highs, resulting in boom-time funding for private prisons say two recent reports from watchdog groups.

Grassroots Leadership has issued a “green paper” of the report “Operation Streamline: Drowning Justice and Draining Dollars along the Rio Grande.” Operation Streamline is a controversial policy that mandates the criminal prosecution of border-crossers in certain areas. Before Streamline, immigration was usually enforced in the civil immigration system. The report analyzes the impact of Streamline on two border districts in Texas.

“Operation Streamline has clogged federal criminal courts with prosecutions of border-crossers,” said report co-author Tara Buentello. “Our report shows that Operation Streamline has had little deterrent effect on migration while it has wasted billions of taxpayer dollars.”

Key findings include that federal districts along the Texas-Mexico border have spent more than $1.2 billion in government dollars on the criminal detention and incarceration of border-crossers since the onset of Operation Streamline in 2005. More than 135,000 migrants have been criminally prosecuted in these two border districts since 2005 under two sections of the federal code that make unauthorized entry and re-entry a crime. The vast majority of these detention costs have been funneled into for-profit private prisons contracted by U.S. Marshals Service and Federal Bureau of Prisons.

“The human costs of Operation Streamline fall squarely on immigrant families,” said Donna Red Wing, Executive Director of Grassroots Leadership. “Meanwhile, private prison corporations like Corrections Corporation of America and the GEO Group are quietly profiting from this broken system.” The new green paper follows Grassroots Leadership’s 2006 report, “Ground Zero: The Laredo Super-Jail and the No Action Alternative” that demonstrated that federal detention expansion along the Texas-Mexico border is driven almost exclusively from increased prosecution and detention of border-crossers. The new report shows a staggering 2,722 percent increase in prosecutions for entry, and a 267 percent increase in prosecutions for re-entry, compared to corresponding data for 2002.

“The criminalization of immigration did not begin Arizona’s SB1070,” said Bob Libal, Grassroots Leadership’s Texas Campaigns Coordinator and a report co-author. “Operation Streamline has subjected undocumented immigrants crossing the southern border to unprecedented rates of prosecution and detention. It has also overburdened the federal judiciary. It’s time to end this Bush-era policy.”

The “green paper” is intended to stimulate debate and launch a dialogue on Operation Streamline. Grassroots Leadership is also launching a blog to accompany the report at Grassroots Leadership. A final white paper will be released as more data is collected.

Meanwhile, according to the most recent figures released by the Department of Justice, in recent months U.S. federal criminal immigration prosecutions by the two largest investigative agencies within the Department of Homeland Security (DHS) have increased to levels seen during the last months of the Bush administration says the Transactional Records Access Clearinghouse (TRAC) of Syracuse University.

“The total of 14,912 prosecutions referred in March and April 2010 by Customs and Border Protection (CBP) is the highest two-month total since September and October of 2008, when the combined figure briefly spiked to 16,127,” says a TRAC summary by co-directors David Burnham and Susan B. Long. “The 4,145 prosecutions referred by Immigration and Customs Enforcement (ICE) in the same two months is the highest recorded since the creation of the agency in 2005.”

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South Texas Civil Rights Project Fights “Wage Theft”

By Nick Braune

Each year billions of dollars are ripped off from workers, through all sorts of little scams. It is very common apparently, when workers leave a job, for their employers to “forget” to pay for the last week or so of work. And employers scam billions of dollars annually by underpaying overtime hours. Whether lots of money is involved or not so much, it is still a fairness issue, and wage theft hurts the wage-earners, their dependents and the community. Checking online, I found several organizations fighting against wage theft nationally; it is a huge problem.

One new attorney working on this issue is in the Rio Grande Valley. I met him at the groundbreaking for the new South Texas Civil Rights Project (STCRP) office planned in Alamo. (Their current offices are getting too crowded at Cesar Chavez Road and Business 83.) The lawyer is Elliott Tucker, and he recently joined STCRP after graduating from Georgetown University and spending a year or so with another non-profit organization. I asked for an interview.

Braune: When I spoke to you at the groundbreaking, I was interested in your project and have since looked online and found that this is not a small issue at all. Could you please tell the readers a bit about what you are doing.

Tucker: I am the employment justice attorney for the South Texas Civil Rights Project, where my job is to find both legal and non-legal solutions to the rampant problem of wage theft in the Valley. In Hidalgo County and Cameron County, we offer monthly legal clinics for victims of wage theft. At these clinics we give a brief presentation on labor law, conduct a legal intake, and then provide legal orientation to the appropriate non-profit or government agency.

I am working closely with Texas RioGrande Legal Aid, LUPE, and the Start Center. For instance, in close coordination with LUPE, I have developed a Justice of the Peace workshop which empowers workers to file their own small claims lawsuits. The goal of this project is to both empower workers through civic participation and also ensure that all victims of wage theft have legal redress.

Braune: What are the most common offenses you are expecting to find?

Tucker: Two patterns are perhaps the most common. Simply stringing along the workers, telling them it will be another week or so before they will be paid…

Braune: …a little later and a little later….

Tucker: Yes, and the second most common one is just as simple, paying the workers less than minimum wage.

Greed and ignorance are the driving force behind wage thefts. The range of excuses for non-payment runs the gamut from “But I didn’t get paid either” to “You didn’t do a good job.” However, under federal and state law, an honest day’s work deserves an honest day’s pay. No excuses.

More disturbingly, in the Valley confused individuals feel that just because a worker does not have a social security number, they can pay that worker whatever they want. Oftentimes these individuals feel they are doing the worker a favor and get offended when the reality of the law comes barking. However, state and national law set the wage rate for all human beings, regardless of immigration status.

Another common problem is willful ignorance. Many reputable businesses hire an under-capitalized subcontractor to do the recruiting, supervision, and (scant) payment of workers who have questionable immigration status. It’s an assumed win-win for the business because they get labor on the cheap and they think they can plead ignorance. However, state and national law was drafted with this trick in mind, and workers can often demand wages from both entities as “joint employers.”

Braune: Do undocumented workers hesitate to come forward with complaints?

Tucker: Yes, but they should have far less fear. Although some build up unnecessary worries in their minds, there are a good number of protections in place if they do come forward.

Braune: What further developments do you envision? — Lawsuits? New state laws?

Tucker: My first goal is to educate low wage workers in the Valley about their rights, so all workers know the basic minimum wage and, if violated, know they have legal recourse regardless of their immigration status. Education is the key. However, education cannot open the eyes of the willfully blind, so I do anticipate lawsuits being necessary in the cases of extreme and systemic abuse.

As far as new state laws go, given the current political climate in Texas, I am not optimistic about new laws to address wage theft. Unless there is a fundamental shift in the political winds in Austin, I view my project as focusing primarily on education and litigation, not pushing legislative reform.

[This article also appeared June 23, 2010 in the Mid-Valley Town Crier]