Race Issues Raised in Latest Texas Death Penalty Appeal

AUSTIN, Texas — In the middle of a presidential campaign swing to court minority voters, Texas Gov. George W. Bush may face another clemency decision today in a death penalty case marked by allegations of racial bias.

The case of Jessy San Miguel has not attracted as much mainstream media attention as did that of Gary Graham, executed last week amid protests from civil rights groups and celebrities. San Miguel, 28, has long admitted to the brutal slaying of four people in a Taco Bell restaurant in 1991.

However, Spanish-language media have focused on the role race played in San Miguel’s death sentence, leading some political analysts to say that Bush’s actions may affect his determined outreach to Latinos, who are increasingly concerned about racial bias despite a traditionally tough stance on criminal justice issues.

‘A Groundswell of Protest and Concern’

The case also shows the growing political debate over the death penalty in the U.S. and Texas, where Bush has presided over 135 executions, more than any other governor in history.

“The level of disparity in the system is getting to the point where you’re beginning to see a groundswell of protest and concern,” said Charles Kamasaki, senior vice president for the National Council of La Raza, one of the country’s largest Latino advocacy groups. “It could become a potential problem for any candidate who doesn’t handle it correctly.”

San Miguel’s attorneys made a final appeal to the U.S. Supreme Court late Wednesday. Legal experts said they expected the court to reject it, setting up Bush to make a decision sometime today. The Texas Board of Pardons and Paroles has already rejected a clemency request, 18 to 0.

Since the Texas attorney general’s office said earlier this month that race may have played an improper role in as many as half a dozen Texas death penalty cases, San Miguel’s lawyers have been scrambling to take advantage of the surprise admission to prove that their client also suffered from references to his Latino heritage during trial.

San Miguel’s original defense attorney, in an attempt to show his client’s danger was associated with youthful bravado, tried to elicit testimony from several witnesses about Mexican Americans and “macho” culture.

Allusions to Race Made During Trial

At one point, Dallas-based attorney Edward W. Gray asked one witness: “A young Mexican American man does not let anyone insult or belittle his woman, does he?” Gray said in an interview Wednesday that he was trying to show that San Miguel’s propensity for fighting was typical for his peer group.

San Miguel’s current lawyers also argue that the prosecutor made a thinly veiled reference to San Miguel’s Latino heritage by criticizing “those that cross the border and commit crimes.” The Dallas County district attorney’s office disputes that, saying the reference was to Taco Bell commercials at the time that urged patrons to “run for the border.”

Danalynn Recer, one of San Miguel’s lawyers, said her client admits killing restaurant manager Michael Phelan and three others, including a young pregnant woman. Police say the four were shot at close range as they knelt in the restaurant cooler during a botched robbery attempt.

But Recer appealed to Bush for a 30-day stay to allow the courts to consider the role that San Miguel’s race may have played in convincing jurors to sentence him to death.

“He has to realize he has to be consistent,” Recer said. “You can’t just take an occasional case and make a statement about race. Everything in the death penalty is about race.”

A spokesman for the Texas attorney general’s office said San Miguel’s case was far different from the ones they agreed to review after determining that an expert witness for the state had erred in telling jurors in several trials that Latinos and blacks were more likely to be dangerous in the future than whites.

For one thing, it was San Miguel’s defense attorney, not a state witness, who made most of the allegedly biased statements. And for another, the statements in San Miguel’s case were not made by an expert witness, who would carry more credibility with jurors.

“There is no error to admit on the part of the state,” said Heather Browne, a spokeswoman for Texas Atty. Gen. John Cornyn.

Latinos Will Watch Bush Closely

Bush spokesman Mike Jones said the governor would make no decision on the case until after all legal appeals have been exhausted. As usual, Bush will apply two standards: whether the defendant had full access to the courts and whether the defendant is innocent. No special consideration will be made due to the race allegations, Jones said.

For Bush, the perils of the case are as much legal as political. Latinos will watch closely how he handles it because charges of racism are at play, analysts said.

Latinos may play a crucial role in the election this fall in Florida, where they helped tip the state toward Clinton in 1996, and possibly California. Although the likely Democratic presidential nominee, Vice President Al Gore, is safely ahead in most polls in California now, Bush could draw enough Latino votes to make the race competitive, analysts said.

If Bush seems insensitive to the race issues raised in the case, his decision could be interpreted badly, some Latino experts said.

“If it turns out that his decision indicates some kind of ethnic stereotyping, that certainly will resonate very heavily with the Latino community in the future,” said Harry Pachon, head of the Tomas Rivera Policy Institute at the Claremont Colleges.

Still, the death penalty is popular with Latinos, though not as popular as it is with whites. A 1999 poll showed that 65% of Latinos support the death penalty, compared with 77% of whites and 39% of blacks.

As a result, Bush could easily condemn the remarks of the defense attorney while upholding the death penalty, an act that could mollify Latinos upset by the apparent prejudice in the case, experts said.

Since Latinos are disproportionately the victims of crime, many take a hard line on criminal justice issues, said Rudy De La Garza, a University of Texas professor.

Two of San Miguel’s victims, Theresa Fraga and cook Frank Fraga, were Latinos. One, Son Nguyen, was of Asian descent.

“If you could play up the role of blood lust, you could begin to damage Bush,” De La Garza said. “But at the same time, he’s out there massaging the hell out of everybody. My sense is that other issues are much more important to this population” of Latino voters.

Awareness of Case Only Recent for Some

Several Latino groups have become aware of San Miguel’s pleas only recently.

Officials with the League of United Latin American Citizens, at whose national convention Bush spoke Monday, scrambled to file a direct plea to Bush on Wednesday night.

“I’m banking on faith that they’ll wake up to the fact that if there’s an issue of this nature, they ought to consider it and take a good look at it,” said Ray Velarde, national representative for the group, one of the largest and oldest Latino advocacy organizations.