State board recommends clemency for death row inmate

Friday, May 7th 2004, 5:34 am

By: News On 6

McALESTER, Okla. (AP) _ Under pressure from the world court, an Oklahoma board Friday recommended the governor spare the life of a death row inmate from Mexico who claimed he was never informed of his right to contact his consulate after his arrest.

Osbaldo Torres, 29, is facing a May 18 execution date for the 1993 slaying of an Oklahoma City couple.

The execution could be delayed as Gov. Brad Henry reviews the case and gives, ``this case the thorough deliberation it deserves.''

In a 3-2 ruling, the Oklahoma Pardon and Parole Board voted to recommend clemency for Torres, saying the issues in the case surpassed the appointed-board's authority.

``This board is not in a position to consider...and weigh the evidence,'' Loving said of the appointed-board, with no subpoena power.

Torres is one of 51 Mexicans on death row across the country cited in a March 31 ruling by the International Court of Justice in the Hague, Netherlands. The world court found the inmates' rights were violated because they were not told they could receive help from their governments as guaranteed by the 1963 Vienna Convention.

Arizona, Arkansas, California, Nevada, Ohio, Oregon and Texas also have Mexicans on death row who fall under the ruling.

Jennifer Miller, assistant attorney general argued the world court's ruling did not require the state to give the case further legal review.

``We believe we are bound by the U.S. Supreme Court,'' Miller said. ``We don't think we're under the jurisdiction of an international court.''

Miller said Torres would have to prove that his lack of assistance from the Mexican government negatively affected the outcome of his case. So far his claims have been denied in appeals in eight different courts, Miller said.

While Carlos de Icaza, Mexico's ambassador to the United States said his government is actively involved in the defense of Mexican citizens in other countries, Miller challenged the country's effectiveness.

Mexican officials say they didn't learn about Torres' case until after he had been sentenced to death. But Miller said the trial attorney hired by Torres' family claimed to have contacted the consulate during his trial.

Loving chided Miller for presenting uncorroborated information.

``I tend to think that had the proper people known they have done something,'' Loving said. ``I'm a little uncomfortable that your making these claims without any documentation to back them up.''

Miller argued that had Mexico been involved in the early appeals it might have impacted his case by presenting new evidence or mental-health assessments.

That additional evidence was never taken before a judge, Torres' attorney Mark Henricksen said.

Henricksen said he had requested an evidentiary hearing during Torres' appeals, but was never granted one.

The Oklahoma Court of Criminal Appeals is currently considering whether to hear Torres' appeal on the world court's ruling filed last week.

Torres and co-defendant George Ochoa were convicted in 1996 in the deaths of Francisco Morales and Maria Yanez. Prosecutors say Ochoa's gun was used and child in the home at the time of the shootings described his as the shooter.

A motive was never discovered, but family members think Torres and Ochoa broke into the home to steal drugs and kill, Miller said.

Shackled at his hands and feet, Torres appeared before the board and apologized for the deaths.

``I was a thief, but I'm not a killer,'' Torres said. ``I didn't know George was going to kill anyone. He said he was going to break into a house and nobody would be home. Once I seen whose house it was I tried to stop him, but he didn't listen.''

Torres said he turned to leave when Ochoa broke down the door. Torres said he never went inside the home.

No execution date has been set for Ochoa, who has several appeals pending, including one claiming that he is mentally retarded.

Torres' parents, who illegally crossed from Mexico into the United States in the mid-1980s, saved their earnings from his father's welding job and his mother's cleaning work to pay for their son's legal defense.

Before the clemency hearing began about 25 members of Torres' family formed a circled and recited a Hail Mary prayer in Spanish.

``It's miracle,'' Torres' father, Roberto said in Spanish after the ruling. ``I'm very happy.''