LESSER-known figure could be executed before McVeigh

Monday, June 4th 2001, 12:00 am

By: News On 6

TERRE HAUTE, Ind. (AP) _ At the same prison where Timothy McVeigh awaits his fate is a lesser-known figure who faces execution June 19 in a case that could have a far greater effect on the future of the federal death penalty.

Juan Raul Garza, 44, was convicted of running a marijuana smuggling operation, killing a man and ordering the slayings of two others he thought were informants.

The Texas drug kingpin narrowly escaped the death chamber in December amid concerns that the federal death penalty is racially or geographically biased. President Clinton ordered the Justice Department to review the government's use of capital punishment.

Now, just weeks away from Garza's lethal injection, there has been no word from the department, and officials there will not comment on whether the review will be completed in time.

McVeigh's execution for the Oklahoma City bombing is set for June 11, though his attorneys are seeking a stay based on newly revealed FBI documents withheld during the trial. If McVeigh's execution is delayed, Garza would be the first federal prisoner put to death since 1963.

Garza's attorneys have filed a plea for clemency, citing cases involving similar crimes, including the murder case of a mob hit man in New York, where federal prosecutors never pursued the death penalty.

``I think what we're hoping we can accomplish with Juan Garza's case is to just somehow be heard above all of this sound and fury and white noise that's surrounding the McVeigh case,'' defense attorney Gregory Wiercioch said. ``That case is really overshadowing some serious systemic problems with the federal death penalty system.''

Among those problems, Wiercioch and other death penalty opponents say, is Garza's ethnicity: Garza, who is Hispanic, is one of 17 minorities out of the 20 men currently on federal death row.

Another factor is that Garza was sentenced to death in Texas, which has sent more men to federal death row than any other state. Texas and Virginia alone account for half the 20 inmates on federal death row, leading critics to say capital punishment is not sought consistently from state to state.

Garza's attorneys have cited 27 cases involving crimes similar to Garza's in which the federal death penalty was not sought or a plea bargain was accepted.

``It's not a case where he's claiming innocence on the underlying evidence,'' said Bruce Gilchrist, another of Garza's attorneys. ``At the same time, there's every reason to believe that if he wasn't Hispanic and hadn't committed his crimes in Texas, but was from a white crime family in New York or New Jersey, he wouldn't be on death row today.''

A Justice Department study released last year showed that between 1995 and July 2000, nine of the 94 U.S. attorney districts accounted for nearly half the 183 defendants recommended for the death penalty. They were Puerto Rico, the eastern district of Virginia, Maryland, the eastern and southern districts of New York, western Missouri, New Mexico, western Tennessee and northern Texas. Forty districts never recommended the death penalty.

Robert Litt, a former deputy assistant attorney general in the Clinton Justice Department, said there is ``a question of whether the way the system is set up produces arbitrary and discriminatory results.''

``I don't understand what the rush is to execute somebody before you get answers to these questions,'' said Litt, who is now part of the group Citizens for a Moratorium on Federal Executions. ``Garza's not going anywhere.''

Justice Department officials have refused to comment on allegations that Garza's case has been shaped by race or geography.

The son of migrant farm workers, Garza set up a marijuana ring in the Texas border city of Brownsville in the early 1980s. Through 1992, Garza's operation moved tons of pot from Mexico into the United States.

Prosecutors characterized him as a ruthless man who considered murder a way of doing business. When one employee crossed Garza, he was driven onto a farm road, where Garza shot him in the back of the head, dumped his body in the brush, then shot him four more times.

``He's about as violent as anybody I've seen,'' said Mark Patterson, the chief federal prosecutor at Garza's trial.

Presiding U.S. District Judge Filemon Vela said he does not accept claims of racial bias in Garza's case. ``In this particular case, the judge was Hispanic, the defendant was Hispanic, a majority of the jurors were Hispanic and the victims were Hispanic,'' he said.

Garza was one of the first people convicted under the newly reinstated federal death penalty in 1988. Prosecutors were given narrow guidelines under which they could seek the death penalty against drug kingpins convicted of murder.

``I think the government was looking for someone that they thought would fit the bill,'' said Philip Hilder, Garza's attorney during his trial. ``I think they accentuated Juan's activities and his stature in order for them to fit this profile that they had.''