DATE: Friday, July 4, 1997                  TAG: 9707040835

SECTION: FRONT                   PAGE: A4   EDITION: FINAL  

SOURCE: BY LAURA LAFAY, STAFF WRITER 

                                            LENGTH:  186 lines

CORRECTION/CLARIFICATION: ***************************************************************** Condemned Virginia Beach murderer Joseph Roger O'Dell is a native of Roanoke. A pullout box and photo caption in Friday's main news section referred to him incorrectly as a native of Italy. Correction published Tuesday, July 8, 1997. ***************************************************************** FOCUS: FIGHTING THE DEATH PENALTY

More and more, foreign countries are trying to prevent executions in the United States through legal and diplomatic channels. This phenomenon has become very apparent in Virginia.

In Furman vs. Georgia, a landmark ruling 25 years ago this week, the U.S. Supreme Court banned the death penalty, finding that, for a number of reasons, it was ``wantonly and freakishly imposed.''

Four years later, when states came up with new death penalty statutes designed to answer the court's concerns, the justices restored the death penalty in America. Polls today show it is more popular with the public than ever. Some 3,200 people await death sentences nationally, compared with about 600 in 1972. When Timothy McVeigh was sentenced to death in Colorado, applause erupted in airports nationwide and church bells tolled in Oklahoma.

But while 38 states have paved the way for capital punishment since Furman, much of the rest of the world has gone in the opposite direction.

Since 1976, 44 counties - including Cambodia, Haiti and South Africa - have abolished the death penalty.

In April, the U.N. Commission on Human Rights adopted a resolution calling on countries which retain capital punishment to ``consider suspending executions with a view to ending the death penalty.''

Increasingly, foreign countries are also trying to prevent executions in the United States through legal and diplomatic channels and by refusing to extradite accused murderers for trial.

``I see this as a campaign that will stretch over generations,'' said Mark Warren, a spokesman for Amnesty International. ``In the United States, you see the death penalty as a crime and punishment issue. In the international community, there is an evolving consensus that it is an impermissible violation of human rights.''

Virginia has experienced protests from a number of foreign countries in recent cases. During the past year alone, the Vatican and the governments of Italy and Mexico have intervened in two Virginia Beach death cases. The Republic of Paraguay, meanwhile, filed a federal civil suit against Virginia law enforcement officials in protest over sentencing a Paraguayan national in Arlington to death - without notifying his embassy.

So far, none of these efforts has come to much.

Condemned Virginia Beach murderer Joseph Roger O'Dell, whose case generated protests from the Vatican and a national outcry in Italy last year, is set to die July 23.

A brief filed by the Mexican government on behalf of another condemned Virginia Beach murderer, Mario Murphy, was dismissed along with the case last week by a panel of the 4th Circuit Court of Appeals in Richmond.

The Paraguay case is on appeal to the 4th Circuit, having been thrown out by a federal judge last year.

Despite such results, experts say, the trend toward foreign intervention in the American death penalty is unlikely to go away.

``Oh, it will continue,'' said William Schabas, a Canadian law school dean who is considered the world's foremost authority on capital punishment and international law.

``Just because you don't win, doesn't mean you aren't being effective. From the standpoint of the international community, it's important to kind of break the back of the (United States) on the human rights issue. And central to that is the issue of the death penalty.''

``You (the United States) want to tell Cambodia what to do with Pol Pot. So we want to tell you what to do with the people on your death row. You have to be able to take it as well as dish it out.''

Virginia Beach Commonwealth's Attorney Robert J. Humphreys, a supporter of the death penalty and a prosecutor for 24 years, sees the point.

``I don't begrudge them their opinion in opposing the death penalty, or even blame them for using the opportunity . . . to fight it. But that isn't our law. And I have to admit I have some resentment toward foreign governments who come in here and tell us what our laws ought to be. But I'm sure they feel the same way about us.''

Humphreys' office prosecuted both O'Dell and Murphy.

Since his election eight years ago, Humphreys said, he has sought death sentences in five instances and procured it in three.

``The best argument I ever heard for the death penalty was given to me by the husband of a victim in Delaware,'' Humphreys said.

``He said, `You know, if it wasn't for the fact that the state of Delaware offered me the possibility of equal justice, I'd go out and get a gun and I'd seek justice on my own.' So it strikes me that it's a deterrent to us.

``If we didn't have the possibility of the ultimate punishment, we'd be going out, getting a gun and turning the place into Dodge City. The best argument for the death penalty is it keeps us civilized.''

The European Court of Human Rights doesn't see it that way. In 1989, it forbade the extradition to Virginia of Jens Soering, a German national arrested in Great Britain for the 1985 murders of his girlfriend's parents in Charlottesville. Unless Virginia offered assurances that Soering would not face the death penalty, the court ruled, Great Britain could not release him.

The gambit worked. Soering, who was returned to the United States in 1990, is serving a life sentence. His situation is widely regarded as the watershed case of international intervention in the American death penalty.

It was followed by other extradition cases in which states made similar deals with France, Canada and the Netherlands. But last year, when an Italian businessman, Pietro Venezia, was arrested for a Florida murder, the deals stopped. Italy refused to turn Venezia over, assurances or none.

``Italy basically said, `We don't trust you guys,' '' Amnesty International's Warren said.

``The death penalty in Florida is administered with the electric chair,'' Warren explained. ``The Italians were so horrified by the possibility that the prosecutor might go back on his word, they couldn't stomach it.''

Venezia will be tried in Italy, by Italian authorities.

In another approach, countries have begun to invoke their rights under a Vienna Convention of Consular Relations rule that requires nations to notify the embassies of any arrested or detained foreign nationals. According to Amnesty International, there are 62 foreigners under sentence of death in the United States, 35 of whom are Mexican. Few were told they had a right to consular notification.

One such man, a Mexican named Irineo Tristan Montoya, was executed in Texas amid protests from the Mexican government and an attempt to intervene by the U.S. Department of State. Montoya's execution June 18 provoked a riot on the international bridge between Brownsville, Texas, and Matamoros, Mexico, and warnings from American officials to U.S. citizens traveling in Mexico.

``People are out there saying they want to somehow retaliate, let the gringo know they don't approve of what's going on,'' said Jules Silberberg, vice U.S. consul in Matamoros.

``Basically, the Mexican government's position is that we do not think the death penalty is a humane way to provide justice,'' said Jose Antonio Zalbagotia, a spokesman for the Embassy of Mexico in Washington.

``Notwithstanding the crime someone may have committed, we believe other penalties should apply. But not this. In all cases in which Mexican nationals are faced with a sentence of death, we want to work closely with their defense attorneys to try to obtain a commutation.''

In the case of Mario Murphy, there was no such opportunity.

Murphy, a 19-year-old Mexican citizen who had lived in the United States for eight years, was one of six people charged in the 1991 beating death of Navy Petty Officer James Radcliff.

Murphy's lawyers maintain that Virginia Beach officials knew he was Mexican because officers from the U.S. Immigration and Naturalization Service visited him in jail. However, no one told Murphy of his right to consular notification.

``Every case turns on its own facts,'' Humphreys said.

``In Murphy, you've got a guy who was not obviously a foreign national and who never asked that his consulate be notified. . . . The whole idea is, the foreign national is supposed to say, `Hey, I'm a foreign national. Notify my embassy.' ''

No, it's not, said William H. Wright, a Richmond-based lawyer who represents Murphy.

``The treaty places specific responsibilities on the law enforcement authorities of this country,'' Wright said.

Today, Murphy's lawyers argue that Virginia Beach's failure to tell him he was entitled to consular help means his guilty plea was not voluntary. An involuntary plea, they argue, violated his right to due process under the Constitution.

``If the Mexican consul had been involved in this case, I don't think Mario would be on death row now,'' Wright said.

The efforts of Mexico and other countries appear to be making no discernible impression on U.S. policy.

In 1994, Congress expanded the federal death penalty to include 60 additional crimes.

Since then, two more states - Kansas and New York - have drafted death penalty statutes.

In Virginia, legislators have been adding new crimes to the list of those punishable by death. In 1996, they added multiple murders. This year, they added drug kingpin murders and murders of pregnant women.

Virginia Beach Republican Sen. Kenneth W. Stolle is a former police officer who traveled the state this spring as a primary candidate for attorney general, Virginia's chief law enforcement officer. According to Stolle, the death penalty is on solid ground.

``My sense is that, regardless what Italy does or Mexico or what the pope wants, here in Virginia, most people feel it is an appropriate option,'' he said. ILLUSTRATION: File photo/ASSOCIATED PRESS

In Rome, Italians gathered last December to protest the death

sentence of countryman Joseph O'Dell, convicted for a murder

committed in Virginia Beach

Photos

Joseph O'Dell

Mario Murphy KEYWORDS: DEATH PENALTY CAPITAL PUNISHMENT

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