Can a Death Row Inmate in Virginia Save His Life by Claiming He’s Ukrainian?

The law, lawyers, and the court.
Nov. 27 2012 1:11 PM

Foreign Influence

Can a death row inmate in Virginia save his life by claiming he’s Ukrainian?

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European nations where capital punishment is deeply unpopular are eager to find as many cases as possible in which to intervene, even when European links are tenuous or downright bizarre. For example, in 2010, the French ambassador to the United States petitioned Texas Gov. Rick Perry to pardon Hank Skinner, who was convicted in 1995 in the stabbing deaths of his girlfriend and her two mentally disabled sons. Skinner had subsequently married a French anti-death-penalty activist while on death row. The ambassador requested clemency, and French President Nicolas Sarkozy publicly offered “France’s support” at a moment when Skinner was seeking to postpone his execution in order to examine new DNA evidence he claimed would exonerate him. That evidence, which was tested after the Supreme Court stayed his execution, turned out to further implicate Skinner in the crime, according to the Texas attorney general who released the results of the test this month.

European involvement in Reprieve’s heretofore most famous case, that of Texas white supremacist Mark Stroman, was similarly audacious. In the aftermath of 9/11, Stroman went on a Dallas-area rampage, targeting people he believed to be Arabs. Blinded by his ignorance, he ended up murdering two South Asians and grievously wounding a third. The case made national headlines because it was feared to portend a string of racist vigilante responses to 9/11. What didn’t make the headlines—in the United States, at least—was Germany’s involvement in the case. Though Stroman was born in America, his birth father, whom he never knew, was German, making Stroman eligible for German citizenship.

“He had links to Germany,” says Smith. “And he was quite proud of that. But the way he was proud of it was because Stroman was his birth name and he was then basically adopted by an incredibly abusive stepfather.” A less endearing reason Stroman cherished his German heritage was his love of Nazism; Stroman (or Ströman—mit umlaut—as Reprieve insists on referring to him) was a member of the Aryan Brotherhood hate group.

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Reprieve’s work in the case, which didn’t begin until 2009, came too late to be of much help to Stroman, who had been convicted in 2002. At the time of his execution, Stroman’s German citizenship application was still being feverishly processed, but the German government nevertheless asked Gov. Perry for clemency on behalf of their ostensible countryman after Stroman’s surviving victim, an opponent of the death penalty, met with the German Commissioner for Human Rights on a Reprieve-organized European trip.

Perry declined to intervene and Stroman was executed in 2011. The would-be German’s last words included a jingoistic rant that notably failed to salute his ostensive fatherland: “Even though I lay on this gurney, seconds away from my death, I am at total peace. I'm still a proud American, Texas loud, Texas proud. God bless America.”

Stroman and Skinner are less appealing poster children for Reprieve’s work than Teleguz. Reprieve’s insistence that the recantations “exonerate” Teleguz may be defense attorney hyperbole, but it seems clear from the apparently fictitious Pennsylvania rec center murder that his trial was deeply flawed. Ultimately, though, for Reprieve, Teleguz’s guilt or innocence is not all that relevant. As death penalty abolitionists, the group’s goal is to save the lives of the guilty no less than those of the innocent.

But there is a tension between Reprieve’s principle that everyone on death row deserves saving and its unorthodox approach to choosing cases, which has the effect of compounding the racial injustice that plagues the American system of capital punishment. It is no coincidence that Teleguz and Stroman, and most other Reprieve clients, are white. It’s white Americans who typically have documented roots on the European continent. (The most racially diverse nation in the European Union, the U.K., is whiter than the U.S. state of Nebraska.) In practice, then, Reprieve’s legal strategy is tantamount to trolling America’s disproportionately nonwhite death rows for white people. Reprieve’s job posting for survey staffers bluntly states that workers will “ascertain if there are any death row prisoners who can be excluded from the research (eg: on grounds of Mexican nationality).” Of course, most Mexicans have at least some European heritage. So do most African-Americans. It’s just difficult to document. (Nonwhites are so overrepresented on death row that even Reprieve has a few clients of color. They include Kris Maharaj, a Briton of South Asian descent, and Linda Carty, an Afro-Caribbean woman born on St. Kitts to Anguillan parents during a brief period when the U.K. extended citizenship to its remaining nonwhite colonies.)

Given the tenuous connections to Europe that Reprieve’s work unearths, finding more “potential citizens” than citizens, might another screening mechanism be a more effective—and more just—way to work toward global abolition of the death penalty? Why not focus on the wrongly convicted? Or those most adversely affected by incompetent counsel during trial? Or black defendants sentenced by all-white juries? Reprieve claims it wants to avoid meddling, but prosecutors in the cases where they make their sometimes tenuous citizenship claims surely see their efforts as just that. Why not meddle in the cases that most cry out for meddling?

To these objections, Clive Stafford Smith responds, “While a good case might be made for human rights being for all humans … the nationality issue is one that everyone recognizes, most of all the U.S., which calls consular intervention in criminal cases on behalf of their nationals the premier role of any country.”

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“How far do you have to go back before you have an immigrant in your family?” Smith asked me during our conversation. My interest piqued, I asked him to analyze my “links”—if I were convicted of a capital crime, would some European country claim me, and come to my defense? I answered the questions on the Reprieve questionnaire as best I could via email. Smith duly drew up an official-looking memo as if I were a Louisiana death row inmate rather than a New Orleans-based journalist with a clean criminal record. Under the heading entitled “Ukraine,” the memo advised that under Article 8 of Ukraine’s post-Soviet citizenship law, I appear to be entitled to Ukrainian citizenship on account of my grandfather, who was born at the turn of the last century in a portion of the Russian Tsarist Empire that is now part of Ukraine. (Under the heading “Sweden,” Smith surmised that “the Swedish people might be willing to support Mr. Brook were he on death row” since I briefly dated a Swede while on a two-month journalism fellowship in the country in 2003. Even without any claim to Swedish citizenship, the Swedes might be willing to rally to my defense—at least until they found out that my other grandfather’s family hailed from Sweden’s archrival, Norway.)

Reading Smith’s memo, I couldn’t help but laugh. Not only do I not consider myself Ukrainian, neither did my grandfather. He immigrated to the United States as a 5-year-old boy and his first memories were of Ellis Island, in New York, not the old country which, on the rare instances he mentioned it, he always referred to as “Russia.” But when I tried to imagine how I’d look at Smith’s memo were I actually on death row, the idea of filing Ukrainian citizenship papers—or dropping a line to a certain Johanna in Stockholm—suddenly seemed like an option I’d take very seriously.

Daniel Brook is a journalist and author whose latest book, A History of Future Cities, was published in February.