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?

Death row.
Can foreign connections help prisoners escape death row?

Photo by Joseph Jean Rolland Dube/iStockphoto/Thinkstock.

Tomorrow morning, in a courtroom in Charlottesville, Va., a top death-penalty lawyer backed by a well-funded nongovernmental organization and the Ukrainian government will ask a federal judge to reopen the case of Ivan Teleguz, a Ukrainian-born death row inmate. Among the dozens of cases of European nationals on American death row that have been identified by Reprieve, a London-based advocacy group, the Teleguz case represents the best opportunity yet for the group to save a life.

Teleguz has been on death row since his 2006 conviction of murder-for-hire in the stabbing death of the mother of his child, Stephanie Sipe. The Commonwealth of Virginia failed to produce any records of the alleged payments—$2,000 plus $500 in expenses—from Teleguz to Michael Hetrick, the man who all parties acknowledge stabbed Sipe to death. Teleguz was convicted solely on the testimony of Hetrick and two other men—Hetrick’s roommate and accomplice, Edwin Gilkes, and Aleksey Safanov, who claimed to have witnessed the deal. After a vigorous post-conviction investigation by Teleguz’s Reprieve- and Ukraine-backed counsel, these two witnesses have now recanted their testimony. And after a successful last-ditch appeal, in August, the 4th Circuit Court of Appeals sent the matter back to the District Court in Charlottesville to hold tomorrow’s hearing. If the recanted testimony, as well as new evidence turned up by Teleguz’s counsel, is deemed enough to change the mind of a “reasonable juror,” the District Court judge is under orders to reopen the case.

Under the Vienna Convention of 1963, when foreign nationals are arrested abroad, authorities are required to contact the embassy of their home country. Such contact often results in a diplomat attending their trial. An imperious, pin-striped courtroom presence can keep judges and prosecutors operating by the book and constitutes an early warning system for sleeping, drunken, or otherwise incompetent defense attorneys. Occasionally, embassies will even hire expensive, experienced private counsel for the defendant. In Teleguz’s case, and a stunning number of others, this notification never took place. Though born in Ukraine and raised there until age 11, Teleguz, who has never become a naturalized U.S. citizen, did not receive the consular notification to which he was entitled, either after his arrest or during his trial. Ukraine only learned of his case in 2010. (Lack of consular notification is among the myriad issues Teleguz’s attorney is raising before the District Court, but it is considered a relatively minor issue; this breach alone has not historically been enough to get a convict off of death row.)

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And yet, Teleguz’s Ukrainian birth may still be enough to spare his life even at this late date. Teleguz’s counsel, Matthew Stiegler, an experienced Philadelphia-based death penalty lawyer who has done work for the ACLU Capital Punishment Project and served as clinical faculty at the University of North Carolina law school, declined to discuss the specifics of Reprieve’s or Ukraine’s support for Teleguz. What is known, however, is that the Ukrainian government has filed an amicus brief in the case and Reprieve has funded a trip for his advocates to Ukraine to meet with officials and learn about the difficult circumstances under which the Teleguz family lived as persecuted evangelical Christians in officially atheist Soviet Ukraine—information that could be used to request clemency from the governor of Virginia should the conviction stand. And support from Ukraine and Reprieve has enabled Teleguz’s appellate lawyers to undertake their thorough review of his case. Beyond the Vienna Convention and testimony-recantation issues raised in their appeal is an additional claim of “ineffective assistance of counsel.” During the trial, the prosecution’s implication of Teleguz in an earlier murder at a recreation center in Ephrata, Penn. went unquestioned by the defense. A post-conviction investigation by Reprieve-backed attorneys found no record of any such murder having ever taken place.

***

If Teleguz’s case is reopened it will represent a legal victory years in the making. In 2009, Reprieve received a 500,000 euro grant from the European Instrument for Democracy and Human Rights, the arm of the EU that promotes those values in non-EU countries. The grant mandated that Reprieve was to use the funds to locate Europeans among the over 3,000 prisoners on American death rows. The funding is part of the EU’s larger initiative to take its successful internal ban of the death penalty global. But even for those eager to see the death penalty abolished in America, Reprieve’s efforts are not without controversy.

The European Union requires that new member states ban the death penalty in order to join it. More than just ending the death penalty in the Eastern European states that are seeking membership in or have recently acceded to the European Union, this requirement prevents backsliding by established members. Even though a majority of Britons now support reinstituting capital punishment, such a position is a political nonstarter in the U.K., in part because the prospect of conflict with the EU saddles the decision with such disastrous diplomatic and economic repercussions.

By finding Europeans on death row, Reprieve hopes to actively take on one of the world’s leading executioners (in 2010, only China, Iran, and Iraq executed more people than the United States) while inoculating itself against charges of interfering in the affairs of a sovereign state and an EU ally. As a Reprieve briefing to the European Parliament in Brussels explained, “sometimes, external intervention in capital cases can be seen as meddling. However, this is not so where the prisoner is a foreign national or someone with clear foreign connections, as this provides an undeniably appropriate locus.” Having nearly completed its survey, the group has found 66 prisoners who are either Europeans or “have clear foreign connections” to Europe, constituting about 2 percent of all condemned inmates in the United States.

“I’ve known for years that the number of people on death row who are foreigners is much bigger than most people recognize,” says Reprieve founder and director Clive Stafford Smith, a native of Britain. Smith worked as a death penalty advocate in the United States for 26 years after law school and holds dual citizenship. “When you’re a foreign national and you’re arrested, the last thing you think you should do is say you’re a foreigner because most foreigners in America … are paranoid about the INS [now USCIS]. They’re much more worried about deportation than they are about conviction, especially if you happen to be innocent.”

But according to the results of the survey, foreign-born inmates afraid of the immigration authorities are a small subset of Reprieve’s total. Most of the “Europeans” that Reprieve has turned up—fully two-thirds of them—are not European-born, but are eligible for citizenship in various European nations on account of other “links.” As Smith notes, in America, not-too-distant connections to the old country are common. Using a four-page survey Reprieve prepares for death penalty attorneys to administer, the group analyzes each prisoner’s foreign ties. (Reprieve refused to share a blank questionnaire but Slate obtained one through a source who works in death penalty defense.) The survey amounts to a methodical analysis of each parent and grandparent’s immigration histories, including their country of birth and all nationalities they have ever held as well as the inmate’s own history of living abroad and/or dating or marrying foreigners.

While the United States uses jus soli citizenship (Latin for “right of the soil”), which grants citizenship to anyone born in America, regardless of parental race, ethnicity, or immigration status, many European countries use the race-based jus sanguinus (“right of the blood”), which grants citizenship to people with family roots in a nation regardless of whether they’ve ever been there themselves. Many European nations will grant citizenship not just to the children of emigrants but even to their grandchildren. Under these rules, for example, for many decades people of Turkish descent born in Germany were denied German citizenship while German citizenship was granted to the children of German fathers born abroad. (Croatia will grant citizenship to anyone who deems themselves a member of the Croatian people and adopts Croatian customs.) Reprieve’s survey has revealed 44 inmates with “potential nationality” in 21 different European countries. The “potential nationality” wrinkle is an exception that has proven larger than the rule.

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.

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.”

***

“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.

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