A smuggling trial that raises racial issues, too

The first time Abelardo Flores Jr. saw Tyrone Williams at a Texas warehouse, he said he knew he was the one. Mr. Flores had gotten so good at finding truckers to drive illegal immigrants north, he would often make bets with friends when he spotted a potential new recruit.

It took some convincing that day, said Flores in court testimony this week - especially since Mr. Williams said he preferred to run drugs instead of people - but the trucker from New York finally agreed to haul the immigrants for $6,500. Two weeks later, Williams was back for another load, this time asking for $7,500.

Flores said he agreed to pay the extra money, hoping that Williams would become a regular driver in his human-smuggling ring. They parted that night after close to 75 people were stuffed inside the truck's trailer. A few hours later, while partying at a topless bar, Flores received frantic phone calls. He would soon learn that things had gone terribly wrong.

After four delays and two appeals, the trial of Tyrone Williams - the highest-profile participant in the immigrant- smuggling operation that left 19 people dead near Victoria, Texas - finally began in Houston this week in a case raising new questions about the application of the federal death penalty. It is a trial being closely watched on both sides of the border amid rising concern about human smuggling. Mr. Williams is the first person to face the federal death penalty under a 10-year-old human-trafficking law.

The government calls the operation a despicable criminal enterprise, one that "treated people worse than cattle on their way to the slaughterhouse," according to assistant US Attorney Daniel Rodriguez in opening statements. "And Tyrone Williams was the most evil, cruel, and heartless member of that enterprise."

The defense claims that Williams, pursing his lips through much of the testimony, did not know how many immigrants were in his trailer and that he had no reason to suspect they were running out of air. "He is guilty of transporting undocumented persons into this country," said his lawyer, Craig Washington. "But [the government] will not be able to prove that these poor, helpless, defenseless people died at his hand."

Despite the sad and shocking details of the incident, the repeated delays and appeals in this case have revolved around a single question: Why was the only person charged with capital murder an African-American? Of the 14 people indicted (12 Hispanics and two African-Americans), 12 were eligible for the death penalty. Prosecutors say Williams was singled out because he was the only one who had control of the tractor-trailer. In other words, he was the only one who could have saved the immigrants' lives by opening the doors or turning on the refrigeration unit.

But after US District Judge Vanessa Gilmore asked for a letter from then-Attorney General John Ashcroft explaining why the government sought the death penalty "on the only black guy," the prosecution refused to explain its rationale.

Defense lawyers say that's common. The government never releases documents containing the charges, even though the issue of racial discrimination is routinely raised. "It is one of the most closely guarded secrets you can imagine," says Rick Kammen, an Indianapolis lawyer who has handled 17 federal death-penalty cases. "The government's position has been, 'Six men and a wild monkey will not tear this material from us.' "

Ever since the federal death penalty was restored in 1988, charges of racial discrimination have plagued the Justice Department. Studies have shown that the vast majority of federal offenders charged with capital murder have been African-Americans. After a Justice Department review of almost 1,000 cases, Mr. Ashcroft told a congressional committee in 2001: "There is no indication that in the federal death-penalty system there is any prejudice on the basis of race."

Before this trial started, Judge Gilmore ruled that if Williams was found guilty, she would inform the jury that the prosecution refused to cooperate in providing its reasons for seeking the death penalty. The US Court of Appeals for the Fifth Circuit overturned that ruling. The US Supreme Court declined to take the appeal earlier this week. "There has been a tendency to look away from this issue, but there is always the hope that the right case will catch the Supreme Court's attention and reignite their interest," says Richard Burr, a Houston lawyer who works with the Federal Death Penalty Resource Council.

In trying to get the government to drop the death penalty charge, Williams's lawyers cited Federal Death Penalty Resource Council statistics showing that none of the 68 previous defendants prosecuted for smuggling humans that resulted in deaths had been charged with capital murder. Of those, 61 were Latino, three were white, two were black, and two were of unknown ethnicity. "These [charging] decisions are supposed to be made on the basis of who bears the greatest responsibility, but other people started all of this in motion," says Mr. Burr. "They played just as significant a role as Williams."

He cites Flores and the ringleader of the Brownsville-based smuggling ring, Karla Patricia Chavez Joya. Both have pleaded guilty and face life in prison, but could receive a lighter sentence for cooperating with the government.

Martias Rafael Medina Flores was one of the immigrants inside the trailer that night. He said he traveled a month from Honduras to cross the US/Mexico border and was charged $2,000 for the trip from Brownsville to Houston. Not long after the trailer doors were shut, he said, it became unbearable. The temperature reached 173 degrees. The air soon ran out. The immigrants screamed for help in Spanish and banged on the walls, said Mr. Medina. They scratched through insulation and knocked out taillights to get air. They shoved their shoes and shirts through the holes to attract attention.

After passing through a border checkpoint, Williams pulled over when another trucker signaled his taillight was dangling. He returned to the cab, said prosecutor Rodriguez, cursing the immigrants for tearing up his truck. Later he stopped again and passed water through the holes. He heard them screaming "el niño," Spanish for child, but says he didn't know what that meant. A 5-year-old boy was the first to die.

The prosecution contends that Williams must have heard the cries for help. He finally stopped a third time, purchased more water for the immigrants, unhitched the cab, and opened the doors before racing away. "The screams of desperation were constant," said Medina. "By the end, I hardly had any strength to keep on screaming. I just laid back to wait. We couldn't do anything more. At that point I thought I was going to die." When the doors finally opened, he said, "I felt like I was getting another chance at life."