One of the program’s chief purposes is to help defense attorneys construct a biography of the accused—to humanize them. Poverty, family dysfunction, and developmental disability are frequent themes in their clients’ lives. When presented as part of a defense, such themes can encourage mercy among jurors and dissuade them from handing down a death sentence.
To that end, the program arranges for lawyers to go to Mexico to track down school and hospital records and stories about their clients’ lives, either paying for their travel costs or advising them on how to request money from local courts. Under the program, Mexico pays American lawyers up to $220 an hour to track potential death penalty cases around the country—watching court decisions and news stories from the moment of arrest, all the way through the last minute scramble before an execution—and advise court-appointed lawyers like Thomason.
Since 2008, the program has provided these attorneys with an average annual budget of around $4 million to track as many as 135 cases at a time, according to the program’s filings with the Department of Justice. That comes out to roughly $29,000 per case, per year. By contrast, the Equal Justice Initiative, which represents numerous inmates on Alabama’s death row, has reported that many of them were sentenced to death after their attorneys’ fees were capped at $1,000 for out-of-court trial preparation.
More resources and training translates into more compelling stories, as defenders plead for mercy for their clients. Monica Foster, a lawyer in Indianapolis who worked with the program for several years, explained that she would connect defense attorneys with officials in Mexico, who would help them travel to their clients’ hometowns, many of which were often inaccessible by paved roads. “We’d help them understand...how you take that story and meld it into a complete package of ‘How did this person end up in [the United States] and why should a jury feel compelled to extend mercy to them?’”
Houston-based attorney James Stafford was appointed to represent Mexican immigrant Francisco Castellano in 2005 for the murder of Castellano’s niece. “When you’re court-appointed you have limited resources in terms of what the court will give you to develop a defense,” Stafford said. “It creates a team approach, where you have people at your disposal who can do research, talk to witnesses, etc., instead of it being a one-man shop.”
Stafford says the program’s help finding mitigation evidence led to his success getting a district attorney to drop the death penalty and allow a plea for a life sentence. Such a scenario is not uncommon. In a 2008 Hofstra Law Journal article, Greg Kuykendall, the Tucson, Arizona-based director of the program, claimed that it had a 95 percent success rate in keeping roughly 300 Mexican nationals from being executed. Such numbers are difficult to verify, however, because the program tends not to share much about its work publicly; Kuykendall was not granted clearance by the Mexican government to be interviewed for this story. Mexican Embassy spokesman Ricardo Alday told The Atlantic, “Mexico in no way condones or sympathizes with any criminal behavior for which some of its citizens have been accused,” but the country’s government “opposes the death penalty as a matter of principle and has a strong policy of protecting its nationals abroad including in the United States.”