At midnight, a prison chef served Victor Harry Feguer his last meal just as the young killer had requested it: a single olive, with the pit. Feguer murmured something about hoping that an olive tree, “the tree of peace,” would someday sprout from his grave.
He wasn’t keen on the death penalty, the Michigan native told two priests early on that cool March morning in 1963. But he did dress respectfully for the occasion, donning a crisp blue suit, white shirt and dark blue tie. At the appointed time he walked from his holding cell, glanced at the 27 witnesses and climbed 16 steps up a scaffold. A federal marshal fastened straps around Feguer’s arms and legs, and then–much as a tailor sizes shirt collars–fitted a noose snug against his neck. An anxious Feguer quickened the pace of his gum-chewing. Deep breaths inflated his chest as the marshal shrouded his face with a black hood.
At 5:30 a.m., Feguer dropped awkwardly through the trap door of an Iowa gallows. He died nine minutes later, after his body stopped swaying, for a kidnapping that violated federal law. Feguer had murdered his victim–a frightened young doctor whose wife was pregnant with their fourth child–in northern Illinois. Even in his final hours, Feguer didn’t admit to the crime, despite overwhelming evidence against him. He obsessed instead about his own execution, and debated whether to make a speech against the death penalty from the gallows. He told the priests: “I sure hope I’m the last one to go. . . . Will you make sure the press gets that?”
For 37 years, no one has trifled with Feguer’s last wish. Although 31 states have executed 669 convicts since the U.S. Supreme Court allowed reinstatement of the death penalty in 1976, the federal government has not executed a single prisoner since the business end of a rope snapped Feguer’s thin neck.
But few of us get our way forever. The U.S. government is scheduled to be back in the death-penalty business in a matter of weeks. Until Wednesday, it appeared that the first person since Feguer to die would be David Paul Hammer, a killer and mischievous con artist from Oklahoma who once pilfered a prison employee’s credit card number, then used it to send flowers to his warden. Hammer’s capital crime: While serving a sentence of 1,200 years for other felonies, Hammer strangled his cellmate in 1996, later explaining that he’d prefer to live alone. But now a federal judge has delayed Hammer’s execution until February at the earliest.
Next up: Juan Raul Garza, 43, a convicted drug trafficker and triple-murderer from Texas. Injections of sodium pentothol and potassium chloride are scheduled to end his life at 9 a.m. on Dec. 12. As the pace toward their likely executions quickens, Garza and Hammer have plenty of nervous company at the feds’ death facility, part of a high-security prison in Terre Haute, Ind. Their survivors–for a time, anyway–would include Oklahoma City bomber Timothy McVeigh and 16 other men who await the prick of the needles.
Say this much for federal death-penalty cases: They rarely lack for glamor. Since the first Congress wrote capital punishment into its first crime bill in 1790, offenses such as treason, spying and sabotage have conferred on federal executions a sense of intrigue that state cases for more commonplace crimes–multiple killings, for example–generally lack.
After its 37-year hiatus, though, the federal death penalty has been all but lost in the mists. That will change after election season passes and the national media turns its klieg lights on Terre Haute and the president who will be forced to decide Garza’s fate.
The federal penalty carries a unique set of controversies. In part that’s because, generally speaking, federal death cases aren’t as flaw-prone as state cases, such as those that have been overturned in Illinois and elsewhere. Federal defendants have better-paid and often better-skilled lawyers than defendants in state courts. What’s more, federal prosecutors have better investigative resources at their disposal and are more likely to offer tape recordings or other comparatively unambiguous evidence.
The result is that federal jurors often get a clearer picture of guilt or innocence than do their state counterparts. So, to the extent that it has been mentioned at all this year, the federal death penalty has come under scrutiny not for whether innocents have been condemned to die, but instead for when Justice Department prosecutors choose to seek it.
A Justice study acknowledges that some U.S. attorneys–including those in Missouri, Texas and Virginia–seek the death penalty far more often than their federal colleagues in other states. Opponents also say that 15 of the 19 federal Death Row inmates are from minorities. In fact, whites are under-represented throughout the death-penalty system, all the way down to defendants facing trial in federal district courts. That is proof, critics say, that white prosecutors consciously or unconsciously discriminate by race.
Defenders of the federal death penalty say the disparities are more benign than bigoted. Individual federal prosecutors have sought capital punishment so rarely compared to their state counterparts that patterns of race and geography became clear only after the death sentences were handed out.
What’s more, the defenders say, even obvious patterns aren’t necessarily unfair. Take geography. If certain crimes are concentrated in some states but not others, those states should yield the most prosecutions. Is it illogical that Texas, with all its violent drug trafficking, produces lots of federal capital cases?
The racial pattern is especially sensitive. But some death penalty proponents say–though in whispers, to avoid charges of racism–that the disparity comes down to this: Minorities have been statistically more likely to commit the drug-related crimes that often launch federal death cases.
For example, the notorious Darryl “Pops” Johnson, now awaiting execution for ordering the assassination of a federal informant in a Chicago drug case, was a leader of the Gangster Disciples, a gang of African-Americans. Is it surprising, then, that Johnson–like his victim–is black? Or, for that matter, that drug-trafficker Garza–like his victims–is Hispanic?
Atty. Gen. Janet Reno must approve every request from federal prosecutors to seek the death penalty. She has said she is troubled by the inequities that have been alleged and has called for more study of whether prosecutors make biased decisions. But she hasn’t called for a moratorium on the federal death penalty because she sees no evidence that those who has been condemned are anything but guilty.
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There was less concern about such proprieties at the inception of the federal death penalty. Congress dictated mandatory hanging for a dozen crimes, including piracy and forgery. Research by Rory K. Little, a University of California law professor and prominent death-penalty historian, suggests that early presidents saw mandatory sentences as too harsh; a report compiled in 1829 showed that only 42 prisoners had been executed, while 64 had been commuted.
Not until 1897, though, did Congress follow the lead of several states and give federal juries the discretion to decide whether people convicted of capital crimes should live or die. In succeeding decades, Congress occasionally expanded the list of offenses that could merit a death penalty. Among the additions: violent kidnapping (a response to public outrage over the Lindbergh Baby case), airplane hijacking and committing murder with explosives.
In 1972, when it voided state death penalties, the Supreme Court indirectly nixed the federal death penalty as well. The court essentially said the statutes as written could lead to the death penalty being inequitably applied.
While several states soon passed new death-penalty laws that earned the high court’s imprimatur in 1976, Congress didn’t get around to doing so until 1988, as a crack epidemic spiked the nation’s murder rate. That “drug kingpin” law narrowly targeted criminals who committed (or ordered) murders in the course of drug conspiracies.
In 1994, Congress lengthened the list of federal death-penalty crimes to about 40, ranging from carjacking that results in death to the murder of a president. More crimes have since been added to that list. But while dozens of capital cases have wound their way through the courts since the new laws took effect, no prisoner has yet paid the ultimate price.
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That makes Feguer and Garza bookends from very different eras, one in which the federal death penalty was taken for granted and one in which it’s archaic. Feguer’s is the more chilling tale; Garza’s, the more bloodthirsty.
It’s not clear how many federal prisoners were put to death before Feguer. The Justice Department counts 34 executions since 1927; earlier record-keeping was spotty. (Thirty-two of those were men, and at least 28–one man’s race wasn’t recorded–were white.)
Feguer’s case typifies how the federal death penalty often played out in the 20th Century: Though the case was sensational, the execution itself was so mundane that it got almost no notice in newspapers across the U.S.
The tale started on July 7, 1960. Feguer, the 25-year-old product of a broken home and Michigan correctional institutions, traveled alone by bus from Milwaukee to the Mississippi River city of Dubuque, Iowa. Two days earlier, he had passed a bad check to buy a .38-caliber handgun.
Claiming he was a vacationing accountant and artist, he rented a room in a red-brick apartment house at the foot of a towering bluff. Four days later, he called the home of Dr. Edward Bartels, the first general practitioner in the telephone book’s alphabetical listing of physicians. Feguer told Bartels, 34, that he was visiting Dubuque and that his wife (in truth he had none) was suffering from post-operative pain. Feguer reportedly later told the FBI that he hoped the doctor would show up carrying morphine or Demerol.
Bartels left a note for his wife, then drove down the bluff on his mission of mercy. Feguer lured Bartels into his bedroom, pulled a gun and forced the doctor back to his car. He made Bartels drive east, across the Julien Dubuque Bridge, into Jo Daviess County, Ill., to a wooded spot between the towns of East Dubuque and Galena. There Feguer shot Bartels in the head and left him face-up in the woods.
As Dubuque police and the Iowa Highway Patrol frantically searched for Bartels, Feguer drove the doctor’s gray 1959 Rambler first to Gary, Ind., and then to the Michigan cities of Holland and Grand Rapids.
Frederick White, an Iowa attorney who was later part of Feguer’s defense team, still recalls Feguer’s peculiar behaviors after the killing, such as target-shooting along Lake Michigan dunes and wearing the dead doctor’s stethoscope.
The story got weirder. Feguer picked up a drifter and drove to Birmingham, Ala., where he tried to sell Bartels’ auto. A suspicious used-car dealer, mistaking Feguer for a look-alike criminal on the ten most wanted list, tipped the local FBI office. Seven agents converged and, when they found a handgun on one of the Rambler’s seats, detained Feguer.
Within hours, the FBI figured out that it really was holding a kidnapping suspect. Bartels’ body was discovered the next morning in Illinois, apparently after Feguer told the FBI where to find it.
In 1961, according to accounts in the Dubuque Telegraph Herald, a federal jury in Waterloo, Iowa, deliberated seven hours and 18 minutes before convicting Feguer and recommending death. The jury didn’t buy the only plausible defense argument, which attorney White sums up this way: “We tried to prove he was crazy.”
Because the U.S. had no federal execution chamber, Feguer was sentenced to die at the Iowa State Penitentiary in Ft. Madison.
After exhausting their appeals, Feguer’s attorneys tried a “Hail Mary” maneuver. They drove to Des Moines to meet with Gov. Harold Hughes, a foe of the death penalty. With the lawyers present, Hughes called the White House. There an aide fetched John F. Kennedy from the swimming pool. Kennedy told Hughes, a fellow Democrat, that he had reviewed Feguer’s case but could find no reason to commute the sentence.
Kennedy did offer to move the execution to Illinois if that would ease Hughes’s conscience.
The governor’s response: “If you’re going to let the man die, I don’t see any reason to move the execution and go through the pain and the agony of that sort of public display.”
On the morning of his execution, a stoic Feguer muttered his own pointless prayer to the president. “Well, John F. Kennedy,” he said, “if you’re going to make any sudden moves, you’d better make them now.” Twenty-five minutes before he dropped from the gallows, Feguer sat waiting for the telephone call that never came. He bent too far back in his swivel chair, nearly tipping it over. “If I’m not careful,” he said, “I’ll break my neck prematurely.”
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For opponents of the death penalty, neither Feguer nor Juan Raul Garza is the ideal martyr. But if Feguer at least was a hapless loser, it’s Garza who is the opponents’ worst nightmare. Nothing in his story cries out for mercy. He is the drug kingpin for whom the federal penalty was designed, the executioner now awaiting execution.
Garza, the son of a migrant worker, started smuggling large quantities of marijuana to the U.S. from Mexico in Volkswagens during the early 1980s. He was convicted in 1993 of committing or ordering three hits. Gilberto Matos and Erasmo de la Fuente were shot to death in 1990; witnesses at Garza’s trial testified that he blamed de la Fuente for losing a marijuana shipment. The third victim, in 1991, was Thomas Albert Rumbo, who had been caught loading marijuana for Garza and then had agreed to testify against Garza.
After the vote to convict Garza, federal prosecutor Jose Angel Moreno opened the trial’s penalty phase by startling the jurors. “I’m sorry to tell you that there’s more, there is a lot more,” Moreno said, explaining that Garza had been implicated but not charged in five other brutal killings.
Israel Flores, a former Garza lieutenant, then described the killing of a drug middleman named Fernando Escobar-Garcia as Flores sat next to him in the back seat of a car. Garza “said he was going to get rid of Fernando because he didn’t have no use for him,” Flores testified. “He just turned around and shot Fernando a couple of times.”
Gang members testified that Garza had his son-in-law, Bernabe Sosa, slain because he blamed Sosa for the loss of a marijuana shipment in Houston. There also was testimony that Garza ordered the rub-out of Antonio Nieto for squandering some of Garza’s money during a drug-buying trip to Mexico. A former gang enforcer named Jesus Flores, cousin to Israel, told an especially troubling tale: Jesus had helped torture and murder his sister-in-law after Garza decided that Diana Flores Villareal was a snitch.
The jury voted for death.
Seven years later, Garza has exhausted his appeals. His only hope now is that President Clinton will intervene. The president can commute Garza’s sentence to life imprisonment.
Or Clinton could duck the decision and find some reason to grant a temporary reprieve until he leaves office. Clinton would be criticized as gutless for doing so, but he also would avoid executing the first prisoner since Feguer.
Then that duty would fall to whoever wins Tuesday’s presidential election. Al Gore and George W. Bush both say they support the federal death penalty. One of them might get the chance to prove it. Soon.
