DATE: Wednesday, April 9, 1997              TAG: 9704090479

SECTION: LOCAL                   PAGE: B5   EDITION: FINAL 

SOURCE: BY LAURA LaFAY, STAFF WRITER 

DATELINE: RICHMOND                          LENGTH:   84 lines

COURT TO HEAR APPEAL OF MEXICAN NATIONAL IN BEACH MURDER CASE

The U.S. Court of Appeals for the Fourth Circuit will hear arguments today in the case of a Virginia Beach man who says prosecutors singled him out for the death penalty because he is a Mexican national and prevented him from getting legal help from his native country.

Six people were charged in the 1991 beating death of Navy Petty Officer James Radcliff. Mario Benjamin Murphy - then a 19-year-old Navy enlistee - was sentenced to death. Four of Murphy's co-defendants pleaded guilty in exchange for life sentences, but prosecutors refused to make a similar deal with Murphy.

The remaining defendant, Robin Radcliff, turned down a plea agreement and was tried. Prosecutors asked for the death penalty, but the jury sentenced her to life plus 20 years in prison.

The crime was a lurid murder-for-hire scheme in which a pregnant Robin Radcliff and her lover, Gerard Hinojosa, recruited Hinojosa's roommate, Radcliff's son-in-law and Murphy to beat Radcliff's husband to death as he slept.

The three, along with a teen-ager brought in by Murphy, attacked James Radcliff after entering his Thalia home through an open window. After they left, Radcliff rolled in her husband's blood to make it look as though she, too, had been victimized. She then called police and said James Radcliff had been beaten by burglars. Two days after the murder, she married Hinojosa.

Court arguments today will focus on Murphy's guilty plea. That plea was not voluntary, according to Murphy's lawyers, because Murphy was unaware when he made the plea that - as a citizen of Mexico - he was entitled to legal help from the Mexican Embassy.

The Vienna Convention of 1970 requires notification whenever one country arrests and detains the citizen of another. Once notified, embassy officials are entitled to assist their citizen with legal problems.

With Murphy, as in the cases of the roughly 48 other foreign nationals on death rows across the United States, no notification occurred. Because of that, Murphy's lawyers argue, he should get a new trial. A ruling is expected by June.

Angel Breard, a Paraguayan national on Virginia's death row, has made a similar argument. But U.S. District Court Judge Richard L. Williams, who ruled in both cases last year, refused to consider the issue. Because neither man brought it up in prior appeals, Williams ruled, the issue was procedurally defaulted, or barred, from consideration.

Murphy's lawyers counter that a treaty between the United States and a foreign government takes precedence over rules regarding procedural default.

Lawyers for Attorney General James Gilmore disagree. If claims based on rights guaranteed by the U.S. Constitution can be defaulted, they argue in court documents, then so can a mere treaty-based claim.

The claim has also been raised in death cases involving Mexican, Canadian and British nationals in Texas, Arizona and Washington state.

``It's not just a legal issue, it's sort of an international public relations issue as well,'' said Richard Dieter of the Death Penalty Information Center in Washington.

``A lot of these countries do not have the death penalty and oppose it. And when one of their own citizens gets it, it becomes personalized. As those countries start to see that helping with the defense early on - finding and paying lawyers, for example, is crucial, it could make a real difference.''

Virginia Beach Commonwealth's Attorney Robert Humphreys calls the issue ``ridiculous.'' It is the ``argument du jour'' of capital defendants who are foreign nationals or can claim dual citizenship, he said.

``I mean, what is the remedy? I suppose Mexico could declare war on us. . . To me, it's a completely ridiculous issue. I guess they (Murphy's lawyers) don't have anything else to work with.''

Humphreys said his office didn't offer Murphy a plea agreement because Murphy was one of the ``most culpable'' participants.

``We regarded the two most culpable people in the case as Mario Murphy and Robin Radcliff,'' he said.

``Her, because she conceived of the plan, and him, because he recruited. . recruited a juvenile. Turner was a high school student.''

At the time of prosecution, Humphreys said, he had no idea that Murphy was a Mexican national.

``We're not mind readers,'' he said.

``The burden is on (defendants) to say, `Hey, excuse me, I'm a Mexican citizen. Tell my embassy.' But he didn't. He never thought of it until his lawyers thought it up for him.'' ILLUSTRATION: Photo

Mario Benjamin Murphy, sentenced to death for murder, was entitled

to help from the Mexican Embassy, his lawyers say. KEYWORDS: MURDER DEATH SENTENCE APPEAL

Send Suggestions or Comments to webmaster@scholar.lib.vt.edu