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June 16, 2011

"Texas Death Row Case Resonates to a Treaty"

The title of this post is the headline of this article from the New York Times about a capital case getting a lot of attention lately. Here is how the article starts:

The death penalty case against Humberto Leal García Jr. did not seem like the sort to draw attention from a high-profile list of former U.S. diplomats, prosecutors, politicians and military men: He was convicted in Texas of raping, kidnapping and murdering a 16-year-old girl, Adria Sauceda, bludgeoning her with a heavy chunk of asphalt.

But Mr. Leal, a Mexican citizen, was not immediately informed of his right, under an international treaty signed by the United States, to seek assistance “without delay” from Mexican consular officials in navigating a confusing foreign legal system. Such help might have been crucial for someone like Mr. Leal who, his lawyers say, had few resources and a limited understanding of his plight.

“This was an eminently defendable case, and I don’t think it would have been a capital case if he’d had decent trial counsel” from the start, said Sandra L. Babcock, a Northwestern University law professor representing Mr. Leal on behalf of the Mexican government.

With Mr. Leal’s execution approaching on July 7 in Texas, where 14 other Mexicans are also on death row, calls have mounted for Governor Rick Perry to grant a stay.

The former officials and military men urging a delay say that only by zealously enforcing terms of the Vienna Convention on Consular Relations at home, with its guarantee of quick consular notification, can the United States expect similar treatment for Americans arrested abroad.

More than 6,600 Americans were arrested abroad in the year that ended on Sept. 30, by State Department count; nearly half were incarcerated. They include exchange students accused of buying drugs, diplomats caught up in protest marches and tourists who stray across borders.

“Consider a traffic accident in a foreign country,” said Mark Warren, an Ottawa-based legal researcher who specializes in consular rights issues. “In a lot of countries you get arrested, you are held, you are interrogated, you may be held incommunicado for weeks. It’s not speculative — this happens a lot — and if you don’t have access to your consulate, you have no friends, you are completely isolated.”

Observing the treaty is not “a favor to foreigners” but a “plainly compelling” national interest in protecting Americans abroad, said John B. Bellinger III, who was the top State Department lawyer under President George W. Bush and who joined other former diplomats in a plea to Mr. Perry, the Texas governor. Mr. Perry is awaiting a recommendation from the State Board of Pardons, his office said, though Texas has rarely granted clemency.

Senator Patrick Leahy, chairman of the Senate Judiciary Committee, introduced legislation this week to address cases like Mr. Leal’s. The bill, which has the backing of the Obama administration, would provide for review by a federal court when a prisoner facing a death sentence claims his consular rights were violated, and calls for a stay of execution, if necessary, to allow such a review. But it does not extend to noncapital cases, and no comparable bill has been introduced in the House of Representatives.

June 16, 2011 at 06:58 AM | Permalink


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This case is not any different from the last Illegal alien to be executed by Texas Medellin in 2008. In that case President Bush tried to get Texas to abide by the treaty. Leahy has ZERO chance of passing anything anytime soon. And Obama is powerless to do anything as well. Recall SCOTUS clearly stated in 06-984: The President’s Memorandum — a directive issued to state courts that would compel those courts to reopen final criminal judgments and set aside neutrally applicable state laws—is not supported by a “particularly longstanding practice.” The Executive’s limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far. A victory for states rights. if congress was so concerned they had years to act. The outcry by Anti-DP advocates will get louder but will again fall on deaf ears as it should. So lets not make this a huge case yet again when its settled law.

Posted by: DeanO | Jun 16, 2011 8:25:19 AM

I wonder if Congress even legitimately has the power to pass enabling legislation for such a treaty.

It would seem very close to running into the same sorts of issues as the firearms background check that was thrown out in Printz. The states are required to follow federal constitutional standards, but I don't think Congress would have the power to statutorily mandate rules of criminal procedure, and I don't think Congress could get around that by drawing it up as a treaty, with or without enabling legislation.

As an example, I don't think Congress could simply pass legislation that would ban execution, and I don't think they could use a treaty to get there either. (Congress could of course use the purse to cajole compliance but that is a different issue).

Posted by: Soronel Haetir | Jun 16, 2011 9:47:23 AM

Fault lies with the framers of the treaty who never bothered to familiarize themselves with US law and see that they needed to include the states.

Posted by: MikeinCT | Jun 16, 2011 2:25:53 PM

Funny how the news coverage didn't note the "meh" reaction in Mexico when Medellin was executed.

Posted by: federalist | Jun 17, 2011 8:52:37 AM

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