This week, prominent bipartisan groups, including former U.S. diplomats, retired military leaders, former judges and prosecutors, and organizations representing Americans abroad called on the Texas Governor and Board of Pardons and Paroles to grant a stay of execution to Humberto Leal Garcia, a Mexican national on death row who is scheduled to be executed on July 7. These are not the usual suspects who call for clemency in a death penalty case; in fact, many of them undoubtedly support capital punishment. What unites this diverse group is their concern that if Mr. Leal is executed in violation of a binding judgment of the International Court of Justice, other nations will be emboldened to violate the consular rights of U.S. citizens arrested in foreign countries.
Article 36 of the Vienna Convention on Consular Relations, a treaty ratified by 173 nations, establishes that whenever the authorities arrest a foreign national, they must advise her that she has the right to have her consulate notified of her detention. This applies to foreign nationals arrested in the United States as well as to Americans detained abroad. American foreign exchange students, missionaries and others who have been wrongly detained overseas often say that the assistance of the consulate is more important than the advice of a foreign lawyer. American consulates can help them contact family members, obtain evidence back home, and assist in obtaining competent legal representation.
But when Texas authorities arrested Humberto Leal García, a Mexican national with no prior criminal convictions, they tried, convicted, and sentenced him to death without ever informing him of his consular rights and without notifying the Mexican consulate of his plight. On March 31, 2004, the International Court of Justice held that the United States had breached its obligations under Article 36 of the Vienna Convention in the case of Mr. Leal and 50 other Mexican nationals on death row. The ICJ held that, as a remedy for the violations of Article 36, the United States must provide judicial "review and reconsideration" of Mr. Leal's conviction and sentence to determine whether, and how, he was prejudiced by the violation of his consular rights.
Without the assistance of the Mexican consulate, Humberto Leal received disgracefully inadequate legal representation. One of his trial attorneys has been reprimanded or suspended from the practice of law on multiple occasions as a result of ethical violations. Mr. Leal was convicted on the basis of junk "bite mark" science, since discredited by the National Academy of Sciences, and patently unreliable forensic evidence. Although the prosecution's case was reed thin, his defense failed to effectively challenge any of this evidence. During his sentencing hearing, which lasted only a single day, Mr. Leal's attorneys failed to present any of the profoundly mitigating evidence that later came to light with the assistance of the Mexican government. The jury that sentenced Mr. Leal to death never learned that he was the victim of horrific sexual abuse by his parish priest, which had severe and lasting effects. Jurors never realized that Mr. Leal had struggled to overcome learning disabilities and frontal lobe brain damage and spent his childhood dodging neighborhood gangs and beatings from his parents. Based on the distorted, incomplete picture of Mr. Leal provided by the prosecution, he never stood a chance.
Former President Bush directed the Texas courts to review Mr. Leal's conviction and sentence in accordance with the ICJ's decision, but Texas refused. The United States Supreme Court has found that while the U.S. has an international legal obligation to comply with the ICJ's decision, only Congress can implement the decision by passing legislation. Congress is now poised to do just that -- but Texas has announced that it nonetheless intends to go forward with Mr. Leal's execution. A stay of execution is essential to prevent an irreparable breach of the United States' treaty commitments, and to protect the rights of all Americans who rely on the protections of the Vienna Convention. And unless Mr. Leal receives a reprieve, he will die before he ever sees justice.
For more information about Mr. Leal's case and the efforts to save his life, visit www.humbertoleal.org.
Michele Somerville: Can the Death Penalty Deliver Justice or Peace?
---Thank you Texas, you give me hope---
received disgracefully inadequate legal representation. One of his trial attorneys has been reprimanded or suspended from the practice of law on multiple occasions as a result of ethical violations. Mr. Leal was convicted on the basis of junk ‘bite mark’ science, since discredited by the National Academy of Sciences, and patently unreliable forensic evidence. Although the prosecution’s case was reed thin, his defense failed to effectively challenge any of this evidence. During his sentencing hearing, which lasted only a single day, Mr. Leal’s attorneys failed to present any of the profoundly mitigating evidence that later came to light with the assistance of the Mexican government."
http://www.huffingtonpost.com/sandra-babcock/texas-execution-could-ris_b_874378.html
Congress will not pass the legislation.
A Review of the Vienna Convention, the Death Penalty & US Detention of Foreign Nationals:
The International Court of Justice & Consular Notification
Dudley Sharp, contact info below
Subject: The Vienna Convention on Consular Relations, 1963 (VC),
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
Re: The International Court of Justice's (ICJ) decision. Avena and Other Mexican Nationals (Mexico v. United States of America), Press Release 2004/16, March 31, 2004,
http://www.icj-cij.org/docket/index.php?pr=605&code=mus&p1=3&p2=3&p3=6&case=128&k=18
1. The ICJ decision violates the specific, unequivocal directive of the VC that the Convention in:
"Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States" (Introduction, paragraph 6, VC)
2. This directive is given specific, additional support, within the subject Article 36 of the VC: within the opening and dominant directive of Paragraph 1, VC:
"With a view to facilitating the exercise of consular functions relating to nationals of the sending State"
3. The ICJ completely dismisses this unequivocal directive of the VC. Put bluntly, the ICJ has no respect for the spirit and specific directives of the VC, in this regard. Had the ICJ honored the specific directives of the VC, this case would have been dismissed.
contd
From the ICJ decision, Press Release
The ICJ: " - finds by fourteen votes to one that the appropriate reparation in this case consists in the obligation of the USA to provide, BY MEANS OF ITS OWN CHOOSING (my emphasis) , review and reconsideration of the convictions and sentences of the Mexican nationals referred to . . .;
"- unanimously finds that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the USA shall provide, BY MEANS OF ITS OWN CHOOSING (My emphasis), review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention, taking account of paragraphs 138 to 141 of this Judgment.”
Supreme Court of the United States
In 6/06, the SCOTUS ruled that foreign nationals who were not notified of their right to consular notification and access after an arrest may not use the treaty violation to suppress evidence obtained in police interrogation or belatedly raise legal challenges after trial (Sanchez-Llamas v. Oregon.).
In 3/08, the SCOTUS further ruled that the decision of the ICJ directing the US to give "review and reconsideration" to the cases of 51 Mexican convicts on death row was not a binding domestic law and therefore could not be used to overcome state procedural default rules that barred further post-conviction challenges (Medellín v. Texas).
Practicalities: The Vienna Convention
1. The primary violation of the VC is that the US did not inform arrested foreign nationals of their right to contact their own consulate.
The police didn't say:
"You have the right to contact your consulate, if you want to." (see Article 36. 1. b., VC)
That's it.
2. It is important to point out that:
a. all detainees could have contacted their consulates whenever they wanted to, absent that notification and
b. the detainees had attorneys knew they could contact the consular offices, at any time. They didn't.
c. No one prevented anyone from contacting their embassy
The main issue of this ICJ court case was not the violation of notification, to which both parties had conceded, but one of the remedy for such violation.
In the US, hearings are based upon meeting a threshold of evidence which can support the call for a hearing. If that threshold is not met, then the appellate courts will rule against a hearing.
The VC issues have been reviewed by courts and the claims have been dismissed.
They have been barred because of time limitations on originating the appeal or not preserving it at trial, properly, or that the VC issue resulted in harmless error, meaning that neither the sentence nor the verdict would have changed, had the VC been properly administered.
Many appellate claims for US citizens are denied in US courts for the exact same reasons.
And his sister seems very happy in the picture - what's up with that? From the description of the background of the accused, you would expect to see a person who shows signs of trauma of one kind or another - didn't see any outward physical signs.
http://www.tdcj.state.tx.us/statistics/deathrow/drowlist/leal.jpg
I know one thing: you don't say much about what he was found guilty of doing, but if "bite mark" evidence is involved, I doubt you are going to drum up much sympathy for the guy. I don't see how any former abuse he may have suffered can mitigate the kind of crimes that go with this.
As for the International Court of Justice, the courts have ruled against stopping executions on that basis. Therefore, as a matter of U.S. law, the ICJ order does not require the State of Texas to defer the execution of its laws.