Is Texas Breaking the Law?
State poised to execute another Mexican national
By Jordan Smith,
9:45AM, Wed. Jun. 8, 2011
If the state of Texas goes through with the planned July 7 execution of Humberto Leal it will be committing an "irreparable breach of international law," attorney Sandra Babcock argues in a clemency petition filed this week with the Board of Pardons and Paroles.
Leal was convicted and sentenced to die for the 1994 kidnap, rape and murder of 16-year-old Adria Sauceda in Bexar County. Among the problems with Leal's case – and there are many, including bad lawyering at the trial level, reliance on junk forensic science, and the state's current opposition to performing new DNA testing – is the fact that Leal is a Mexican national who was never afforded consular access after his arrest, contrary to international law codified in the Vienna Convention, to which the U.S. is a signatory. Leal had no prior convictions, suffered from brain damage and resultant learning disabilities, and had previously been sexually abused by his Catholic parish priest. In short, Babcock argues in the petition to the BPP, he is "precisely the sort of person Article 36 of the Vienna Convention was meant to protect." But he was never afforded that access. Instead, writes Babcock, it wasn't until Leal arrived on death row "that he received the address of his consulate – from another inmate."
This is no small matter, since Mexico does not have the death penalty – and it is not the first time the issue of denying foreign nationals access to consular advice has come up in Texas. In 2004, Mexico took to the International Court of Justice its claim that the U.S. had violated the Convention in the cases of 54 Mexicans – including Leal and then-Texas death row inmate José Medellín – facing death in the States. Medellín was convicted and sentenced to die for the gang rape and murder of two Houston teens, Jennifer Ertman and Elizabeth Peña. He argued that his case should be reviewed because he was never notified of his right to contact the Mexican consulate – in fact, like Leal after him, Medellín didn't learn of that right until he'd already been in prison for four years. The ICJ sided with Mexico in the case, and then-President George W. Bush asked the Texas courts to take heed of the court's ruling. The Texas Court of Criminal Appeals did not, and in 2008 the U.S. Supreme Court said that state courts did not have to abide the decision, clearing the way for Texas to execute Medellín – and others like him. In order for the ruling to have effect in state courts, the Supremes ruled, Congress would have to act.
With the support of the Obama Administration, that's on the horizon, argues Babcock, which would mean that executing Leal now would again deny him due process. "While the Executive and Legislative Branches are closer than ever to fully implementing the [ICJ] decision, their efforts will come too late for Mr. Leal unless [the BPP] recommends a reprieve or commutation," Babcock writes in Leal's petition. "The immensity of the interests at stake – Mr. Leal's life, and the treaty obligations of the United States – should not be taken lightly." In the meantime, however, since the ICJ ruling in March 2004, the state has executed four foreign nationals, including Medellín. Currently, there are 23 foreign nationals on Texas' death row, including 14 Mexican nationals.
Leal has gained support in a variety of circles – including former judges and prosecutors, retired military leaders, former diplomats and State Department officials, along with associations representing Americans living abroad. Babcock argues that if the state of Texas fails to heed Convention provisions, life for "countless" Americans abroad could be put in jeopardy. "When the United States violates the Vienna Convention, it encourages other nations to do the same, especially when dealing with American nationals," she argues in the clemency petition.
Babcock, a professor of law at Northwestern University, asks that the BPP recommend that Gov. Rick Perry either commute Leal's death sentence or recommend that he extend a 180-day reprieve in order to provide Congress the opportunity to pass legislation that would give effect to the ICJ decision before the state takes the life of another foreign national.