The StandDown Texas Project

McClatchy Series on Military Death Penalty

The three-part series appeared in a number of McClatchy newspapers, yesterday.  They are also available at the McClatchy DC Bureau website.  The articles are all written by Marisa Taylor with contributions from Tish Wells.

"Many death sentences in U.S. military overturned."

In December 2008, former Army Pvt. Ronald Gray was on the brink of becoming the first military execution in almost 50 years.

The rapist and murderer of four women had sat on death row for two decades by the time President George W. Bush approved his death warrant.

But the week before Gray was to receive a lethal injection, a federal judge halted the execution because of a new appeal.

Now, federal defenders who took over his case say they've found new evidence that his original military lawyers should have discovered. If they're successful, Gray could join a growing number of soldiers, airman and marines who have been spared execution.

Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row. The military's appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men's guilt, but because of mistakes made at every level of the military's judicial system.

The problems included defense attorneys who bungled representation, judges who didn't know how to properly instruct a jury and prosecutors who mishandled evidence.

In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole.

Yet by many measures, they're the military's worst of the worst. Convicted of crimes such as serial murder and rape, they're the kinds of criminals that many people would agree the death penalty should be reserved for.

Then why have they been spared?

Critics say the military botched the cases because its judicial system lags behind civilian courts and isn't equipped to handle the complex legal and moral questions that capital cases raise.

Civilian courts have demanded that experienced lawyers be appointed in capital cases and have pushed for a more uniform application of the death penalty. The military, however, hasn't made any major institutional changes to address such problems in more than 25 years.

"Study: Racial disparities taint military's use of death penalty."

Ten of the 16 men whom the military has sentenced to death in the last 27 years share another common characteristic: They're all minorities.

The racial imbalance in the military's death penalty isn't new. As far back as the early 1970s, the military has acknowledged racial bias in its judicial system. The civilian court systems have similar disparities.

But one recent statistical analysis has found that the problem endures and is in some ways worse than on the civilian side.

A study by a group of law and statistics professors found that minorities in the military were twice as likely to be sentenced to death as their white counterparts, a statistic higher than is known to exist in most civilian court systems.

The professors concluded that the military's efforts in 1984 to reform its capital system "failed to purge the risk of racial prejudice from the administration of the death penalty."

"There is no suggestion here that any participant in the military criminal justice system consciously and knowingly discriminated on the basis of the race of the accused or the victim," the study's authors said in their report. "However, there is substantial evidence that many actors in the American criminal justice system are unconsciously influenced by the race of defendants and their victims."

The study, led by professor David Baldus of the University of Iowa College of Law and associate professor Catherine Grosso of the Michigan State University College of Law, was obtained by McClatchy and is set to be published late this year in the peer-reviewed Journal of Criminal Law and Criminology.

Of the 16 death sentences the military has handed down since 1984, the study found that race appeared especially to be a factor in five cases that involved multiple victims with at least one victim who was white.

"Military capital cases deserve better defense, critics say."

When military jurors sentenced former Marine Lance Cpl. Ronnie Curtis to death, they had every reason to believe that he deserved to be executed. No one disputed that he'd stabbed and killed his superior officer and the officer's wife inside their home. The only real question was why.

But what the jury learned at trial made the crime seem even more inexplicable. After all, he had a good Christian upbringing by caring parents. No one could have predicted the murders based on his background.

On appeal, his lawyers discovered a very different story. They found that Curtis' adoptive father was frequently drunk, including during the lawyers' visit to their client's childhood home in Kansas. When questioned about his son, Curtis' father showed off the horsewhip he'd used to beat him after adopting him at age 2.

In capital cases, such details could be enough to save a defendant from death row. Yet the realities of Curtis' troubled childhood, along with evidence that he was drunk when he committed the murders, were never presented at his sentencing at Marine Corps Base Camp Lejeune, N.C.

"The sentence hearing may have been adequate for an absence without leave case, but it was woefully lacking and totally unacceptable in a capital murder case," wrote Judge Walter Cox III of the U.S. Court of Appeals for the Armed Forces. "Upon further reflection, I am convinced that this representation is unacceptable, substandard, inadequate and ineffective. The result is a sentence that is unreliable."

The 1997 reversal by one of the most conservative, law and order appellate court systems in the country would be among the first of many. Ten of the 16 men whom the military has sentenced to death since 1984 have been resentenced to life in prison.

Related posts are in the federal death penalty, military, mitigation, and race indexes.

This is also a great time to point out the CAAFlog blog, created by Dwight Sullivan.  It's motto is, "Military justice blogs are to blogs as military music is to music."

Catherine Grosso will be among the participants in the University of Iowa College of Law Symposium, "Batson at Twenty-Five," noted at the link.

Linda Greenhouse on the Supreme Court Term

For those who follow the Supreme Court, Linda Greenhouse is a national treasure.  Her latest New York Times Opinionator blog post is, "A Supreme Court Scorecard."  I'll excerpt her comments on the Leal case, but the entire post is a must-read.

The recently concluded Supreme Court term is not lacking for sober analysis, so I’ll indulge my freedom to take a different approach. This is an annotated scorecard, a personal take on the term based on what jumps out at me as I look back over the past year.

And:

Most regressive decision: In a competitive category, I’ll give the nod to a little-noticed decision the court issued just a week ago. By a vote of 5 to 4, with an unsigned opinion speaking for the majority, the court denied a temporary stay of execution to a Texas death-row inmate despite the urgent pleas of the federal government and the government of Mexico.

The inmate, Humberto Leal Garcia, who was executed within hours of the court’s ruling, was a Mexican citizen convicted in 1995 of the kidnapping, rape and murder of a 16-year-old girl. There was no dispute that his conviction was obtained in violation of a treaty to which the United States is a signatory, the Vienna Convention on Consular Relations. The treaty provides that a foreign national who has been charged with a crime must be notified of the right to the assistance of officials of his native country’s consulate. Law enforcement officials in the United States routinely violated this provision, a situation that led in 2004 to a successful lawsuit by Mexico in the International Court of Justice on behalf of 51 Mexicans then on death row in several states. The Bush administration declared that the United States would abide by the judgment.

But in 2008, when one of the 51, Jose Ernesto Medellin, attempted to avoid execution by invoking the consular treaty and the international court’s judgment, the Supreme Court ruled that the treaty was not “self-executing” and was unenforceable in the absence of congressional legislation. There matters stood until last month, when Senator Patrick Leahy, at the behest of the Obama administration, introduced the requisite legislation, the Consular Notification Compliance Act.

With Mr. Leal Garcia’s July 7 execution date approaching, the inmate’s lawyers, the administration, and the Mexican government all urged the court to grant a stay of at least several months to give Congress time to act. Solicitor General Donald B. Verrilli Jr. told the court that the case, Leal Garcia v. Texas, “implicates United States foreign-policy interests of the highest order” and that the execution “would cause irreparable harm to those interests by placing the United States in irremediable breach of its international-law obligation.” American citizens detained abroad might also face consequences as a result, the government warned.

But “our task is to rule on what the law is, not what it might eventually be,” the court’s majority responded. If the bill “had genuinely been a priority for the political branches, it would have been enacted by now.” One might ask: what part of Congress don’t they understand? There was an air of judicial triumphalism to the unsigned opinion, a tone between petulant and scolding more appropriate for use on an annoying teenager than on the president and Congress – or, as Justice Breyer pointed out in dissent, the world. The other dissenters were Justices Ginsburg, Sonia Sotomayor and Elena Kagan.

Earlier coverage of the Leal execution and international treaty law begins with the preceding post.

U.S. Treaty Promises Must Mean What They Say

That's the title of an editorial in today's Fort Worth Star-Telegram.

The grisly crime for which Texas executed Humberto Leal on July 7 -- the 1994 rape and murder of a San Antonio teen -- makes it difficult to generate sympathy for him.

But the rule of law applies to everyone, even unsympathetic characters.

The law that brought an international glare to Leal's case was the Vienna Convention on Consular Relations, a 1963 treaty that obligates the United States and more than 160 other signatories to let foreigners they arrest ask their home embassies for legal help.

But when Leal, a Mexican citizen, was arrested, authorities didn't tell him about his right to contact his native country's embassy. He didn't find out about it until he'd been convicted and sentenced to death. And despite an international court's later ruling that he was entitled to a hearing over the deprivation of his consular right, he never got one.

U.S. officials acknowledge this country's treaty obligations toward citizens of other nations. Following the treaty is especially important because we expect other countries to let Americans detained abroad get aid from the U.S. Embassy.

But Leal was among dozens of Mexican nationals on Death Row in the U.S. who weren't told they could seek embassy help. A dispute over the issue has stewed for years.

And:

Though his case is over, that shouldn't remove the urgency of Congress approving legislation to make clear that this nation takes treaty promises seriously and will enforce them.

Linda Greenhouse discusses the case in her "Supreme Court Scorecard," freshly posted on her NYT blog.  Coverage of her commentary will occupy the next post.

Earlier coverage of the Leal execution and international treaty law begins at the link.

 

Criticism of Leal Execution Continues

 Today's Washington Post carries the editorial, "Congress should act before another foreign national is denied consular access."

HUMBERTO LEAL JR., who was executed in Texas on Thursday, was one of 40 Mexican nationals on death row in the United States who were not advised of their right to consular access under the Vienna Convention for Consular Relations. The United States, as one of about 160 countries that signed the treaty, is obligated to notify foreign nationals who are arrested in the United States of their right to speak with their embassies. U.S. citizens have the same rights if they are arrested in a country that is also a signatory, which may be particularly important in countries that do not routinely allow defendants access to lawyers.

In an extraordinary move, the Obama administration had asked the Supreme Court to stay Mr. Leal’s execution. The request was intended to give Congress a few months to move on legislation that would have addressed the Vienna Convention breach. That legislation, introduced by Sen. Patrick J. Leahy (D-Vt.) in June, would have allowed Mr. Leal and the 39 other Mexican nationals a one-time special hearing before a federal court judge to determine whether the failure to allow consular access significantly harmed their ability to defend themselves. The hurdles would have been high, meaning that few, if any, would have been likely to win new trials. Mexico joined in asking the court for a stay, as did former U.S. diplomats from Republican and Democratic administrations.

And:

Although we disagree with how the court disposed of this case, the majority makes a critical point: It has been seven years since the judicial arm of the United Nations found that the United States violated the Vienna Convention by not notifying Mr. Leal and his compatriots of their rights to consular access. It should not take another seven years before Congress acts to remedy the situation.

Influential business travel writer Joe Brancatelli writes, "Texas Hubris Threatens Travel," in his Portfolio column.  Here's an extended excerpt:

You may not be shocked to learn that a government recently violated international law by executing a foreign national without allowing him to consult his embassy. But wait until you learn where it happened.

What would you think if a big, industrial democracy arrests foreign nationals, denies them their right to contact their embassies, then executes them when they are convicted?

And what would you think if this big developed nation has been informed that its policy of denying foreign nationals the right to consult their embassies is a violation of international treaties? And what would you think if this preening, self-righteous nation freely admits it violates the rights of arrested foreign nationals?

My guess is that you, as a right-thinking frequent flyer, would be afraid to travel to this awful place. My guess is that you'd think no business trip is worth putting yourself at risk because this nasty pseudo-democracy so cavalierly disregards its treaty obligations and the rights of frequent-flying foreign nationals.

Here's the rub: That big industrial democracy routinely arresting foreign nationals, denying them their right to consult their embassies, and executing them upon conviction is the United States of America.

In case you missed it—and you might have because the mainstream press was obsessed with the Casey Anthony verdict—the state of Texas executed a Mexican national last Thursday for the rape and murder of a 16-year-old girl in 1994. The Mexican citizen, Humberto Leal Garcia, was executed even though he was never granted his right to contact the Mexican embassy. The state of Texas doesn't even deny that it violated Garcia's consular rights. Appeals from the Obama White House, the State Department, and dozens of politicians and social activists went unheeded.

Let's get some things straight before we go any further. First, this is not an isolated U.S. indiscretion. Virginia executed a Paraguayan citizen in 1998 even though it violated his right to consult with his embassy. Arizona executed a German national in 1999 even though it conceded that he'd never been given his consular rights. A U.N.-backed tribunal decided in 2004 that Garcia was one of dozens of Mexican nationals sentenced to death by U.S. courts who had been denied their consular rights. The administration of President George W. Bush endorsed the ruling at the time.

Second, the issue of consular consultation is not a matter of interpretation or courtesy. It is unambiguously detailed in Article 36 of the Vienna Convention on Consular Relations, which the United States signed in 1969. The U.S. government routinely invokes it to protect U.S. citizens when they are arrested or detained overseas. American businesspeople traveling overseas assume the right's existence even if they don't know the Vienna Convention by name and don't grasp the diplomatic niceties.

Lastly, this is not a matter of guilt or a polemic about the death penalty.

The News & Observer of Raleigh, North Carolina carries the OpEd, "State courts and foreign nationals," by Cara Robertson.  She's a resident associate at the National Humanities Center.

When I was the lone American lawyer advising the Appeals Chamber of the U.N. War Crimes Tribunal in the Hague 10 years ago, I had an additional unofficial task: explaining the U.S. legal system to my international colleagues. Most found our notions of federalism, with its parallel state and federal judicial systems, mystifying; many objected to what seemed to be the United States' cavalier attitude towards international law.

The Supreme Court's refusal to delay Texas' latest execution of a Mexican national - over the objections of the White House and State Department - provides evidence for both views. More than that, it is an international embarrassment.

And:

How best to mitigate the damage Texas has caused? Ideally, Congress would pass the Consular Notification Compliance Act to ensure enforcement of the treaty's protections. But it is equally true that Texas, as an exercise of its own sovereign largess, could undertake the review demanded by the ICJ. Such review is unlikely to change the prisoners' fates. Assuming the evidence against the convicted men is as strong as Texas has contended, it would be hard to find "actual prejudice" - i.e., that Texas' failure to inform the consul led to the defendant's conviction or death sentence.

Such action is in every American's interest. After all, even Texans have been known to travel south of the border.

"Execution of Mexican Citizen Draws Wide Condemnation," is the IPS post by Denis Foynes.

Navi Pillay, the U.N. High Commissioner for Human Rights, who visited Mexico last week, said the execution had placed "the U.S. in breach of international law".

"What the state of Texas has done in this case is imputable in law to the U.S. and engages the United States' international responsibility," she said.

"[The] ramifications are likely to spread far beyond Texas," Pillay warned.

The government of Mexico has claimed it could have assisted in Garcia's defence investigation, provided funds for experienced investigators and mental health experts, and taken measures to ensure that Garcia had competent attorneys to represent him.

At the trial, questions were raised about the competence of the attorneys Garcia was provided with. One had been twice suspended from practicing law for failing to adequately defend clients, and was publicly criticised on two other instances.

For these reasons, the Mexican government had requested that Garcia's sentence be reduced to life in prison.

And:

Larry Birns, director of the Council on Hemispheric Affairs, told IPS, "This wasn't an international diplomacy decision. It came down to domestic politics and the division between the left and right in America."

One consequence of the execution is a further souring of Mexican-U.S. relations, a relationship already strained by border issues such as drug violence and immigration.

"Mexican justice has the reputation in the United States of being careless, but now if the U.S. now has a complaint regarding the arrest of one of its citizens, it hasn't a leg to stand on," Birns said.

"How Obama Could Have Stayed the Execution of Humberto Leal Garcia," is the title of Louis Klarevas' commentary at the New Republic.

On Thursday, July 7, the Supreme Court refused a last minute stay of the execution of Mexican national Humberto Leal Garcia, despite the undisputed fact that Leal was tried and sentenced to death by a Texas court without ever being informed that he had a right to seek the assistance of the Mexican Consulate following his arrest. Within hours of the high court’s denial, Leal was executed by lethal injection. Case closed? Not exactly.

And:

Conventional wisdom suggested that Obama didn’t have much recourse, so he did the best he could to prevent Leal’s execution. This, however, reflects a misunderstanding of the plenary foreign-affairs powers available to his office. Indeed, there are two legal solutions that the president could have invoked to bar Texas from executing Leal: executive agreements and the Zschernig doctrine. Obama, and all presidents after him, would be wise to consider these measures in the future.

As to the Zschernig doctrine, Klarevas adds:

If an executive agreement were to become too difficult to negotiate (for instance, if time were of the essence), the president would have another option available to him—that is, to seek an emergency stay by invoking the Zschernig doctrine in court pleadings. The doctrine is a constitutional authority carved out by the Supreme Court in its 1968 Zschernig v. Miller decision. That ruling struck down an Oregon inheritance law because judges had used it to make disparaging comments about communist countries in Eastern Europe. Pursuant to the holding, states’ actions are to be pre-empted if there is a “great potential for embarrassment or disruption” in the nation’s foreign affairs. As the Court noted, when states have “a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with [international] problems,” their actions should be forbidden. In 2003, the high court revisited the Zschernig doctrine in American Insurance Association v. Garamendi and held it to be good precedent. Applying it to strike down a California law that required insurance companies to disclose their Holocaust era practices, the Court reaffirmed that “state action with more than incidental effect on foreign affairs is preempted, even absent any affirmative federal activity in the subject area of the state law, and hence without any showing of conflict.”

Earlier coverage of the Leal execution and international law begins at the link.

More Commentary on the Leal Execution

"Case about protecting Americans," is the title of the editorial in today's Austin American-Statesman.

Our state and our governor missed an important opportunity last week to do something positive for our nation. It happened Thursday when Texas executed Humberto Leal, a 38-year-old Mexican who had lived in San Antonio since he was a toddler.

And:

In 2005, then-President George W. Bush concurred with an International Court of Justice decision that 51 Mexicans imprisoned in the U.S., including Leal, were entitled to new hearings on whether their consular rights had been denied. The Supreme Court overturned Bush's decision. After the Leal execution, Perry spokeswoman Katherine Cesinger said, "Texas is not bound by a foreign court's ruling."

We believe there is more at stake here than a foreign court's ruling.

A post-execution statement from five former U.S. diplomatic officials who urged postponement of the execution properly said likewise.

"The United States was founded on a commitment to the rule of law, and we believe it still stands for that commitment," they wrote.

"But (Thursday's) execution of a foreign national of our international partner Mexico violates a binding legal obligation and threatens to undermine the strength of our credibility in the eyes of our international partners."

We join these ex-officials in urging Congress to move expediently toward consideration and approval of the Leahy measure.

In today's Washington Post, syndicated columnist E.J. Dionne writes, "The death penalty and the costs of an obsession."

The unseemly love affair some American politicians have with the death penalty is bad for justice and bad for our country’s standing in the world. It inflicts a wholly unnecessary moral stain on a nation that rightly preaches the rule of law to everyone else.

Even more remarkable is the indifference that five Supreme Court justices have shown to such considerations.

And then there is Gov. Rick Perry of Texas, who insisted on pushing ahead last week with the execution of Humberto Leal, a Mexican national convicted of the rape and killing of a teenager. Even former president George W. Bush — who presided over 152 executions as Perry’s predecessor — had qualms about the case. Bush hasn’t gone soft. He’s legitimately worried about the costs of the United States thumbing its nose at the government of Mexico and the world.

President Obama, the International Court of Justice and the Mexican government all wanted a stay of execution. But Perry’s press secretary was unapologetic. “Texas,” said Katherine Cesinger, “is not bound by a foreign court’s ruling.”

Imagine that an American life was at stake and a press secretary said that Iran — or Russia or Saudi Arabia or China — did not feel “bound by a foreign court’s ruling.”

And:

Those who oppose the death penalty or think it’s imposed too frequently don’t disagree that terrible crimes deserve severe punishment. But this is not about absolving criminals. It’s about our nation’s core values and how the rest of the world sees us. In this instance, it’s also about protecting the rights of Americans overseas.

When it comes to capital punishment, can’t we find it in ourselves as a nation to let our reason check our passions, even when those passions are entirely understandable?

Jay Jochnowitz, Editorial page editor of New York's Albany Times Union posts, "Defying treaty, Texas executes Mexican national."  The Times Union is a sister paper of the Houston Chronicle and San Antonio Express-News; all Hearst-owned.

Should states respect international treaties that already bind the federal government when it comes to foreigners’ legal rights? Or, in the absence of U.S. law to the contrary, should they execute foreign nationals regardless of what the treaties say?

Those were the underlying questions before Texas Gov. Rick Perry, a potential Republican contender for president, in the court battle over the Humberto Leal Garcia, 38, who was executed in Texas on Thursday. Perry went ahead with the execution over the protest of U.S. diplomats, the military, the Obama administration and at least one member of Congress.

Although Leal is dead, there are 50 or so other cases like his pending, so the issue isn’t going away.

And:

What do you think? Does this all fall on Congress for not passing the law requiring states to review these cases? Did Perry do the right thing? Just because he could have, does it mean he should have? Did presidential politics (Perry is talked about for the GOP nomination but hasn’t declared) play a part in this, or is this simply consistent with Perry’s and Texas’ record on the death penalty? (There have been 232 executions on Perry’s watch. Here’s a year-by-year breakdown on executions in Texas; he took office on Dec. 21, 2000.)

Legal analyst Andrew Cohen has posted, "Humberto Leal Garcia: The Supreme Court Makes a Bad Situation Worse," at the Atlantic.

When the five conservative justices of the United States Supreme Court turned their backs Thursday afternoon on Mexican national Humberto Leal Garcia, they weren't just ensuring that the convicted murderer would then be executed by Texas prison officials. They were also abdicating their solemn judicial responsibility not to make a bad situation worse. It was one of the most ignoble acts by the Court in recent memory; a reminder, as if we needed one, of the hostility the current majority often expresses toward the workings of the real world.     

In a brief, unsigned opinion that was long on sterile formalism and short on sense and justice, the Court rejected an appeal to delay Leal's execution for a few more months pending the passage of federal legislation designed to formalize the rights of foreign nationals -- including Americans abroad -- to be able to contact their consular officials if they are detained. About an hour after the Supreme Court denied his final request, Leal was executed. He said he was sorry and reportedly shouted "Viva Mexico" before the lethal injections were administered to him in the state's death chamber in Huntsville, Texas.

And:

There has been a great deal of analysis and commentary on the Leal case -- some of it better than the rest -- but at heart, Thursday's dramatic events are simple to explain. The Court's majority went out of its way to allow Texas to proceed with an execution, even though the state would have been only minimally harmed in waiting a few more months (or even a few more years) to proceed. The Court did so despite broad concerns, expressed by officials in both of the other two branches of government, that the Leal's execution now would harm the interests of the United States abroad. And, by doing so, the Court compounded rather than solved an important legal problem raised by the Leal case.

Just because Congress has consistently failed to do the right thing here doesn't mean that the Court had to follow its lead. The result is a big, black mark on the face American justice now shows to the rest of the world.

Earlier coverage of the Leal case begins at the link.  There will be another post this evening with more post-execution developments.

Statements from Sandra Babcock, Diplomats

Humberto Leal's attorney, Sandra Babcock, issued the following statement after the Supreme Court rejected a stay in his case, earlier tonight.  Babcock is a Clinical Professor of Law at Northwestern University School of Law and the Clinical Director of the Center for International Human Rights.

.“Today the United States stumbled in its commitment to the rule of law.  Mr. Leal, tragically, will suffer the consequences.  He will be executed tonight, despite the fact that his right to consular assistance was violated.  If he had had the assistance of the Mexican consulate at the time of trial, Mr. Leal would have had a meaningful opportunity to show that he was not guilty of capital murder.

“It is shameful that Mr. Leal will pay the price for our inaction.  The need for Congressional action to restore our reputation and protect our citizens is more urgent than ever.

“This case was not just about one Mexican national on death row in Texas. The execution of Mr. Leal violates the United States’ treaty commitments, threatens the nation’s foreign policy interests, and undermines the safety of all Americans abroad. That is why the U.S. Solicitor General, former diplomats, military leaders, and Americans detained overseas were among those who joined together to call for a stay of execution.

“It is now imperative that Congress promptly act to ensure passage of legislation that will bring the U.S. into compliance with its international legal commitments and provide judicial review to the forty Mexican nationals who remain on death row in violation of their consular rights.”

A group of diplomats who had urged a stay in the case issued this statement:

“The United States was founded on a commitment to the rule of law, and we believe it still stands for that commitment.  But today’s execution of a foreign national of our critical international partner Mexico violates a binding legal obligation and threatens to undermine the strength of our credibility in the eyes of our international partners.  We are disappointed that Texas has chosen not to comply with the clear international legal obligations of the United States under the U.N. Charter and unanimously confirmed by the Supreme Court.

“In light of this irrevocable breach of our nation’s international legal obligations, it is now more imperative than ever that Congress and the Obama Administration move immediately to provide for our nation’s full compliance in the future by enacting the Consular Notification Compliance Act.

“The ability of the United States to secure future international agreements vital to the protection of our citizens, our national security, and our commercial interests depends largely on whether this nation is perceived as honoring its international commitments.  We now look to Congress and the Obama Administration to act without delay to discharge this treaty commitment on behalf of the entire United States.  Prompt congressional action will ensure that the cases of other foreign nationals who did not receive the consular notification required by the Vienna Convention on Consular Rights will move towards a final and legal resolution that respects the rule of law.

“Congress and the Administration should move immediately to enact legislation ensuring compliance with our international obligations.  The safety of our citizens abroad, and our nation’s reputation and standing among its international treaty partners, depend on it.”

The statement was issued by:

Harry Barnes, Jr.
U.S. Ambassador to Chile, 1985-1988; U.S. Ambassador to India, 1981-1985; Director General of the Foreign Service 1977-1981; U.S. Ambassador to Romania, 1974-1977

John B. Bellinger, III
Partner, Arnold & Porter LLP; Legal Advisor to the Department of State, 2005-2009; Legal Advisor to the National Security Council, 2001-2005

David E. Birenbaum
Of Counsel, Fried, Frank, Harris, Shriver & Jacobson LLP; Senior Scholar, Woodrow Wilson International Center for Scholars; U.S. Ambassador to the UN for UN Management and Reform, 1994-96

James R. Jones
U.S. Ambassador to Mexico, 1993-1997; Member of U.S. Congress (D-OK), 1973-            1987

Thomas R. Pickering
Undersecretary of State for Political Affairs, 1997-2000; U.S. Ambassador and Representative to the United Nations, 1989-1992

Earlier coverage of the case of Humberto Leal begins with the preceding post.

Humberto Leal Executed by Texas

By a 5-4 vote the U.S. Supreme Court refused to stay tonight's execution.  The opinion, and a dissent by Justice Breyer, is available in Adobe .pdf format.

Adam Liptak writes, "Mexican Citizen Is Executed as Justices Refuse to Step In," for the New York Times.

In a 5-to-4 decision that split along ideological lines, the Supreme Court on Thursday evening rebuffed a request from the Obama administration that it stay the execution of a Mexican citizen on death row in Texas. The inmate, Humberto Leal Garcia Jr., was executed about an hour later.

The administration had asked the court to delay the execution so that Congress might consider recently introduced legislation that would provide fresh hearings on whether the rights of Mr. Leal and about 50 other Mexican citizens on death row in the United States had been violated.

In 2004, the International Court of Justice in The Hague found that the inmates had been denied their rights under the Vienna Convention. The convention requires that foreigners detained abroad be told they may contact consular officials.

In 2008, the Supreme Court acknowledged that the international court’s ruling was binding but said that the president acting alone could not compel states to comply with it. Congress also had to act, the court said.

On Thursday, in an unsigned majority opinion, the Supreme Court said that Congress had had plenty of time to act and that the court would not now “prohibit a state from carrying out a lawful judgment in light of unenacted legislation.”

“Our task,” the majority wrote, “is to rule on what the law is, not what it might eventually be.”

And:

Justice Stephen G. Breyer, in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, wrote that the government’s request was modest given that allowing the execution to proceed would, in the solicitor general’s words, “cause irreparable harm” to “foreign-policy interests of the highest order” and endanger Americans traveling abroad.

The court should defer to the executive branch’s assessment, Justice Breyer wrote, as “the court has long recognized the president’s special constitutionally based authority in matters of foreign relations.”

He proposed issuing “a brief stay until the end of September” to allow Congress time to act.

The AP report, "Texas executes Mexican after court stay rejected," is by Michael Graczyk, Jesse J. Holland in Washington, and Porfirio Ibarra in Monterrey, Mexico.

Leal's attorney Sandra L. Babcock said that with consular help her client could have shown that he was not guilty. But she added, "This case was not just about one Mexican national on death row in Texas. The execution of Mr. Leal violates the United States' treaty commitments, threatens the nation's foreign policy interests, and undermines the safety of all Americans abroad."

Prosecutors, however, said Congress was unlikely to pass the legislation sought and that Leal's appeals were simply an attempt to evade justice for a gruesome murder.

Mexico's foreign ministry said in a statement that the government condemned Leal's execution and sent a note of protest to the U.S. State Department. The ministry also said Mexican ambassador Arturo Sarukhan attempted to contact Texas Gov. Rick Perry, who refused to speak on the phone.

The governor's office declined to comment on the execution Thursday.

Leal's argument that he should have received consular legal aid that could have helped his case was not new. Texas, the nation's most active death penalty state, has executed other condemned foreign nationals who raised similar challenges, most recently in 2008.

Leal's appeals, however, focused on legislation introduced last month in the U.S. Senate by Vermont Democrat Patrick Leahy. Leahy's measure would bring the U.S. into compliance with the Vienna Convention on Consular Relations provision regarding the arrests of foreign nationals, and ensure court reviews for condemned foreigners to determine if a lack of consular help made a significant difference in the outcome of their cases.

"Americans detained overseas rely on their access to U.S. consulates every day," Leahy said after the Supreme Court decision was announced. "If we expect other countries to abide by the treaties they join, the United States must also honor its obligations."

The Obama administration took the unusual step of intervening in a state murder case last week when Solicitor General Donald Verrilli Jr. joined Leal's appeal, asking the high court to halt the execution and give Congress at least six months to consider Leahy's bill.

The Mexican government and other diplomats also contended that the execution should be delayed so Leal's case could be thoroughly reviewed. Some also warned his execution would violate the treaty provision and could endanger Americans in countries that deny them consular help.

"Perry Does Not Step In; Texas Executes Mexican National," by Chris Strohm for the National Journal.

After a 5-4 Supreme Court decision against preventing the execution, Gov. Rick Perry was the only the only person who could issue a stay for Leal. Leal was killedy by lethal injection for the 1994 murder of 16-year-old Adria Sauceda.

Current and former U.S. government officials contend that Leal’s execution will have major implications for U.S. diplomatic relations because he was never given access to the Mexican consulate during his defense as required under international law.

The case also had political significance in that Perry is considering a run for president and his decision on whether to stay the execution will be scrutinized by both his supporters and critics.

CNN's Supreme Court Producer Bill Mears posts, "Mexican national executed in Texas."

Mexico strongly condemned the execution, saying it violated an International Court of Justice ruling ordering the United States to review capital convictions of Mexican nationals.

Leal's execution was the seventh carried out in Texas this year; It was the 471st execution in the state since 1982.  This was the 232nd execution in the administration of Governor Rick Perry since he assumed the office in December 2000, succeeding George W. Bush.  Texas carried out 152 executions during the five year tenure while Bush was governor.

It was the 26th execution in the nation this year.  To date, there have been 1,260 post-Furman executions in America since 1977.

Next, statements from interested parties.  Earlier coverage of the case of Humberto Leal begins at the link.

Sandra Babcock on Democracy Now!

Sandra Babcock appeared on Democracy Now!, earlier today.  "Mexican Denied Consular Rights Faces Texas Execution Tonight Despite White House Opposition."

Leal’s family still maintains he is innocent and defense attorney says his case was also hurt by inadequate counsel by his court-appointed attorney. Barring a last minute stay by Texas Governor Rick Perry or the U.S. Supreme Court, Leal is set to be executed at 6pm. We speak with Humberto Leal’s attorney, Sandra Babcock.

You can watch the streaming video at the link.

Earlier coverage of Humberto Leal's case begins with the preceding post.  For more on the case, and a petition, go to the Humberto Leal website.

Bloggers on Leal

"The rights of Texas, Mexico and Americans jailed abroad," is the title of Tim Johnson's post at his Mexico unmasked blog on the McClatchy DC Bureau website.  He's the Mexico bureau chief for McClatchy Newspapers.

Pity the poor American who ends up in jail abroad. 

If Texas gives a lethal injection to Humberto Leal Garcia on Thursday, after failing to notify Mexican consular officers when he was arrested, then certainly foreign countries will feel free to give Americans a dose of their own medicine.

Some 2,000 Americans are arrested and locked up abroad each year, according to this article, and some of them are given bizarre punishments. Remember Michael P. Fay, the Missouri youth sentenced to caning in 1994 in Singapore for theft and vandalism? Then there are the Americans who have been held in Myanmar, Syria, Iran or North Korea. 

Dozens of Americans are probably in jails in Mexico. Read about two of them here. Many of them are likely guilty. But certainly it helps if U.S. consular officers can be notified when they are arrested, visit them in prison and ascertain facts about their cases.

Mexico has spent a lot of money and time on Leal, 38, accused of the rape and murder of a 16-year-old girl in 1994. He is one of 57 Mexicans on death row in the United States. El Universal says the Secretariat of Foreign Relations has spent $10.5 million just to one Tucson law firm for the defense of its nationals on death row.

At Talking Points Memo DC, Thomas Lane post, "Will Perry Order Last-Minute Halt To Controversial Execution?" 

For a convicted murderer, Humberto Leal Garcia seems to have plenty of powerful people in his corner. In the last few days appeals for delaying the execution of this death row inmate have come from the Mexican ambassador, various UN officials and even the Obama administration's Solicitor-General.

However, it's not really Mr. Leal they're defending, but a point of international law; a point that many say the US is obliged to uphold, and which Texas Governor Rick Perry will violate if he doesn't halt the killing.

And:

The right to consular access, then, is the key here. Neither the Obama administration nor the international officials are saying Mr. Leal is innocent. What they are saying is that his case should be the subject of a review to determine whether Mexican assistance could have changed his sentence.

They're backed by a 2004 ruling from the International Court of Justice. That specifically requested such a review for Mr. Leal and fifty other Mexican nationals like him. These officials say if Texas proceeds with the execution, violating this ruling and showing disregard for the original treaty, then it could have "serious repercussions." Relations with Mexico would certainly be damaged. More worryingly, they claim, it could encourage other nations to show a similar disdain for allowing consular access when Americans find themselves in legal difficulties abroad.

"Humberto Leal Execution Raises Thorny International Issues," by David Dayen at FireDogLake.

I would imagine that the perspective of the White House is that this is less about Leal than the precedent it sets for US nationals abroad. The Vienna Convention on the arrest of foreign nationals would be violated by this execution, although it wouldn’t be the first time. In 2008, in a separate Texas case, Jose Medellin was executed after conviction for murder, even though his lawyers raised the Vienna Convention issue as well. The Leal case has been more publicized, and goes back to a 2005 ruling in the International Court of Justice. They said that Leal needed a new hearing to see if his consular rights were violated by being denied access to the Mexican consulate at the time of his arrest. George W. Bush agreed with that ruling, but the Supreme Court negated it.

The hopes that they will stay the execution of Leal today rest on the notion by the US solicitor general that Congress has pending legislation to allow this kind of consular rights review, bringing the country in line with the Vienna Convention. I’m wondering if the solicitor general has seen Congress operate lately. There’s no such thing as “pending” legislation there anymore. In fact, this law has been introduced and failed twice before. So far, lower courts rejected the stay.

Texas Governor Rick Perry appears to have no interest in a reprieve while the international issues are sorted out, especially given that he may run for President, and wouldn’t want anything resembling compassion on his record heading into a GOP primary.

"Mexican national set for execution in Texas, despite treaty concerns," by Jason Ukman at the Washington Post.

The Obama administration urged the Supreme Court on Friday to delay the execution, saying that if it were carried out, it would affect “foreign-policy interests of the highest order.” The Mexican ambassador to the United States, Arturo Sarukhan, has also requested a reprieve for Leal based on concerns about legal representation.

The breach of international obligations would “have serious repercussions for United States foreign relations, law-enforcement and other cooperation with Mexico, and the ability of American citizens traveling abroad to have the benefits of consular assistance in the event of detention,” Solicitor General Donald B.Verrilli, Jr. wrote in an amicus brief filed with the court.

Despite the pleas, the Texas Board of Pardons and Paroles on Tuesday rejected Leal’s request for a delay.

Three years ago, Texas executed another Mexican national on death row despite international entreaties. Jose Ernesto Medellin, who also had not been informed of his right to access consular officials, was put to death following pleas for a stay by the Bush administration, which also cited U.S. treaty obligations.

One more current Leal post before turning to news of the past week - and that will include a roundup of Leal case news, also.

Earlier coverage begins with the preceding post.  For more on the case, and a petition, go to the Humberto Leal website.

The Latest News Coverage in the Leal Case

"Texas Urged To Stop Mexican National's Execution," by Renee Montagne and Wade Goodwyn, is on NPR Morning Edition, today.  You can listen at the link.

Nathan Koppel posts, "Rare Death-Penalty Case Becomes International Diplomatic Affair," at the Wall Street Journal Law Blog.

Humberto Leal Garcia Jr. is due to be executed this afternoon in Texas for raping and murdering a 16-year-old San Antonio girl in 1994.

But this is no ordinary death-penalty case. Instead it has turned into a dispute over international law that has prompted a rare plea from President Obama and his Solicitor General’s Office to delay the execution.

The issue is that Leal is a Mexican citizen and Texas law enforcement officials failed to tell Leal that the Vienna Convention afforded him the right to notify Mexican consular authorities about his arrest and to seek their help with legal representation.

The Obama administration is concerned that if the U.S. does not abide by its Vienna Convention duties then foreign governments may feel emboldened to ignore the consular rights of U.S. nationals abroad.

Here’s an article from the Atlantic and one from AP about the unusual death penalty case.

"White House seeks delay of Mexican man's execution," is the latest AP filing.  I believe this link will update through the day.  It's by Michael Graczyk.

The planned execution Thursday of a Mexican national has prompted a flurry of appeals on his behalf, including a rare plea from the White House, because of what it could mean for other foreigners arrested in the U.S. and for Americans detained in other countries.

Humberto Leal, 38, is awaiting a ruling by the U.S. Supreme Court on whether to block his lethal injection in Huntsville. He was sentenced to die for the 1994 rape and murder of 16-year-old Adria Sauceda of San Antonio.

The appeal contends that authorities never told Leal after his arrest that he could seek legal assistance from the Mexican government under an international treaty, and that such assistance would have aided his defense. Leal moved to the U.S. as a toddler.

Leal's attorneys have support from the White House, the Mexican government and other diplomats who believe the execution should be delayed so his case can be thoroughly reviewed.

"There can be little doubt that if the government of Mexico had been allowed access to Mr. Leal in a timely manner, he would not now be facing execution for a capital murder he did not commit," Leal's attorneys told the Texas Board of Pardons and Paroles in a clemency request rejected Tuesday. "Unfortunately, Mexico's assistance came too late to affect the result of Mr. Leal's capital murder prosecution."

President Barack Obama's administration took the unusual step of intervening in a state murder case when it asked the Supreme Court last week to delay Leal's execution for up to six months. The U.S. solicitor general told the court that Congress needed time to consider legislation that would allow federal courts to review cases of condemned foreign nationals to determine if the lack of consular help made a significant difference in the outcome of their cases.

CNN posts, "Mexican national awaits execution in Texas."  It's by Bill Mears, CNN's Supreme Court Producer.

Gov. Rick Perry is expected to decide shortly whether to grant clemency or any delay in the execution of Humberto Leal Garcia, Jr. The Obama administration and international leaders overseas have asked for a reprieve on behalf of the inmate.

What makes Leal's conviction unusual is that he was not informed about the right to contact the Mexican consulate upon his arrest -- a right guaranteed under a binding international treaty. Leal's appellate lawyers argue such access could at the very least have kept Leal off death row.

Supporters of the Monterrey, Mexico, native say his fate could impact Americans traveling abroad who run into legal trouble.

Leal's likely last hope is with the Supreme Court, which is considering several appeals to delay the lethal injection, set for 7 p.m. ET at the Texas State Penitentiary's death chamber in Hunstville.

The state's Board of Pardons and Parole ruled that Leal did not deserve to have his death sentence commuted to life in prison without parole. Perry normally accept's the board's ruling when making his own decision, but he could grant a 30-day reprieve.

The justices will decide whether to issue a stay of execution, and whether to decide the broader legal question of what rights death row inmates from foreign nations deserve. If they intervene, the constitutional issues would be addressed by the high court in coming months, delaying Leal's execution.

National Journal carries, "A Texas Death Row Case With Implications for Foreign Policy and Presidential Politics.  Texas Gov. Rick Perry is drawing heat from the international community and the Obama administration as he mulls a White House bid."  It's by Chris Strohm.

The case of a Mexican man scheduled to be executed on Thursday in Texas threatens to disrupt U.S. diplomatic relations abroad and creates a politically volatile dilemma for Republican Gov. Rick Perry, who is considering a run for president.

Unless Perry or the U.S. Supreme Court intervenes to stay the execution, Texas plans to execute Humberto Leal Jr. at 6 p.m. Central Time for the 1994 murder of 16-year-old Adria Sauceda.

The International Court of Justice ruled in 2004 that the United States violated the rights of Leal and more than three dozen other Mexican nationals on death row because law enforcement officials didn’t advise them of their right to have consular access to officials from their home country under international law.

Some foreign-policy experts say executing Leal might have profound international consequences, and the Obama administration last week asked the Supreme Court to prevent Texas from doing so.

Perry, however, has shown no sign of backing down. And the case has thrust the conservative governor into the international spotlight as he weighs an entrance into the presidential race. That introduces politics into any decision he makes about Leal.

If he stays the execution, he runs the political risk of being called weak by conservatives. Allowing it to go forward, it could cast Perry as a staunch conservative who doesn’t give in to the demands of Washington and international pressure. But it also invites comparisons to former President George W. Bush, who was criticized for a go-it-alone approach on foreign policy.

Ironically, it was the Bush administration that recognized the international law guaranteeing foreign nationals consular access. In 2005, Bush ordered all states, including Texas, where he was the former governor, to comply with the law. Perry, who replaced Bush as the Lone Star State's chief executive, made Texas the only state not to comply.

More news at:

"Mexican National Inmate on Death Row Creates International Stir," by Edmund DeMarche at Fox News.

Jordan Smith posts, "U.S. Enters Death Row Fray,"for the Austin Chronicle.

Earlier coverage begins in the preceding post.

For more on the case, and a petition, go to the Humberto Leal website.

 

A Leal Update

"High Court Asked to Stay Execution of Mexican National," is the title of Mark Hansen's post at the ABA Journal.

Lawyers for a Mexican national on Texas' death row petitioned the U.S. Supreme Court today for a stay of the inmate's scheduled July 7 execution.

The petition has the backing of the Mexican government, which is expected to file an amicus brief in the case later today calling on the United States to live up to its treaty obligations with other countries, according to a press release from the inmate's lawyers.

The Petition for Writ of Certiorari and the Motion for Stay are available in Adobe .pdf format.

Attorneys for Leal have issued a news release, "U.S. Supreme Court Urged to Stay Execution of Humberto Leal Garcia Whose Consular Rights were Violated."  Here's the full text:

(Washington, D.C., June 28, 2011) Today, attorneys for Humberto Leal Garcia and the Government of Mexico are jointly appealing to the U.S. Supreme Court to stay Mr. Leal’s July 7 execution.

Attorneys for Mr. Leal filed a petition for writ of certiorari and a stay motion in the U.S. Supreme Court, arguing that the Court “must not allow Texas to subvert Mr. Leal’s constitutional rights and the compelling institutional interests of Congress and the Executive in a race to execution, particularly given the overwhelming public interest in achieving compliance with the Avena Judgment.”  The Government of Mexico, in an amicus curiae brief that will be submitted to the Court later today, will note that the United States has been a forceful advocate for U.S. nationals detained in Mexico, and is expected to call upon the United States to live up to its treaty commitments.

The petition and stay motion are attached. The amicus brief will be distributed later today.
 
The documents filed by Mr. Leal’s attorneys point out that the "Consular Notification Compliance Act" would allow for judicial review of Mr. Leal's case and the cases of forty other Mexican nationals on death row who were denied consular access at the time of their arrests, and would bring the U.S. into compliance with Article 36 of the Vienna Convention. The legislation has widespread support from the U.S. government, including the Department of Defense, Department of Justice, Department of Homeland Security, and Department of State.

The petition concludes, “If denying Mr. Leal the review and reconsideration of his conviction and sentence ordered by the ICJ is so important as possibly to justify the serious harm to U.S. interests identified by the President, this Court, and many, many others that would follow from that treaty breach, that judgment should be made by the U.S. Congress, not Texas.  The United States’ word should not be so carelessly broken, nor its standing in the international community so needlessly compromised.” 

Prominent bipartisan groups, including former U.S. diplomats, retired military leaders, former judges and prosecutors, and organizations representing Americans abroad, agree that Mr. Leal's execution should be stayed to allow time for Congress to remedy the consular violations in his case. These diverse groups have expressed concern that if Mr. Leal is executed despite the violations, other nations will be emboldened to violate the consular rights of U.S. citizens arrested in foreign countries and all Americans abroad will be put at risk.

In 2004, the International Court of Justice (ICJ) held that Mr. Leal was entitled to judicial review of his conviction and sentence to determine if he was harmed by the United States’ violation of the Vienna Convention.  The U.S. Supreme Court unanimously agreed that the United States was obligated to comply with the ICJ decision, but held that Congress must act to implement the Court’s decision.  Both the Bush and Obama administrations have sought to enforce the decision.

The legislation also calls for a stay of execution in any case where a date has been set pending federal review. Mr. Leal is scheduled for execution on July 7.
 
Having no prior criminal convictions, Mr. Leal was arrested, convicted and sentenced to death in 1994, but not informed of his right as a Mexican national to seek assistance from the Mexican consulate under the Vienna Convention for Consular Relations. Attorneys for Mr. Leal argue that had he been provided consular assistance, he would not have been convicted or sentenced to death. The court-appointed lawyers Mr. Leal received were inexperienced and ineffective.  One of them was suspended from the practice of law twice for failing to adequately represent clients and publicly reprimanded on two other occasions.   
 
“The undisputed violation of his Vienna Convention rights in his case goes to the very heart of the validity of his conviction and sentence,” Mr. Leal’s attorneys argue in their motion for stay of execution.  “Among other things, Mexico would have ensured that [Mr. Leal] was represented by highly qualified and experienced defense counsel who would have challenged the prosecution’s reliance on junk science to obtain a conviction and would have presented powerful mitigating evidence at the penalty phase, including expert testimony regarding Mr. Leal’s learning disabilities, brain damage, and sexual abuse at the hands of his parish priest."
 
Once the Mexican consulate was given access to Mr. Leal's case, they provided funds for necessary investigators and experts that led to the discovery of Mr. Leal’s brain damage and sexual abuse. 

The Consular Notification Compliance Act allows for review of cases precisely like Mr. Leal's where lack of consular assistance may have made the difference between life and death.

Attorneys for Mr. Leal are also awaiting a decision on a clemency petition and stay motion from the Texas Board of Pardons and Paroles and Governor Rick Perry.

Late Monday, three judges on the Texas Court of Criminal Appeals issued a concurring opinion which stated that the pardons board and Governor Perry should stay Mr. Leal’s execution until “legislation passes that finally implements our indisputable treaty obligations and provides a remedy for [Mr. Leal’s] right under international law.” 

The CCA judges added: “There is no dispute that allowing [Mr. Leal’s] execution to go forward without first affording him a hearing in satisfaction of the International Court of Justice’s judgment in the Avena case, would violate the United States’s treaty obligations under the Vienna Convention on Consular Relations, the Optional Protocol, and Article 94 of the United Nations Charter – obligations that are binding on Texas by way of the Supremacy Clause of the United States Constitution.”

Documents and background information on Mr. Leal's case, including letters of support from the bipartisan groups and from victims' organizations representing survivors of sexual abuse, can be found at: www.HumbertoLeal.org.

The legislation and a statement from Senate Judiciary Committee Chairman Patrick Leahy can be accessed [at the link.]

Earlier coverage of the Humberto Leal case begins at the link.  More information is at the Humberto Leal website.

Attention Focusing on Humberto Leal Case

"Texas Is Pressed to Spare Mexican Citizen on Death Row," is the title of Adam Liptak's latest Sidebar column in the New York Times.  It will appear in tomorrow's print edition; it's just been posted to the NYT site.

Texas is planning to execute Humberto Leal Garcia Jr. next week. His case is in many ways unexceptional: ghastly crime, substantial but problematic evidence, inept defense lawyer.

In another sense, though, Mr. Leal’s case is different from those of the six men Texas has already put to death this year.

He is a citizen of Mexico. After his arrest, he was denied his rights under the Vienna Convention to consult Mexican consular officials.

Had his government been allowed to come to his aid, Mr. Leal’s lawyers say, he might still have been convicted. But they say that legal help from the Mexican government would almost certainly have kept him off death row.

Former judges, law enforcement officials, military leaders and diplomats have lined up on Mr. Leal’s side. Most take no position on Mr. Leal’s guilt or on the death penalty. Their argument is more practical.

“If we do not comply with our obligations under the Vienna Convention on Consular Relations and the U.N. Charter,” said John B. Bellinger III, who was the State Department’s top lawyer in the Bush administration, “we put at risk Americans, including Texans, who travel and may be arrested overseas. It is surprising that Texas does not recognize the risks it may be creating for its own citizens.”

True, Texas provided Mr. Leal with a lawyer. But the convention requires that arrested foreigners also be told of their right to speak with consular officials and put in contact with them “without delay.”

Billy Hayes, whose ordeal in a Turkish prison was the subject of the movie “Midnight Express,” wrote a letter to Gov. Rick Perry this month urging him to grant a reprieve to Mr. Leal. In an interview last week, Mr. Hayes said he could not have imagined negotiating the Turkish legal system without the emotional support and logistical help that American diplomats provided.

“It’s a different country,” he said, “different language, different law and different rules.”

Mr. Leal, by contrast, did not learn of his rights until two years after his conviction, and even then not from American authorities but from a fellow inmate.

Journalist Euna Lee writes the OpEd, "Consular access: A two-way street on a crucial right," for the Washington Post.  She's the author of author of The World is Bigger Now: An American Journalist’s Release from Captivity in North Korea.

In 2009, while on assignment for Current TV, my colleague Laura Ling and I were arrested by North Korean soldiers for crossing the frozen Tumen River, which separates the Republic of China and North Korea. We were imprisoned and isolated from one another for 4¹/₂ months. We were repeatedly interrogated, eventually put on trial and sentenced to 12 years’ hard labor. It was only through the extraordinary efforts of the State Department and former president Bill Clinton that we were pardoned and allowed to return home. 

It is difficult to describe the fear that comes with being arrested and detained in a foreign country. The sense of darkness in that first week of North Korean captivity was unbearable. My biggest fear was nobody knowing where I was or what had happened to me. The strained relations between the United States and North Korea only increased my despair.

In the middle of the second week, though, I was handed a lifeline: a meeting with the Swedish ambassador, who represented U.S. interests and pointed out to North Korea its responsibilities under the Vienna Convention on Consular Relations. His hard work yielded a meeting no longer than 10 minutes, but the significance is hard to express. I can only mention the sense of security I now had — that someone outside of North Korea was monitoring my case. The prompt consular access, I believe, protected me from any physical mistreatment by my captors. I was allowed to meet with the ambassador three more times. The meetings were my only communication with the U.S. government — the only way for me to ask for help and to deliver messages to my family. I know the importance of what the Vienna Convention provides. 

And:

The United States has always been in the forefront of the fight for human rights. People look to us to be a watchdog for human rights violations around the globe. We ask the world to treat our citizens with respect when they are detained in other countries, including honoring their right to consular access. It is a two-way street. The United States must lead by example in honoring consular treaty obligations and in providing a remedy when that right is violated. If Congress does not act swiftly, other countries will be encouraged to violate the consular rights of U.S. citizens traveling abroad. I know firsthand that this is a risk we cannot take.

Today's National Law Journal carries commentary by Lori F. Damrosch,, "Time to comply with the Vienna Convention."  She is the Hamilton Fish Professor of International Law and Diplomacy at Columbia Law School.

U.S. citizens travel, study and work abroad in vast numbers. Every year, thousands of them are detained and sometimes jailed, not always under circumstances comporting with U.S. views of due process. The bulwark of their protection is the Vienna Convention on Consular Relations, which binds the United States and 172 other countries to notify nationals of treaty partners who are arrested or detained of their right to contact the consulate of their country.

The Vienna Convention has been the supreme law of the land since 1969, when it was unanimously approved by the Senate and brought into force by President Richard Nixon. The Senate gave advice and consent on the basis that the treaty would be self-executing — that is, that no implementing legislation would be needed.

This premise turned out to be incorrect. In Medellin v. Texas (2008), the U.S. Supreme Court held that an international judgment based on the Vienna Convention could not be given effect as directly applicable federal law. Rather, Congress would have to adopt the necessary legislation to enable the United States to comply with its treaty obligations.

It is now urgent for Congress to enact such legislation. Since 2004, when Mexico obtained a ruling from the International Court of Justice (ICJ) on remedies for U.S. treaty violations affecting 51 Mexican nationals on death row in U.S. states (Avena and Other Mexican Nationals), the United States has been under a binding obligation to afford a judicial remedy to those individuals.

One of them, Humberto Leal, is scheduled to be executed by the state of Texas on July 7.

And:

Under Article 36 of the Vienna Con­vention, a foreign national who is arrested or detained for any reason whatsoever must be notified "without delay" of his right to communicate with the consular post of his country. The 51 Mexican nationals covered by the Avena judgment were not given any such notice and thus Mexico was unable to give them consular services in their trials on capital charges.

Earlier coverage of the Leal case and the federal legislation pending in the U.S. Senate begins at the link.

More information is at the Humberto Leal website.

An Update on the Humberto Leal Case

"Federal judge won't stop Mexican's execution," is the AP report filed by Michael Graczyk.  It's via the Houston Chronicle.

A federal judge has refused to stop the upcoming execution of a Mexican national convicted of the 1994 rape-slaying of a 16-year-old San Antonio girl.

Humberto Leal, 38, a native of Monterrey, Mexico, faces lethal injection July 7 in Huntsville.

Leal's attorneys argued his punishment should be blocked because he wasn't told he could contact the Mexican consulate for legal help after his arrest for the murder of Adria Sauceda. They also said a bill introduced last week in Congress would allow federal courts to review cases of condemned foreign nationals.

U.S. District Judge Orlando Garcia ruled Wednesday the consulate claim was "utterly lacking in arguable merit."

He also said the measure introduced June 11 by Vermont Sen. Patrick Leahy was "a mere proposal" and that similar attempts have failed twice in recent years.

"It is not an enactment of new law," Garcia said.

Leal's attorneys presented several dozen former diplomats, State Department officials and retired military officers backing their appeal and the likelihood that Leahy's measure would pass Congress.

Garcia dismissed them as "little more than highly speculative predictions from a variety of political science professors and a handful of hopeful executive branch and congressional officers."

Sandra Babcock, an attorney for Leal and a Northwestern University law school professor, said Garcia's decision would be appealed.

"With consular access, Mr. Leal would have had highly qualified and experienced lawyers and expert assistance that would have transformed the quality of his defense," she said. "The legislation before Congress is narrowly tailored to provide review for precisely this kind of case where lack of consular assistance may have made the difference between life and death.

"Mr. Leal is constitutionally entitled to receive a stay of execution while Congress is considering taking the necessary measures to remedy this serious violation."

Earlier coverage of the Leal case and the federal legislation begins at the link.

Bellinger on the Treaty Bill

John B. Bellinger III, served as legal adviser to the U.S. Department of State during the administration of President George W. Bush.  Bellinger writes a Letter to the Editor of the New York Times, "Congress and a Treaty."

Re “The Treaty and the Law” (editorial, June 18):

You are right to urge Congress to pass legislation to require federal courts to review the convictions of certain foreign nationals, including 40 Mexicans, on death row in Texas and other states who were not notified by state officials of their right to speak to a consular officer of their governments, in violation of United States treaty obligations. But you did not mention that review of the convictions of the Mexicans was mandated by a 2004 decision of the International Court of Justice.

And:

Some members of Congress may now be reluctant to take action to comply with a World Court decision, but they should recognize, as the Bush administration did, that the United States cannot expect other countries to comply with their treaty obligations to us unless we comply with our treaty obligations to them.

Earlier coverage of the Leal case and the federal legislation introduced in the U.S. Senate begins with today's Houston Chronicle editorial.  The Times editorial is noted at this link.

Ambassador Thomas Pickering on the Leal Case

His Letter to the Editor of the Washington Post is titled, " Delay this execution."

The Post got it right in calling on government officials to diligently uphold our international treaty commitment to allow foreigners prompt and ongoing consular assistance [editorial, June 14]. My experience as a U.S. diplomat made clear that compliance with international obligations is critical to protecting Americans abroad, meeting foreign policy objectives and preserving our reputation as a law-abiding nation. The country’s interests are not served by violating international law — as happened in the case of death row inmate Humberto Leal Jr.

These concerns are why I joined several former U.S. diplomats and State Department officials in urging Texas Gov. Rick Perry (R) to stay Mr. Leal’s execution. Congress recently introduced sound legislation to bring the United States into compliance with our undisputed treaty obligations and to allow federal court review of the violations of consular rights in cases such as Mr. Leal’s. Texas should stay his execution while legislation that could affect his case remains pending.

Pickering was undersecretary of state for political affairs from 1997 to 2000 and ambassador and representative to the United Nations from 1989 to 1992.  The Post editorial, "Why the U.S. should allow arrested foreigners to contact their consulates," is noted in this StandDown post.

Earlier coverage of the Leal case begins with a New York Times editorial.  Related posts are in the foreign citizen and international law indexes.

The Treaty and the Law

That's the title of an editorial in the Saturday New York Times on the Humberto Leal case.

Humberto Leal García Jr., a Mexican citizen who faces execution in Texas next month, has petitioned Gov. Rick Perry for a six-month reprieve. He is asking for a stay under a vital international law, the Vienna Convention on Consular Relations, which requires that foreign nationals who are arrested be told of their right to have their embassy notified of that arrest and to ask for help.

In recent years, the treaty has provided important protection for Americans who have been detained in Iran, North Korea and elsewhere. Mr. Leal was not notified after his arrest of his right to contact his embassy. But the Supreme Court ruled in 2008 that Texas did not need to comply with the treaty because there is no federal law requiring that states do so.

Senator Patrick Leahy of Vermont on Tuesday introduced a bill that makes clear that federal law requires that states tell foreign nationals who have been arrested that they can contact their consulates for help.

For those who were convicted and sentenced without being told, the bill would let them ask a federal court to review their case and decide whether the outcome would have been different if they had had diplomatic help. After the bill was introduced, Mr. Leal petitioned Federal District Court for a stay to keep Texas from “rushing to execute” him before Congress has time to act.

And:

For the sake of justice, the governor and court should grant the stays. For the protection of foreigners arrested here, and American citizens arrested abroad, Congress should pass Senator Leahy’s bill.

Earlier Leal coverage begins at the link.  Related posts are in the foreign citizen and international law indexes.

The clemency petition, case background, and other information is at Humberto Leal. 

Readers who wish to sign a petition urging clemency can do so at the link, or using the right-column Take Action box.

Federal Petition Filed for Leal

Today's San Antonio Express-News reports, "Death-row petition in S.A. killing now in federal court."  It's written by Guillermo Contreras.

A Mexican national convicted of killing a 16-year-old girl in San Antonio in 1994 has turned to the federal courts in an effort to block his execution next month.

On Thursday, lawyers for Humberto Leal Jr., 38, filed in San Antonio a federal habeas petition and a motion for a stay of execution, which is set for July 7.

The appeal asks U.S. District Judge Orlando Garcia to halt the execution while Congress weighs legislation introduced Tuesday that would address an international court's concern that Mexican nationals on death row were not informed of their right to contact their consulate when they were arrested.

In 2004, the International Court of Justice in The Hague found that neither Leal nor 50 other Mexican citizens on death row in the United States had been told they could contact their consulate and said the legal remedy was to grant new hearings to them to determine if consular access would have affected the outcome of their capital murder trials.

A year later, then-President George W. Bush tried to force states to hold such hearings and Texas fought the order. The case of Mexican national Jose Medellin went to the U.S. Supreme Court, which ruled that only Congress could require states to follow the international court's ruling.

Five months later, Medellin was executed for the rape and murder of two Houston girls.

On Tuesday, U.S. Sen. Patrick Leahy, D-Vt., introduced the Consular Notification Compliance Act. If passed, it would give federal courts jurisdiction to review cases of foreign nationals on death row in the United States, and ensure that all foreign nationals charged with a capital offense be informed of their right to contact their consulates.

Leal's lead lawyer, Sandra L. Babcock, a professor at Northwestern University School of Law in Chicago, wrote in the federal appeal that Leal “has a federal due process right to remain alive so that he can benefit from the legislation.”

The AP filing is, "Mexican national sues to block his Texas execution," via the Houston Chronicle.

A Mexican national on Texas' death row for the 1994 beating death of a teenage girl filed a lawsuit Thursday in federal court in San Antonio asking a judge to block his execution next month.

Humberto Leal Jr., 38, of Monterrey, Mexico, is scheduled to die in the Texas death chamber in Huntsville on July 7 for the rape and fatal bludgeoning of 16-year-old Adria Sauceda in San Antonio.

His attorneys want a federal judge to allow time for Congress to consider legislation introduced this week that would allow federal judges to review the cases of foreign nationals awaiting execution in the United States, the San Antonio Express-News reported. The Texas attorney general's office had no comment on the latest appeal.

In 2004, the International Court of Justice in The Hague, Netherlands, found that Leal and 50 other Mexican citizens awaiting execution in the United States weren't advised of their right under the 1963 Vienna Convention to contact their consulate when they were arrested.

Previous court decisions have rejected Leal's past appeals based on the assertion that he was denied the advice of the Mexican consulate.

The International Court had urged new hearings in courts where the 51 people were convicted to determine if consular access would have affected their verdicts and sentences.

A year later, in 2005, President George W. Bush agreed with an International Court and urged that the new hearings be held. The U.S. Supreme Court, however, subsequently overruled Bush and the impact of the International Court decision. In an appeal brought by Mexican national Jose Medellin, a court majority ruled that only Congress could require states to follow the International Court's ruling.

In June 2009, the 5th U.S. Circuit Court of Appeals ruled that a federal district judge was wrong when he said he had no jurisdiction in Leal's case. However, the appeals court said the Supreme Court's ruling last year ultimately shut the door to Leal's appeal.

Earlier coverage of the international treaty issues in Humberto Leal's case begins with the preceding post.

The clemency petition, case background, and other information is at Humberto Leal. 

Readers who wish to sign a petition urging clemency can do so at the link, or using the right-column Take Action box.

National News Coverage of Leal Treaty Issue

Today's New York Times reports, "Texas Death Row Case Resonates to a Treaty."  It's by Brian Knowlton.  For those new to the issue, it's a must-read recap with new details, as well.

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.

“This doesn’t go as far as we’d like,” said a Senate aide who spoke on the condition of anonymity because the final legislative language had not yet been released, “but given the urgency of the cases involving the death penalty, we felt we had to act now and this had the best chance of securing bipartisan support.”

Though the Senate ratified the Vienna Convention in 1969, its consular notification requirement was often overlooked. Mexico, citing the cases of 51 foreign citizens then on death rows in the United States, complained to the International Court of Justice in 2004. That court found that the United States was bound by the treaty, and Mr. Bush asked the states to apply it.

And:

Early assistance in murder cases also matters, said Noah Feldman, a Harvard law professor: Prosecutors know that seeking the death penalty is a long, difficult, expensive process, and they carefully weigh their chances. Knowing that the accused will be well represented could tip the balance away from seeking death, he said.

With that sort of idea in mind, Mexico in 1999 created an ambitious legal assistance program to aid its citizens in capital cases. The program’s director, Gregory Kuykendall, now heads a team of 32 lawyers; in the year ending in May, Mexico spent $3.5 million on the program, according to the Sunlight Foundation, which focuses on government accountability.

Richard Dieter, executive director of the private Death Penalty Information Center, said Mexico’s active legal support had probably contributed to a decline in death penalty cases in Texas. “I think part of it is just better representation,” he said. “Mexico gives advice to other countries about how to do this.”

The State Department has held hundreds of training sessions across the country to familiarize federal, state and local law-enforcement officials with the Vienna treaty and has issued a 144-page booklet outlining the requirements, with translations in 20 languages, including Creole and Cambodian. Still, compliance is patchy. By Mr. Warren’s calculation, 80 of the 133 foreigners currently on death row in the United States say they did not receive a Vienna notification.

“That’s a failure rate of over 60 percent,” he said, “and it’s in the most serious possible cases. We’re not talking about traffic violations.”

One American who benefited while abroad from the Vienna treaty is Euna Lee, a reporter who, with a colleague, Laura Ling, was arrested in North Korea in 2009 after crossing the border from China.

Wade Goodwyn reports, "Planned Execution Puts Mexico, Texas At Odds," at NPR.  You can listen to his report at the link.

On the night of May 21, 1994, 16-year-old Adria Sauceda attended a party on the south side of San Antonio. Witnesses testified that the teenager ingested so much alcohol, cocaine and marijuana she became extremely intoxicated. A group of eight or nine young men took her into the backyard and took turns sexually assaulting her. Anyone who tried to intervene was told to back off.

Sandra Babcock, Leal's lawyer and a professor at Northwestern University Law School, says when Leal arrived at the party and learned what happened to Sauceda he "became very upset and said that he was going to take her home."

Leal says that on the ride home, Sauceda tried to get out of the car. Leal pulled over, she got out, he tried to get her back in, they argued, he pushed her and she hit her head. But Leal maintains he didn't kidnap her and he didn't rape her. And that's the crux of his defense because without those additional crimes, Leal would not have faced a capital murder charge and a death penalty conviction.

"So although there was evidence that he was with her before she died — and that he may have had some involvement in her death — the evidence that shows that he committed a sexual assault is reed thin, and the evidence that shows that he kidnapped her is even weaker," Babcock says.

Babcock accuses the public defenders assigned to defend Leal of putting on a lazy defense. And that particularly galls the government of Mexico. All parties agree that Leal, a Mexican national in Texas legally, should have been told he had a right to notify his consulate in San Antonio. The Mexican government says had it known, it would have paid for Leal to have top-flight legal representation, investigators and experts to assist his defense.

"Mexico has a long-standing tradition — internationally recognized tradition — about assisting their nationals," says Victor Uribe, head of the legal section at the Mexican Embassy in Washington, D.C. "Of course, due to the opposition of Mexico to the death penalty, capital cases are a priority for Mexico."

And:

"It's not a favor that we do for foreigners who travel in the United States. The United States is a party to this treaty because it protects Americans when we travel abroad," says John Bellinger, a partner at Arnold & Porter in Washington. Bellinger is the former legal adviser at the State Department who handled these cases for the Bush administration.

To the surprise of both conservatives and liberals, President Bush was persuaded by this State Department's argument and ordered states to review their foreign national cases. But Texas Gov. Rick Perry said no, and to the Bush administration's chagrin, the Republican governor challenged his predecessor in federal court — and won.

"Texas has been particularly resistant to complying. I think Texas and the governor have tended to think this is a question of bowing to pressure from Washington or protecting the sovereignty of Texas from international tribunals in The Hague," Bellinger says.

Although Perry, the state attorney general's office and the Texas Board of Pardons and Paroles all declined to speak to NPR, Perry's staff in the past has said, "The world court has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court. It's very important to remember that these individuals are on death row for killing our citizens."

Texas has already executed two Mexican nationals who weren't informed of their rights. Now Leal is on deck to be put to death the first week of July. Having witnessed the powerlessness of the International Court and the president of the United States to stop these executions, Uribe at the Mexican Embassy says they've appealed to the real power in all this: Perry.

"Congressional Action May Come Too Late to Stop Texas Execution," is by Peter Malof for Texas News.Service.

Legislation introduced this week in the U.S. Senate gives hope to some foreigners on death row in U.S. prisons - but it may come too late for Humberto Leal Garcia, a Mexican scheduled for execution next month in Texas.

The Consular Notification Compliance Act would ensure that courts follow an international law that says people arrested on foreign soil are entitled to assistance from their home countries. Leal's lawyers are filing motions today in federal court, hoping to delay his execution so that he may benefit from the legislation if and when it becomes law.

Christopher Durocher, government-affairs counsel at The Constitution Project, supports the measure, adding that consular access is critical if justice is to prevail for foreign nationals.

"When you're brought into a foreign criminal-justice system, your lack of understanding about how that system works - to navigate that system effectively - can really have a negative impact on your ability to defend yourself."

Durocher says he's fearful that if the United States doesn't uphold its treaty obligations, other countries will view consular access for Americans as optional. More than 6,600 U.S. citizens were arrested abroad last year.

Leal is a perfect example of someone whose conviction deserves review, Durocher says, because his lack of consular access clearly impacted his ability to receive a fair trial. His execution, Durocher adds, would not come as welcome news to the 172 other signatories of the Vienna Convention on Consular Relations.

Jordan Smith writes, "Will Legislation Save Humberto Leal?" for the Austin Chronicle.

Vermont Democratic U.S. Sen. Patrick Leahy on June 14 filed a bill that would ensure U.S. compliance with the 1963 Vienna Convention on Consular Relations, which in part guarantees foreign nationals abroad access to consular officials. Advocates representing Texas death row inmate Humberto Leal hope the legislation will save their client's life.

At issue is whether foreign nationals who get in trouble with the law in the U.S. are afforded the opportunity to communicate with home-country officials. Leal is one of the more than four dozen Mexican nationals on death row in the U.S. whose cases were brought to the UN's International Court of Justice in 2004. In that case, Mexico complained that in each instance the accused was not given the opportunity to communicate with Mexican consular officials. The ICJ ultimately ruled in Mexico's favor and said that the cases should be reviewed. Then-President George W. Bush penned a memo asking the U.S. courts to give effect to the ICJ ruling, but the U.S. Supreme Court ultimately ruled that state courts were not required to do so absent an act of Congress. After several years, that legislation was finally filed this week. "Compliance with our consular notification obligations is not a question of partisan interest," Leahy said in a press release. "Given the long history of bipartisan support for the [Vienna Convention], there should be unanimous support for this legislation to uphold our treaty obligations. A failure to act places Americans at risk."

That is, of course, one of the issues here: If the U.S. continues to ignore the consular notification provisions as it pertains to foreign nationals in the States, that makes it more likely that the rights of U.S. citizens abroad will also be ignored. Since the ICJ decision in 2004, Texas has executed three foreign nationals; unless the state acts to halt Leal's execution, he will become the fourth – and the first since Congress has made a move to require compliance with the Convention, and the ICJ ruling.

Earlier coverage of Humberto Leal's case begins at the link.

The clemency petition, case background, and other information is at Humberto Leal. 

Readers who wish to sign a petition urging clemency can do so at the link, or using the right-column Take Action box.

Commentary on the Leahy Legislation

Ginny Sloan posts, "Proposed Legislation Providing Consular Access Holds Lives in the Balance," at Huffington Post.  She's the president of the Constitution Project.

Consular access also enhances the truth-seeking function at the heart of American justice, and provides an indispensable protection for foreign nationals who are unfamiliar with the U.S. criminal justice system. "Mandatory Justice: The Death Penalty Revisited," the 2005 report (PDF) of The Constitution Project's Death Penalty Committee -- a bipartisan committee comprising supporters and opponents of the death penalty -- concluded that "the policies underlying the [Vienna Convention] are similar to those underlying the right to counsel guaranteed by the United States Constitution." The diverse committee thus called on all jurisdictions to fully comply with the Vienna Convention.

The Consular Notification Compliance Act has significant implications for the many foreign nationals currently on death row, such as Humberto Leal Garcia, a Mexican national who is scheduled for execution by the state of Texas in less than a month. Mr. Leal was never told that he had a right to contact the Mexican consulate for legal assistance. If the legislation passes, it would give Mr. Leal the opportunity to petition a federal court to review his case and, if appropriate, order a new trial or sentencing hearing. Unfortunately, it is unlikely that the act will come up for a vote in the Senate or House before Mr. Leal's July 7th execution date, so it will be up to Texas Gov. Rick Perry to grant Mr. Leal a reprieve pending a vote on the proposed bill.

Given the life and death stakes, a diverse group of former military officials, diplomats, judges and prosecutors have petitioned Governor Perry to hold off on executing Mr. Leal until the legislation is considered. This week, attorneys for Mr. Leal will file a federal habeas petition and a motion for stay of execution in the federal district court, arguing that Mr. Leal has a due process right to remain alive so that he can benefit from the legislative remedy contained in the Consular Notification Compliance Act. Now, the whole world will watch to see if Texas, and the United States, will honor the rights promised by the Vienna Convention.

At Opinio Juris, Duncan Hollis posts, "Proposed Legislation Seeks VCCR Compliance by the United States."

Those who have followed the cases relating to the Vienna Convention on Consular Relations (VCCR) here in the United States and at the ICJ know that the United States has a compliance problem. The United States does not provide the ‘judicial review and reconsideration’ remedy that the ICJ has indicated is required in the event a violation of an individual’s rights under Article 36 of the VCCR, and the Supreme Court has indicated that the President alone cannot order U.S. states to provide those remedies.  Since 2008, many commentators have suggested that the solution to this problem lies with Congress. Earlier attempts to enact legislation authorizing the necessary procedural steps to put the United States in compliance have fallen short.  Senator Patrick Leahy, however, is ready to try again in light of a pending execution of a Mexican national in Texas (apparently scheduled for July 7), which also seems certain to revive international attention to this issue.

"U.S. Notables Urge Texas to Delay Mexican’s Execution," is the Latin American Herald Tribune report.

Retired U.S. military brass, diplomats, politicians and a former FBI chief urged the Texas Board of Pardons and Paroles to delay the execution of a Mexican national convicted of murder, arguing that the case needs to be reviewed.

Humberto Leal Garcia, a 38-year-old native of Monterrey, is scheduled to be executed July 7.

He was sentenced to death in 1995 by a Texas court for the kidnapping, rape and murder of a 16-year-old girl.

Without disputing Leal’s guilt, the Mexican government recently asked Texas to commute the death sentence, citing both humanitarian concerns and the failure of Texan authorities to respect foreign suspects’ right to consular assistance under the Vienna Convention.

“Prompt knowledge of and access to our fellow-citizens held in foreign jails ensures that U.S. consular officers can help them obtain legal assistance, monitor their treatment, and connect them to family and friends back home,” retired military brass and diplomats said in a letter to the Texas parole board.

“The safety and well-being of Americans abroad is endangered by the U.S. maintaining the double standard of protesting denials of consular notification and access to its own citizens while simultaneously failing to comply with its obligation to remedy identical violations,” they said.

The board has received similar appeals from figures such as former FBI Director William Sessions and a former Texas governor, Mark White.

The International Court of Justice ruled on March 31, 2004, that Texas had violated the rights of Leal and other Mexican nationals, instructing U.S. authorities to review the death sentences of 51 Mexicans.

Texas, however, has refused to suspend the executions of foreigners, claiming that no international court’s ruling may replace state laws and the federal government has no authority to order the states to review such matters.

Earlier coverage of the Leal case begins with the preceding post.  Related posts are in the foreign citizen index.

Federal Legislation Filed Over Consular Notification Failures

Senator Patrick Leahy, Chairman of the Senate Judiciary Committee has issued a news release, "Leahy Renews Effort To Bring U.S. Into Compliance With International Consular Notification Treaty."

Senator Patrick Leahy (D-Vt.) introduced legislation Tuesday to address a long-standing international concern regarding U.S. compliance with the Vienna Convention on Consular Relations (VCCR), a key treaty providing access for citizens detained abroad to their consulates.

The Leahy-authored Consular Notification Compliance Act will give jurisdiction to federal courts to review the cases of foreign nationals currently on death row in the United States who did not receive consular access as required by the VCCR. It includes those individuals covered by a 2004 decision by the International Court of Justice, which held that the U.S. must review the convictions and death sentences of more than 50 Mexican nationals who had not been notified of their right to consular access.  The legislation would also clarify for future cases that courts must ensure that all foreign nationals charged with a capital offense are informed of their right to contact their consulate.  More than 100 foreign nationals from more than 30 countries are currently on death row in the United States.

“Each year, thousands of Americans are detained abroad while they study, travel, work, and serve in the military.  From the moment they are detained, their safety and well-being depends on the ability of United States consular officials to meet with them, monitor their treatment, help them obtain legal assistance, and connect them to family back home,” said Leahy.

“That access is protected by the consular notification provisions of the VCCR, but it only functions effectively if every country meets its obligations under the treaty – including the United States.  The Consular Notification Compliance Act will bring the United States one step closer to compliance with the convention.”

Leahy chairs the Senate Judiciary Committee and the Senate Appropriations Subcommittee on the State Department and Foreign Operations.  The need to protect Americans overseas by bringing the U.S. into compliance with the treaty has garnered support from retired members of the military, former diplomats, retired judges and prosecutors.

Government efforts to address this problem began during the George W. Bush administration, when President Bush issued an executive memorandum directing the state courts to provide review of the convictions and death sentences.  The executive order was challenged in the U.S. Supreme Court, and the Court held that the Executive Branch did not have the authority to compel the state courts to act.  The Court held that Congress must pass legislation instead.

“Compliance with our consular notification obligations is not a question of partisan interest,” Leahy said.  “Given the long history of bipartisan support for the VCCR, there should be unanimous support for this legislation to uphold our treaty obligations.  A failure to act places Americans at risk.”

The VCCR was negotiated during the Kennedy administration, and ratified during the Nixon administration.  The U.S. government has cited the VCCR in seeking access to Americans detained abroad.  According to the Department of State, more than 6600 Americans were arrested abroad in fiscal year 2010.  More than 3000 U.S. citizens were incarcerated abroad in the same time period.

The text of the Consular Notification Compliance Act is available online.

Leahy also spoke on the Senate floor on the introduction of the Consular Notification Compliance Act.  Here's an excerpt:

Today, I am introducing the Consular Notification Compliance Act.  This legislation will help bring the United States into compliance with its obligations under the Vienna Convention on Consular Relations (VCCR) and is critical to ensuring the protection of Americans traveling overseas. 

Each year, thousands of Americans are arrested and imprisoned when they are in foreign countries studying, working, serving the military, or traveling.  From the moment they are detained, their safety and well-being depends, often entirely, on the ability of United States consular officials to meet with them, monitor their treatment, help them obtain legal assistance, and connect them to family back home.  That access is protected by the consular notification provisions of the VCCR, but it only functions effectively if every country meets its obligations under the treaty – including the United States. 

Unfortunately, in some instances, the United States has not been meeting those obligations.  There are currently more than 100 foreign nationals on death row in the United States, most of whom were never told of their right to contact their consulate and their consulate was never notified of their arrest, trial, conviction, or sentence.  There are many other foreigners in U.S. prisons awaiting trial for non-capital crimes, some facing life sentences, who were similarly denied consular access.  This failure to comply with our treaty obligations undercuts our ability to protect Americans abroad and deeply damages our image as a country that abides by its promises and the rule of law.  It would also be completely unacceptable to us if our citizens were treated in this manner.

The Consular Notification Compliance Act seeks to bring the United States one step closer to compliance with the convention.  It is not perfect.  It focuses only on the most serious cases – those involving the death penalty – but it is a significant step in the right direction and we need to work together to pass it quickly.  Texas is posed to execute the next foreign national affected by this failure to comply with the treaty on July 7, 2011.  He was not notified of his right to consular assistance, and the Government of Mexico has expressed grave concerns about the case.  We do not want this execution to be interpreted as a sign that the United States does not take its treaty obligations seriously.  That message puts American lives at risk.

The Government of Great Britain has expressed similar concerns about a case involving a British citizen facing the death penalty here, who was denied consular access. 

The bill I am introducing would allow foreign nationals who have been convicted and sentenced to death to ask a court to review their cases and determine if the failure to provide consular notification led to an unfair conviction or sentence.

Earlier coverage of the case of Humberto Leal begins at the link.

Honor This Treaty

That's the heading for an editorial in today's Washington Post.  It's titled, "Why the U.S. should allow arrested foreigners to contact their consulates."  An extended excerpt:

Humberto Leal Jr. is scheduled to be put to death by the state of Texas next month for the 1994 murder of a 16-year-old girl. Like so many cases involving capital punishment, Mr. Leal’s has generated controversy, but not for the typical reasons.

Mr. Leal is a Mexican national. When he was arrested, Texas officials failed to advise him of his right to communicate with his country’s embassy as required by the Vienna Convention on Consular Relations. The United States, Mexico and some 160 other countries are signatories to the convention. Mr. Leal is one of roughly 40 Mexican nationals who were not advised about consular access and who sit on death row in this country.

Mexico filed a grievance on behalf of its nationalsand prevailed in 2004 before the International Court of Justice (ICJ), the judicial arm of the United Nations. The ICJ concluded that the United States was obligated to comply with the treaty and that it should review these cases to determine whether the defendants had been harmed by the lack of notification.

Texas, where the majority of these inmates are held, balked. Three years ago, the state executed Jose Ernesto Medellin, another Mexican national who was not informed of his right to consular access and who was denied additional review. The state is likely to take the same approach in the Leal case. “Here, in Texas, if you commit terrible and heinous crimes you’re going to pay the ultimate price,” says Katherine Cesinger, press secretary to Gov. Rick Perry (R).

This misses the point entirely. This is not about coddling criminals nor is it a referendum on the death penalty. It is about a country’s obligation to honor its treaty commitments. The United States must comply with the Vienna Convention — and demonstrate good faith in addressing past mistakes — if U.S. citizens abroad are to be afforded the same rights and protections.

Sen. Patrick J. Leahy (D-Vt.) is expected to introduce legislation as soon as this week to provide meaningful review in federal court for those denied consular access. The legislation should be narrowly tailored and mandate that the legal proceedings focus solely on whether denial of access seriously prejudiced an inmate’s ability to defend against charges. The bar for success should be high, and only those who can provide compelling evidence of such harm should be allowed a new trial or benefit from a reduced sentence.

Earlier coverage of the case of Humberto Leal begins at the link.

News Coverage of Leal Clemency Filing

The Guardian reports, "US politicians and lawyers protest against death penalty for Mexican man."  It's written by Ed Pilkington in New York.

Top military leaders, lawyers, diplomats and former government officials have joined forces to protest against the pending execution of a Mexican citizen in Texas which they say would be in breach of international law and could put American lives abroad at risk.

The governor of Texas, Rick Perry, has vowed to press ahead on 7 July with the execution of Humberto Leal Garcia, despite condemnation across the political and legal realms. Presidents George Bush and Barack Obama have, while in office, opposed the execution, and Congress is likely to soon introduce legislation designed to make such a judicial killing impossible.

The almost blanket condemnation of Texas's position stems from the fact that Leal was prosecuted without the benefit of consular support and advice from the Mexican authorities, as is required under the Vienna Convention on Consular Relations. He was found guilty in 1994 of sexually assaulting and murdering a 16-year-old girl in San Antonio.

But the Mexican authorities were never informed of his arrest, and at his trial he was assigned court-appointed lawyers whom his current attorneys say were unprepared and incompetent. One of the trial lawyers has twice been suspended from practising law and reprimanded two other times for failing to carry out his obligations to his clients, according to the attorneys.

In a clemency petition lodged with the Texas governor on Tuesday, Leal's current lawyers argue that had Leal had consular access, he could have avoided conviction, let alone a death penalty. "The complete failure of Mr Leal's attorneys to represent their client in any meaningful way deprived him of his chance for a fair trial," the petition says.

Joint letters have been sent to Perry's office to accompany the petition, whose signatories include prominent figures in the worlds of law, diplomacy and the military.

One letter comes from former US diplomats and top officials in the state department, among whom are the top legal adviser to the state department under Bush, John Bellinger, and the former US ambassadors to the UN and Nato, Thomas Pickering and William Taft respectively.

In their joint letter, the diplomats argue that by failing to honour the rights of foreign nationals arrested in the US, Texas is putting at risk those of American nationals arrested abroad. "We believe that continued non-compliance will surely alienate this nation from its allies."

Top retired military figures including Rear Admiral Don Guter, Brigadier James Cullen and Colonel Lawrence Wilkerson warn in a separate letter that, by disregarding the Vienna Convention, Texas is also putting at risk military personnel stationed overseas. "As retired military leaders, we understand that the preservation of consular access protections is especially important for US military personnel, who when serving our country overseas are at greater risk of being arrested by a foreign government."

And:

Leal is one of 40 or so Mexican nationals in a similar legal trap; individuals who are awaiting execution in the US, despite having consular access withheld at the time of their arrest and trial. Under the Vienna Convention, those facing prosecution in a foreign country must be given regular access to their consular representatives.

Though that legal point has been pressed by the US on many occasions in cases where American citizens have been arrested abroad, Texas has decided to press ahead with the execution regardless.

Jordan Smith writes, "Is Texas Breaking the Law?"  It's posted at the Austin Chronicle.

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, in keeping with 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 it's 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 overturned 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 &ndash 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.

And:

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.

Earlier coverage of the Leal case begins at the link.  The clemency petition, case background, and other information is at Humberto Leal.

David Von Drehle on the Leal Case

"Cut Off from His Country, Another Foreign National Faces Execution in Texas," is the title of Von Drehle's post at Time.

Two U.S. Presidents, the State Department and the Justice Department, an assortment of diplomats, military brass, and former judges all want the State of Texas to delay the scheduled July 7 execution of Humberto Leal Garcia Jr. But that may not be enough.

Leal was convicted of the 1994 sexual assault and murder of 16-year-old Adrea Sauceda in San Antonio. In subsequent appeals, Leal argued that his court-appointed trial attorney was incompetent — the man twice has his law license suspended — but given the savage nature of the crime, and incriminating statements by Leal and his brother, it’s not clear that a better lawyer would have made a difference.

So why have figures from former FBI Director William Sessions to former U.S. Ambassador to the United National Thomas Pickering taken an interest in Leal’s case? Because he is one of more than 50 foreign nationals sentenced to death in the U.S. without having access to their consulates.

A petition filed on Tuesday with the Texas Board of Pardons and Paroles, supported by letters from groups of retired generals, judges and ambassadors, argues that Americans abroad will be put at risk if the Vienna Convention on Consular Relations is not honored. Leal’s attorney, Sandra Babcock of the Northwestern University School of Law, asks the Board to recommend clemency for her client — or at least delay his execution long enough for Congress to pass a law mandating new trials for the foreign nationals.

“There can be little doubt that if the government of Mexico had been allowed access to Mr. Leal in a timely manner, he would not now be facing execution for a capital murder he did not commit,” Babcock writes—adding a claim of innocence on top of the plea to respect the Vienna treaty. “Mexico has had an extensive program for monitoring and providing assistance to its citizens facing the death penalty in the United States since the late 1980s.

And:

In 2004, the ICJ found in favor of Mexico and ordered the U.S. to grant hearings to the Mexican nationals. Then-President Bush issued an order to comply with the ruling, but Texas — in the case of Jose Ernesto Medellin — argued that Bush lacked the power to interfere in a state proceeding. In 2008, the Supreme Court agreed, and Medellin was executed.

The high court held open the possibility that an act of Congress could compel the states to give new hearings to the inmates. The Obama Administration is backing a measure to do just that, by withholding certain federal funds from states that do not comply. But the failure to pass a budget has put that legislation on ice.

“For Texas to proceed with [Leal’s] execution prior to full compliance with these treaty obligations would endanger the interests of American citizens and the United States around the world,” the diplomats write in their letter to the pardons board.

It may be a long shot to expect the board and Texas Gov. Rick Perry to halt Leal’s execution after permitting Medellin’s execution under similar circumstances with a Texan in the White House. The Supreme Court concluded that the ICJ judgment “constitutes an international law obligation on the United States,” but in the Lone Star State that collides with a simpler dictum: Don’t Mess With Texas.

Earlier coverage of the Leal case begins at the link.

Humberto Leal Clemency Petition Filed

Humberto Leal's clemency petition is available in Adobe .pdf format.

"Bipartisan Agreement: TX Execution Threatens Safety of Americans Abroad," is the title of Peter Malof's report for Texas News Service.

The planned execution of a Mexican man next month in Texas is sparking bipartisan appeals to Governor Rick Perry. The 1994 prosecution of Humberto Leal Garcia violated international law, according to an array of retired military leaders, judges, and diplomats, who say Leal was deprived of assistance from his government until after his conviction.

His attorney, Sandra Babcock, is filing a reprieve petition today. She believes the issue is bigger than justice for one man. When the U.S. violates its treaties, she says, it encourages other countries to do the same, putting hundreds of thousands of Americans at risk of languishing helplessly in foreign jails.

"U.S. service members, missionaries, teachers, businessmen. Really there are so many different people - in addition to those of us who just like to vacation abroad - who really depend on this lifeline of consular assistance."

The U.S. Supreme Court has ruled that foreigners are, in fact, protected by the Vienna Convention on Consular Relations, signed by 173 countries, but that Congress needs to amend domestic law to match provisions of the treaty.

Such legislation is expected to be introduced soon. The question is, will Leal be put to death before statutes require review of his conviction?

Babcock, who is a professor of law at Northwestern University in Chicago, says if the execution proceeds as scheduled on July 7, it would send a message that the U.S. picks and chooses which international commitments to honor.

"And if we do that, then what incentive does any country have to enter into a treaty with us about nuclear arms, business negotiations, cooperation in the fight against global terror?"

Consular assistance, Babcock says, is crucial for understanding one's rights under the laws of foreign countries. Leal, who has learning disabilities, was arrested when he was 21 for the rape and murder of a 16-year-old in San Antonio. He maintains his innocence.

Babcock says he was convicted using "junk science" and had shoddy representation.

Attorneys for Leal have issued a news release, "Former U.S. Diplomats, Retired Military Leaders, Judges, Prosecutors, & Americans Abroad Urge TX Governor to Grant Clemency to Humberto Leal."

Attorneys for Humberto Leal Garcia today filed a clemency petition with the Texas Board of Pardons and Paroles and Governor Rick Perry, requesting a stay of his July 7 execution date.  The petition states that Mr. Leal would not have been convicted and sentenced to death if the United States had complied with treaty obligations to notify the Mexican consulate after his 1994 arrest for capital murder.

Congress is poised to introduce legislation to remedy the violation of Mr. Leal’s rights under the Vienna Convention on Consular Relations, which allows individuals facing prosecution in a foreign country to have early and ongoing contact with their consular representatives. 

Prominent bipartisan groups, including former U.S. diplomats, retired military leaders, former judges and prosecutors, and organizations representing Americans abroad, have come forward to urge the Texas Governor and Board of Pardons and Paroles to grant a stay of execution to allow time for Congress to remedy the violations in Mr. Leal’s case.  In their letters, these diverse groups express concern that if Mr. Leal is executed despite the Vienna Convention violations, other nations will be emboldened to violate the consular rights of U.S. citizens arrested in foreign countries.

“For Texas to proceed with [Leal’s] execution prior to full compliance with these treaty obligations would endanger the interests of American citizens and the United States around the world,” states John B. Bellinger, III, former Legal Advisor for the Department of State during the second term of the Bush Administration, in a letter signed by a group of former ambassadors and State Department officials that was delivered to Governor Perry today.

“Improving U.S. enforcement of its consular notification and access legal obligations will help protect American citizens detained abroad, including U.S. military personnel and their families stationed overseas,” write retired military leaders supporting clemency for Mr. Leal, including Brigadier General James P. Cullen, Colonel Lawrence B. Wilkerson, and Rear Admiral Don Guter. “We urge you to support those who are serving our country overseas by granting a reprieve in this case while Congress acts to meet our international responsibilities.”

In 2004, the International Court of Justice (ICJ) held that Mr. Leal must have a hearing to determine if he was harmed by the United States’ violation of the Vienna Convention.  The U.S. Supreme Court unanimously agreed that the United States is obligated to comply with the ICJ decision, but that Congress must act to implement the Court’s decision.  Both the Bush and Obama administrations have sought to enforce the decision, and in the wake of the Supreme Court’s decision the Government has supported federal legislation to provide hearings for Mr. Leal and other Mexican nationals denied their consular rights.

“If Mr. Leal had been provided consular assistance, he would not have been convicted, let alone sentenced to death.  With consular access, Mr. Leal would have had competent lawyers and expert assistance that would have transformed the quality of his defense,” said Sandra L. Babcock, Clinical Professor of Law at Northwestern University School of Law and attorney for Mr. Leal.

Mexican consulates have a history of monitoring capital trial proceedings and securing competent lawyers for their citizens facing the death penalty in the U.S.  If the government of Mexico had been informed of Mr. Leal’s arrest, he would have been provided with highly qualified and experienced legal counsel, as well as funding for necessary experts and investigators.   

The court-appointed lawyers Mr. Leal received were inexperienced and ineffective.  One of them was suspended from the practice of law twice for failing to adequately represent clients and publicly reprimanded on two other occasions.  

The state’s case relied on antiquated and flawed DNA testing. Modern DNA testing may show that Mr. Leal is innocent of the crime.  Yet, the state is refusing to allow the testing to proceed.  A case is pending in federal court to compel Texas to release evidence so that it may be subjected to new DNA testing.      

In addition, the state relied on “bite mark” evidence that is now universally recognized as inconclusive junk science.  A recent scientific study revealed a 63% false positive rate when attempting to use bite mark evidence to establish identity.  Indeed, several men have recently been exonerated after so-called “bite mark experts” linked them to the crime.  Mr. Leal’s lawyers failed to challenge both the bite mark and faulty DNA evidence.

Moreover, Mr. Leal’s lawyers failed to present powerful mitigating evidence at the sentencing phase of trial.  As a result, the jury that sentenced Mr. Leal to death did so without the opportunity to hear about his struggle to overcome learning disabilities and brain damage.  Nor did they learn that between the ages of ten and eleven, Humberto was subjected to terrifying acts of sexual abuse by his parish priest, abuse that caused severe and lasting psychological damage. 
 
This and other significant mitigating evidence came to light only after the Mexican consulate got involved in his case.

Earlier coverage of Humberto Leal's case begins at the link

Additional Coverage of Texas Lethal Drug Purchases

The letter to Attorney General Eric Holder, an appendix of exhibits, and the letter to DPS are available in Adobe .pdf format.

Today's Dallas Morning News reports, "Lawyers accuse Texas of illegally purchasing execution drugs."  It's written by Matthew Huisman.

In letters to the Texas Department of Public Safety and Attorney General Eric Holder, attorneys Maurie Levin and Sandra Babcock accuse the state of providing false information to a Drug Enforcement Administration database used to monitor the sale and use of controlled substances.

According to Levin and Babcock, the agency has been purchasing execution drugs using a registration number assigned to the Huntsville Unit Hospital, which closed in 1983. Registration numbers must be renewed every three years.

“As far as we can tell, they are breaking state and federal law,” Levin said. “The laws exist for a reason and they should not be exempt from them.”

Jason Clark, spokesman for the Department of Criminal Justice, contends the agency did nothing wrong.

“We are still reviewing the allegations but are confident that we have not violated any state or federal law,” Clark said in a written statement. “We will cooperate fully with any investigation.”

Raul Reyes , spokesman for the University of Texas Medical Branch said that the institution operates 112 outpatient facilities in Texas prisons, including the Huntsville unit, but said they don’t order, possess or distribute any of the drugs used in executions.

The letter contends that the drugs are “neither kept by a pharmacy, hospital or clinic, nor dispensed by an authorized practitioner.” A purchase order invoice names Warden James Jones as the recipient.

At the Wall Street Journal Law blog, Nathan Koppel posts, "Danish Maker of Execution Drug Will Not Block Sales to Prisons."

In other news, University of Texas law school professor Maurie Levin today wrote a letter to Attorney General Eric Holder claiming that the Texas prison system has likely violated federal law by purchasing drugs with a Drug Enforcement Administration registration number assigned to a hospital that has been closed since 1983.  Levin asks Holder in the letter to investigate Texas. (Click here to see the letter.)

The Texas Department of Criminal Justice did not return a request for comment.

More on Lundbeck in the next post.

The AP post is, "Lawyers for 2 death row inmates question legality of Texas prisons’ lethal drugs acquisition," is via the Washington Post.

Attorneys for two Texas death row inmates say state officials have been buying lethal-injection drugs using a long-closed prison hospital’s federal registration number.

The lawyers represent inmates Cleve Foster and Humberto Leal. Foster is set to die next week and Leal in July.

In letters sent Wednesday to the U.S. attorney general and Texas public safety director, attorneys Maurie Levin and Sandra Babcock allege the Texas Department of Criminal Justice has violated federal law for more than 25 years.

They’ve asked for an investigation into whether a federal Drug Enforcement Agency number for the Huntsville Unit Hospital has been used to acquire drugs for executions. They say the hospital closed in 1983.

"Texas illegally obtaining lethal drugs: lawyers," is the AFP report, via Google News.

The lawyers of two Texas death row inmates asked Attorney General Eric Holder Wednesday to open an investigation on the state's alleged illegal purchases of lethal injection drugs.

In a letter made public by the lawyers, they said they had uncovered official documents through a Freedom of Information Act request that "leads us to believe that the Texas Department of Criminal Justice has violated the federal Controlled Substances Act."

According to the lawyers, the state has purchased for the past 25 years controlled substances used in lethal injections by using a Drug Enforcement Administration registration number for the the Huntsville Unit Hospital, which has been closed since 1983.

The Texas execution chamber is located in the same city.

"As a result, we believe that TDCJ is unlawfully in possession of and unlawfully dispensing controlled substances," the lawyers said.

Prison authorities did not immediately respond to AFP's requests for comment.

Attorneys for condemned convicts Cleve Foster and Humberto Leal noted that the products used by correctional authorities to carry out executions were "neither kept by a pharmacy, hospital or clinic, nor dispensed by an authorized practitioner through a prescription or otherwise."

Rather, they were kept inside the state's Huntsville unit where executions take place by TDCJ staff, rather than officials legally authorized to be in possession of the drugs.

"Given these potential violations of federal law and the resulting impact on the legality of the executions imminently contemplated, we respectfully urge you to direct appropriate agencies within your department to conduct a prompt and thorough investigation of these issues," the lawyers wrote.

 Mike Ward has updated his Austin American-Statesman report, "Complaint says execution drugs being procured illegally."

Prison officials denied any wrongdoing. "We will cooperate fully with any investigation," said Jason Clark, a corrections system spokesman in Huntsville. "We are still reviewing the allegations but are confident that we have not violated any state or federal law."

Maurie Levin , an Austin attorney who represents Foster, said prison officials' own paperwork calls the process into question.

"Federal and state laws governing the purchase, possession and transfer of controlled substances exist to guard against diversion, and ensure the efficacy and lawful use of these drugs," she said. "For TDCJ to have misrepresented for 25 years the information the DEA relies upon to assess the legitimacy of these drugs reflects a profound disregard for protocol and the law."

If an investigation confirms that the prison system violated the law, Levin said the DEA may revoke or suspend the violator's registration to possess controlled substances and require that all controlled substances held by the prison system be delivered to the DEA.

"The fact that it is a law enforcement institution that is breaking the law should not shield them from the consequences," Levin said in a statement. "An institution charged with keeping the law should be held, at least, to the same standard as every other entity or individual, especially when the process involves the taking of a life. Any indication that they are violating the law is cause for alarm and immediate action."

Brandi Grissom's Texas Tribune post, "Lawyers Allege Texas Illegally Obtains Death Drugs," has also been updated.

TDCJ spokesman Jason Clark said the agency would cooperate fully with any investigation. “We are still reviewing the allegations, but are confident that we have not violated any state or federal law,” he said.

Lawyers for two Texas death row inmates today asked state and federal law enforcement to investigate whether prison officials illegally obtained death penalty drugs the state used in nearly all of its 466 executions by using the Drug Enforcement Agency registration number of a long-closed facility.

The DEA registration number that the Texas Department of Criminal Justice uses to a obtain drugs used for lethal injection is issued to the Huntsville Unit Hospital. That hospital, built in 1935, used to be the main medical facility for inmates. But during state reforms to prison health care, the Huntsville Unit Hospital was replaced in 1983 with a facility at the University of Texas Medical Branch in Galveston.

At the Austin Chronicle, Jordan Smith posts, "TDCJ Violating Federal Drug Laws?"

According to lawyers for condemned inmate Cleve Foster, the Texas Department of Criminal Justice has been illegally purchasing lethal injection drugs. According to the attorneys, Maurie Levin of UT School of Law, and Sandra Babcock of Northwestern University School of Law, the state's prison agency has been purchasing controlled substances – including drugs used for lethal injections – under the Drug Enforcement Administration registration certificate assigned to an entity that hasn't existed for nearly 30 years. "[A]s a result, we believe that TDCJ is unlawfully in possession of an unlawfully dispensing controlled substances," the lawyers wrote in a letter to U.S. Attorney General Eric Holder.

The problem, it appears, is that TDCJ has been purchasing controlled substances under a registration number assigned to the system's Huntsville Unit Hospital, which, it turns out, has been closed since 1983. TDCJ medical services are provided by the UTMB, and although the med system has "numerous DEA registration numbers, none of them is actually registered to either the Huntsville Unit," which has been purchasing the drugs, or to the address listed on the registration. "DEA Registration numbers must be renewed every three years," write the lawyers, who are representing Foster, scheduled to be executed April 5. "Assuming the DEA registration number used by TDCJ last month to purchase controlled substances was one originally issued to the Huntsville Unit Hospital, TDCJ has failed, on information and belief, to advice the DEA for the past twenty-eight years of the fact that the Huntsville Unit Hospital no longer exists," and that what actually exists at that location is a prison unit with a warden that is "purchasing and dispensing controlled substances" with a number "registered to a nonexistent entity."

Uh-oh. That doesn't sound so good. And neither does this: According to the lawyers, it appears that the drugs aren't being kept at a pharmacy or by a DEA-registered handler. "At no point is an appropriately licensed or authorized practitioner involved in the dispensing process, and at no point is a prescription written to transfer the controlled substances to a member of the execution team," the lawyers write.

Earlier coverage of Texas' lethal injection drugs begins at the link.  Attorney Levin is also challenging the process in Texas' switch to pentobarbital, as noted at the link.

Additional News Coverage of the FDA Lawsuit

The civil law suit, Beaty v. FDA, is available in Adobe .pdf format.

Today's New York Times carries, "F.D.A. Sued Over Drug Used in Executions," by John Schwartz.

Lawyers in Washington sued the Food and Drug Administration on Wednesday on behalf of death-row prisoners, demanding that a Federal District Court prohibit importation and use of sodium thiopental, a drug used in many executions. When the sole supplier of the drug in the United States stopped producing it, executions were delayed in several states, and states obtained the drug from overseas suppliers. The agency has long said it has no authority over executions. The lead lawyer in the suit, Bradford A. Berenson, said it was “not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences.”

"Lawsuit seeks to block imports of key execution drug," is the USA Today post by Kevin Johnson,

The lawsuit alleges that large amounts of unapproved sodium thiopental have been imported by at least six states: Arkansas, Arizona, California, Georgia, Nebraska and Tennessee.

"Death Row Inmates Sue U.S. Over Importation of Execution Drug," by Tom Schoenberg for Bloomberg.

The suit said the FDA allowed states to import “bulk amounts” of thiopental, which hasn’t been sold in the U.S. since 2009 when the sole U.S. manufacturer, Hospira Inc., stopped producing it.

The inmates are seeking an injunction barring future imports of thiopental and the removal of supplies already in the possession of state governments.

The shipments of thiopental entering the U.S. originated from an Austrian facility owned by Sandoz International GmbH, a German company, according to the complaint. The drug was shipped to the U.S. from a London wholesaler, Dream Pharma Ltd., the complaint claimed. Dream Pharma bought the drug from a unit of Archimedes Pharma Ltd., a privately held company based in Reading, U.K., the inmates said in the complaint.

"US inmates challenge importation of execution drug," by Lucile Malandain for AFP.

Arizona used imported thiopental for the execution of Jeffrey Landrigan in October, with the approval of the Supreme Court, but under a flood of public criticism.

The last doses of thiopental made in the United States will reach expiration this spring, which will put American states that practice the death penalty at a crossroads.

"FDA's own regulations preclude the importation of any unapproved new drug and any drug that is not listed with FDA and produced at a registered foreign source," the lawsuit states.

They accuse the agency of being "arbitrary and capricious" and that its agents have "never inspected the processes used to manufacture the thiopental."

"Whatever one's views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions," Bradford Berenson, a lawyer for the plaintiffs, said in a statement.

"Ineffective anesthesia that subjects condemned prisoners to needless, and indeed unconstitutional, suffering serves no one's interests," he said.

Michael Kiefer files an updated report for today's Arizona Republic, "Execution drugs: Arizona inmate lawsuit seeks FDA policing."

In mid-October, Donna Benjamin of the American Society of Health-System Pharmacists, which tracks drug shortages, said there were no approved manufacturers of thiopental outside the U.S., and the FDA wasn't aware of any sites making thiopental that would import it.

"Any import to alleviate a drug shortage would have to come from an FDA-approved source," she said.

And Shelly Burgess, a spokeswoman for the FDA, told The Republic in October, "For any product that is planned to be made available in the U.S., FDA would have to first evaluate any potential risks associated with that product including where it is manufactured and whether it meets FDA quality standards."

In November, Dr. Murray Lumpkin, a deputy FDA commissioner, told British government officials, "There are no approved or permitted foreign sources of sodium thiopental."

Nevertheless, the drug was getting through customs, signed off by FDA.

Five shipments from Dream Pharma were seized in Memphis by the FDA between June and November. But all were eventually released.

The Arizona shipment sailed through Customs in Phoenix with approval of the Los Angeles office of the FDA on Sept, 29. According to Cattani, the state has since obtained another shipment.

But then, the FDA changed its tune.

On Dec. 30, Burgess told The Republic that the agency would exercise "enforcement discretion" on the matter.

"Reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA's explicit public health role," she said. The agency would "continue to defer to law enforcement on all matters involving lethal injection . . . "

"Suit could halt executions in states, including Tennessee," is the report in today's Tennessean.

Wednesday's lawsuit demands that FDA follow its congressional mandate to screen "all commercial shipments of drugs, as well as all shipments of controlled substances."

It points out the diligence with which FDA prevents states and individuals from obtaining cheap prescription drugs from Canada, while allowing states to import sodium thiopental.

"The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law," said Bradford A. Berenson, a partner in the law firm Sidley Austin LLP, which filed the suit in Washington, D.C.

The firm has expertise in FDA licensing and is working with the Federal Public Defender's Office in Phoenix on the suit.

The suit asks the FDA to not only ban further imports of the drug but to recall the shipments that have already been delivered.

Earlier coverage of the FDA lawsuit begins at the link.

More on the FDA Suit

Nathan Koppel posts, "FDA Dragged Into Execution-Drug Controversy," at the Wall Street Journal Law Blog.

Last month, the FDA announced that it would permit prison officials to import thiopental to their hearts’ content. But the agency said it also would not vouch for the safety and purity of imported thiopental.

Today, six death-row inmates from Arizona, California and Tennessee sued the FDA in federal court, claiming the agency has violated federal law by allowing states to import thiopental that has not been reviewed for safety and purity.

The death-row inmates are represented by powerhouse law firm Sidley Austin and partner Bradford Berenson, a former associated counsel to president George W. Bush. “The FDA is improperly allowing drugs into the United States even though it won’t stand behind their safety and efficacy,” he said.

Berenson notes that he’s “never had a moral problem with the death penalty.” But, he said, thiopental serves a critical role in executions of rendering condemned inmates unconscious, so that they do not suffer severe pain during the process. “What we are trying to prevent with the suit are inhumane executions,” he said.

“This is the first serious attempt since at least 1985 to look at the FDA’s role in drug shipments to prisons,” said Fordham Law professor Deborah Denno.

“Reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA’s explicit public health role,” the FDA said in a statement. “FDA does not verify the identity, potency, safety, or effectiveness of substances imported for this purpose.”

Coverage of the the civil suit begins at the post; Beaty v. FDA, here.

Lawsuit Filed Against FDA Over Imported Sodium Thiopental

"Lawsuit Filed Against FDA To Prohibit The Importation And Use Of Unapproved Sodium Thiopental In Lethal Injections," is the news release issued by attorneys for the inmate plaintiffs.  The civil lawsuit, Beaty, et al. v. FDA, is available in Adobe .pdf format 

Here's the entire text:

Washington, D.C. – Today, on behalf of six death-row prisoners from California, Arizona, and Tennessee, Sidley Austin LLP filed suit against the Food and Drug Administration (FDA) seeking to prohibit FDA from allowing the importation or use of unapproved sodium thiopental. During the past year, FDA has knowingly permitted unapproved sodium thiopental to be imported by state corrections agencies for use in executions by lethal injection. According to Bradford A. Berenson, a partner in the firm’s Washington, D.C. office, “The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law.”

The Complaint alleges that FDA is required to deny admission to any drug that is unapproved, misbranded, or adulterated. Sodium thiopental recently imported by various states for use in lethal injections is all three. Because sodium thiopental has not been approved by FDA—meaning that FDA has made no determination of its safety, effectiveness, purity, potency, or any other characteristic—it cannot legally be imported into the United States. Plaintiffs allege that FDA has violated U.S. federal law and acted in a manner inconsistent with its own prior policies and practices by allowing importation of the unapproved drug.

Berenson noted that the lawsuit is “not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences.” Because unapproved sodium thiopental has not been shown to work as intended, using it in executions creates unacceptable risks that prisoners will not be properly anesthetized before the other drugs used in lethal injection protocols stop the prisoners’ breathing and induce cardiac arrest. “Whatever one’s views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions,” Berenson said.

“Ineffective anesthesia that subjects condemned prisoners to needless, and indeed unconstitutional, suffering serves no one’s interests, least of all the states’.”

FDA’s decision to allow the importation of unapproved sodium thiopental is unprecedented. The clear command of the federal Food, Drug, and Cosmetic Act (FDCA) is that no unapproved drug may be imported. For that reason, FDA has consistently maintained that no one—including state governments—may lawfully import unapproved drugs for commercial use. In fact, in other contexts, FDA has repeatedly sent letters to state and local governments, denied permission requests, and taken law enforcement measures against states and firms seeking to import unapproved drugs.

Today’s lawsuit asks the federal district court in Washington, D.C. to declare that FDA has violated the law, enjoin it from allowing any further shipments of unapproved sodium thiopental into the United States, and take reasonable steps to recover and destroy the unlawful, unapproved product previously admitted for use by the states. According to Coleen Klasmeier, a partner in Sidley’s Washington D.C. office and head of the firm’s Food, Drug and Medical Device Regulatory practice, “Assuring drug safety and efficacy is the bedrock of FDA's public health mission. We are asking FDA only to fulfill its duty to secure the border against the unlawful importation of potentially substandard and dangerous unapproved drugs.”

Records obtained through requests under various open records laws show that large amounts of unapproved sodium thiopental have been imported into the U.S. by at least five states with the knowledge and acquiescence of FDA. The records suggest that the imported drug was manufactured in Austria and sold by a broker sharing space with a driving school in London to state officials in Arizona, Arkansas, California, Georgia, and Tennessee. Nebraska recently announced that it obtained the drug from India.

Sodium thiopental for injection has never been approved for use by FDA, and there are currently no domestic producers of the drug. There are, however, adequate FDA-approved alternatives available for use in lethal injections.

The Arizona Republic posts, "Arizona inmate lawsuit seeks FDA policing."  It's written by Michael Keifer.

Lawyers for three Arizona Death Row prisoners filed suit in federal court in Washington, D.C., this morning to force the U.S. Food and Drug Administration to police foreign imports of a drug used in execution by lethal injection.

Arizona inmates Donald Beaty, Daniel Cook and Eric King are joined in the suit by Death Row prisoners from Tennessee and California, states which have also recently imported the anesthetic sodium thiopental from Great Britain.

Thiopental has been in short supply since last May because the only U.S. manufacturer of the drug ceased production in 2009.

Though the FDA as recently as last November stated publicly that there was no authorized way to import thiopental, at least five states including Arizona imported the drug secretly from a pharmaceutical supply house in London last summer and fall.

Some of the shipments were detained by the FDA in Memphis for weeks or months, but all eventually were allowed through.

At the end of December, the FDA announced that it would exercise "enforcement discretion" regarding thiopental imports for execution and allow them to enter the country with little more than a caveat that they have not examined the quality of the drug.

Today's lawsuit demands that FDA follow its congressional mandate to screen "all commercial shipments of drugs, as well as all shipments of controlled substances."

And:

Furthermore, the suit claims, "FDA is without authority to allow shipments of unapproved new drugs, misbranded drugs or adulterated drugs into this country."

The suit asks the FDA to not only ban further imports of the drug, but to recall the shipments that have already been delivered.

The inital AP report is, "Inmates Challenge Use Of Ark. Execution Drug," via KHBS-TV.

Eight inmates on Arkansas' death row have filed a court challenge over the state's purchase of a drug used as an anesthetic during executions, claiming there may be a problem with its production.The Arkansas Democrat-Gazette reported Wednesday that the suit seeks an order barring use of sodium thiopental unless it is approved by the Food and Drug Administration.The drug is no longer manufactured in the United States, and the suit claims an imported version can't be guaranteed to work without oversight from the federal government.

Earlier lethal injection coverage begins at the link; also, more on the FDA role.  Related posts are in the lethal injection index.

The Tyrone Williams Case Ends With Resentencing

It started as a high visibility 2006 federal death penalty prosecution, following a horrific 2003 episode in which 19 illegal aliens died after being smuggled into Texas in the back of a tractor trailer.  

"Texas: New Sentence in Smuggling," is the AP brief from Tuesday's New York Times.

A truck driver was resentenced to nearly 34 years in prison on Monday after a federal appeals court last year overturned the life sentences he received in America’s deadliest human smuggling attempt, in which 19 illegal immigrants died. The new sentence for the driver, Tyrone Williams, is equal to the longest prison term he had received in the case, for another count that was upheld on appeal. Prosecutors said that Mr. Williams heard the immigrants screaming as they were succumbing to heat inside his tractor trailer, but that he refused to free them.

"Driver in 2003 smuggling deaths resentenced," is the Victorial Advocate report by Gabe Semenza.

A federal judge on Monday resentenced Tyrone Williams to 34 years in prison for his role in the 2003 deaths of 19 illegal immigrants.

Because Williams, 40, likely will appeal the sentencing, the case is far from closed. Monday's hearing only added another twist to a landmark trial.

In May 2003, Williams abandoned his sealed tractor-trailer in Victoria. Inside: dead or dying illegal immigrants, the byproduct of a botched smuggling attempt.

The 40-year-old became the first person federal prosecutors targeted for the death penalty under a 1994 immigration law.

That law states if anyone transports, smuggles or harbors illegal immigrants in this country, and the act results in death, the convicted can face execution.

Of the 64 human smuggling tragedies that ended in death between 1994 and 2002, however, no smuggler ever faced the death penalty until Williams.

And:

Craig Washington, a 68-year-old former Texas state senator and Houston congressman, represents Williams.

Washington, who was in Victoria the morning law enforcement found the bodies, later stepped away from the case because of health reasons and rejoined it in November. He is widely credited for steering the second jury away from the death penalty.

"The government has spent $7.2 million prosecuting and attempting to get the death penalty for one man," Washington said after the hearing on on Monday. "It turns out that money was all wasted. Today's sentencing was the best that we could have hoped for."

Susan Carroll writes, "Trucker gets 34 years in immigrant deaths," for the Houston Chronicle.

U.S. District Judge Lee Rosenthal sentenced 40-year-old Tyrone Williams to a 405-month term in connection with the deaths of 19 illegal immigrants in Williams' insulated tractor-trailer truck in May 2003.

Williams broke down before Rosenthal pronounced the sentence, crying and calling the deaths an "accident."

"I live with regret every day of my life," Williams said.

Earlier coverage begins the post, "Fifth Circuit Overturns Tyrone Williams' Sentence."  Related posts are in the federal death penalty index.

Reforms Needed to End Injustices

That's the title of an editorial in today's San Antonio Express-News. 

A strand of hair was the single piece of evidence linking Claude Jones with a 1989 murder that took place in Point Blank, north of Houston. By the forensic standards of the day, the hair was a match — enough to put Jones on death row. And it was the key evidence cited in a 3-to-2 decision of the Texas Court of Criminal Appeals to keep him there.

The strand of hair had, however, never been tested for a DNA match with Jones — until last month, when a lab in Pennsylvania found conclusive evidence that the DNA in the hair matched the murder victim, not Jones.

That would be good news for Jones, if he were still alive. The state of Texas executed him on Dec. 7, 2000, with Jones maintaining his innocence.

And:

A statute that allows post-conviction DNA testing took effect in Texas in 2001. More reforms are needed.

At the state level, the Tim Cole Advisory Panel on Wrongful Convictions — named after another man who died while serving time for a crime he did not commit — has made 11 recommendations to the Legislature. They include the establishment of uniform policies for eyewitness identification, recording interrogations, legal discovery proceedings and post-conviction proceedings, as well as the creation of a Texas Innocence Commission.

At the national level, a bipartisan bill in the Senate would create a National Criminal Justice Reform Commission. The commission would identify best practices in the states that protect the innocent and enhance public safety.

There are now enough cases to demonstrate that injustices occur even in the most serious cases that supposedly have the most safeguards. Correcting those injustices should be a state and national priority.

More on the Claude Jones case at the link.  Earlier coverage of the Timothy Cole Advisory Panel on Wrongful Convictions begins with this post.  The panel's the Report and a volume of Research Details are available in Adobe .pdf format.  More on Tim Cole's wrongful conviction and posthumous exoneration  begins here.

Claude Jones - Looking Backwards, Looking Forward

"The DNA non-redemption," is the title of a Los Angeles Times editorial.  It appeared in the Saturday edition.

In 1990, a Texas jury convicted Claude Jones, a career criminal, of murdering Allen Hilzendager.

Jones and another ex-convict, Danny Dixon, had stopped their truck at Hilzendager's liquor store in Point Blank, Texas. One of the men got out, entered the store and shot Hilzendager. Jones blamed Dixon and Dixon blamed Jones, but Jones was eventually convicted of pulling the trigger on the basis of one person's testimony (subsequently recanted) and on one piece of physical evidence: a strand of hair found inside the store and identified as Jones' by a crime lab expert. That hair tipped the balance between life and death, because Texas law requires corroborating physical evidence in a capital case. Dixon is serving a life sentence; Jones was put to death in 2000.

This month, however, a DNA test determined that the hair did not belong to Jones after all; it belonged to the victim. With no physical evidence, there is now no legal basis for Jones' death sentence.

Some may argue that this miscarriage of justice was an aberration. But Texas' rapid pace of executions, coupled with its abysmal standards for effective representation for defendants, have long made the likelihood of wrongful executions exceedingly high. The state offers a prime example of why the death penalty, which requires 100% accuracy, is so difficult to mete out fairly.

Innocence Project Co-Founder Barry Scheck wrote the OpEd, "Capital Punishment and Human Fallibility," for the weekend edition of the Wall Street Journal.

On Friday, Dec. 7, 2000, as the world waited for a decision from the Florida Supreme Court on whether the recount of that state's presidential ballot should continue, Texas Governor and soon-to-be President George W. Bush was provided with a final memo from his Counsel's Office on the fate of death-row inmate Claude Jones.

He was advised to reject Jones's application for a 30-day reprieve because there was "no doubt about guilt." Jones had received "full and fair process" in the courts, and "Jones' hair matched a hair found at the crime scene."

Incredibly, Mr. Bush was not told that lawyers for Jones had requested the 30-day reprieve so that a mitochondrial DNA test could be performed on this hair, the key piece of evidence in the case and the only piece of physical evidence tying him to the crime scene. Jones was executed by lethal injection that day.

Earlier this month, after six years of litigation, that hair was finally tested. On Nov. 11, Mitotyping Technologies, a private lab in State College, Pa., found that it did not come from Claude Jones, but from the victim of the crime. If this DNA test had been done in December 2000, Claude Jones would not have been executed, and his conviction would likely have been reversed.

The case might have been dismissed altogether because the hair "match" was the key evidence cited in a 3-to-2 decision of the Texas Court of Criminal Appeals to meet a requirement of Texas law that the accomplice testimony used to convict Jones be corroborated.

And:

There is growing bipartisan recognition that there are a set of reforms that can make the criminal-justice bureaucracy more accurate, accountable and cost-effective. We can learn from our mistakes, including those made in the hours before Claude Jones's execution. Sen. Jim Webb (D., Va.), along with 39 co-sponsors including Sens. Lindsey Graham (R., S.C.) and Orrin Hatch (R., Utah), is sponsoring a bill already approved by the House to establish a National Criminal Justice Reform Commission.

The Webb bill would lay out a blueprint of best practices that have proven effective, including ways to reduce prison populations without endangering public safety and investigative procedures that protect the innocent while enhancing the capability of law enforcement to apprehend the guilty. And it would also help prevent wrongful convictions, including in death-penalty cases, by evaluating past procedures and recommending improvements and guidelines. But if the bill is not passed in this brief lame-duck session, it will almost certainly perish, another casualty of partisan gridlock.

Earlier coverage of the Claude Jones case begins with the post, "Why the Claude Jones Case Matters."

Federal Roundup

"Democrats Plan Votes on Controversial Nominees," Senator Says," is David Ingram's post at Legal Times' BLT.

President Barack Obama's nominees for the federal judiciary have stalled for months in part because of heated disagreement over a handful of nominees. Now, Senate Democrats are looking at forcing votes on four of them.

Sen. Sheldon Whitehouse (D-R.I.) said today that Democrats could move soon to end debate on the nominees. He said that Majority Leader Harry Reid (D-Nev.) was lining up support this morning for what’s known as a cloture petition — the necessary paperwork before holding a vote to end debate.

“He’s lining up the signatures,” Whitehouse said after a meeting of the Senate Judiciary Committee. Such a petition requires 16 signatures.

Whitehouse is a vocal supporter of one of the nominees who have drawn fire: John McConnell Jr., a Motley Rice partner who’s been nominated for federal district court in Rhode Island. The U.S. Chamber of Commerce is opposing McConnell’s nomination, citing his work as a plaintiffs’ lawyer on lead paint litigation and other cases.

The other three nominees whom Reid is trying to force votes on, Whitehouse said, are Goodwin Liu for the U.S. Court of Appeals for the 9th Circuit, Edward Chen for the Northern District of California and Louis Butler for the Western District of Wisconsin. Republicans have targeted all three because of what they call the nominees’ extreme views, while the nominees’ home-state senators and other supporters argue they’re being treated unfairly.

A fifth nominee whom Republicans oppose, Judge Robert Chatigny for the 2nd Circuit, is pending before the Senate Judiciary Committee. A committee vote is planned for Thursday.

And:

A group of circuit and district court judges from the 9th Circuit sent a letter this week to Senate leaders asking for quicker action on nominees. The signatories include 9th Circuit Chief Judge Alex Kozinski.

"In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission," the letter (PDF) says. "While there are many areas of serious need, we write today to emphasize our desperate need for judges."

Also, the New York Times' Caucus blog notes, "Laurence Tribe Is Leaving Justice Job."

After nine months as the Justice Department’s “senior counselor for access to justice,” Laurence H. Tribe, a prominent Harvard law professor and mentor to President Obama, will leave his position and return to Massachusetts early next month.

The department has begun sending out invitations to a farewell reception for Mr. Tribe on Dec. 3, his last day in the position. In a phone interview, Mr. Tribe, 69, confirmed that he is leaving and cited medical reasons: he has been having a recurrence of facial seizures and other symptoms associated with a benign brain tumor, which was diagnosed in 2008.

He said he decided several months ago to leave at the end of the year because he wants to be closer to Massachusetts General Hospital, where he is receiving treatment. He says he still intends to resume teaching at Harvard Law School in the fall term of 2011, when his two-year leave of absence will be complete.

And:

During Mr. Tribe’s brief tenure, he traveled around the country meeting with judges, prosecutors, public defenders, and legal aid workers, in an effort to find places where access to the justice system could be improved for ordinary people. He said he was pleased with the ways his office had found “to create a much more energized network, even though the problems are pervasive and cannot be transformed overnight.”

In partnership with other agencies, Mr. Tribe’s office pushed programs to increase training and collect more data about indigent defense, use the Internet to expand legal services to poor people in rural areas, strengthen legal services for victims of domestic violence, and expand mediation as an alternative to lawsuits for people involved in foreclosures.

Still, Mr. Tribe said he was frustrated by the inability to do much that required legislation, given the difficulty in moving anything through Congress, but learned to live with that limitation and to focus on pragmatic things that could be done with existing budgets and legal authorities.
As an example of what he portrayed as a “trivial” yet memorable improvement, he said that at his suggestion, a courthouse in Los Angeles changed a sign that said “unrepresented pro se litigants” to the plain-English “people without lawyers.”

Earlier coverage of the federal judiciary and Professor Tribe at the links.

En Banc 3rd Circuit Set to Hear DNA Samples Case

That's the title of Shannon Duffy's report for Law.com / Legal Intelligencer.  LINK  Here's an excerpt from the beginning of the article:

When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal that is now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals.

At issue in United States v. Mitchell is perhaps one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant or wait for a conviction before taking a genetic sample.

The Justice Department's appeal in Mitchell was initially argued before a three-judge panel in April. But the court last week took the rare step of slating the case for en banc reargument without releasing a decision from the three judges.

One possible explanation for the court's latest action is that one of the three judges may have written a persuasive dissent that caught the attention of the other judges during the period when the decision was being internally circulated.

An audio recording of the April argument yields a slew of clues but nothing conclusive about how the three judges were viewing the case because they asked tough questions of both sides.

To understand the appellate argument, it's necessary to understand the lower court ruling that set the stage for the appeal.

In November 2009, U.S. District Judge David S. Cercone of the Western District of Pennsylvania ruled against the government and held that DNA sampling of arrestees violates the Fourth Amendment.

Prosecutors argued that Congress authorized such DNA sampling of arrestees and that it serves the compelling government interest of identifying a suspect even better than fingerprints or photographs.

But Cercone reasoned that DNA testing goes too far because a genetic sample can reveal much more than a suspect's identity.

Although arrestees have a "diminished expectation of privacy," Cercone concluded that the practice of routinely obtaining genetic samples from all arrestees must be struck down as unconstitutional.

Crack/Cocaine Sentencing Disparity Addressed

The New York Times report from yesterday's paper was, "Congress Moves to Narrow Cocaine Sentencing Disparity," written by Erik Ekholm.

The House of Representatives passed a bill on Wednesday that would reduce the disparities between mandatory federal sentences for crack and powder cocaine violations, a step toward ending what legal experts say have been unfairly harsh punishments imposed mainly on blacks.

The bill, which passed the Senate in March, was adopted by the House in a voice vote and now goes to President Obama for his signature.

Administration officials have described the sentencing disparity as “fundamentally unfair,” and Mr. Obama said during the 2008 presidential campaign that it “disproportionately filled our prisons with young black and Latino drug users.”

I'm noting this to point out a rich OpEd in today's Dallas Morning News by Baylor Law prof Mark Osler, "The slow fade of Len Bias' ghost."

Twenty-four years ago, a talented young player from the University of Maryland was drafted No. 2 overall by the Boston Celtics. Two days later, he was dead of a drug overdose.

This simple tragedy led to one of the most frivolous detours in American history – the onerous federal sentencing statute for crack, which was finally amended by Congress on Wednesday. The story of Len Bias is a wonderful example of the potential dangers of legislation based on anecdote rather than study and analysis.

And:

The result of the new law was startling: Thousands of black men received extraordinarily long sentences, yet at the same time, crack prices fell, indicating that supply was growing. In other words, we achieved mass incarceration while failing to address the underlying problem. We were imprisoning the wrong people. Crack is made out of powder cocaine and usually not "rocked up" until the street dealer handles it. Thus, the least culpable and most easily replaceable parts of the supply chain were the ones locked up.

An equivalent plan would be to try to close down America's Walmarts by arresting the greeters or stock boys.

Osler is the author of Jesus on Death Row .  An earlier OpEd he wrote is noted here.

Contraband Cell Phones

"Congress moves to crack down on prison cell phones," is the title of an AP report via the Washington Post.  It's written by Jim Abrams.

Congress moved Tuesday to make it tougher for federal prison inmates to use cell phones and wireless devices to direct criminal activities within or outside prison walls.

The House voted by voice to close a loophole in federal law by banning the use or possession of cell phones or wireless devices in federal prisons and classifying those devices as contraband.

Currently, cell phones and wireless devices are not specifically defined as contraband, and inmates and guards caught smuggling the devices into prisons are rarely punished.

The Senate has passed a similar bill.

Sen. Dianne Feinstein, D-Calif., sponsor of the Senate measure, cited a recent report from her state that found that inmates pay from $500 to $1,000 for a phone and that one corrupt correctional officer made some $150,000 in one year by smuggling cell phones to inmates.

And:

The legislation would subject anyone trying to provide a cell phone to an inmate to up to a year in prison.

Rep. Bobby Scott, D-Va., said one reason that prisoners try to obtain cell phones is that they are required to call collect, at considerably more cost, when they make legitimate calls to their families. The bill requires the compiling of a study looking at the costs of providing prisoners with telephone service.

The bill is S. 1749.  Earlier coverage of the issue in Texas begins here.

Federal Review of State Death Sentences

"Congress must rewrite the law governing lawyers for poor death-row inmates," is the title of an editorial in today's Washington Post.

THERE IS something disturbing and distasteful about allowing states to take shortcuts in their quests to put convicts to death. But that is the essence of a deal Congress struck with the states in the mid-1990s. States that guaranteed and paid for a robust system of legal representation for poor death-row inmates could fast-track federal appeals of state capital-punishment convictions. To qualify, a legal defense program had to be certified as acceptable by the federal courts.

After nearly a decade, not a single state qualified. Some in Congress blamed the courts, arguing that judges were either imposing standards that were impossible to meet or were blocking certification because they objected to shortened court deadlines. In truth, the few states that applied for the program often had the biggest death-row dockets and the worst indigent defense systems. The courts, in other words, were right to reject these applications.

This did not sit well with some in Congress, which changed the law in 2006 to give the U.S. attorney general -- and not the courts -- the authority to certify the programs. The attorney general now is obligated to approve an application if the state has "established a mechanism for the appointment of counsel for indigent prisoners under sentence of death" and has set up a "mechanism for compensation" for appointed attorneys.

These provisions are so lax that choosing lawyers by shoe size and paying them with bubble gum could meet the test. In its waning days, the Bush administration only made matters worse by issuing rules for implementing the law that failed to provide clear and robust guidance or standards.

Earlier coverage begins with this post; related posts are in the federal legislation index.

A Summit on the Constitutional Right to Counsel

The Constitutional Right to Counsel Summit will be held Tuesday, June 15th, from 2:00 pm to 5:00 p.m., in Room 2141 of the Rayburn House Office Building, in Washington, DC.  The event is open to the public.

The Summit will bring together members of Congress, congressional staff, judges, prosecutors, scholars, public defenders, and other legal practitioners to discuss the impact the current public defense crisis is having on the effective operation of states' criminal justice systems and examine the federal government's role in ensuring that every state meets its Sixth Amendment responsibility to provide competent counsel.

Rep. John Conyers (D-MI), chair of the House Judiciary Committee, and Rep. Bobby Scott (D-VA), chair of the House Crime Subcommittee, are co-sponsoring the Summit.

Panel 1: The Right to Counsel Crisis in the States

John Chisholm, District Attorney, Milwaukee County, Wisconsin
Alan Crotzer, Exoneree and Probation & Community Intervention Officer, Florida Department of Juvenile Justice
Carlos Martinez, Public Defender, Miami-Dade County, Florida
Hon. Carolyn Temin, Senior Judge, Court of Common Pleas, First Judicial District of Pennsylvania
Hon. Michael Wolff, Judge, Suprme Court of Missouri
Moderator - Melanca Clark, Counsel, Brennan Center for Justice at NYU School of Law

Panel 2: The Federal Response to the Right to Counsel Crisis

Nancy Diehl, Former Prosecutor, Wayne County Michigan; President, State Bar of Michigan (2004-2005)
George Kendall, Of Counsel and Director of Public Service Initiative, Squire, Sanders & Dempsey LLP, New York
Norman Lefstein, Professor of Law & Dean Emeritus, Indiana University School of Law - Indianapolis; Chair, Indigent Defense Advisory Group, American Bar Association Standing Committee on Legal Aid and Indigent Defense
Laurence Tribe, Senior Cousel for Access to Justice Initiative, U.S. Department of Justice
Moderator - Virginia Sloan, President, The Constitution Project

Related posts are in the indigent defense index.

Oral Argument in Magwood v. Patterson

Yesterday, the Supreme Court heard Magwood v. Patterson, an Alabama death penalty case.  The transcript is in Adobe .pdf format.

Today's New York Times reports, "Court Weighs Timing of Death Row Appeal."  It's written by Adam Liptak.

As is his custom, Justice John Paul Stevens did not ask a question on Wednesday until the lawyer before him had almost finished his argument. When Justice Stevens did speak up, it was in a seeming effort to guide his colleagues on the Supreme Court toward what he considered to be the central argument advanced by the death row inmate in the case.

“Let me just ask,” Justice Stevens said, “is this the case in which the claim is he’s ineligible for the death penalty?”

Corey L. Maze, Alabama’s solicitor general, said that was so.

“The merits of the claim have never been decided?” Justice Stevens went on.

Mr. Maze said no, adding that the question should be left unresolved and that the inmate should be executed because his lawyers had raised the issue too late.

The other justices had been focused solely on that procedural question, and it was not clear whether Justice Stevens’s attempt to reorient their thinking had had any effect.

The inmate, Billy Joe Magwood, shot and killed an Alabama sheriff in 1979. At the time, Alabama law allowed defendants to be sentenced to death only if they had committed murders in connection with at least one of several listed “aggravating circumstances.”

Though Mr. Magwood’s crime did not fit any of those circumstances, he was sentenced to death in 1981. In 1985, a federal judge ordered Mr. Magwood resentenced for unrelated reasons, and he was again sentenced to death the next year.

Over the years, Mr. Magwood’s lawyers have challenged his sentence on various grounds, but it was not until 1997 that they raised the question of whether his was a capital crime under Alabama law in the first place.

A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, imposes strict limits on successive federal habeas corpus petitions. Under the law, a second petition challenging Mr. Magwood’s original 1981 death sentence would almost certainly be barred.

But Jeffrey L. Fisher, a lawyer for Mr. Magwood, said his client was challenging his 1986 resentencing for the first time.

“You can’t waive something by failing to raise it in a different case,” he said. “This is an entirely different case.”

"Court to decide if man can fight death sentence," is the AP report by Jesse Holland, via Google News.

The Supreme Court on Wednesday questioned whether an Alabama death row inmate can challenge his second death sentence with an argument state officials said he didn't use when he was first sentenced to die for shooting a county sheriff.

Lawyers for Billy Joe Magwood want to argue that Alabama law was changed to make Magwood's crime a capital offense after it had already been committed.

Defendants aren't allowed to appeal using arguments that could have been brought in the original case, but Magwood's lawyers say that since he was sentenced to die a second time, he should be able to use a new argument in his second round of appeals.

"If it's the second time around, then it's just barred," Justice Anthony Kennedy said.

"Well, it shouldn't be barred. Because it's a new judgment, the defendant should be able to get relief the second time around," said Jeffrey L. Fisher, Magwood's lawyer.

Magwood, 58, has been on Death Row since 1981 for the shooting death of Coffee County Sheriff Neil Grantham in 1979. He got that death sentence thrown out, but then was resentenced to death.

A federal judge overturned the new death sentence after Magwood complained that state law was changed to make his crime a capital offense after it had already been committed. But the 11th U.S. Circuit Court of Appeals in Atlanta reinstated the death penalty, saying Magwood should have complained about the change in Alabama state law in his first round of appeals.

The Birmingham News has, "Some U.S. Supreme Court justices express reservations as Alabama Death Row inmate seeks new appeals opportunity," by Mary Orndorff.

Earlier coverage begins here.

News Coverage of Holland v. Florida"

Marcia Coyle writes, "Justices Debate Whether Lawyer Negligence Can Extend Habeas Deadline," for National Law Journal.  ScotusWiki has full briefing in Holland v. Florida.

The U.S. Supreme Court on Monday struggled with just how bad a lawyer must be to warrant stopping the clock on the time for filing a prisoner's federal habeas petition.

In Holland v. Florida, the justices confronted two issues: whether the one-year deadline for filing habeas petitions under the Antiterrorism and Effective Death Penalty Act can be tolled for equitable reasons, and whether a lawyer's gross negligence is one of those reasons for halting the clock.

The issues stem from the death penalty conviction of Albert Holland in 1991. After his conviction became final in 2001, Holland had 365 days to file a federal habeas petition. The state of Florida appointed Bradley Collins to represent him in state post-conviction proceedings and Collins filed a state post-conviction motion 351 days into the one-year federal state of limitations. That motion stopped the clock on the one-year deadline, but the clock would resume moving once his post-conviction motion was denied -- leaving him only 14 days in which to file the federal petition. Collins ultimately missed that deadline.

On Monday, Todd Scher of the Law Office of Todd G. Scher in Miami Beach, Fla., told the justices that the 11th U.S. Circuit Court of Appeals was wrong when it held that attorney negligence, even gross negligence, does not entitle a habeas petitioner to a tolling of the limitations period absent additional allegations of "bad faith, dishonesty, divided loyalty, mental impairment or so forth."

What happened in Holland's case, Scher said, "goes beyond garden-variety negligence." He recounted how Holland repeatedly told Collins that he wanted to preserve his right to file a federal petition if his state petition was denied. Collins did not keep in close communication with Holland. The death row inmate made several pro se motions in attempts to remove Collins from his case. Holland, with an eye on the federal filing deadline, also contacted the clerk of the Florida Supreme Court several times to check on the status of his post-conviction appeal when Collins was nonresponsive. His pro se motions were dismissed because, the state argued successfully, he was represented by counsel. More than a month after the Florida Supreme Court issued its decision, Holland learned of the decision after getting access to the prison's library.

When pressed by Justice Samuel Alito Jr. on what the test should be for tolling the limitations period in situations involving attorney negligence, Scher replied, "Extraordinary circumstances coupled with the petitioner's diligence. It's a case-by-case determination. Here we had lack of notice to the petitioner that the state court decision had issued and a failure to communicate."

And:

Eleven circuits agree that equitable tolling is available under the federal statute. The Supreme Court has never explicitly ruled on the issue.

IRS Should Stay Away From Exoneree Payments

That's the title of a Dallas Morning News editorial from the Wednesday edition.  LINK

The motive behind the Timothy Cole Act, passed overwhelmingly by the Legislature last year, could not have been clearer: to create a fair system of compensation for those wrongfully sent to prison. Named after a Texas Tech student who died in prison an innocent man, the law's goal was to make exonerees as financially whole as possible for the injustice committed against them.

The idea was never to turn injustice into a taxation opportunity for the IRS.

Exoneree John Michael Harvey is due $600,000 in compensation for the 12 years he spent in prison for a crime he didn't commit. Now the Internal Revenue Service is demanding its share, as if the compensation for Harvey's lost years were the payout for a winning lottery ticket.

According to the IRS, such compensation is taxable unless it is for pain and suffering caused "in connection with a physical injury or sickness." Without physical evidence of his pain and suffering, the IRS sees no reason to exempt Harvey's compensation.

A co-sponsor of the Timothy Cole Act, State Rep. Rafael Anchía of Dallas, says a relatively simple fix by Congress would stop the IRS from adding insult to injury. The best way, he says, is to revise federal tax code to state unequivocally that compensation for wrongful imprisonment is exempt from taxation. Another way is for federal tax law to define mental pain and suffering from wrongful imprisonment equal to the physical pain.

Related posts are in the exoneration and innocence indexes.

The State of Indigent Defense

The U.S. Department of Justice hosted a two day symposium on indigent defense on Thursday and Friday in Washington, DC.

The BLT reports, "Justice Dept. Pledges Support to Indigent Defense Reform."  It was posted by Mike Scarcella on Friday afternoon.

Top leaders at the U.S. Justice Department have rotated in and out of the Mayflower Hotel in Northwest Washington over the past few days, each declaring the department's commitment to indigent defense reform.

This afternoon it was Assistant Attorney General Lanny Breuer's turn to deliver remarks in front of several hundred people, many of them public defenders from around the country.

“A strong criminal defense bar is absolutely crucial to the efficacy of any adversarial judicial system,” said Breuer, head of the Criminal Division.

Breuer, a former Covington & Burling partner who focused on white collar criminal defense and served as vice chairman of the pro bono practice, spoke generally about the Justice Department’s examination of the sentencing disparities in crack and powder cocaine cases. And he said the department is looking closely at ways to reduce recidivism.

Breuer in his remarks spent several minutes on a history lesson tied to the public defense bar--recounting the Boston Massacre trials and a defense lawyer named John Adams (who later became the country's second president). Adams, Breuer said, agreed to represent soldiers at trial on murder charges despite the unpopularity of the defendants at the time. Representing the men, Breuer said, may have been "career suicide."

On Thursday, Attorney General Eric Holder addressed the symposium.  His speech, "Looking Back, Looking Forward, 2000-2010," is at the DoJ website.

For well over two centuries now, we, as a people, have been striving to build a more perfect union – an America that lives up to the vision of our Founders. A country where the words of our Constitution can, finally, reach the full measure of their intent.

It is no less than this ongoing work – the fulfillment of our Constitution – that brings us together today. I’m here to discuss a responsibility that we, as stewards of our nation’s criminal justice system, all share – a responsibility to ensure the fairness and integrity of that system.

I would argue that our criminal justice system is one of the most distinctive aspects of our national character. And I also would argue that it is one of the most praiseworthy. That said, we must face facts. And the facts prove that we have a serious problem on our hands.

Nearly half a century has passed since the Supreme Court’s decision in Gideon v. Wainwright. The Court followed with other decisions recognizing the right to counsel in juvenile and misdemeanor cases. Today, despite the decades that have gone by, these cases have yet to be fully translated into reality.

And:

In particular, I think our common work must have three areas of focus. I’ve touched on each of these goals over the last year. But all of them are worth mentioning here again today.

First, we must commit to an ongoing dialogue about these issues. We need partners at the federal, state, and local levels, both within and outside of government, to be involved. By sharing information and working together, I believe we can build on the good work that has gone into developing model standards for our public defense systems.

Second, we must raise awareness about what we’re up against. As Americans understand how some of their fellow citizens experience the criminal justice system, they will be shocked and angered – feelings I hope would compel them to become advocates for change and allies in our work.

Third, we must expand the role of the public defender. We must encourage defenders to seek solutions beyond our courtrooms and ensure that they’re involved in shaping policies that will empower the communities they serve. I’m committed to making sure that public defenders are at the table when we meet with other stakeholders in the criminal justice system. I have charged the Department’s leadership with calling on our components to include members of the public defense system in a range of meetings. We will also involve defenders in conferences, application review panels, and other venues where a public defense perspective can be valuable. And it should not go without saying – every state should have a public defender system. Every state.

Related articles are in the indigent defense category index.  Earlier coverage of Attorney General includes:

• Attorney General Eric Holder Address the ABA Annual Meeting
• AG Eric Holder Speaks at Vera Institute
• DoJ Announces Commitment to Public Defenders, Legal Aid

More Supreme Court News

This post contains news of a ruling today, a ruling on jury selection procedures in Georgia, and an argument preview in a case involving AEDPA.

The Court this morning ruled against an Alabama death row inmate in Wood v. Allen.  The opinion is here, in Adobe .pdf format.  AP reports, "Supreme Court upholds death penalty for mentally impaired Ala. man with inexperienced lawyer," via Newser.com

The court, in a 7-2 vote, refused to overturn the death sentence of Holly Wood, who was convicted in the shooting death of his former girlfriend, Ruby Lois Gosha, in 1993. She was killed by a shotgun blast to her head as she slept in her home in Troy, Ala.

A federal judge had tossed out the death sentence on the basis of the poor performance of Wood's lawyer in the sentencing phase of his trial. The lawyer, described in court papers as lacking criminal law experience, failed to tell jurors that Wood had an IQ of less than 70 and had been classified as mentally retarded.

The Atlanta-based 11th U.S. Circuit Court of Appeals reinstated the death sentence, ruling that Wood had failed to show that the lawyers was unconstitutionally ineffective.

The Supreme Court agreed. "Even if it is debatable, it is not unreasonable to conclude that ... counsel made a strategic decision not inquire further into the information contained in the report about Wood's mental deficiencies and not present to the jury such information," Justice Sonia Sotomayor said.

She was joined in the opinion by Chief Justice John Roberts and Justices Antonin Scalia, Ruth Bader Ginsburg, Clarence Thomas, Stephen Breyer and Samuel Alito.

Justice John Paul Stevens and Anthony Kennedy dissented, with Stevens saying he cannot see why Wood's lawyer did not investigate or present "powerful mitigating evidence of Wood's mental deficits for the penalty phase" of the trial.

Earlier coverage of the case is here.

There is news coverage of the Court's ruling in Presley v. Georgia, concerning the openness of jury selection.

"High Court Justices Underscore Importance of Open Criminal Trials," is the title of Tony Mauro's NLJ report. 

The U.S. Supreme Court on Tuesday strengthened the right to public criminal trials, ruling in a Georgia case that jury voir dire proceedings should be open to defendants and to the public.

In an unsigned 7-2 ruling in Presley v. Georgia (pdf), the high court also said that a trial judge has a duty to seek alternatives that will preserve openness even when, for example, it appears that there are so many prospective jurors in the courtroom that there are not enough seats for the public.

"Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials," the Court majority stated. "The public has the right to be present whether or not any party has asserted the right."

Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, asserting that the case should have been decided only after full briefing and oral argument. Thomas also wrote that the ruling "belittles the efforts of our judicial colleagues" who have to interpret conflicting precedents on the issue. Per curiam decisions like the one in Presley usually occur without any oral argument or briefing beyond the initial petition and response, and deal with relatively uncontroversial issues.

And:

Defendant Eric Presley was convicted by a Georgia jury on cocaine trafficking charges, but he challenged the trial judge's exclusion of the public -- Presley's uncle, specifically -- during voir dire of prospective jurors.

The judge, DeKalb County Superior Court Judge Linda Hunter, justified the exclusion by telling the man, who was the only person in the audience, that prospective jurors would be filling the seats, and "you can't sit on the same row with the jurors." Presley's lawyer objected, but the judge still excluded the man, stating, "We have very small courtrooms and the witnesses and relatives cannot sit in the audience beside the potential jurors. That will be grounds for a mistrial."

A divided Georgia Supreme Court in March 2009 upheld the conviction, ruling that the judge had "an overriding interest" in protecting potential jurors from taint. It also ruled that the judge was not obliged to consider alternatives when none of the parties offered any.

Leah Ward Sears, then chief justice of Georgia, dissented, stating, "A room that is so small that it cannot accommodate the public is a room that is too small to accommodate a constitutional criminal trial." Carol Hunstein, the current chief justice, joined her dissent.

Adam Liptak writes, "Supreme Court Rules on Trial Conduct in Georgia," for the New York Times.

Joan Biskupik writes, "Supreme Court: Jury selection should be open," for USA Today.

Finally for today, SCOTUS Blog previews the case Berghuis v. Smith in "AEDPA and the Sixth Amendment’s 'Fair Cross-Section' Requirement."  It's written by James Bickford.

Today the Court will hear oral argument in Berghuis v. Smith, the latest in the line of cases tracing the limits of habeas corpus review under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.  AEDPA precludes federal habeas relief when a state court has adjudicated a federal claim on its merits, unless the state court ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”  In Terry Williams v. Taylor (2000), the Court held that under AEDPA, federal habeas relief is available only when a state court’s application of federal law is objectively unreasonable, rather than merely incorrect.

At issue in this case is the intersection of AEDPA and the Court’s precedents governing jury selection.  In Taylor v. Louisiana (1975), the Court held that the Sixth Amendment guaranteed a jury drawn “from a representative cross section of the community.”  Four years later, in Duren v. Missouri (1979), the Court outlined a three-part test to determine whether a group has been unconstitutionally excluded from the jury pool:  the group must be (1) distinctive and (2) lacking “fair and reasonable representation” for reasons that are (3) caused by the system of jury selection.

Related posts are in the Supreme Court index.

Editorial Roundup

Today's Oklahoman carries the editorial, "Reform rollback: Capital crime law facing challenge."

One of the most tangible outcomes of the Oklahoma City bombing was reform of the capital punishment appeals system. Survivors of murder victims had been forced to wait 10, 12 or more years from sentencing to execution as the process played out.

Oklahoma Attorney General Drew Edmondson, in his first year in office when the bombing took place in 1995, was a leader in the fight to streamline the appeals process. The goal was to facilitate justice for survivors — not to rush a convicted murderer to the death chamber.

An effort is growing to roll back the reforms. Edmondson, who’s running for governor, is understandably concerned, calling it a "giant step backward.”

In Kansas, the Winfield Courier has the editorial, "Abolish the death penalty."

Kansas should abolish the death penalty.

The death penalty is wrong because it is not always just.

It is wrong because the criminal justice system is flawed and needs fixing.

It is wrong because the courts are poorly qualified to draw the line between mental illness and mental health.

And:

Justice should be found in the cool of the head, not the heat of the heart.

"Executions dying a slow death," is the title of a December 26 editorial in Utah's Deseret News.

Executions, death sentences and death rows are down in the United States. And that's a plus for everyone.

In 2009, there were 106 death sentences imposed in the nation, the fewest since the death penalty was reinstated in 1976. Some 52 people were put to death this year, almost half as many as a decade ago.

The Death Penalty Information Center cites as reasons the fear of DNA evidence proving an innocent soul was put to death and the high cost of death sentences. In 2009, nine men who had been sentenced to death were exonerated. Also, the crime rate is down, and judges are ruling people "incompetent" to stand trial more than in the past.

But more than all that, history shows that Americans have been losing their taste for executions for some time. 

And:

Executions — whether performed by governments and the military for high crimes, or carried out by individuals acting on their own — will likely always be a part of humanity.

That's the dour side.

The upside is humanity itself is learning to isolate and minimize those executions and finding other ways of satisfying justice.

Related posts are in the editorial index; More on AEDPA, in the federal legislation index.

Juvenile Justice Roundup

First, there is word that the U.S. Senate Judiciary Committee completed markup of S. 678 yesterday, legislation to renew of the Juvenile Justice Delinquency and Prevention Act of 1974.  Main Justice posts, "Senate Panel Approves Juvenile Justice Bill Renewal.

The Senate Judiciary Committee endorsed legislation today that would reauthorize certain juvenile delinquency program funds.

The Juvenile Justice and Delinquency Prevention Reauthorization Act of 2009 would renew the program funding provisions in the Juvenile Justice and Delinquency Prevention Act of 1974 until fiscal year 2014. The 1974 legislation was due for reauthorization three years ago. The program authorizes funding to states with special practices for handling youth in their justice systems.

The panel voted 12-7 on the 2009 bill this morning at its markup. Sen. Dianne Feinstein (Calif.) was the only Democrat to vote against the bill, agreeing with Republican concerns over the projected $4 billion price tag for the legislation.

Feinstein, who also sits on the Senate Appropriations Committee, said the bill calls for a “huge authorization” that would be hard to justify with the $1.7 trillion federal deficit.

“I would be very hard pressed to appropriate these sums of money for this purpose at this particular point in time,” Feinstein said at the panel markup.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who is a sponsor of the bill, cited a New York Times editorial from yesterday that called on the Senate to move on the bill. He first introduced the reauthorization legislation in 2008.

“The Senate Judiciary Committee reported this important bipartisan legislation last year,” Leahy said in a statement. “We should ensure that it passes into law in this Congress.”

More information on the bill is here, via THOMAS; the text, here.  Earlier coverage of the legislation is here.  A hat tip to the Crime Report.  The ACLU issued a news release, "Senate Judiciary Committee Passes Landmark Juvenile Justice Legislation," following the Judiciary Committee's action.

Also, the Florida Times-Union reports, "Florida Supreme Court justices unshackle juvenile defendants."  It's written by Dana Treen.

The Florida Supreme Court has approved a dramatic change in the use of shackles, handcuffs and other restraints on juveniles in the state’s courtrooms.

The justices Thursday approved a new court rule that prohibits restraints unless a judge determines they are necessary for one of three reasons: preventing physical harm to the child or other people, a defendant’s history of disruptive courtroom behavior or a strong belief there’s a substantial risk of flight.

Since the early 1980s the shackling of juveniles has evolved as a security measure in Florida courtrooms, said Rob Mason  of the Public Defender’s Office in Jacksonville. Mason said juveniles brought from detention centers to appear before a judge are shackled and remain so in the courtroom.

“It’s really a pathetic sight when they bring them in,” said Mason, former chairman of The Florida Bar’s Juvenile Court Rules Committee that recommended the change.

Mason said the restraints make it difficult for the young prisoners to raise their hands when they swear to tell the truth. He also said the state’s juvenile justice system is supposed to be set up differently than adult court. He advocated for the change before the justices in June.

“It’s a monumental victory for Florida’s children,” Mason said. “A juvenile is supposed to be different.”

The aim of juvenile courts is to provide a safe environment and focus on rehabilitation, he said.
He said experts on juvenile development suggest shackling can cause emotional harm, may cause the juvenile to feel as if they are somehow dangerous and increase resentment of authority.

For the past couple of years, courts in Miami-Dade County have taken the shackles off juveniles with little negative effect, Mason said.

The new rule takes effect statewide in January.

Related posts are in the juvenile index.

Juvenile Justice

Today's New York Times carries the editorial, "De-Criminalizing Children."  It addresses renewal of the Juvenile Justice Delinquency and Prevention Act of 1974, which the U.S. Senate Judiciary Committee is expected to take up today.

As many as 150,000 children are sent to adult jails in this country every year — often in connection with nonviolent offenses or arrests that do not lead to conviction. That places them at risk of being raped or battered and increases the chance they will end up as career criminals.

To fix this problem, Congress needs to properly reauthorize the Juvenile Justice Delinquency and Prevention Act of 1974, under which states agreed to humanize juvenile justice policies in exchange for more federal aid. This act was largely bypassed in the 1990s when unfounded fears of an adolescent crime wave reached hysterical levels.

When it reauthorizes the law — it is already three years late — Congress should make it illegal for states to place children in adult prisons, perhaps with the exception of truly heinous criminals.

The House has yet to introduce a new bill; in the Senate, an updated version has yet to be voted out of the Judiciary Committee. The Senate bill is less than ideal, but it does encourage the states to de-emphasize the practice of detaining children in adult jails before trial and requires them to better protect young people who end up there. Several states have begun to reform their systems: housing young people in juvenile facilities — where they are better protected and can get mental health treatment — even if they have been convicted in adult courts. The current version of the law threatens states with loss of federal aid if they make that decision. The Senate bill would do away with that language.

Our friends at Change.org are urging those concerned with juvenile justice to reach out to their home state senators via this link.

Related posts are in the juvenile and federal legislation category indexes.

America's Prison Population

The Department of Justice Bureau of Justice Statistics has released two annual reports detailing America's prison population and those on probation and parole.

A summary page has links to both Prisoners in 2008 by William J. Sabol, Heather C. West, and Matthew Cooper, and; Probation and Parole in the United States, 2008 by Lauren E. Glaze and Thomas P. Bonczar.

"Prison Population Up, Despite Drop in 20 States," is the AP report, via the New York Times.

The prison population in the United States edged up slightly last year, but the total number of inmates dropped in 20 states, including New York, Georgia and Michigan.

Justice Department figures released Tuesday showed the overall state and federal prison population is at an all-time high of 1.6 million and is still rising, but the rate of growth is slowing as states look for ways to cut the cost of justice.

Including people in jails, where some are held to await trial, the total number of people behind bars comes to 2.3 million. The government figures showed one out of every 133 residents in the United States was in prison or jail at the end of last year.

The prison population grew less than 1 percent last year. In the previous decade, the inmate population grew by an annual average of more than 6 percent. Ram Cnaan, a professor at the School of Social Policy and Practice at the University of Pennsylvania, said the slowing trend showed politicians were confronting a painful truth about prisons.

“They simply cost too much,” Professor Cnaan said. Both liberals and conservatives are increasingly searching for alternative sentencing programs, like treatment or monitoring, he said.

“It’s not ideological, it’s pragmatic,” Professor Cnaan said. “This is the first time that we have alliances on the right and left on this issue, and it’s the money that has forced the issue.”

The states with the largest increases in prison population were Pennsylvania, Florida and Arizona, whose one-year increases were all greater than the federal prison system, which grew by 1,662 inmates.

Today's Washington Post has, "Many states sending fewer people to prison, federal report shows," by Krissah Thompson.

The Bureau of Justice Statistics data also found that the incarceration rate for African Americans -- who are imprisoned at rates higher than other racial groups -- fell sharply, with 9 percent fewer black people behind bars. Studies this year by the Sentencing Project, a research group that advocates for lower rates of imprisonment, have attributed the decline to the lower number of blacks imprisoned for drug offenses.

A report released earlier this year by the project found a 21.6 percent decline in the number of African Americans incarcerated in state prisons for a drug offense from 1999 to 2005, along with a rise of 42.6 percent in the number of white drug offenders. Still, black males are incarcerated at more than six times the rate of white males, and black females at three times the rate of white females, Marc Mauer, the project's executive director, said in a statement.

"While the declining number of African Americans in prison is encouraging, the scale of racial disparity in imprisonment is still dramatic," Mauer said.

Human Rights Watch has issued a news release, "Cause for Hope as Prison Growth Slows," via Reuters.

"These numbers suggest that the United States may be turning away from the policies that have given it the world's highest incarceration rate," said David Fathi, director of the US Program at Human Rights Watch. "But as the world's leading jailer, the US still has a long way to go."

The BJS statistics show that the United States has more than 2.4 million people behind bars on any given day, and an incarceration rate of 754 per 100,000 residents. This is the highest incarceration rate in the world, and is several times higher than rates in other democracies like England and Wales (154 per 100,000), Canada (116), and Japan (63).

The report also reveals significant racial disparities in US criminal justice policy, with black men incarcerated at a rate six and a half times as high as that of white men.

As the financial crisis has created record budget deficits, many states have amended their sentencing laws to reduce the use of incarceration; others have granted early release to prisoners convicted of minor, nonviolent offenses.

"The United States may finally be learning what other democracies have long known - that incarceration is expensive and socially destructive, and should only be used as a last resort," Fathi said.

The Council of State Governments issued, "U.S. Justice Department's Bureau of Justice Statistics Releases New Numbers about Nation's Correctional Population."

The Bureau of Justice Statistics (BJS) released two bulletins today that examine the numbers of prisoners and individuals under probation or parole supervision in the nation for 2008 and report on related trends—including an overall increase in the number of individuals being released from federal and state prisons.

Although these bulletins contain rich information for policymakers and practitioners, the CSG Justice Center's National Reentry Resource Center, supported by the Bureau of Justice Assistance, is highlighting just a few of the findings related to reentry and providing information on how to access the full reports as soon as they became available.

The new statistics reveal that the total prison population growth rate (.8 percent) was the slowest in eight years; however, "the numbers of state and federal prisoners reached all-time yearend highs in 2008." BJS estimates that about 1 in every 198 U.S. residents was incarcerated in federal or state prison at the end of 2008.

Prisoners in 2008 reveals that the number of individuals released from federal and state prisons rose to 735,454 (an increase of 2 percent). The bulletin also reports that there was an 8 percent increase in the number of individuals released to the community without any conditions. These numbers underscore the need for reentry resources and technical assistance to state and local service providers.

Probation and Parole in the United States, 2008 provides useful information about the nearly 5.1 million adults under community supervision—about 1 in every 45 adults in the country. (The bulletin on prisoners indicates that although the number of parole violators admitted to state prison increased again in 2008, the rate of that increase was slower than in the previous two years.)

Both bulletins provide detailed appendixes with information about particular states, methodologies, and notes that describe how jurisdictions collect and report data.

Last week's BJS report on capital punishment is noted in this post.

U.S. House Judiciary Subcommittee Examines Habeas Restrictions in Capital Cases

Right now the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties is holding a hearing to, "Consider the Impact of Federal Habeas Corpus Limitations on Death Penalty Appeals."  Unfortunately, it's not being webcast.  The Subcommittee is chaired by Jerrold Nadler of New York.

The Witnesses are:

Stephen F. Hanlon
Partner, Holland and Knight, LLP
Washington, DC

Hon. Gerald Kogan
Chief Justice (Retired), Florida Supreme Court
Co-Chair, Constitution Project Death Penalty Committee
Miami, FL

Michael E. O'Hare
Supervisory Assistant State’s Attorney, Civil Litigation Bureau
Office of the Chief State’s Attorney
Hartford, CT

John H. Blume
Professor of Law, Director, Cornell Death Penalty Project
Cornell University Law School
Ithaca, NY

The Constitution Project has issued a news release, "Constitution Project Representatives Urge Congress to Restore Habeas Corpus for Death Penalty Cases."

Two representatives of the Constitution Project will testify before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties this afternoon at a hearing to consider the impact of limits on federal habeas corpus in death penalty cases. Stephen F. Hanlon, Chair of the Constitution Project’s Board of Directors, Chair of the American Bar Association’s Death Penalty Moratorium Project Steering Committee, and partner at Holland and Knight, will testify on behalf of the ABA. The Honorable Gerald Kogan, Co-Chair of the Constitution Project’s Death Penalty Committee and former Chief Justice of the Florida Supreme Court, will testimony on behalf of the Constitution Project. Both will provide testimony on the urgent need to restore habeas corpus for death penalty cases.

 In his testimony submitted to the Subcommittee, Chief Justice Kogan states in part:

 

“Federal habeas corpus is an enormously important element of our justice system with deep roots in our constitutional tradition. In particular, the federal courts’ authority to adjudicate constitutional claims advanced by state prisoners is a valuable means by which the Bill of Rights is enforced in criminal cases. Scarcely anyone contends that the federal courts should not have this authority. The policy debate is over the proper arrangements for habeas corpus litigation in the federal forum.”

 

Mr. Hanlon adds in part:

 

“[S]tate governments have failed for many years to implement the necessary reforms to address long-standing and systemic problems in our death penalty counsel systems. Mistakes that occur at trial as a result of these failures are aggravated by ever-tightening restrictions on federal court review, making it difficult, if not impossible, for federal courts to correct even the most serious deprivation of constitutional rights. A system that wrongly sentences people to death and then erects considerable obstacles to bar judicial review of their cases is not a system that comports with our principles of justice. It should not surprise us that one consequence is a loss of public confidence in the integrity and accuracy of our legal system.”

Justice Kogan's complete testimony is here; Hanlon's here; both in Adobe .pdf format.

The Constitution Project’s Death Penalty Committee’s consensus report, Mandatory Justice: The Death Penalty Revisited, will be submitted for the Subcommittee's record.

Related posts are in the federal legislation and habeas index.

Selective Empathy

That's the title of Linda Greenhouse's latest post at the New York Times Opinionator blog.  LINK It's a must-read. Several excerpts:

In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question: Is selective empathy better than no empathy at all?

And:

“Ineffective assistance of counsel” is an exceptionally difficult claim on which to succeed. The Supreme Court has found ineffective assistance only a handful of times since it raised the bar in a 1984 case, Strickland v. Washington. That decision requires defendants to prove two elements: that the lawyer’s performance “fell below an objective standard of reasonableness” and that there was a “reasonable probability” that the outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced defendants, who must demonstrate that an adequate lawyer would have provided the sentencing jury with enough mitigating evidence to overcome the weight of the prosecution’s “aggravating evidence.” An abundance of aggravating evidence is often the reason the prosecution is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law, the defendant must show that the state court’s decision was not simply mistaken on its own terms, but that it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” — in other words, that the state court had all but defied controlling Supreme Court precedent. The federal appeals court in Atlanta ruled that Mr. Porter was not entitled to habeas corpus because even if the Florida courts were wrong to regard his lawyer as adequate, they were not so wrong as to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said, to discount the possibility that a decent lawyer, presenting a convincing narrative of Mr. Porter’s military service and lingering trauma, could have persuaded the jury to spare his life. The court then provided such a narrative itself, with a vivid recitation of the battles Mr. Porter’s unit had fought “under extreme hardship and gruesome conditions.” The opinion observed that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.”

There were several notable features to this decision, Porter v. McCollum. The most obvious was that the 15-page opinion was unanimous and unsigned, labeled simply “per curiam,” meaning “by the court.” The court had not heard argument in the case and never formally accepted it for decision. Evidently the justices concluded that the right decision was so obvious that they could dispense with the formality of further briefing and argument.

And:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

An earlier Opinionator post by Greenhouse, the retired Times Supreme Court correspondent, is here. More on Porter v. McCollum is here.

The Keeper and the Kept

That's the title of a new report from the W. Haywood Burns Institute that will be issued Tuesday.  Shadi Rahimi writes, "National Leader in Juvenile Justice Poised to Release New Report."

For the families of the more than 90,000 youth in custody of the juvenile justice system any given day, Thanksgiving delivers heartbreak. A majority of incarcerated children in the U.S. are youth of color held for mostly nonviolent offenses. For this, our society pays a high moral and financial price, says James Bell, Executive Director of the W. Haywood Burns Institute (BI) and lead author of its new report on juvenile justice, The Keeper and the Kept.

“As a society we do not demand nor expect excellence, fairness, rationality or accountability from our child-serving justice systems. But there is too much at stake for our democratic principles and our ability to compete in a global knowledge-based world,” Bell says. “As a country, we are not well-served when we have so many uneducated youth of color undeservedly lost in the American juvenile justice apparatus. We can do better. But in order to, we must demand accountability from our juvenile justice systems.”

Systemic problems in juvenile justice are at the forefront of conversation today, particularly regarding juvenile imprisonment for life without parole. On a national level, Black youths are serving life without parole at a rate of about 10 times that of White youths, according to Human Rights Watch. At the same time, the federal Juvenile Justice And Delinquency Prevention Act (JJDPA) is overdue for reauthorization and is expected to go before the Senate Judiciary Committee this week. The BI, along with the coalition Act4JJ, is pushing for JJDPA reauthorization for reasons including: 1) reducing racial and ethnic disparities in juvenile justice; 2) preventing youth awaiting trial in criminal court from adult lock-up; 3) limiting the time that children who are truant, runaway or violate curfew may be held in juvenile lock-up.

Right and Left Join Forces on Criminal Justice

That's the title of Adam Liptak's report in today's New York Times.  LINK

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”

There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.

And:

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.

In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.

“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.

“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.

The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.

The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.