The StandDown Texas Project

Nebraska Supreme Court Hears Lethal Injection Case

Today's Omaha World-Herald reports, "Nebraska lacks drug for lethal injections, has no way to carry out executions."   It's by Joe Duggan.

Nebraska prison officials have not replaced a lethal injection drug that expired late last year, meaning the state currently has no way to carry out an execution.

A prison spokeswoman confirmed Tuesday that the state has yet to obtain a new supply of sodium thiopental, one of three drugs needed for lethal injection in Nebraska.

Questions about the drug came up Tuesday during oral arguments on a death penalty appeal by former cult leader Michael W. Ryan.

Nebraska Supreme Court Judge William Connolly asked if the state has a legal source of sodium thiopental. Assistant Attorney General James Smith said he did not know because he had not checked on the status of the drug before the hearing.

The administrative code that governs the execution protocol says expired lethal substances must be cleared from inventory and replaced by the State Department of Correctional Services.

And:

Attorney General Jon Bruning has said the state needs to move to a less specific drug protocol to provide the flexibility to carry out an execution. He also said several weeks ago that the Corrections Department can change the protocol administratively.

Gov. Dave Heineman said last month that corrections officials were working on the issue.

'High court hears arguments over execution challenges," is the Lincoln Journal Star coverage by Kevin O'Hanlon.

A case that started as a challenge of how prison officials obtained a key lethal injection drug morphed Tuesday into a discussion before the state Supreme Court of the proper venue in which to challenge Nebraska's method of execution.

Rob Kortus of the Nebraska Commission of Public Advocacy, who is representing death-row inmate Michael Ryan, originally asked the court to review how state corrections officials got a lethal injection drug made by a Swiss company.

Nebraska and several other states that use sodium thiopental as part of their execution protocol were forced to buy the drug overseas when the last U.S. manufacturer quit making it in 2010 because of death-penalty opposition from customers.

Sodium thiopental recently has been banned for export by the European Union and is becoming increasingly difficult to get. It is made in India and China, but defense lawyers have questioned the quality.

Kortus also had questioned the quality of the drug Nebraska had, which was purchased through a middleman. But the state's two batches of sodium thiopental have since expired, and the state has none on hand.

That caused some of the high court judges to steer the arguments to whether state courts should be able to rule on the legality of the state's method of execution instead of forcing defendants to file federal court actions.

A three-judge panel of the U.S. Court of Appeals District of Columbia Circuit ruled last year that the sodium thiopental acquired by Nebraska and several other states for use in executions should not have been allowed into the country.

Earlier coverage from Nebraska begins at the link.

Federal Judge Rules on 'Fast Track' Provision of AEDPA

"Death-penalty ruling goes against Justice Dept.," is by Bob Egelko of the San Francisco Chronicle.

In a nationwide ruling, a Bay Area federal judge has blocked the Justice Department from authorizing states to put their death penalty cases on a "fast track" once they reach federal court, with tight schedules for inmate appeals and judicial rulings.

A 2005 federal law, which has never taken effect, allowed the Justice Department to approve fast-track authority for any state that appointed competent, adequately paid lawyers to represent condemned prisoners. But Chief U.S. District Judge Claudia Wilken said Wednesday that the Obama administration's rules that were supposed to implement the law failed to require states to show the lawyers they provided were competent.

A 1996 law that established the fast-track process gave federal judges, rather than the Justice Department, the power to decide whether a state had a system of competent legal representation for death row inmates. Judges have turned down every state that has applied for fast-track authority, including California in 2000.

Wilken's injunction, in a suit by defense lawyers in California and Arizona, leave the 1996 law in effect.

And:

Prisoners whose convictions have been upheld in state court have the right to seek federal court review, which in capital cases can last anywhere from two years to a decade or more.

The fast-track process would give a condemned prisoner six months, instead of the current one-year deadline, to file a federal appeal after the final decision in a state court. A federal judge would then have 15 months to rule on the appeal, and a federal appeals court would have a four-month deadline after receiving all written arguments.

Earlier coverage of the fast track provision begins at the link.

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

More on Compounding Pharmacies - Regulations & Problems

"Bill on Drug Compounding Clears Congress a Year After a Meningitis Outbreak," is the New York Times report by Sabrina Tavernise.

A bill that would give the Food and Drug Administration more power to police compounding pharmacies passed its final hurdle in Congress on Monday, in what experts said was an important step to a safer drug supply in the United States.

The bill, which cleared the Senate without opposition, stops short of giving the F.D.A. complete authority over pharmacies that tailor-mix drugs for individual patients, a process known as compounding. But the bill still provides significant new safeguards, which have earned it the support of public health advocates around the country.

“It has very sharp teeth,” said Sarah Sellers, a drug safety consultant who has tracked the issue for years.

Just over a year ago, tainted injectable drugs from a compounding pharmacy in Massachusetts caused a meningitis outbreak that killed 64 people across the country, according to the Centers for Disease Control and Prevention. The bill, which took shape in the months after the outbreak, was designed to prevent such events.

“This bill will improve oversight of high-risk drug compounding,” said Senator Tom Harkin, Democrat of Iowa, who was one of the authors. President Obama is expected to sign the bill into law.

The practice of compounding has expanded drastically in recent decades, driven partly by the economics of hospitals, which now outsource large parts of their drug mixing. Some pharmacies moved beyond the business of mixing medicines for individual patients to become mini-manufacturers.

But while compounders were subject to state law, the federal authorities had limited power over them. Unlike drug makers, they were not subject to federal requirements that they report problems to the F.D.A. or open their records to federal inspectors.

"Congress Approves More Scrutiny For Compounding Pharmacies," is AP coverage by Matthew Perrone.  It's via public radio station WBUR-FM.

Congress is taking a half step toward increasing federal oversight of so-called compounding pharmacies that custom mix medications in bulk, a year after a meningitis outbreak from contaminated steroid pain injections killed at least 64 people and sickened hundreds more.

The Senate approved the bill Monday by voice vote, sending it to President Obama for his signature. The legislation also creates a national system for tracking prescription drugs from manufacturers to retail pharmacies, first through serial numbers on bottles and later through electronic codes. The House passed it in September.

Last year’s meningitis outbreak was eventually traced to a now-closed pharmacy in Framingham, Mass., the New England Compounding Center, where inspectors found mold, standing water and other unsterile conditions. The company shipped more than 17,600 doses of the implicated steroid injection to 23 states. More than 750 people were sickened.

And:

The bill attempts to sort out the legal gray area that allowed the Massachusetts pharmacy and similar businesses to skirt both state and federal regulations. The measure clarifies the FDA’s authority over high-volume compounding pharmacies that mass-produce medications, rather than fill doctors’ prescriptions.

Under the bill, pharmacies can voluntarily register with the FDA and submit to federal quality standards and inspections. FDA officials previously said requiring compounding pharmacies to register with the agency was crucial to preventing future outbreaks.

The bill’s supporters acknowledge that a voluntary approach will succeed only if doctors and hospitals choose to do business with FDA-registered pharmacies.

“Nobody will be required to register in this new category,” said Allan Coukell, drug safety expert with the Pew Charitable Trusts, which lobbied to pass the bill. “The success of the voluntary category will depend on hospitals, clinics and doctors choosing to buy from these FDA-registered facilities.”

In Texas, the Corpus Christi Caller-Times reports, "State health department ties compounding pharmacy to bacterial outbreak at local hospitals earlier this year," by Rhiannon Meyers.

The state Monday tied a Cedar Park compounding pharmacy to a local bacterial outbreak, announcing that an unopened bag of sterile drugs contained the same bacteria that sickened people at Corpus Christi Medical Center hospitals earlier this year.

"Lab tests provide link between Cedar Park pharmacy and 15 ill patients," is the Austin American-Statesman report by Mary Ann Roser.

Laboratory tests show that a sealed medication bag from a Cedar Park pharmacy contained the same bacteria that sickened 15 Corpus Christi patients receiving the pharmacy’s drug this summer, a state health department spokesman said.

Although the lab results are another link between the bacterial outbreak and Specialty Compounding LLC, state investigators have not yet reached any conclusions, Department of State Health Services spokesman Chris Van Deusen said.

“We’re still evaluating what these results mean,” he said Tuesday. “We’re not saying who contaminated” the drugs.

He did not know when the state would finish the months-long investigation.

"Pharmacy: Bacteria That Affected Patients Was Not In Our Medications," is from KZTV-TV.

On Friday, the Food and Drug Administration announced their investigation had found five kinds of bacteria in the calcium gluconate:

• Kocuria kristinae
• Kocuria varians
• Gardnerella vaginalis
• Streptococcus pluranimalium
• Streptococcus thoraltensis

The agency recommended the company no longer produce any medication that requires an IV or injection.

In North Carolina, AP reports, "Asheville compounding pharmacy recalls products."  It's via the News & Observer of Raleigh.

A compounding pharmacy in Asheville is recalling sterile products because of the possibility of contamination.

Nature's Pharmacy and Compounding Center is voluntarily recalling sterile products produced over a six-month period, The Asheville Citizen-Times (http://avlne.ws/185xx3j ) reported.

The U.S. Food and Drug Administration said the recall comes because of concerns about the quality control procedures that could pose a potential risk about the sterility of the products.

Owner Bill Cheek says the recall involves around 300 prescriptions distributed from May 4 through Nov. 4.

Earlier coverage of the federal legislation for regulating compounding pharmacies begins at the link.

With this post, I'm adding compounding pharmacies to the category index, and will be updating earlier posts.

How Did the Federal Judiciary Fare?

"Shutdown Averted, Courts Still Face Budget Woes," is by Todd Ruger at the National Law Journal.

The federal judiciary never felt the full brunt of the 16-day government shutdown, since alternative funds allowed courtrooms and clerks’ offices to operate normally when other government operations stalled.

The deal that reopened the government Thursday, however, leaves in place most of the $350 million budget cuts to the judiciary made earlier this year—a situation that a top judiciary official this summer predicted would be "devastating for the federal courts."

The last-minute deal to reopen the government did provide a relatively small bump of $51 million in annual appropriations for the federal courts and for public defenders, out of a $6.7 billion overall budget. Part of that, a $26 million increase for defender services, would primarily go to pay the backlog of attorney fees under the Criminal Justice Act, which funds court-appointed private counsel. It could also help alleviate some of the pressure on federal public defender offices around the country that were forced to put lawyers and staff on furlough at times this year.

The judiciary will now continue its unusually public push to convince Congress to fully undo the spending cuts that came as part of government-wide reductions called sequestration, said U.S. Circuit Judge Julia Gibbons, chairwoman of the budget committee of the U.S. Judicial Conference.

"Certainly we will continue the efforts that we’ve made over the last number of months and we’ll keep giving Congress our message about the need for adequate funding," Gibbons, who serves on the U.S. Court of Appeals for the Sixth Circuit, said in a telephone interview Thursday.

And:

The Constitution Project, a bipartisan legal watchdog group, said Thursday that the $26 million for defender services would not restore adequate staffing or prevent further furloughs in many offices across the country.

"While we are grateful budget negotiators recognized the need to stop the bleeding in the public defenders offices, Congress will need to provide much higher levels of funding when they pass a budget if they want to allow federal defenders to carry out their constitutionally required duties," Virginia Sloan, president of The Constitution Project, said in a written statement.

Earlier coverage of the shutdown and sequestration's impact on the federal courts begins at the link.

The Funding Deal Reached in Washington

"Federal Judiciary Budget Increases in Last-Minute Budget Deal," is Todd Ruger's post at the BLT - Blog of Legal Times.  Here's an extended excerpt:

The budget deal Congress approved late Wednesday to reopen the government and raise the debt ceiling provides $51 million in additional funding to the judiciary and to federal defenders.

Federal courts officials and members of the Senate Judiciary Committee greeted the increase as good news, although it is small when compared to $350 million in budget cuts earlier this year as part of sequestration.

In the bill, $1.012 billion would go to defender services, marking a $26 million annual increase over Fiscal Year 2013 for attorneys who represent indigent defendants, said Charles Hall, a spokesman for the Administrative Office of the U.S. Courts.

The extra funding would primarily go to pay the backlog of attorney fees under the Criminal Justice Act, which funds court-appointed private counsel. Payments were suspended in mid-September, when funding ran out two weeks before the end of the fiscal year.

The bill also includes $4.8 billion for judiciary salaries and expenses. That amounts to a $25 million annual increase over FY2013, court officials said. The legislation gives judiciary officials the ability to float those funds among accounts to respond to the most urgent budget needs as they arise, Hall said.

Overall, the judiciary budget would rise from about $6.65 billion to about $6.7 billion. The Senate first approved the bill by an 81-18 vote. The House then approved the bill by a 285-144 vote, sending it to the White House.

A spokesman for Senator Christopher Coons (D-Del.), chairman of the Senate Subcommittee on Bankruptcy and the Courts, said the funding levels should be sufficient to end the furloughs of federal defenders.

Earlier coverage of the federal government shutdown and sequestration begins at the link.

Sequestration & Shutdown Hammering Federal Judiciary

Let's begin with one small example.  "Status hearing canceled in Rodriguez death penalty appeal," is the AP report, via the Bismarck Tribune.

A status hearing in a North Dakota death penalty case has been canceled because of the government shutdown.

Lawyers in the case of Alfonso Rodriguez Jr. were scheduled to meet Nov. 1 in Fargo to update progress of Rodriquez's habeas corpus motion, considered the last step in the appeal process. Rodriguez is on death row at a federal prison in Indiana.

A court document filed Friday shows that a status hearing will be scheduled after the government files its answer to the motion. The deadline for prosecutors was recently extended from Oct. 15 to Dec. 15 because of the shutdown.

Related posts are in the federal legislation and federal death penalty category index.

Now, let's turn to the broader impact.  Today's Austin American-Statesman reports, "Reserve funding due to run dry for federal courthouses," by Jazmine Ulloa.

With the partial government shutdown in its third week, Texas federal courts are expected to deplete the last of their reserve funds Thursday, putting further strain on operations stripped to the bone since sequestration measures in the past year have downsized their staffs, agencies and programs.

Federal officials and judges, who have long sounded alarms over the lack of resources, say the financial blows to the judicial system have dire constitutional implications, interfering with public safety and the administration of justice. And the future, they say, is grim, with funding levels expected to drop to those of nearly a decade ago after the fight over the national budget is over.

To prepare for the latest setback, courts in the U.S. Western District of Texas, which includes Austin and stretches from Waco to El Paso, have adopted a contingency plan that would allow offices to continue processing cases. Given that many of the offices slashed staffing under sequestration, federal officials said, most employees will be deemed essential but will be working without pay, and some support personnel, including those under pretrial services, probation and the district clerk’s office, would be forced to take furlough days, slowing down heavy dockets.

Staffers in the U.S attorney’s office have been working without compensation since the beginning of this fiscal year because of the shutdown, and the office has had to furlough about 72 percent of its support staff, as well as civil lawyers who represent the government in litigation and work to recover tens of millions of dollars for taxpayers, U.S. Attorney Robert Pitman said.

If the office is hit by another round of sequestration “at the same level that we were experiencing before,  then we will definitely see cutbacks in our operations, and it will definitely have an impact on our ability to do the work that we do,” Pitman said.

"Federal Judges Push Back," is by Zoe Tillman at the National Law Journal.

A growing number of federal chief judges have had enough.

Frustrated by the budget stalemate in Congress, many judges across the country declared all employees essential in the face of a shutdown—a bold but necessary move, the judges said, to ensure basic court operations past the judiciary’s funding date of October 17.

In more than two dozen courts, from busy urban districts in New York and Chicago to rural areas, judges went against guidance from the judiciary urging them not to enter broad orders deeming all staff essential. Judges said severe budget cuts over the past year left them no choice.

"We're drowning," said Chief Judge Anne Conway of the U.S. District Court for the Middle District of Florida, who declared all employees essential on October 7. "We're treading water to keep our heads up. There's just nobody left."

The federal judiciary has enough money to keep courts fully operational through at least October 17. Beyond that, the chief judges of district, appeals and bankruptcy courts were instructed by the Administrative Office of the U.S. Courts to figure out a shutdown plan for their respective courts.

"Federal Courts At Brink Of Collapse Due To Shutdown," is by Frederick Reese for Mint Press News.

The ongoing federal government shutdown is framing a fundamental discussion on the relationships between the branches of the government — the implications of which may significantly change the way the federal government operates in the future.

“The Judiciary will remain open for business through October 17, 2013,” read a posting on the United States Courts website. “When no funding mechanism was in place on October 1, 2013, the Judiciary projected that fee income and no-year appropriated funds would enable court operations to continue for ten business days. The Judiciary has severely restricted spending during that period so that limited additional funding now exists. Spending rates and fund balances will continue to be monitored closely in hope that adequate funds may be available to allow courts to operate through the end of the work week – October 18.”

“Criminal litigation will continue without interruption as an activity essential to the safety of human life and the protection of property,” an Oct. 11 U.S. Department of Justice memo read. “Civil litigation will be curtailed or postponed to the extent that this can be done without compromising to a significant degree the safety of human life or the protection of property.”

This represents a constitutional crisis unlike any other the nation has ever faced. Simply put, one branch of government — the Congress, in this case — is, by means of denying funding, preventing another branch — the judiciary — from operating. In doing so, the entire underpinning of the government — the constitutional distribution of power — could become undone should the courts lose the financial capability to operate.

The Louisiana Reocrd posts, "Federal court to re-assess closure possibility after Oct. 17," by Kyle Barnett.

The U.S. District Court of Eastern Louisiana has announced that it will remain open until at least Thursday, Oct. 17, but will have to reassess operations after that date.

The Court earlier announced it would remain open for at least two weeks following what at the time was an anticipated government shutdown. Now that the shutdown has exceeded two weeks the Court had extended days of operation by three until this Thursday when it will reassess the situation.

Notably, that is the same day that the federal government will go into default if a budget bill has not yet been passed by Congress and signed by the president.

"Nebraska federal judge fed up with Congress," is an AP report, via the Lincoln Journal Star.

A federal judge in Nebraska is fed up with Congress and its inability to fund government including the courts and says in his Internet blog it's time to tell congress to "go to hell."

Judge Richard George Kopf is commenting on the likelihood that the U.S. District Court in Nebraska may run out of money as early as Monday, forcing judicial officials to decide which employees are essential.

Kopf writes in his blog dated last Monday that district judges and the chief judge should issue orders declaring all remaining employees essential. That would set up a fight between the judicial branch and Congress.

Kopf, an appointee of President George H.W. Bush in 1992 and now a senior judge, says that would be a fight worth having.

Earlier coverage of federal budget problems plaguing the judiciary begins at the link.

Legislative Agreement on Compounding Pharmacy Regulations

The New York Times reports, "More Sway for F.D.A. Is Object of New Bill," by Sabrina Tavernise.

A bipartisan committee of lawmakers from the Senate and the House reached a compromise on Wednesday on legislation that would give the Food and Drug Administration greater control over compounding pharmacies. But analysts said it was still unclear whether the law would actually make drugs safer.

Lawmakers said the bill’s primary function was to help prevent another national health disaster like the meningitis outbreak last year that was traced to a large Massachusetts-based compounding pharmacy, a company that mixes specialty medicine. More than 60 people died and more than 700 were sickened after receiving injections of a contaminated steroid made by the pharmacy, the New England Compounding Company.

The F.D.A. has argued repeatedly that it has limited authority over compounders, which are now regulated by state boards of pharmacy, even though many ship drugs across state lines.

The bill’s authors argued that it would give the agency broader powers by placing some compounding pharmacies in a separate category that would require them to behave much like traditional drug manufacturers: to alert the authorities when something goes wrong with their products, to register with the F.D.A. and to allow agency officials into their facilities for inspection, much as traditional drug manufacturers do.

The Hill posts, "Lawmakers strike agreement on compounding pharmacy regulation," by Elise Viebeck.

Lawmakers said the new bill would apply uniform national standards to pharmacy compounding while enacting a track-and-trace system to ensure drugs are safe throughout the supply chain.

Currently, a patchwork of state and federal regulations complicates oversight of drug compounders, who either customize medications on a prescription-by-prescription basis or produce drugs in large quantities like a manufacturer.

Under the Drug Quality and Security Act announced Wednesday, traditional compounders would largely remain under the jurisdiction of state boards of pharmacy while larger operations would be regulated by the Food and Drug Administration (FDA).

Lawmakers had urged for a clarification of the FDA's duties following a multistate outbreak of fungal meningitis that has killed more than 60 people since last year.

The deaths were caused by tainted steroid injections produced by the New England Compounding Center, a now-shuttered company whose safety violations were never fully penalized by regulators.

The outbreak prompted a series of hearings in both the House and Senate and a vigorous debate over whether the FDA deserved new powers to oversee compounding.

"Federal legislation, on compounding pharmacy oversight, winning bipartisan support," is the AP report by Steve LeBlanc, via MassLive.com.

The Food and Drug Administration would have greater oversight over large volume compounding pharmacies, like the Massachusetts company that triggered a deadly meningitis outbreak, under federal legislation winning bipartisan support.

Iowa Sen. Tom Harkin, the Democratic chairman of the Committee on Health, Education, Labor, and Pensions, said Sept. 25 that the bill calls for an "unprecedented tracing system that will track prescription drugs from manufacturing to distribution."

The FDA would be able to monitor the pharmacies much the way they regulate drug-makers, including through inspections. The system would replace what critics say is the existing patchwork of federal regulations over the pharmacies.

The bill was prompted by the 2012 meningitis outbreak tied to the now-shuttered New England Compounding Center in Framingham that killed at least 64 people and sickened 750 more. Inspections subsequently found unsanitary conditions at the company's facility.

"U.S. congressional panels agree on bill to regulate drug compounding," is Reuters coverage by Toni Clarke.

The bill, called the Drug Quality and Security Act, comes in response to a deadly outbreak last year of fungal meningitis that killed more than 50 people and was traced to a tainted steroid sold by the New England Compounding Center in Framingham, Massachusetts.

The legislation is expect to pass smoothly and quickly through the full House and Senate.

Traditionally, pharmacists who compound medication mix tailored doses for individual patients in response to specific prescriptions. Over the last decade the practice has mushroomed, with some pharmacies selling thousands of doses of regularly used mixtures without prescriptions for physicians to keep for future use.

The legislation would draw a distinction between traditional compounding pharmacies and those such as NECC which ship sterile products across state lines. These larger organizations, to be known as "outsourcing facilities," would be regulated by the FDA but be exempt from the full spectrum of regulations that apply to traditional pharmaceutical companies.

Traditional compounding pharmacies would continue to be regulated by state boards of pharmacy.

Previous attempts to create national standards to track and trace drugs have foundered amid complaints from companies that they would be too costly to implement.

But concerns over counterfeit drugs have been growing. Last year, fake vials of Roche Holding AG's cancer drug Avastin appeared in the United States from Britain where it was purchased from a Turkish wholesaler.

The World Health Organization estimates that less than 1 percent of medicines available in the developed world are likely to be counterfeit. Globally, that number is around 10 percent.

Earlier coverage of compounding pharmacy problems begins at the link.

Federal Courts Bracing for 'Worst Case Scenario'

That's the title of an article in the National Law Journal written by Zoe Tillman and Todd Ruger.  It's subtitled, "Judges: Budget uncertainty threatens 'everything'."

With the end of the fiscal year less than two weeks away, and absent any clarity from Congress regarding next year's budget, the federal judiciary is preparing for what court officials describe as "the worst-case scenario."

From courthouse closures to cuts in security, employee training and information technology, "you look at everything," Chief Judge William Traxler Jr., chairman of the Judicial Conference of the United States' executive committee, said last week after announcing a series of fresh cost-cutting measures.

The fiscal year ends on September 30. Congress has yet to pass a budget for fiscal year 2014. It's unclear whether mandatory budget cuts known as sequestration, which eliminated $350 million from the judiciary's budget last year, would continue.

Appropriations committees in both houses of Congress approved budgets that would, at a minimum, roughly restore money to the judiciary at pre-sequestration levels. Still, court officials fear a fight among the House, Senate and White House over other budget priorities could lead to a continuing resolution that maintains sequestration cuts or otherwise keeps the judiciary's budget flat.

Earlier coverage of the federal budget sequestration begins at the link.

Last week's NLJ contained, "Nation's Judges Appeal to Obama for Help in Budget Fight," by Tony Mauro.

In a rare public appeal directed at the White House, the Judicial Conference is asking President Barack Obama to be a forceful voice in favor of increased funding for the judicial branch in impending budget battles.

"The judiciary will not have a seat at the table during these budget discussions," wrote Judge John Bates, secretary of the conference, in a letter to the White House dated September 10 and made public on September 12. "It is essential that someone speak for the judiciary, and I respectfully ask that the administration help make the case for an increase in funding above the FY 2013 post-sequestration level for the judiciary."

Experts on the judiciary could not recall the last time that the conference, the policy-making arm of the judicial branch, made such a direct and open plea to a president. Conference officials regularly testify before Congress and have made their concern about budget cuts well known to legislators, but their contacts with the executive branch are seldom public.

"I can think off-hand of no public, written request from the federal judiciary to the president for assistance in arguing the judicial branch's case for increased appropriations" in the modern era, said Russell Wheeler, visiting fellow at the Brookings Institution. Wheeler noted that, by statute (31 U.S.C. 1105,) the president is required to submit the judiciary's budget "without change" to Congress. The judiciary's budget request for fiscal year 2014 totals $7.15 billion, up slightly from the post-sequestration 2013 budget.

"The Judicial Conference has rarely, if ever, appealed so directly to the White House," University of Richmond School of Law professor Carl Tobias agreed. Tobias did not think the letter reflected any discontent with the administration's level of support for the judiciary, but rather that federal judges are "fed up with the shoddy treatment that Congress accords them."

Bates, also the new director of the Administrative Office of the U.S. Courts, told Obama in the letter that "I hope that you and the Congress will recognize the uncontrollable nature of our workload and provide the resources necessary for the judiciary to perform its essential constitutional functions."

Federal Times reported, "Courts exhaust indigent defense funding," by Sean Reilly.

The federal court system has temporarily run out of money to pay court-appointed lawyers who represent indigent defendants, officials said Tuesday.

The $20 million shortfall for the last two weeks of this fiscal year had been expected, but it means that the courts will start fiscal 2014 on the hook for the same amount, David Sellers, a spokesman for the Administrative Office of the U.S. Courts, said at a news conference.

It comes as judges and court managers are bracing for another round of tight money after this year’s sequester. “We are looking at the worst-case scenario” of a continuing resolution, said Chief Judge William Traxler, chairman of the executive committee of the Judicial Conference, the courts’ main policy-making body.

Accordingly, the courts are looking at continued hiring freezes, training cutbacks and other measures to save money, Traxler said. On Tuesday, the conference approved several other cost-cutting steps, including attempting to assure no net growth in the amount of courthouse space, currently at about 29 million square feet, and then trimming it by 3 percent by 2018 on a circuit-by-circuit basis.

Dangers From Compounding Pharmacies Persist

That's the title of a Wall Street Journal report by Timothy W. Martin.  It's subtitled, "Tighter Rules on Compounders Slow to Emerge Even as 24 Die From Disease This Year."

Nearly a year after a nationwide outbreak of fungal meningitis erupted, new cases of the disease are still emerging, and efforts to tighten regulation of the type of pharmacy behind the outbreak are moving slowly.

The Food and Drug Administration has reported 14 multistate or national voluntary recalls so far this year of products made by so-called compounding pharmacies, which custom-mix large batches of medications not available from pharmaceutical companies. The FDA reported only two recalls of products from such pharmacies in 2012, including the recall of the injection behind the fungal-meningitis cases. There were none in the four years before that.

The medicines recalled this year by their makers include cataract drops, testosterone pellets and an injection like the one behind the meningitis outbreak.

And:

A Senate bill that would give the FDA oversight of many large compounding pharmacies—which operate like manufacturers and sell drugs all over the country—is one of only a few pieces of legislation that may make it to the Senate floor this fall, according to Senate Democratic aides. Even if successful, it would be months, if not years, before enforcement took effect.

The article has additional details on the Senate legislation.  Earlier coverage of compounding pharmacies is at the link.

The Georgia Department of Corrections recently used a compounding pharmacy to produce a batch of lethal injection drugs.  Other departments of corrections are considering using such facilities.  Related posts are in the lethal injection index.

More on the Sequester's Impact on Federal Indigent Defense

"Public Defenders Are Tightening Belts Because of Steep Federal Budget Cuts," is by Ron Nixon in the New York Times.

Faced with steep cuts to their budgets, federal public defenders around the country have furloughed or laid off hundreds of lawyers and other staff members, spent less on expert witnesses and cut back on case-related travel.

The cuts for the 2014 fiscal year will most likely result in staff reductions of 30 percent to 50 percent, they said. And some public defenders are even considering closing their offices because of a lack of money.

The result, said lawmakers, judges and public defenders, are court delays that might violate defendants’ rights to speedy trials and could lead to the dismissal of criminal cases.

Largely out of the public view, defenders and judges say, the federal public defenders system is buckling under the effects of the $85 billion across-the-board cuts known as the sequester, threatening the integrity of the criminal justice system, which guarantees the right to a court-appointed lawyer for those who cannot afford one. The system was established in 1970 to provided legal representation to indigent defendants; today about 90 percent of federal defendants qualify for court appointed lawyers.

The 81 defender offices across the country, which represent 60 percent of all criminal defendants in the federal court system, have already had their budgets cut by 10 percent because of the sequester and other reductions this year and could face up to a 23 percent cut in 2014. Additional cost-cutting measures may result in a smaller cut, around 10 percent. Although the cuts are widespread across the government, public defenders say the reductions are hitting them particularly hard. Unlike other federal programs, the public defenders say, they have little fat to trim since most of their costs are for staff and rent. Just 10 percent of their budgets are devoted to expert witnesses, investigative costs and travel.

Already, federal defenders said they have cut back on staff members and their workloads.

The Atlantic posts analysis by Andrew Cohen, "How Eric Holder Can Help Public Defenders and Their Clients."  As is generally the case with Cohen's writings, it's a must-read.

For the past few months The Atlantic has been covering the sequester's growing impact on the ability of the federal judiciary to administer justice in a timely, fair and efficient manner without the money it needs. Judges and court administrators have been warning all along that litigants -- the American people -- would begin to feel more of the effects of the budget cuts as 2013 proceeded without a resolution of the sequester fight between Congress and the White House. It's now happening. Fewer courtroom hours. Longer waits for trials and rulings. Layoffs to courthouse personnel and public defenders. And it's going to get worse in 2014.

All of which is why Attorney General Eric Holder was right to write an op-ed Thursday in The Washington Post about the need for Congress to restore funding for federal public defenders who have been hammered by the sequester.

And:

A Congress that tripped all over itself earlier this year to ensure that there would be no flight delays because of the sequester has been remarkably content to run our judiciary into the ground-- and to then hide from the blame that comes with refusing to adequately fund the third branch of government. "When cases lag," the judges told Vice President Biden last week, "the Judiciary is seen as inefficient, or worse, unsympathetic to litigants ranging from pro-se litigants (who represent themselves) to individuals and companies seeking bankruptcy relief or the resolution of civil disputes to the government and defendants in criminal cases."

Eric Holder, the wizened Washington insider, understands all this. He understands that part of this budget fight is ideological as well-- that many Republicans in Congress see political value in reducing the federal judiciary's power in any event. Which is why he should be raising the stakes instead of writing articles. Knowing the judiciary is behind him, and on behalf of litigants everywhere, the attorney general ought to slow down the federal criminal justice system-- a "solidarity strike," you could call it-- until Congress restores funding for all of the constitutional functions that system requires.

Earlier coverage of the federal budget sequester begins with Holder's OpEd at the link.

Arizona OpEd

The Arizona Republic publishes an OpEd by Jason Kreag,"Speedier executions may risk ultimate injustice."  He's a visiting assistant professor at the University of Arizona’s Rogers College of Law.

When dealing with society’s most severe and irreversible punishment, the better exercise of discretion would be to allow the system to proceed with the thoughtful deliberation needed to review complex capital cases, particularly in light of the growing list of wrongful convictions of innocent people.

In announcing last week a lawsuit against the Department of Justice seeking to speed up executions, Arizona bucks the national trend away from capital punishment. While the number of inmates on death row grew significantly during the 1970s, ’80s and ’90s, since 2000 there has been a slow but steady decline across the country. Not surprisingly, a similar trend is reflected in the number of executions. There was a significant increase, ending with a high of 95 executions in 1999. Since then, the number has fallen sharply; only 43 people were executed in 2012. And the number of people executed will likely be even less this year.

Furthermore, since 2007, six states, including New Mexico, Maryland, and Illinois, have abolished the death penalty. Nineteen other states, including seven states that have capital punishment on the books, have not executed anyone in the last 10 years.

The reasons for the decline in the use of the death penalty are complex, but, without a doubt, a driving factor is our realization that our system is far from perfect when it comes to its most fundamental task of convicting only those who actually committed the crimes.

According to the Innocence Project, 18 people nationally have been exonerated through DNA evidence after having spent time on death row. Ray Krone is one of these men. He spent a decade in an Arizona prison, including almost four years on death row, before DNA testing confirmed his innocence and identified the actual perpetrator.

Earlier coverage of Arizona's push for expedited federal reveiw of state death cases begins at the link.  More recent coverage involves a meltdown on the state's clemency board.

Attorney General Eric Holder on Sequestration

"Defendants’ legal rights undermined by budget cuts," is the title of a Washington Post OpEd written by Eric H. Holder Jr. Here's the beginning:

Fifty years ago, the U.S. Supreme Court unanimously held that everyone who is charged with a serious crime has the right to an attorney. In Gideon v. Wainwright, Justice Hugo Black observed for the court that “in our adversary system, any person haled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided to him.” As a prosecutor, as a judge and as our nation’s attorney general, I have seen this reality firsthand.

Despite the promise of the court’s ruling in Gideon, however, the U.S. indigent defense systems — which provide representation to those who cannot afford it — are in financial crisis, plagued by crushing caseloads and insufficient resources. And this year’s forced budget reductions, due largely to sequestration, are further undermining this critical work.

In stark contrast to many state defender programs, the federal public defender system has consistently served as a model for efficiency and success. According to court statistics, as many as 90 percent of federal defendants qualify for court-appointed counsel, and the majority of criminal cases prosecuted by the Justice Department involve defendants represented by well-qualified, hardworking attorneys from federal defender offices. Yet draconian cuts have forced layoffs, furloughs (averaging 15 days per staff member) and personnel reductions through attrition. Across the country, these cuts threaten the integrity of our criminal justice system and impede the ability of our dedicated professionals to ensure due process, provide fair outcomes and guarantee the constitutionally protected rights of every criminal defendant.

Earlier coverage of the federal budget sequestration's impact on indigent defense begins at the link.

Public Defenders Fall to the Sequester

That's the title of an OpEd in today's Wall Street Journal by former federal judges Paul Cassell and Nancy Gertner.  It's subtitled, "Steep budget cuts compromise the justice system and won't save money in the long run."

The American justice system is based on the principle that justice is only possible when everyone accused of a crime, rich and poor alike, has access to effective defense counsel. This is why state and federal governments have a constitutional obligation to provide attorneys for those who are unable to afford them.

Unfortunately, due to the combination of general budget austerity and sequestration, the federal public defender system—a model of effective indigent defense for the past 40 years—is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings.

A decrease of nearly 10% in the federal public defender budget for 2013 has already resulted in layoffs and up to 20 days of furloughs in many federal defender offices. In a number of states, federal courts have been forced to delay criminal cases because of public defender furloughs and layoffs.

Earlier coverage of the federal budget sequester begins at the link.

Continued Problems, Recalls Involving Compounding Pharmacies

"Voluntary recall for another compounding facility," By Jen Christensen from CNN

Fifteen patients have been hospitalized in Texas after getting calcium gluconate injections, according to the Food and Drug Administration.

The FDA has issued a national voluntary now for all sterile-use products produced by Specialty Compounding LLC, based in Cedar Park, Texas.

What is a compounding facility?

The people hospitalized have a bacterial infection in their blood, and doctors think it might have come from the injection. A culture taken from a sample of this injection shows bacterial growth that is consistent with a Rhodococcus species (PDF) of bacteria, according to the FDA.

"The FDA believes that use of these products would create an unacceptable risk for patients," said Dr. Janet Woodcock, the FDA's director for drug evaluation and research. "Giving a patient a contaminated injectable drug could result in a life-threatening infection."

Compounding pharmacists customize medications to fit an individual's needs. Doctors prescribe these custom medications when the manufactured drug won't work -- for example, when a dosage is too large, or a patient has an allergy to a dye or ingredient in the original product.

The FDA recall notice is at the link.

"Texas: After Illnesses, Compounded Drugs Are Recalled," by Sabrina Tavernise for the New York Times.

"FDA announces recall of sterile medications produced by Specialty Compounding in Texas," from the AP, via the Tribune.

"FDA announces voluntary recall for Specialty Compounding products," by Ernest Scheyder from Thomson Reuters, via the Global Post.

"More Compounding Pharmacy Products Recalled," by Alexandra Sifferlin for Time.

"Health Buzz: FDA Recalls Products from a Compounding Pharmacy," by Laura McMullen for the U.S. News & World Report.

"Lamar Alexander: Tainted drugs from Texas more proof Congress needs to act soon," by Tom Wilemon for the Tennessean.

"Alabama warns of medication that could cause life threatening infections," by Mike Oliver for the AL.

Related posts are in the lethal injection category index.

Arizona Sues Federal Government for Expedited Appeals

Today's Arizona Republic reports, "Horne files suit on death penalty," by Mary Jo Pitzl.

Arizona Attorney General Tom Horne turned to a federal court Monday in an effort to get an answer from the U.S. Department of Justice on whether Arizona can speed up work on death-penalty cases brought against indigent defendants.

The suit, filed in the U.S. District Court in Washington, D.C., reflects Horne’s impatience with what he sees as federal foot-dragging. Horne had set a mid-July deadline for a definitive response from the Justice Department, and with that date past, is asking a court to review the federal agency’s position on the matter.

In a July 16 letter, the Justice Department said it expected a final rule “in the near future” on allowing states to opt in to accelerated processing of death-penalty cases, meaning a shorter time between an indigent defendants’ guilty verdict and execution. However, the letter said it could not provide a precise date.

And:

Arizona years ago changed its death-penalty procedures to allow for a faster turnaround time between the verdict and the death penalty. But those procedures must be approved by a federal rule. The Obama administration scrapped the rule the Bush administration was working on and began its own process, which is still under way.

"Arizona Sues to Expedite Death-Penalty Appeals," is the Wall Street Journal report by Tamara Audi.

Arizona's attorney general, hoping to speed up appeals in death-penalty cases, sued the federal government Monday for allegedly delaying a decision on whether the state can expedite the process.

Notice of the suit, filed in federal appeals court in Washington Monday, comes after Arizona amended its capital-case procedures to meet congressional requirements passed more than four years ago allowing some states "accelerated status" in death-penalty appeals.

The U.S. Justice Department's "failure to act has deprived [Arizona] of the benefits Congress intended in the form of streamlined procedures," a statement from Arizona Attorney General Tom Horne's office said.

The Obama administration is working on rules for how states must comply with the congressional requirements and is expected to publish the rules soon. "We continue to make progress on the rule-making," a Justice Department official wrote to Mr. Horne in a July 16 letter. The letter said the Justice Department is also reviewing Arizona's request for accelerated status. The Justice Department didn't immediately respond to a request for comment.

And:

Dale Baich, supervisor of the capital-case unit for the federal public defender's office in Arizona, said the lawsuit could cause more delays "as the legal challenge will have to be untangled in the courts."

Accelerated status would require that the federal district court take action on a case within 450 days and the court of appeals respond within 120 days of the filing of the last reply brief, according to the state Attorney General's office.

"Arizona Attorney General Tom Horne Sues Feds over Delays in Capital Cases," is the YNN Yuma report from Time Warner Cable's local news operation.

Arizona amended its capital case procedures years ago to meet Congress’s requirements for accelerated status, but the Justice Department’s failure to act has deprived the State of the benefits Congress intended in the form of streamlined procedures.

Statistics indicate that the average delay between verdict and execution in capital cases in the Ninth Circuit (The Federal Court of Appeals that covers Arizona) is an average of 18 years. Acceleration status would require that the Federal District Court act within 450 days, and the Court of Appeals act within 120 days of the filing of the last reply brief. This could shave approximately 10 years off the delay.  

Earlier coverage of the so-called "fast-track" or "opt-in" provision of federal legislation for expedited appeals in death penalty cases begins at the link.

Nebraska Lethal Injection Drug Coverage Post-Cook v. FDA

"Death penalty expert: Nebraska must change lethal injection drug," is the Lincoln Journal Star report written by Kevin O'Hanlon.

A national death penalty expert says a federal appeals court ruling means Nebraska will be forced to change its lethal injection protocol if it wants to continue using capital punishment.

A three-judge panel of the U.S. Court of Appeals District of Columbia Circuit ruled Tuesday that the anesthetic sodium thiopental — acquired overseas by Nebraska and several other states for use in executions — was imported illegally.

"Nebraska, like every other state to carry out an execution in the past two years, will have to change its protocol for executions," said Richard Dieter, executive director of the Death Penalty Information Center. "There are no simple solutions to this problem."

And:

Nebraska went to lethal injection after the state Supreme Court ruled in 2008 that the electric chair amounted to unconstitutionally cruel and unusual punishment. Its three-drug protocol calls for a dose of sodium thiopental to knock out the inmate, followed by pancuronium bromide to cause paralysis, then potassium chloride to stop the heart.

Dieter said many states have switched to pentobarbital, commonly used for animal euthanasia. But Danish manufacturer Lundbeck has said it would block sales to states that want to use it to execute people.

In 2011, Oklahoma changed the language of its law to remove the reference to specific drugs. Nebraska's protocol, formulated by prison officials and vetted in public hearings, could be changed but not without some effort.

The Omaha World-Herald reports, "Ruling on execution drug energizes foes of Nebraska's policy," by Paul Hammel.

If Nebraska wants to keep a viable death penalty, it needs to change the drugs used to chemically end someone's life, an expert on capital punishment said Wednesday.

A federal appeals court ruling Tuesday effectively ruled out the use of a key drug used in lethal injections and will add momentum to the movement to repeal capital punishment, said Richard Dieter of the Death Penalty Information Center.

“This is another delay,” Dieter said. “It makes the death penalty ineffectual.”

State Sens. Ernie Chambers and Brad Ashford, leading death penalty opponents, agreed.

“It shows that the whole death mechanism is fraught with so many flaws that the prudent thing for the state to do is to abolish the death penalty,” Chambers said. “The only reason for maintaining it is political.”

And:

The ACLU of Nebraska called on the state Tuesday to voluntarily surrender its supply of sodium thiopental.

Chambers also called on the state to give up its drugs and avoid the time and expense of a court challenge “it is certain to lose.”

The ACLU said Wednesday it was filing a public records request to see whether Nebraska had obtained other supplies of sodium thiopental. A corrections department spokesman said it had not.

"ACLU seeks info about Neb. lethal injection supply," is by Grant Schulte for AP.  It's via the Danbury News-Times.

The ACLU of Nebraska on Wednesday called on the state to surrender its supply of a key drug used for lethal injections, a day after a federal appeals court ruled that the foreign-made drug requires FDA approval.

The U.S. Court of Appeals for the District of Columbia Circuit said Tuesday that the Food and Drug Administration shouldn't have allowed the sodium thiopental into the country without inspection for use in executions.

The court said its ruling only applied to three states — Arizona, California and Tennessee — and allowed Nebraska to keep its current supply. But the ACLU said the ruling makes it unlikely that the state's existing supply would withstand a legal challenge from a death row inmate.

Nebraska TV posts, "State's Stock of Lethal Injection Drug May Not Be In Compliance With FDA," by Emily Roehler.

"The court's decision should be a warning to the state of Nebraska: don't purchase drugs without going through the FDA," said Amy Miller, Legal Director for the ACLU of Nebraska.

"If Nebraska tries to use unapproved drugs from fly-by-night dealers, it once again shows that the death penalty is broken beyond repair and cannot guarantee it achieves real justice," she said.

And:

"Resorting to illegal practices and black-market drug distributors isn't what the people of Nebraska should expect from their government," said Miller. "We're asking Nebraska to come clean about its supply of sodium thiopental. If the state did not seek FDA approval then officials should dispose of the supply immediately."

Earlier coverage of Nebraska lethal injection issues and the FDA ruling begins at the link.

Sequestration's Impact Being Felt in Federal Indigent Defense

The Hill publishes, "Sequestration threatens to eviscerate federal public defenders," commentary by Michael S. Nachmanoff.  He's the Federal Public Defender for the Eastern District of Virginia.

In 1963, the Supreme Court ruled in Gideon v. Wainwright that all defendants facing serious crimes are entitled to a lawyer. For more than eleven years, I have proudly worked for the Federal Public Defender program, an organization founded by Congress to fulfill this constitutional mandate.

This afternoon, I will testify before members of the Senate about the threat that sequestration poses to the survival of the Federal Defender system.  It is a bitter irony that, exactly fifty years after Gideon, budget cuts threaten to destroy a program regarded as the flagship of indigent defense in this country. It is equally ironic that these cuts will end up costing the taxpayer more money than they save.

"Public defenders say sequester is hurting poor clients," is by Lisa Rein at the Washington Post Federal Eye blog.

Public defenders and their advocates told a Senate panel Tuesday that the budget cuts known as sequestration are taking heavy toll on legal representation for the poor, causing delays and lengthy furloughs that could worsen next year.

“We are cutting ourselves to the bone,” Michael S. Nachmanoff, Federal Public Defender for the Eastern District of Virginia, told a subcommittee of the Judiciary Committee, which held a hearing on the effects of sequestration on the federal court system.

“We are on the verge of being crippled, and we’re a model of quality and efficiency, ” he said.

Federal defenders already were facing a 5 percent budget reduction when $85 billion in spending cuts began coursing through federal agencies in March, lopping another 5 percent from the budget this fiscal year. Some courts have limited the hours they hear criminal matters. Defenders across the country are taking up to 15 days without pay, forcing postponements in many criminal proceedings.

While the U.S. District Courts, federal marshals and U.S. attorneys were spared furloughs because the Justice Department was able to shift money into the accounts that pay their salaries, the defenders are paid from a different pot of money and got no such reprieve.

"Sequestration's Biggest Victim: The Public Defender System," is by Sam Stein & Ryan J. Reilly at Huffington Post.  This lengthy report is filled with human scale details.

It's roughly 164 miles from Lubbock, Texas, to Abilene; not the furthest drive you can do in the Lone Star State but still a bit of a haul. On a good day, you can make the trip in about three hours, which is what Helen Liggett discovered in April when she had to visit a client in the Taylor County Jail.

Liggett is an assistant federal public defender for the Northern District of Texas, based in Lubbock. Her client Leroy Gream had been caught on camera loading an ATM onto a cart and attempting to steal it from Hendrick Memorial Hospital in Abilene on Christmas Day of last year. Gream, 55, pleaded guilty to bank theft, a charge that carries a maximum penalty of 10 years in prison and a $250,000 fine. But like most people who try to steal an ATM, he didn't have the money to pay for his defense. Liggett was assigned to his case.

On April 8, she drove to Abilene to attend Gream's arraignment at the federal courthouse, which was scheduled for the next day. On May 8, she went back for his interview with the United States probation office in preparation for his pre-sentencing report.

In each instance, Liggett chose to pay for the trip -- $185 for gas and a hotel room -- out of her own pocket. It was either that or not visit her client at all. The budget cuts brought on by sequestration wiped out any travel budget her office had.

In an age of across-the-board budget reductions, Liggett forewent all travel reimbursements for March, April and May. She began buying her own pens and copy paper. She's also been furloughed one day a week and has occasionally taken on the furlough days of her lesser-paid secretary and paralegal. There used to be eight people in her office, but in late June, her boss said that they would have to make due with three.

Earlier coverage of the federal budget sequester begins at the link.

Additional Coverage of Cook v. FDA

Yesterday's ruling by the U.S. Court of Appeals for the District of Columbia in Cook v. FDA is available in Adobe .pdf format.

"Import of Lethal Injection Drug Blocked by D.C. Circuit," is by Zoe Tillman for the Blog of Legal Times, Law.com.  Here's the beginning of this detailed article:

The U.S. Food and Drug Administration was wrong to allow states to import a "misbranded and unapproved new drug" used in lethal injection cocktails without first examining it, the U.S. Court of Appeals for the D.C. Circuit ruled today.

In a unanimous ruling, a three-judge panel upheld a trial judge's order blocking the FDA from allowing continued imports of sodium thiopental. The court found the agency "acted in derogation" of its duty to examine foreign shipments of a drug prepared by a company not registered with the FDA. The court rejected the agency's argument that it had discretion in deciding whether to review the shipments and could permit unreviewed imports in deference to law enforcement agencies.

The case was brought by a group of death row inmates in Arizona, California and Tennessee. Eric Shumsky of Orrick, Herrington & Sutcliffe, who argued for the death row inmates on appeal, said today that given the fact that the drug imports violated federal law, "this always was just a case about whether FDA was going to have to follow the law."

Sidley Austin partner Coleen Klasmeier, a lead attorney for the death row inmates and chair of the firm's product regulatory practice, said the ruling had broader implications for future court challenges to agency decisions. Courts are "increasingly willing to push back from assertions from federal agencies of unreviewable discretion," she said, adding that today's decision created a "more robust role" for the courts.

The Wall Street Journal Law blog posts, "Appellate Court Blocks Import of Key Lethal-Injection Drug," by Ashby Jones.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld a lower-court ruling from last year that banned the FDA from allowing states to import sodium thiopental, a drug often used as part of a three-drug lethal-injection protocol.

The appellate court essentially ruled that the FDA, by allowing shipments of an unapproved drug to come into the country, was ignoring federal law.

“When Congress commands an agency to act in a certain fashion, the agency has to follow the law,” said Eric Shumsky, a lawyer for the plaintiffs. “That’s what this case was all about from the start.”

A spokesman for the FDA said the agency “is reviewing the decision.”

Despite its longtime use as an anesthetic, sodium thiopental is not an approved drug under federal law.

In 2011, however, the agency decided that “in defer[ence] to law enforcement” agencies, it wouldn’t ban shipments of sodium thiopental from entering the country. At the time, the lone U.S.-based manufacturer still making sodium thiopental abruptly stopped, so several state correctional departments had begun ordering it from the U.K.

A group of death-row inmates in Arizona, California and Tennessee filed suit, claiming the 2011 policy violated federal law.

In a March 2012 ruling, U.S. District Judge Richard Leon agreed with the inmates, finding that the FDA acted “arbitrarily and capriciously and abused its discretion” in permitting shipments of thiopental.

"Nebraska ACLU urges state to surrender supply of lethal injection drug," is by Paul Hammel for the Omaha World-Herald.

The Nebraska ACLU is urging the state to surrender its supply of a key lethal injection drug following a court ruling Tuesday in Washington, D.C.

If that happened, Nebraska would be unable to carry out the death penalty, and might be forced to join several other states in switching the drugs it uses in lethal injections.

And:

The case was brought by death-row inmates in Arizona, California and Tennessee, who argued that such foreign-made drugs, without an FDA review, might be defective.

The court said the ruling applied only to those three states and that Nebraska can keep its supply.

But Amy Miller of the Nebraska ACLU said the decision makes it “a shoo-in” that a lawsuit brought by a death-row inmate in Nebraska would be successful.

Miller urged Nebraska officials to avoid the cost of a lawsuit and surrender its supply of foreign-made sodium thiopental to the FDA.

"Federal court says Nebraska, other states can keep lethal injection drug," is by Kevin O'Hanlon for the Lincoln Journal Star.

The opinion ruling, from a three-judge panel of the U.S. Court of Appeals District of Columbia Circuit, came in an appeal of a ruling last year by U.S. District Judge Richard Leon, who said the USDA must immediately notify state correctional departments in possession of any foreign-manufactured sodium thiopental that using such drugs is against the law and the drugs must be returned immediately to the FDA.

The court ruled that because the states were not part of the original lawsuit against the FDA, Leon's order that they surrender the drugs was too broad.

That means the issue of whether Nebraska can use the sodium thiopental now likely will be hashed out in federal court in Nebraska or the state Supreme Court.

And:

The appeals court said federal law "imposes mandatory duties upon the agency charged with its enforcement.

"The FDA acted in derogation of those duties by permitting the importation of thiopental, a concededly misbranded and unapproved new drug, and by declaring that it would not in the future sample and examine foreign shipments of the drug despite knowing they may have been prepared in an unregistered establishment," the court said. "The district court could not remedy the FDA’s unlawful actions, however, by imposing upon the interests of nonparties to this suit. The order of the district court pertaining to the thiopental already in the possession of the states ... is therefore vacated, but the underlying judgment of the district court is affirmed.

Earlier coverage begins with yesterday's post announcing the DC Court's ruling.

DC Court of Appeals Rules Against FDA on LI Drug Imports

The U.S. Court of Appeals for the District of Columbia ruling in Cook v. FDA is available in Adobe .pdf format.

"FDA can't allow execution drug to be imported," is the AP report filed by Frederic J. Frommer.  It's also available via the Republic.

A federal appeals court ruled Tuesday that the Food and Drug Administration violated its duty by allowing a misbranded and unapproved new drug to be imported for use in executions by lethal injection.

The three-judge panel affirmed a lower court ruling barring the FDA from allowing the importation of sodium thiopental - rejecting the agency's argument that it had discretion to allow unapproved drugs into the U.S.

The FDA policy "was not in accordance with law," wrote Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit, joined by Judges David Sentelle and Judith W. Rogers. Ginsburg and Sentelle were appointed by President Ronald Reagan; Rogers was appointed by President Bill Clinton.

Sodium thiopental is an anesthetic used to put inmates to sleep before other lethal drugs are administered. The case was brought by death row inmates in Tennessee, Arizona and California.

And:

"By its own account, however, the FDA has ways short of allowing importation of inadmissible drugs to counteract a drug shortage," the panel wrote, such as asking other firms to increase production and expediting review of regulatory submissions.

The panel reversed another part of the lower court's order and allowed state correctional departments to keep stocks of the drug they currently have.

Bloomberg News posts, "Death-Penalty Drug Importing Ruled Illegal by Appeals Court," by Andrew Zajac at its Businessweek site.

A drug used in some U.S. executions, sodium thiopental, can’t be imported into the country because it hasn’t been approved by the U.S. Food and Drug Administration, the U.S. Court of Appeals in Washington ruled in a lawsuit filed by death row inmates.

The ruling upheld a lower-court decision that “permanently enjoined the FDA from allowing the importation of apparently misbranded or unapproved thiopental,” according to an opinion by Circuit Judge Douglas Ginsburg, writing for a three-judge panel.

The decision also blocked a second part of the lower-court ruling that required the FDA “to notify state correctional departments that the use of imported thiopental is unlawful and that existing stocks must be sent the FDA.”

The court can’t require states to turn in the drug to the FDA because they weren’t a party to the suit, Ginsburg wrote.

Six states -- Arizona, Arkansas, California, Georgia, South Carolina and Tennessee -- received shipments of sodium thiopental at issue in the complaint.

Earlier coverage of the FDA dispute begins with coverage of oral arguments in the case.

Justice Sequestered

That's the title of an editorial published in Sunday's New York Times.

The madness of Washington’s across-the-board budget cuts known as sequestration is causing real damage to the American justice system — undermining the sound functioning of the courts and particularly imperiling the delivery of effective legal representation to poor people accused of federal crimes.

The $350 million reduction in the federal judiciary’s budget for fiscal 2013 has resulted in a roughly 8 percent cut to the network of high-quality federal defender offices across the country. It has forced the layoffs of many experienced lawyers who have devoted their professional careers to the underappreciated and underpaid work of representing indigent federal defendants. And it has inflicted a pay cut on the defenders who remain on staff in the form of up to 20 unpaid furlough days.

These hits to the core legal staff have been accompanied by other blows, including reductions in lawyer training, research, investigation of cases and expert help, including interpreters. The cuts have also meant crippling reductions to federal probation and pretrial services, including mental health treatment, drug treatment and testing, and court supervision — all with disquieting implications for people’s rights and public safety.

In April, a major terrorism trial in New York City being handled by Federal Defenders of New York was postponed until January after lawyers in that office told the judge that budget cuts had left them short of resources and staff. The defendant’s family has since hired a lawyer on its own. Many courts no longer conduct trials on some or all Fridays to accommodate the furloughs of federal defenders and strains in other areas, like courthouse security and the availability of federal marshals.

Earlier coverage of the federal budget sequester begins at the link.

How the Sequester Is Holding Up Our Legal System

That's the title of Andrew Cohen's recent post at the Atlantic on the automatic, (not really) across the board federal budget cuts.  It's subtitled, "Budget cuts caused by the sequester are already hindering the timely administration of justice -- and federal judges say a constitutional crisis may be on the horizon."

Here's the beginning:

It has been 134 days now -- roughly one-third of a year -- since the federal budget "sequester" formally took hold. And while members of Congress rushed a few months ago to ease the sequester's impact upon air traffic control -- that is, rushed to make sure their planes would take off on time as they got out of Washington for their long weekends -- there has been no such rush to protect the nation's legal system from the grim impact of the budget cuts. Our federal trials can be delayed at great cost to litigants, our nation's third branch may slide into third-world practices, but God forbid our planes should be late.

It would be one thing if the federal judiciary's budget were bloated. But clearly it is not. "For every one thousand dollars ($1000) of federal spending, the Judicial Branch uses one dollar and eighty-nine cents ($1.89)," U.S. District Judge Fred Biery wrote last week in an open letter to members of the Texas delegation to Congress. "Of that amount," the judge added, "the Western District of Texas uses three pennies." The sequester, in West Texas and everywhere else in the United States, is about the willingness of Congress and the White House to hinder justice by squeezing pennies out of the nation's already-underfunded courts.

Few outside of legal circles want to talk about the impact of the cuts upon the administration of justice. It rarely makes news -- and certainly not television news since there are few images to broadcast. But the sequester's impact upon the federal courts is bad, and getting worse, and will reach constitutional crisis next year around this time if the budget cuts reach into the next fiscal year. In the past few days, I've rounded up a sampling of views from some federal trial judges on what this means for federal litigants today and what it portends for future litigants if Congress continues to fail or refuse to adequately fund the federal court system. Read this cogent "fact sheet" from the Federal Defenders Office if you want details.

Related posts are in the cost, federal legislation, and politics category indexes.

Ethics Complaint Filed Against 5th Circuit Judge Edith Jones

The Austin Chronicle posts, "Judge Edith Jones: Blacks and Hispanics More Violent," by Jordan Smith.  Here are excerpts from this must-read:

A complaint filed today by several civil rights groups, including one funded entirely by the government of Mexico, alleges that federal Judge Edith Jones has violated her duty to be impartial and damaged the public's confidence in the judiciary, in statements she made in a public lecture – including that blacks and Hispanics are more violent.

Indeed, Jones also said that a death sentence provides a public service by allowing an inmate to "make peace with God."

Jones, who sits on the 5th U.S. Circuit Court of Appeals – based in New Orleans, its jurisdiction includes Texas – made numerous offensive and biased comments during a February lecture at the University of Pennsylvania School of Law, according to the complaint filed pursuant to the federal Judicial Conduct and Disability Act. The complaint, filed by the Texas Civil Rights Project, Austin NAACP, the League of United Latin American Citizens (LULAC), and the Mexican Capital Legal Assistance Program (among others) alleges that during her talk – billed as "Federal Death Penalty Review with Judge Edith Jones (5th Cir.)" – Jones violated a number of canons of the code of conduct for federal judges.

The lecture was not recorded, but witnesses recalled a number of Jones' controversial statements. The views she expressed included not only that minorities are responsible for more violent crime than are whites, but also that claims by death row inmates that racism or arbitrariness infected their prosecutions, or that they are actually innocent or even mentally retarded, are merely "red herrings," according to those who attended the lecture. She told the law students and other attendees that she thought the U.S. Supreme Court's ruling outlawing the death penalty for the mentally retarded did intellectually disabled individuals a disservice, and that to create such an exemption from execution was a "slippery slope," reads the complaint.

And:

Complaints such as the one against Jones, signed also by a selection of nationally recognized legal ethicists, are filed with the chief judge of the court of appeals in the circuit where the judge at issue sits – in this case, the complaint goes to Carl Stewart, the current chief judge of the Fifth Circuit. Upon review of the complaint, Stewart is tasked with determining whether it should be dismissed, whether to take corrective action, or whether to appoint a special committee to investigate the allegations. In this case, the filers are asking that the complaint be referred to another circuit for consideration – which, if granted, would remove the matter from Stewart and the Fifth Circuit.

Related posts are in the Fifth Circuit category index.

Obama Nominates Three to DC Court of Appeals

"What Makes the D.C. Circuit Different?" is the title of an editorial in today's New York Times.

Senator Charles E. Grassley, Republican of Iowa, is pushing a bill misleadingly called the Court Efficiency Act, which would eliminate three unfilled seats on the United States Court of Appeals for the District of Columbia Circuit. Next week, President Obama is expected to nominate three highly qualified lawyers for those seats, to bring the court to its full complement of 11 active judges. The Senate should confirm them quickly.

Senator Grassley insists that the District of Columbia court “is the least busy circuit in the country.” But that is simply not true, if measured by the number of pending appeals divided by the number of active judges. By that count, the Court of Appeals for the Eighth Circuit, encompassing seven states in the Midwest, including Iowa, has the lowest workload of any circuit. That was apparently of no concern to the senator when he recently helped speed through the confirmation of Jane Kelly to the court.

Arguing about the caseload, however, misses the point. As Chief Justice John Roberts Jr. explained in a 2005 lecture — “What Makes the D.C. Circuit Different?” — the court has a “special responsibility to review legal challenges to the conduct of the national government.” Because of that role, about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, a far greater percentage than are before other appeals courts in the system.

"Obama to Name 3 to Top Appeals Court in Challenge to Republicans," is Michael D. Shear's Times news coverage of the nominations.

President Obama set a confrontation with Senate Republicans in motion on Tuesday morning by naming a slate of judges to a top appeals court and daring his rivals to block their confirmations.

In a formal Rose Garden ceremony normally reserved for Supreme Court nominees and prominent cabinet members, Mr. Obama announced plans to nominate three people to fill the remaining vacancies on the United States Court of Appeals for the District of Columbia Circuit.

The president called on Republicans to abandon what he called partisan obstruction of his judicial nominees and approve his nominees quickly.

“This is not about principled opposition. It’s about partisan obstruction,” Mr. Obama said. “What’s happening now is unprecedented. For the good of the American people it has to stop.”

“What I’m doing today is my job,” Mr. Obama said as he announced the nominations. “What I need is the Senate to do its job.”

By nominating the judges as a group, the president is trying to restore what his allies consider to be ideological balance on a crucial court that has overturned some important parts of his first-term agenda. And he hopes to heighten public anger at Republicans for repeatedly using the threat of filibuster to block his choices for the cabinet and the courts.

AP posts, "Obama nominates 3 to appeals court, testing GOP," by Nedra Pickler.

Issuing a forceful challenge to Senate Republicans, President Barack Obama nominated three judges to the influential federal appeals court in Washington, declaring that the GOP has "cynically used Senate rules and procedures" to delay and block past nominees.

"What I'm doing today is my job; I need the Senate to do its job," he said as he announced his nomination of Patricia Ann Millett, Cornelia Pillard and Robert Leon Wilkins on Tuesday in the White House Rose Garden.

In simultaneously naming three nominees to the understaffed federal appeals court in Washington, Obama set up an aggressive push against Senate Republicans who are trying to keep him from naming any more judges to the influential circuit.

It's the first time Obama has ever held an event to announce nominees to the federal bench other than the Supreme Court, an indication of the pressure the president is trying to put on the Senate to approve his picks.

"There is no reason aside from politics for Republicans to block these individuals from getting an up or down vote," he said.

"Obama to name two female lawyers and an African American federal judge to U.S. appeals court in District of Columbia," is by Juliet Eilperin for the Washington Post.

President Obama will nominate two female lawyers and an African American federal judge Tuesday to serve on the U.S. Court of Appeals for the District of Columbia Circuit, part of an effort to help reshape the federal judiciary before he leaves office.

The president will nominate veteran appellate lawyer Patricia A. Millett; Georgetown University Law Center professor Cornelia ­T. L. Pillard; and Robert L. Wilkins, a judge on the U.S. District Court for the District of Columbia, according to a White House official who spoke on the condition of anonymity because the announcement had not been made.

It is unclear whether Senate Republicans will accept the idea of approving a trio of judges in quick succession to fill the three vacancies on the D.C. Circuit, one of the nation’s most influential courts. Late last month, the Senate confirmed Justice Department official Sri Srinivasan in a unanimous vote. Srinivasan’s appointment marked the first time since 2006 that the Senate has approved a presidential nominee to the D.C. Circuit.

The BLT - Blog of Legal Times - has more details on the nominees in, "Obama to Nominate Three Lawyers to D.C. Circuit," by Todd Ruger. Here's a brief excerpt; follow the link for more.

A White House official said the nominees are Patricia Millett of Akin, Gump Strauss Hauer & Feld; Cornelia "Nina" Pillard, a former Justice Department lawyer who is now a Georgetown University Law Center professor; and U.S. District Judge Robert Wilkins in Washington, a former Venable partner who was unanimously confirmed to the trial bench in 2010.

The announcement will be made at 10:15 a.m. in the White House's Rose Garden, the official said. Millett and Pillard have extensive experience before the U.S. Supreme Court, and work histories that are unlikely to be too controversial during the Capitol Hill nomination process.

Earlier coverage of federal judicial nominations and confirmations begins at the link.

There's much more on the topic at the Judicial Nominations and Judicial Selection Project websites.

The State of Federal Judicial Nominations in 2013

The Sunday Washington Post reports, "Obama pushing to diversify federal judiciary amid GOP delays," by Philip Rucker.  there is an infographic at the link.  Here's the beginning:

In Florida, President Obama has nominated the first openly gay black man to sit on a federal district court. In New York, he has nominated the first Asian American lesbian. And his pick for the U.S. Court of Appeals for the D.C. Circuit? The first South Asian.

Reelected with strong support from women, ethnic minorities and gays, Obama is moving quickly to change the face of the federal judiciary by the end of his second term, setting the stage for another series of drawn-out confrontations with Republicans in Congress.

The president has named three dozen judicial candidates since January and is expected to nominate scores more over the next few months, aides said. The push marks a significant departure from the sluggish pace of appointments throughout much of his first term, when both Republicans and some Democrats complained that Obama had not tried hard enough to fill vacancies on federal courts.

The new wave of nominations is part of an effort by Obama to cement a legacy that long outlives his presidency and makes the court system more closely resemble the changing society it governs, administration officials said.

The article is referenced in, "Pace quickens for Obama judicial nominations," posted at the ABA Joural by Debra Cassens Weiss.

In his first term, Obama’s confirmed judicial nominees were more diverse than those of his predecessors. Thirty-seven percent were nonwhites, compared to 19 percent for President George W. Bush and 27 percent for President Bill Clinton. Forty-two percent were women, compared with compared with 21 percent for Bush and 30 percent for Clinton.

"Vacancies, backlogs plague federal judiciary," is the Houston Chronicle report by Gary Martin.

When federal Judge Royal Furgeson Jr. took senior status from the federal bench in San Antonio in 2008, colleagues thought it would be a matter of months before his seat was filled.

Five years later, the vacancy is categorized as a "judicial emergency" and senior Judge Alan Ezra has come all the way from Hawaii to hear cases on a docket in the Western Judicial District that includes 800 miles of U.S.-Mexico border.

"It would be nice to get some help," said Chief District Judge Fred Biery in the Western District of Texas. "We are pedaling as fast as we can on an increasingly rickety bicycle."

Texas is not alone.

And:

The result is that emergencies exist in 21 states, including California, Texas, New York, Washington, Arizona and Florida.

The situation is so dire in California that Sen. Diane Feinstein is seeking to not only fill vacancies but also create new judgeships - during a time of fiscal austerity - to ease the caseload burden.

A bipartisan bill pending in the Senate, sponsored by Feinstein, D-Calif., would create 10 new judgeships, including four in California, two in Arizona, three in Texas and one in Minnesota - all states that include U.S. borders.

There's much more on the topic at the Judicial Nominations and Judicial Selection Project websites.

Earlier coverage of federal judicial vacancies and nominations begins at the link.

Coverage of the Senate Hearing on Solitary Confinement

"Senators Start a Review of Solitary Confinement," is the  New York Times report by Erica Goode.

Solitary confinement “is inhumane and by its design it is driving men insane,” a former inmate who spent 18 years in prison in Texas, a decade of that time in isolation on death row before being exonerated, told a Senate panel in a hearing on Tuesday.

“I lived behind a steel door that had two small slits in it, the space replaced with iron and wire, which was dirty and filthy,” said Anthony Graves, whose conviction for involvement in multiple murders was overturned in 2006. “I had no television, no telephone and most importantly, I had no physical contact with another human being.”

The hearing, held before the Subcommittee on the Constitution, Civil Rights and Human Rights, represents the first time lawmakers on Capitol Hill have taken up the issue of solitary confinement, a form of imprisonment that many human rights advocates believe violates the Eighth Amendment’s prohibition of “cruel and unusual punishment” and that has drawn increasing scrutiny in recent months in the United States and internationally.

The practice, which is widespread in American prisons, has also been the target of a growing number of lawsuits, including a class-action suit filed on Monday on behalf of mentally ill inmates held in solitary at ADX, the federal super-maximum-security prison in Florence, Colo.

Last month, civil rights lawyers representing prisoners held for more than 10 years in isolation at Pelican Bay State Prison in California filed suit in federal court, arguing that solitary confinement is unconstitutional.

Senator Richard J. Durbin of Illinois, the assistant majority leader, began the hearing — which he said had the support of both Democratic and Republican committee members — by noting that more prisoners are held in isolation in the United States than in any other democracy and that about half of all prison suicides occur among inmates in solitary confinement.

"Solitary confinement 'is driving men insane,' exonerated convict testifies," is Jamie Goldberg's report for the Los Angeles Times and Tribune News Service.

For most of his 12 years on death row, Anthony Graves lived in what he called an 8-by-12 "cage." To see outside he would stand on top of his rolled-up plastic mattress and look through a small window at the top of the concrete wall in the back of his cell. He spent 22, sometimes 24, hours a day in this room.

"Solitary confinement does one thing: It breaks a man's will to live and he ends up deteriorating. He's never the same person again," said Graves, who served over 18 years in a Texas prison before being exonerated of all crimes in 2010.

Speaking at what was described as the first congressional hearing about solitary confinement, Graves told a Senate Judiciary Committee subcommittee that the practice was "inhumane and by its design is driving men insane."

Psychological studies indicate that approximately a third of prisoners in solitary confinement suffer from mental illness and 50% of prison suicides occur in solitary confinement, said Craig Haney, a psychology professor at UC Santa Cruz.

This month, the Center for Constitutional Rights sued the state of California for its practice of isolating prison inmates suspected of having gang affiliations. The lawsuit focuses on 300 inmates who have been held at Pelican Bay State Prison's Security Housing Unit for more than a decade.

Charles Samuels, director of the Federal Bureau of Prisons, told the committee that inmates were only placed in solitary confinement to protect the safety of the prison population. The bureau attempts to limit time spent in solitary confinement, which is not supposed to be used for seriously mentally ill inmates, he said.

"Sen. Richard Durbin urges revamping prison solitary confinement," by Annika McGinnis for McClatchy News.  It's via the Charlotte Observer.

Sen. Lindsey Graham, R-S.C., repeatedly asked the director of the Federal Bureau of Prisons, Charles Samuels, whether he thought there were any negative effects to such treatment. Samuels said it wasn’t the “preferred option,” and cited a 2010 Colorado Department of Corrections study that he said had found no negative effects from solitary confinement.

Haney, who helped lead the Stanford Prison Experiment in 1971, which demonstrated the psychological impact of confinement on prisoners and guards, said that living in what he called extreme, inhumane and “zoolike” conditions often caused serious mental illness and was a danger to public safety.

About 95 percent of prisoners in solitary confinement ultimately are released back to society; Haney charged that the system lacks meaningful transitional services and formerly isolated prisoners are more prone to violence after they’re released.

Prison officials are supposed to monitor prisoners’ mental health and move them to psychiatric wards if they exhibit signs of illness. Samuels said the system had an extensive network of such officials and an intensive psychological screening process before prisoners were placed in solitary confinement. He said that only the most dangerous prisoners, who posed a threat to other inmates or guards, were placed in solitary confinement and that the number was very small.

Christopher B. Epps, the commissioner of the Mississippi Department of Corrections, said his efforts to revamp that state’s prisons had reduced the number of segregated inmates by 75 percent.

Durbin’s legislation, which has yet to be introduced, would cut the number of prisoners in solitary confinement, improve mental health screenings and give prisoners greater opportunities to challenge decisions.

Texas exoneree Anthony Graves has posted, "An Innocent Man’s Tortured Days on Texas’s Death Row," at the ACLU.  Here's the beginning of this must-read:

On November 1, 1994, I heard the gavel fall and the judge announce, “Anthony Graves, I hereby sentence you to death by lethal injection.” The jury had already convicted me of murdering six people and burning down their house down to cover up the crime. I was completely innocent: they had the wrong guy. I was scared of dying for a crime I did not commit, but I believed in my innocence and hoped someone, somewhere would make it right.

What I didn’t know then was that this wrongful death sentence was only part of the torture I would experience for the next 18-and-a-half years. I didn’t know that I would be forced to live in an 8x12 cage. I didn’t know I would have to use a steel toilet, connected to my steel sink, in plain view of the male and female corrections officers would walk the runs in front of my cell. I didn’t know that for years on end I would have no physical contact with a single human being.

I didn’t know that guards would feed me like a dog, through a slot in my door. Instead of providing basic nutrients, the food sometimes contained rat feces, broken glass, or the sweat of the inmate who cooked it. This diet caused me health problems that continue today. The prison gave me no phone to call my loved ones, no television to keep up with the world and local events, and no real medical care. I lived behind a steel door, with filthy mesh-covered windows looking out to the run; my only window to the outside world was a tiny one on the top of the back wall of my cell. With its peeling, old, and dull paint, my cage was the image of an abandoned one-room project apartment. If I had known when I was sentenced all I would have to go through before I would win my freedom, I don’t know if even my faith in my own innocence would have been enough to sustain me.

Earlier coverage of the U.S. Senate hearing begins at the link.  Related posts are in the incarceration index.

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.