The StandDown Texas Project

How Race-Based IQ Handicapping Led To A Man’s Execution

That's the title of commentary by attorney Ian Smith at the Daily Caller.  Here's the beginning of this must-read:

Although the case of Hernandez v. Stephens was one of thousands denied review by the Supreme Court this past term, that it received next to no attention by media outlets is still deeply puzzling.

The case involved a Mexican-born illegal immigrant named Ramiro Hernandez who was convicted in a Texas court in 2000 for the murder of his employer and the rape of his employer’s wife. After given the death penalty, he appealed on the grounds that he was mentally retarded. Hernandez’s lawyers argued that because IQ tests taken prior to trial showed his to be a mere 62, within the standard definition of mental retardation, his execution would be unconstitutional under the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

This so-called “Atkins claim” by the defense, named after the 2002 case of Atkins v. Virginia, was rejected by the Fifth Circuit. They accepted the prosecution’s rather astonishing argument that although Hernandez’s IQ was low compared to “American norms,” when “scaled to Mexican norms” it should be adjusted upward. When assessed according to his “cultural group”, they argued, his results should be closer to 70, a level just outside the definition of mental retardation.

As a result, this past April Mr. Hernandez was executed. For this “race-based” approach to IQ, claim attorneys filing a brief on Mr. Hernandez’s behalf, the court violated the Equal Protection Clause of the Fourteenth Amendment.

Earlier coverage of Ramiro Hernandez' execution is at the links.  Related posts are in the Intellectual Disability category index.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation - now referred to as Intellectual Disability - is via Oyez. 

The Texas Court of Criminal Appeals has applied its Briseno standards in judging Intellectual Disability claims in Texas, rather than clinical medical standards enumerated in Atkins.  Time will tell what impact the Supreme Court's latest ruling on Intellectual Disability, Hall v. Florida, has on Texas cases.

Texas Executes Mexican Citizen

Texas carried out its sixth execution of 2014, last night in Huntsville.  It was the 514th post-Furman Texas execution since 1982, and the 275th execution under the administration of Gov. Rick Perry. Texas is responsible for more than 37% of the nation's post-Furman executions.

"Mexican Government Condemns Texas Execution Of 'Mentally Impaired' Inmate," is the Fox News Latino report.

The Mexican government condemned the execution of a Mexican national for fatally beating a former Baylor University history professor and attacking his wife more than 16 years ago.

On Wednesday, the Mexican government’s Ministry of Foreign Affairs released a statement saying the execution of Ramiro Hernández Llanas, 44, through lethal injection was “in clear violation of the judgment of the International Court of Justice.”

"The Government of Mexico expresses its most vigorous protest at the failure to comply," the ministry said.

"Texas executes Mexican citizen with drugs from unknown provider," is the AP report, via the Guardian.

Hernandez-Llanas was the second Texas inmate to receive a lethal injection of a new supply of pentobarbital. Texas Department of Criminal Justice officials have refused to identify the source of the powerful sedative, contending secrecy is needed to protect the drug's provider from threats of violence from capital punishment opponents. The US supreme court backed the state's position in a related case last week.

Texas and other states that have the death penalty have been scrambling for substitute drugs or new sources for drugs for lethal injections after major drugmakers – many based in Europe with long-time opposition to the death penalty – stopped selling to prisons and corrections departments.

Hernandez-Llanas' appeals were exhausted, and the Texas parole board on Tuesday refused to delay his death sentence or commute it to life in prison.

There have been 16 executions in American death penalty states this year; a total of 1,375 post-Furman executions since 1977.

According to TDCJ, Texas state district courts have set three additional execution dates.

Related posts are in the foreign citizen and international category indexes.

Texas Execution Set for Wednesday

Texas is set to carry out its sixth execution of 2014, tonight in Huntsville.  It would be the 514th post-Furman Texas execution since 1982, and the 275th execution under the administration of Gov. Rick Perry. Texas is responsible for more than 37% of the nation's post-Furman executions.

"Texas parole board refuses to stop execution," is the AP report by Michael Graczyk, via the Austin American-Statesman.

On Wednesday, Hernandez-Llanas, 44, was set for lethal injection that would make him the second Texas prisoner within a week executed with a supply of pentobarbital newly obtained from a source Texas prison officials have refused to identify.

Last week, the U.S. Supreme Court rejected appeals from another Texas death row inmate, Tommy Lynn Sells, whose attorneys argued unsuccessfully they needed the name of the drug supplier to verify its potency to determine he wouldn’t be subjected to unconstitutional pain and suffering. The Texas Department of Criminal Justice contends the information needs to be withheld to keep the new drug provider from threats of violence from death penalty opponents.

Sells quietly went to his death Thursday with the new drug.

Hernandez-Llanas also was a plaintiff in Sells’ lawsuit. On Monday, the 5th U.S. Circuit Court of Appeals lifted a reprieve he won from a lower court, putting his punishment back on track. Attorneys for the condemned prisoner declined to appeal because the Supreme Court turned down the same request from Sells.

There have been 15 executions in American death penalty states this year; a total of 1,374 post-Furman executions since 1977.

Houston's KPFT-FM will host Execution Watch on the web and its HD radio broadcast signal beginning at 6:00 p.m. (CDT), this evening.

According to TDCJ, Texas state district courts have set three additional execution dates.

Lethal Injection Roundup

Andrew Cohen writes, "America Is Terrible at Killing People Legally," for Politico Magazine.

Herbert Smulls, a convicted murderer, was put to death by Missouri officials while his final appeal was still being considered by the United States Supreme Court. The process by which lethal drugs were pushed into the condemned man’s veins began at 10:11 p.m. Missouri officials told me last Friday that they proceeded with the execution, despite the pendency of an appeal, because there were no stays in place at the time and because the justices in Washington had repeatedly rejected Smulls’ requests for a stay in the hours leading to his death. Smulls was pronounced dead at 10:20 p.m. In figuring that the Supreme Court would again decline to stop the execution, Missouri guessed correctly this time. The Court denied Smulls’s final stay request at 10:24 p.m. He was dead four minutes before his legal rights were exhausted. Death penalty experts, people who have spent decades working on capital cases, were mortified. It’s just not supposed to happen that way.

This is just the latest episode suggesting a level of chaos, a form of lawlessness even, in the administration of the death penalty in America. Other examples abound and include the continued execution of the “mentally retarded,” (an outdated term the Court continues to use) which was supposed to be outlawed by the Supreme Court in 2002 but which is occurring anyway. Another example lies in the Court’s lax standards, and negligible oversight, in evaluating capital cases involving prosecutorial misconduct or ineffective assistance of counsel. In Texas, even the correctional officers’ union is calling for improved conditions for death row inmates while lawmakers in states like Virginia and Missouri (and others) are considering the return of firing squads and electric chairs. Through inaction or indifference, the justices have signaled to state officials that they can push envelopes in capital cases they would not have pushed five or 10 years ago.

The most litigious current example of this phenomenon surrounds the use of secretive new approaches by state officials in Missouri, Louisiana, Texas and elsewhere to hide critical information about the drugs they want to use to execute inmates. This lack of transparency raises profound constitutional questions and yet so far the justices have been unwilling or unable to provide answers. Thus we have entered a newly unsettled era of death penalty law—unsettled even by the contentious standards of modern death penalty jurisprudence—that requires judicial oversight. The Supreme Court must act now to bring order to this growing chaos.

Democracy Now posts, "Execution Chaos: Witnesses Say Executions Are Botched As States Use Untested, Secret Drug Cocktails," with Amy Goodman.  There is video at the link.

 As drug companies refuse to let their products be used for the death penalty, states are using untested drug combinations that have resulted in deaths like that of Dennis McGuire in Ohio, where the state used untested two-drug method despite warnings it might cause immense suffering. We speak with the reporter who witnessed the execution, and with a lawyer for a man executed in Missouri with an entirely different lethal drug cocktail, made by a pharmacy the state refused to name.

And:

We speak with Alan Johnson, reporter with the Columbus Dispatch in Ohio, who witnessed McGuire’s execution and says he observed him gasping for air, and that he appeared to be choking. We are also joined by Cheryl Pilate, one of the lead attorneys for Herbert Smulls, who was executed Jan. 29 with a lethal dose of pentobarbital that was made by a compounding pharmacy the state refuses to name. Also joining is is Megan McCracken, attorney with the University of California, Berkeley School of Law’s Death Penalty Clinic, where she is an expert on lethal injection methods.

"New complications in executions bring new death penalty discussions," is by Patricia Zapor of Catholic News Service.  It's via the Boston Pilot.

International law, the risk of using inhumane methods of execution and opposition to capital punishment by the survivors of murder victims are among issues that are bringing fresh energy to debate about the death penalty.

In mid-January, Father Lawrence Hummer, of St. Mary's Catholic Church in Chillicothe, Ohio, witnessed the execution of Dennis McGuire for the 1989 rape and murder of 22-year-old Joy Stewart, who was 30 weeks pregnant.

A week later, publications around the world were printing the priest's account of watching what he called an inhumane procedure in which the convicted murderer struggled for 26 minutes while a previously untested mixture of drugs was used to execute McGuire.

At about the same time, the execution of a Mexican citizen drew international attention and warnings from the U.S. State Department that the refusal of the State of Texas to review the man's conviction in light of an international court ruling might put U.S. citizens at risk while traveling abroad.

Meanwhile, in Colorado, the parents of a prison guard who was beaten to death by an inmate in 2002 are battling the county prosecutor for the right to be heard at the retrial of the man who previously confessed to killing their son.

"States that actually murder by the death penalty," syndicated columnist and civil libertarian Nat Hentoff's latest.  It's via the Columbia Daily Herald.

While some states have ended the death penalty, it still persists in others, and capital punishment remains a federal death sentence.

Indeed, a shocking (and, to me, sickening) lead editorial in The New York Times last week revealed the means that certain states use to continue creating death penalty corpses. These states viciously violate not only the Constitution, but also the most basic American rules of law and our most profound national values.

How many of us know what those are?

Deserving at the very least a Pulitzer, this editorial explained how certain remaining death penalty states “hide the means by which they kill people”

 Earlier coverage of Herbert Smulls' execution, Andrew Cohen's earlier writing on Missouri's rush to execute, Ohio's botched execution of Dennis McGuire, Texas execution of Edgar Tamayo Arias, and Bob Autobee's demonstration in Colorado, at the links.

Related posts are in the lethal injection index.

Justia Commentary From Michael Dorf

"The Supreme Court’s Responsibility for Recent Death Penalty Mishaps," is by Cornell Law Professor Michael C. Dorf.

The execution rate in the United States has declined in the last two decades, but what the late Justice Harry Blackmun famously called “the machinery of death” remains deeply flawed. Two recent controversial executions illustrate how capital punishment continues to defy attempts at civilizing.

Some methods of execution that are now regarded as horrific were first introduced as efforts to decrease the suffering of the condemned during the process by which the state deliberately takes his life.  The guillotine and the electric chair were each, in their day, considered humane.  In more recent times, lethal injection has become the supposedly humane method of choice.

In principle, lethal injection could make death relatively painless.  People euthanizing a suffering family pet or, in jurisdictions that permit physician-assisted suicide, hastening their own deaths, routinely choose a lethal dose of barbiturate to ease the passage.

But execution at the hands of the state by lethal injection typically involves a “cocktail” of three chemicals, rather than a large dose of sedative.  As a consequence, it holds the potential for horrific mishaps.  If the paralytic chemical takes effect but the anesthetic does not, the condemned may experience excruciating pain but appear outwardly placid, as the paralytic prevents him from showing what is happening.  (The same problem has sometimes plagued anesthesia during surgery.)

Dorf also examines Texas' execution of Edgar Tamayo Arias:

The torturous execution of Dennis McGuire was not the only illegal administration of the death penalty in recent weeks.  Last week, Texas executed Mexican national Edgar Tamayo over the objections of the government of Mexico and U.S. Secretary of State John Kerry.  Their pleas to Texas Governor Rick Perry and to the Supreme Court fell on deaf ears.

Coverage of the lethal injection issues is cataloged in the category index; also, available, coverage and commentary on the Tamayo execution.

The Execution of Edgar Tamayo Arias

Foreign Policy posts commentary by J.Dana Stuster, "Texas to Washington: Executing Mexicans is our business, not yours." It's also available as an OpEd from the Miami Herald.

When Texas executed Edgar Arias Tomayo last week, he became the third Mexican national to receive the death penalty in that state since 2008. And if it takes three events to establish a trend, then the trend is set: Every few years, Texas begins the process to execute a Mexican convict on death row. Next, the Mexican government and U.S. State Department object. Then Texas shrugs and goes ahead.

Tomayo and the two previously executed Mexican nationals are not sympathetic characters. Tomayo was convicted of shooting a Houston police officer three times in the back of the head in 1994; José Medellin and Humberto Leal Garcia were both convicted on rape and murder charges. Their guilt is not the State Department and Mexican government’s issue with the cases.

Rather, the concern is that Medellin, Leal Garcia and Tomayo were not notified of their right to legal assistance from the Mexican consulate upon their arrest. That’s a violation of Article 36 of the Vienna Convention on Consular Relations, which states that foreign nationals have a right to contact and consult with consular officials from their countries upon their arrest. Not only does the United States have an obligation, by law, to inform arrested foreign nationals of their rights, the State Department argues, but adhering to that law is important to make sure that Americans abroad are afforded the same protections.

And:

Ramiro Hernandez Llanas, the next Mexican national cited in Avena, is scheduled to be put to death on April 9th.

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

Texas Executes Mexican Citizen After Supreme Court Rejects Review

"Texas Executes Mexican Man for Murder," is the New York Times report by Manny Fernandez.

Despite opposition from the State Department, Mexican officials and Latino advocates, Texas executed Edgar Arias Tamayo on Wednesday night, putting to death a Mexican citizen whose case raised questions about the state’s duty to abide by international law.

Mr. Tamayo, 46, was strapped to a T-shaped gurney in the state’s death chamber at a prison in Huntsville, injected with a lethal dose of the sedative known as pentobarbital and pronounced dead at 9:32 p.m. Mr. Tamayo was the 509th inmate executed by Texas in the past three decades and had been one of 21 foreign citizens on its death row.

The case became an international issue that Mexican officials and Secretary of State John Kerry said threatened to strain relations between the two countries. Mr. Tamayo’s arrest in Houston in 1994 on charges of murdering a police officer violated the international treaty known as the Vienna Convention on Consular Relations. The authorities neglected to tell him of his right under the Vienna Convention to notify Mexican diplomats.

In executing Mr. Tamayo, Texas officials disregarded an international court’s order that his case be reviewed to determine what impact the violation of his consular rights had on his conviction. That decision, made in 2004 by the World Court, the top judicial body of the United Nations, was binding on the United States under international law, Mr. Kerry had told Texas officials. No United States court had given Mr. Tamayo such a review.

 AP coverage is, "Texas death row inmate Edgar Tamayo of Mexico executed after appeals denied," by Michael Graczyk.  It's via the Austin American-Statesman.

Tamayo’s case drew criticism from the Mexican government and pressure from the U.S. State Department after attorneys argued that he wasn’t immediately advised he could seek help from the Mexican consulate when he was arrested in 1994.

The Supreme Court considered at least two late appeals. One focused on whether he was mentally impaired and ineligible for the death penalty. The other was related to the consular issue.

"Texas executes Mexican citizen who killed police officer," is the Los Angeles Times report by Molly Hennessy-Fiske.

Edgar Tamayo Arias, 46, was put to death at 9:32 p.m. Central time for killing a Houston police officer in 1994, according to Jason Clark, a spokesman for the Texas Department of Criminal Justice. Tamayo made no last statement, Clark said.

Tamayo's attorneys fought until the last minute to save his life, appealing to the U.S. Supreme Court for a stay of execution. It was denied. They argued that Tamayo had been deprived of his rights because, as a foreign citizen, he should have been informed of his right to diplomatic assistance under an international treaty known as the Vienna Convention on Consular Relations.

Tamayo's lawyers turned to the high court after the U.S. 5th Circuit Court of Appeals rejected their appeal that Tamayo was developmentally disabled, mentally ill and ineligible for execution.

"If he had had the assistance of the Mexican Consulate at the time of trial, Mr. Tamayo would never have been sentenced to death," his attorneys, Sandra Babcock and Maurie Levin, said in a statement after the Supreme Court refused to grant a stay. "This case was not just about one Mexican national on death row in Texas. The execution of Mr. Tamayo violates the United States' treaty commitments, threatens the nation's foreign policy interests, and undermines the safety of all Americans abroad."

CNN posts, "Convicted Cop killer Edgar Tamayo Arias Executed."

In the past five years, Texas has executed two other Mexicans convicted of murder who raised similar claims. The Supreme Court refused to delay either of those executions, which took place in2008 and 2011.

Tamayo's lawyers argued the consulate access violation was more than a technicality - that Mexican officials would have ensured he had the most competent trial defense possible, if they had been able to speak with him right after his felony arrest.

"US top court denies reprieve for Mexican death row inmate," is by Chantal Valery of AFP, via Digital Journal.

Tamayo spoke very little English at the time of his arrest and is mentally handicapped, his lawyers said.

"If he had had the assistance of the Mexican consulate at the time of trial, Mr Tamayo would never have been sentenced to death," defense attorneys Sandra Babcock and Maurie Levin said in a statement.

He will be the third Mexican national to be executed in Texas without proper judicial review of the fact that they were denied their right to consular assistance.

"The execution of Mr Tamayo violates the United States' treaty commitments, threatens the nation's foreign policy interests and undermines the safety of all Americans abroad," the lawyers added.

"Texas executes Mexican national after Supreme Court rejects appeal," by Alfonso Serrano at Aljazeera America.

The case has raised tensions with Mexico, which claims that Tamayo and 50 other Mexicans awaiting execution in the U.S. were convicted without being informed of their right to contact the Mexican Consulate upon arrest — a violation of the 1963 Vienna Convention on Consular Relations.

As a result, Mexico argues, Tamayo was denied assistance that could have proved crucial in deciding his case.

“If Edgar Tamayo’s execution were to go ahead without his trial being reviewed and his sentence reconsidered,” Mexico's Foreign Ministry said in a statement prior to the execution,  “… it would be a clear violation of the United States’ international obligations.”

U.S. Secretary of State John Kerry appeared to have heard that message. In a December letter to Texas Gov. Rick Perry, Kerry urged him to reconsider the execution on the grounds that it would damage relations with Mexico and make it more difficult to protect U.S. citizens in legal trouble abroad.

"Texas executes Mexican citizen despite outcry," at France 24 with additional material from AFP and Reuters.

"The execution of [Arias] violates the United States' treaty commitments, threatens the nation's foreign policy interests and undermines the safety of all Americans abroad," his lawyers added.

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

The 1963 Vienna Convention treaty, to which 176 nations are party including the US, sets out how authorities must act when foreign nationals are arrested or detained.

It involves notifying the individuals in question of their right to have their consulate informed of their arrest. They subsequently have the right to consular assistance.

Latin Times posts, "Edgar Tamayo-Arias Executed In Texas After Supreme Court Rejects Postponement," by David Iaconangel.

A 2004 International Court of Justice ruling ordered that his case and that of 49 other Mexican citizens who were tried in the US but never received consular assistance be reviewed. The office of Texas Attorney General Greg Abbott had refused, saying details on his case had already been reviewed during appeals; the office of Governor Rick Perry concurred. Their stance sparked protests in Tamayo Arias' home state of Morelos, in Mexico, and occasioned letters from Mexican officials and US Secretary of State John Kerry, who argued that if the condemned were to be executed without review, it could jeopardize treatment of Americans abroad. 

"While Mexico is riled by Texas execution, many actually support the death penalty," is by Dudley Althaus at GlobalPost.

Mexico abolished the death penalty in 2005, and hasn’t executed a civilian since 1937 or a military convict in 53 years.

So, as with similar cases, news of Tamayo’s fate has filled Mexican airwaves and web pages, fueling heated debates on talk radio and online social media, in restaurants and bars.

More than 12 million Mexico-born people live north of the border. That the migrants left seeking a better life rankles many in Mexico. So does the perception that the United States mistreats Mexican emigres.

Public opinion often leans in favor of migrants accused of crimes in the United States — even if the same criminal acts committed in Mexico draw outrage.

"Even if he were guilty he has already paid with 20 years in prison. That’s enough," Andrea Nunez commented on the website of the newspaper Excelsior.

It was Texas' first execution of 2014, and the state's 509th post-Furman execution since 1982. Texas is responsible for more than 37% of the nation's post-Furman executions.

There have been four executions by American death penalty states in 2014; a total of 1,363 post-Furman executions since 1977.

Related posts are in the foreign citizen and international law category indexes.

Earlier coverage of Edgar Tamayo Arias' case begins at the link.

Texas Execution of Mexican Citizen Scheduled for Wednesday

Texas is set to carry out its first execution of 2014, tonight in Huntsville.  It would be the 509th post-Furman Texas execution since 1982. Texas is responsible for more than 37% of the nation's post-Furman executions.

There have been three executions by American death penalty states in 2014; a total of 1,362 post-Furman executions since 1977.

The scheduled execution of Edgar Tamayo Arias is getting widespread, international attention.

Today's Austin American-Statesman publishes the editorial, "State should delay Edgar Tamayo execution."

Once again, Texas is preparing to execute a Mexican citizen who wasn’t granted immediate access to Mexican consular officials as international treaty requires. The move, should the state succeed in executing Edgar Tamayo on Wednesday evening as scheduled, not only would ignore international law but also could put relations between the United States and Mexico at risk and potentially harm the treatment of Americans abroad.

Tamayo’s lawyers filed suit against Gov. Rick Perry and the Texas Board of Pardons and Paroles to try to stop his execution. It’s important to note that the issue is not whether Tamayo, 46, is guilty of killing Houston police officer Guy Gaddis, 24, in 1994 by shooting him three times in the back of the head.

At issue is what didn’t happen after Tamayo was arrested. Texas authorities ignored American obligations under the Vienna Convention on Consular Relations and failed to tell Tamayo that he had the right to contact Mexican officials after his arrest.

The consular treaty, which was negotiated, signed and ratified by the United States in the 1960s, requires local authorities to notify detained foreign nationals of their right to have their consulate informed of their arrest. It further allows consuls to arrange legal representation for citizens arrested abroad. The treaty ensures Americans abroad consular protection, and it is meant to do the same for foreign nationals in the United States.

"As execution nears, Mexican national Edgar Tamayo denied clemency," is the news report, also in today's Statesman.  It's by Mike Ward.

With his scheduled execution just hours away, the state Board of Pardons and Paroles has denied a clemency request from a Mexican national convicted of gunning down a Houston police officer in 1994.

Parole officials said Wednesday the board refused a clemency request by a majority vote.

The decision came after attorneys for Edgar Arias Tamayo on Tuesday asked U.S. District Judge Lee Yeakel of Austin to delay the execution scheduled Wednesday evening, alleging the clemency process is legally flawed. No decision has been announced.

In announcing its vote, the seven-member parole board noted that federal appellate courts have upheld its authority to deny clemency.

"Attorneys, Mexican officials want impending execution of Mexican man halted in Texas," is the AP report by Michael Graczyk, via the Republic.

Mexican officials are incensed because Texas has opposed legal efforts and spurned diplomatic pressure to spare a prisoner who was in the U.S. without legal permission when he was condemned for fatally shooting a Houston police officer two decades ago.

Edgar Arias Tamayo, 46, was set for lethal injection Wednesday for the January 1994 slaying of Guy Gaddis, 24.

And:

Secretary of State John Kerry previously asked Texas Attorney General Greg Abbott to delay Tamayo's punishment, saying it "could impact the way American citizens are treated in other countries." The State Department repeated that stance Tuesday.

But Abbott's office and the Harris County district attorney opposed postponing what would be the first execution this year in the nation's most active capital punishment state, where 16 people were put to death in 2013.

The Mexican government said in a statement this week it "strongly opposed" the execution and reminded that failure to review Tamayo's case and reconsider his sentence would be "a clear violation by the United States of its international obligations."

"Planned execution in Texas draws high-profile protests," is by Molly Hennessy-Fiske for the Los Angeles Times.

On Tuesday, a federal judge in Austin rejected Tamayo's request for an order that would have prevented Gov. Rick Perry and the parole board from considering his clemency petition until the fairness of the state's clemency process could be reviewed. The judge found that the clemency process satisfied constitutional requirements and did not violate Tamayo's right to due process of law.

Tamayo's attorneys vowed to keep fighting.

"The Texas clemency process is the weakest in the nation, in the state that executes the most. Allowing Mr. Tamayo's fate to be decided by a board that has refused to provide meaningful consideration of evidence that Mr. Tamayo has mental retardation and that his trial was fundamentally unfair as a result of the violation of his consular rights is an affront to what clemency is supposed to be," the attorneys said in a statement.

"Mexican’s likely execution in Texas reignites dispute over global treaty," is by Tim Johnson of McClatchy News, and is datelined Mexico City.  It's via the Kansas City Star.

When Texas administers a lethal injection to convicted cop killer Edgar Tamayo on Wednesday, it will defy the Mexican government and the U.S. State Department and put Texas once again into a dispute over the rights of foreigners held on death row.

A Mexican national convicted of killing a Houston police officer in 1994, Tamayo, 46, has sought a reprieve from execution for 19 years, arguing that Texas police didn’t follow the Vienna Convention that requires them to give foreigners rapid access to consular officials from their home countries when arrested.

His position has won the support of his home government and the Obama administration, which worries that American citizens also might be denied consular access.

“Our consular visits help ensure U.S. citizens detained overseas have access to food and appropriate medical care, if needed, as well as access to legal representation,” Secretary of State John Kerry said in a letter to Republican Texas Gov. Rick Perry urging that the execution be delayed.

Perry has rejected any postponement.

"Texas Clemency Process Poor, But Good Enough for Government Work," is by Jordan Smith for the Austin Chronicle.

Federal Judge Lee Yeakel on Tuesday afternoon denied a bid by condemned Texas inmate Edgar Tamayo to stay his execution pending an inquiry into whether the clemency process undertaken by the Texas Board of Pardons and Paroles affords minimal due process protections required by law – a decision that cleared the way for tonight's planned execution.

Yeakel reviewed confidential materials provided to him by the BPP and concluded that there is nothing to indicate the Board does not "comply with the minimal constitutional-due-process requirements set forth by the United States Supreme Court," he wrote. Indeed, he wrote, there is nothing to suggest the BPP's procedures have undergone any significant change since Yeakel's colleague, Judge Sam Sparks, ruled on a similar challenge in 1998. In that case, brought by a Canadian national, Joseph Faulder, Sparks found that while it "is abundantly clear the Texas clemency procedure is extremely poor and certainly minimal," it nonetheless met the "minimal" standards required by the Supreme Court.

Shortly after Yeakel's ruling, the Texas BPP voted to deny Tamayo's bid for clemency. Unless Gov. Rick Perry steps in with a stay, the BPP vote and Yeakel ruling have cleared the way for Tamayo to be executed tonight, after 6pm.

Latin Times posts, "Edgar Tamayo Arias News: Mexican To Be Executed Despite Department of State Appeal," by Oscar Lopez.

Mr. Tamayo is to be executed by lethal injection on Wednesday afternoon. The 46-year-old's father, Hector Tamayo, has declared the proceedings a violation of justice "it's unjust what they want to do to him knowing full well that he isn't guilty, that he didn't kill the policeman. He never said he killed him and nor was he assisted by the consulate nor any of the people that should help when someone commits a crime." 

Meanwhile a report from Reforma suggests that Mr. Tamayo Arias' himself is "calm and resigned" to his fate. Human rights groups have condemned the execution for not only violating the Vienna Convention but also for executing a man who has shown signs of mental retardation.

Houston's KPFT-FM will host Execution Watch on the web and its HD radio broadcast signal beginning at 6:00 p.m. (CST), this evening.

Earlier coverage of the case of Edgar Tamayo Arias begins at the link.  Related posts are in the foreign citizen and international law category indexes.

Latest Developments in the Edgar Tamayo Arias Case

"Mexico to Texas on convicted cop killer: Don't execute our citizen," is by Catherine E. Shoichet and Elwyn Lopez at CNN.

Mexico's government is trying to block the execution of a convicted cop killer in Texas this week, arguing that it would violate international law.

The case of Mexican citizen Edgar Tamayo Arias is the latest battle in a dispute over the rights of the foreign-born on American death rows. And U.S. Secretary of State John Kerry has said it could put Americans abroad at risk.

Tamayo, 46, was convicted in the 1994 murder of a Houston police officer, whom he shot three times in the back of the head, according to the Texas Department of Criminal Justice.

His attorneys are scheduled to present oral arguments Tuesday, calling for a preliminary injunction to stop the state's governor and the Texas Board of Pardons and Paroles from considering Tamayo's clemency petition until the process is "adequate and fair," read a statement from his team.

Mexico's Foreign Ministry said Sunday that going ahead with Arias' executionby injection, scheduled for Wednesday, would violate international law because Tamayo wasn't advised of his right to receive consular assistance.

Fox News Latino posts, "Attorneys For Mexican On Texas Death Row Argue For Last-Minute Stay Of Execution," by Bill Vourvoulias.

Attorneys for Edgar Tamayo Arias, a Mexican citizen scheduled to be executed by lethal injection on Wednesday at 6 p.m., are presenting last-minute arguments before the United States District Court for the Western District of Texas. 

They are requesting an injunction against the Texas Board of Pardons and Governor Rick Perry to stay his execution until Tamayo’s petition for clemency can be heard by the board.

“We’re making two arguments that have never been considered by the board before,” Northwestern University’s Sandra Babcock, one of Tamayo’s lawyers and a frequent advocate against the death penalty, told Fox News Latino. “Whether the state can execute mentally retarded prisoners is one,” she said, pointing out that his legal team had an expert apply an IQ test and Tamayo scored well below normal.

“The other is the violation of his consular rights,” Babcock added. 

The 46-year-old Tamayo is a native of Miacatlán, in the Mexican state of Morelos, who was convicted of the January 1994 murder of Houston police office Guy P. Gaddis.

Tamayo’s case was one of 51 in the U.S. — 14 of them in Texas — that the International Court of Justice, the United Nation’s top judicial body, asked the U.S. to review in 2004 as part of an examination of possible violations of the Vienna Convention.

UPI posts, "Commission urges Texas to stay execution of Mexican national."

The scheduled execution of a mentally-disabled Mexican national violates international and U.S. law, a group urging Texas to halt the lethal injection says.

The execution of Edgar Tamayo Arias, scheduled to die Wednesday, puts at stake "Texas' respect for the Constitution of the United States and for international law," members of the International Commission against the Death Penalty wrote in an opinion piece published Sunday in the Latin Times.

Texas could violate the U.S. Constitution by executing Tamayo, convicted in 1994 of killing a Houston police officer, the article said, because he has been diagnosed with "mild mental retardation."

The authors of the article contend Texas violated the Vienna Convention on Consular Relations by failing to notify Mexican diplomatic officials of Tamayo's detention in 1994. Mexican authorities did not learn of his arrest until a week before his trial.

"Edgar Tamayo Arias News: International Commission Against The Death Penalty Condemns Execution," contains the OpEd written by Federico Mayor and Bill Richardson, members of the International Commission against the Death Penalty.  Here's the beginning of the OpEd:

Edgar Tamayo Arias, an inmate on death row in Texas, is scheduled to die by lethal injection on   January 22. At stake is not only the life of this 46-year-old Mexican national, but also Texas’ respect for the Constitution of the United States and for international law. It highlights how US states treat detained foreign nationals, especially those facing capital punishment.

The case has attracted widespread attention from several sources, including the US State Department, the Mexican government, the International Court of Justice and the international community.

Mr. Tamayo, a native of Mexico’s Morelos state who came to the US to find work when he was 19 years old, was sentenced to death in October 1994 for the murder of Houston police officer Guy Gaddis in January that year. We do not doubt the seriousness of the crime, but the execution of Mr. Tamayo would be a clear breach of US and international law.

As well as violating international law, Texas would be potentially violating the Constitution of the United States by executing a person with “mild mental retardation,” a condition with which Mr. Tamayo has been diagnosed.

In the spotlight is the importance of an international treaty, the Vienna Convention on Consular Relations. Most countries, including the United States, are party to this convention, which provides a framework for consular relations between countries.

The Austin American-Statesman has published an OpEd by former Texas Governor Mark White, "Perry, Abbott should be true to their word in handling Tamayo case."

As a former Texas governor and attorney general, I know that Texans are proud and honorable people. As President George W. Bush used to say, “In Texas, you’re only as good as your word.” Right now our state and country’s reputation is resting on the word of two elected officials who I hope will keep Texas’ integrity intact. I urge them to fulfill promises they and previous Texas officials made about the cases of several Mexican nationals on our death row. One of these is the case of Edgar Tamayo, a Mexican national with mental disabilities scheduled to be executed Jan. 22.

Tamayo is one of ten Mexican nationals on Texas’ death row who, nearly a decade ago, were the subject of legal proceedings before the International Court of Justice — also known as the World Court. These cases caused international controversy because Texas authorities had violated their rights to have the Mexican Consulate notified of their detention under the Vienna Convention on Consular Relations, a treaty the United States became party to more than 40 years ago. This is the same treaty that ordinary Americans — and thousands of Texans — rely on for protection when they find themselves in trouble overseas. It’s the treaty that allows all Americans who are detained while traveling, working or studying abroad to contact the U.S. Consulate to help defend their rights.

If American states, including Texas, fail to honor Vienna Convention rights for citizens of other countries, then how can we expect those other countries to protect our own rights? So it’s vital that Texas fulfill its promises regarding Tamayo.

Earlier coverage of the case of Edgar Tamayo Arias begins at the link.

Attorneys for Edgar Tamayo Arias File Federal Lawsuit

"Capital case raises questions of international consular rights," is by Jordan Smith in the Austin Chronicle.

On July 18, 2008, Gov. Rick Perry wrote a letter to U.S. Secretary of State Condoleezza Rice and to Attorney Gen­eral Michael Mukasey, thanking the pair for their written request of the month before. Rice and Mukasey had asked that Texas comply with an International Court of Justice order, to ensure that Mexican nationals on death row in Texas were afforded the legal protections assured to them by a now roughly five-decade-old international treaty.

A 1963 Vienna Convention provision ensures individuals have access to home-country consular officials when detained or charged with a crime while abroad – a provision that not only protects foreign nationals in the U.S., but also protects U.S. citizens abroad. Mexico sued the U.S. over violations of the provision, and in 2004 won a judgment from the ICJ in the Hague that concluded the U.S. had not met that obligation in the case of 51 Mexican nationals sentenced to death in the U.S.

One such person was Edgar Tamayo, convicted in Texas for the 1994 murder of Houston Police Officer Guy Gaddis. Tamayo shot Gaddis from the backseat of a patrol car while Gaddis was transporting him to jail. Tamayo had been picked up for a robbery outside a Houston nightclub; Gaddis missed finding the handgun hidden in Tamayo's waistband after a brief frisk.

Although President George W. Bush then asked the states to give effect to the ICJ ruling, Texas' highest criminal court dismissed the notion that the state was bound by the decision, and a majority of the U.S. Supreme Court subsequently ruled that Congress would have to act to make the decision binding. Congressional action has not happened, and unless Perry – or perhaps a federal court – intervenes (possibly on a recommendation of the Texas Board of Pardons and Paroles) Tamayo will be executed on Jan. 22, without any court considering whether the failure of officials to inform him of his right to consular notification negatively impacted the outcome of his case.

The Latin Times reports, "Edgar Tamayo Arias Execution News: Lawyers To Sue Texas Governor Rick Perry," by Oscar Lopez.

Edgar Tamayo Arias' lawyers have filed a lawsuit in Federal Court against the Texas Board of Pardons and Governor Rick Perry, whom they accuse of 'Inadequate Clemency Proceedings.' Sandra Babcock, Tamayo Arias' lawyer and professor at Northwestern University's Law School stated that "The process of Clemency undertaken by the Texas Board of Pardons is surrounded by secrecy. Its members have refused to come together to discuss the petition brought forward by our client."

Edgar Tamayo Arias' legal team has stipulated that the Texas Board of Pardons has violated its own rules of a "just and legal process" in the proceedings: specifically, the Board is accused of refusing the defence team access to key documents presented by the prosecution which opposes Mr. Tamayo Arias' bid for clemency. The defence attorneys have asked for a suspension of 150 days in the hopes of halting the execution scheduled for January 22nd.

Babcock and her team had placed a petition for Executive Clemency to the Board of Pardons on the 11th of December 2013, however, the seven members of the Board have not voted on the matter. Babcock argued that the process of Clemency is the only forum which could grant Tamayo his right to revise the consequences of the "negligence of the state of Texas" by not informing him of his right to seek consular assistance at his arrest in 1994 for the murder of Police Officer Guy Gaddis in Houston.

"Mr. Tamayo was never informed of his right to contact the consulate, as is stipulated in the Vienna Convention on Consular Relations; and, unlike other Mexicans already executed, he has not been granted any form of judicial review," Ms. Babcock argued. She also indicated that the Attorney General as well as Governor Perry had promised a review of cases like Mr. Tamayo's but "until now they have not kept their promise." The lawsuit filed today seeks to stop the Board from a vote before granting the defends team access to the prosecution's documents.

"Texas Set To Execute Cop-Killing Mexican Citizen," by  David Martin Davies for Fronteras.

Lawyers for Tamayo argue he was not given his rights under the Vienna Convention at the time of his arrest, that treaty stating everyone has a right to contact their consulate after being arrested in a foreign country.

Margaret Moran, National President of the League of United Latin American Citizens, said six years ago Texas had promised the courts it would review Tamayo case but it has not done so.

“The fact is that Governor [Rick] Perry and Attorney General [Greg] Abbott are breaking their promise by refusing at every turn to allow a review of this undisputed consular rights violation and the fact is that should they allow a review of this case he would not be executed," Moran said.

The state of Texas did received letters from both Secretary of State John Kerry and the Mexican ambassador to the U.S., both urging the court not the set an execution date. They say that allowing the execution would be detrimental to the United States-Mexico relationship.

Earlier coverage of Edgar Tamayo Arias' case begins at the link.

World Attention Beginning to Focus on Edgar Tamayo Arias' Case

"Mexican Man On Death Row In Texas Reunites With Family Days Before Planned Execution," is by Bill Vourvoulias for Fox News Latino.

Edgar Tamayo Arias, 46, a Mexican national scheduled to be executed in Texas by lethal injection on Jan. 22, apparently won't be alone when his final day comes.

Members of the death row inmate's family — some of whom he hasn't seen in 19 years — arrived in Houston on Sunday. According to Mexican press reports, relatives are scheduled to meet with Tamayo on Monday afternoon.

Tamayo is a native of Miacatlán, in the Mexican state of Morelos, who was convicted of the January 1994 murder of Houston police office Guy P. Gaddis.

He was put on death row, but his sentence was only the beginning of an extremely complicated legal case.

Tamayo’s case was one of 51 in the U.S. — 14 of them in Texas — that the International Court of Justice, the United Nation’s top judicial body, asked the United States to review the judgment in 2004 as part of an examination of possible violations of the Vienna Convention.

Tamayo claims he was never informed that he had the right to contact the Mexican consulate.

Since then, various Mexican officials, including the country’s foreign minister, the governor of Morelos and the country’s ambassador to the United States have intervened on his behalf, trying to get Texas to stay his execution and co-operate with the International Court.

Both the Bush and Obama administrations have pushed for the states to do so as well, but, in 2008, the U.S. Supreme Court ruled that without a federal law directing states to act on requests from the International Court, they were not compelled to comply.

Last month, U.S. Secretary of State John Kerry wrote a letter to Texas Gov. Rick Perry and state Attorney General Greg Abbott, saying that the execution could have serious diplomatic repercussions.

Today's Houston Chronicle publishes the OpEd, "Define case by the Golden Rule," by Gabriel Salguero.  He's president of the National Latino Evangelical Coalition.

For the thousands of our fellow-citizens who serve as missionaries, clergy or aid workers in foreign lands, few safeguards are more important than their right to rapid consular contact if they are detained by the local authorities.

The simple act of sharing their religious beliefs can place them at risk of detention by repressive governments. Confronted by an unfamiliar and sometimes hostile legal system, prompt access to the assistance that only U.S. consulates can provide is their one secure lifeline to the outside world - and to eventual freedom.

Our consulates demand the humane treatment of jailed Americans; they notify their families back home, provide legal information to detainees and monitor the proceedings against them to ensure fair outcomes. These essential rights of consular assistance and access are enshrined in the Vienna Convention on Consular Relations, a treaty binding on the United States and 175 other countries worldwide.

Hardly a week goes by without a story in the news about another American wrongfully detained abroad. Most of those cases are speedily resolved, but the ongoing ability of our government to intervene effectively depends heavily on the extent to which we honor the Vienna Convention rights of foreigners here at home.

This delicate equilibrium of mutual treaty compliance is now threatened by a looming execution in Texas. Mexican national Edgar Tamayo was sentenced to death for the 1994 killing of Houston police officer Guy P. Gaddis, following an undeniable violation of the Vienna Convention that prevented his consulate from assisting in his trial defense.

Well after the trial, consular support led to previously undiscovered evidence of Tamayo's mental retardation and brain damage, mitigating factors that could have persuaded the jury to sentence him instead to life imprisonment. No court has reviewed that new evidence and, unless Texas authorities act on their former promise to support meaningful review of his Vienna Convention claim, Tamayo will be executed without any determination of how the treaty violation might have undermined his right to a fair trial.

Earlier coverage of Edgar Tamayo Arias' case begins at the link.

Mexico & Texas

"Death Penalty Puts Texas at Odd with Mexican Government, Human Rights Groups," is the report at Latino Post.  Here's the beginning:

The impending execution in Texas of a Mexican citizen has civil rights organizations up in arms, as well as a renewed call from Mexico for better legal services and access to diplomatic rights for their citizens who are detained in the United States, and Texas in particular.

Edgar Arias Tamayo, 46, is scheduled to be executed on Jan. 22 as a result of a conviction for the murder of a Houston police officer in 1994. However, as has been noted by many judicial watches, Tamayo was not notified of his right to access Mexican consular services when he was arrested, and the Mexican authorities were not aware of his arrest and detention until one week before his trial.

His case is one of more than 50 which was brought to the attention of the International Court of Justice (ICJ) in The Hague. Mexico sought the courts assistance on behalf of Mexican citizens jailed in the U.S. who had not been afforded their rights under the Vienna Convention on Consular Relations of 24 April 1963.

The court found in Mexico's favor on six points, noted the U.S. agreement and participation in the convention and ordered the U.S. "shall provide, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention, taking account of paragraphs 138 to 141 of this Judgment."

There is also Spanish Language media coverage of the case:

La Prensa posts, "Condena AI ejecución del mexicano."

"Pena de morte:mexicano será 29º estrangeiro executado nos EUA," at PB Agora.

Earlier coverage of this international law dispute begins at the link.

Related posts are in the foreign citizen and international law category indexes.

Another Mexican Citizen Facing Texas Execution

The New York Times reports, "Texas Plan to Execute Mexican May Harm U.S. Ties Abroad, Kerry Says."  It's by Manny Fernandez of the Houston Bureau.

Here's an extended excerpt from the beginning of the article:

The scheduled execution next month of a Mexican national by the State of Texas threatens to damage relations between the United States and Mexico and complicate the ability of the United States to help Americans detained overseas, Secretary of State John F. Kerry has warned Texas officials.

The Mexican, Edgar Arias Tamayo, 46, was convicted of shooting and killing a Houston police officer who was taking him to jail after a robbery in 1994. Mr. Tamayo, who was in the nation illegally, was not notified of his right to contact the Mexican Consulate, in violation of an international treaty known as the Vienna Convention on Consular Relations. That violation, an international tribunal’s order for his case to be reviewed and a judge’s recent decision to set Mr. Tamayo’s execution for Jan. 22, are now at the center of a controversy that has attracted the attention of the State Department and the Mexican government.

Despite Mr. Kerry’s involvement, there has been no sign that Texas officials plan to delay the execution. On Wednesday, Mr. Tamayo’s lawyers asked Gov. Rick Perry to grant him a 30-day reprieve and petitioned the Texas Board of Pardons and Paroles to commute his death sentence to life in prison. They are using Mr. Kerry’s letter, sent to Texas officials in September, to highlight the international issues at stake.

In 2004, the top judicial body of the United Nations, the International Court of Justice, ordered the United States to review the convictions of Mr. Tamayo and 50 other Mexican nationals whose Vienna Convention rights, it said, were violated and who were sentenced to death in the United States. The international court, also known as the World Court, found that United States courts had to determine in each case whether the violation of consular rights harmed the defendant. In the nine years since the World Court’s decision, no United States court has reviewed the Vienna Convention issues in Mr. Tamayo’s case, said Maurie Levin, one of his lawyers.

In a letter sent to Mr. Perry and the Texas attorney general, Mr. Kerry took the unusual step of weighing in on a state death-penalty case, arguing that Mr. Tamayo’s execution would affect the ability of the United States to comply with the international court’s order in what is known as the Avena case. The World Court’s judgment is binding on the United States, Mr. Kerry wrote, and complying with it ensures that the federal government can rely on Vienna Convention protections when aiding Americans detained abroad.

“I have no reason to doubt the facts of Mr. Tamayo’s conviction, and as a former prosecutor, I have no sympathy for anyone who would murder a police officer,” Mr. Kerry wrote, describing his concern as a “process issue” that could impact the way Americans are treated overseas. “Our consular visits help ensure U.S. citizens detained overseas have access to food and appropriate medical care, if needed, as well as access to legal representation.”

Related posts are in the foreign citizen and international law category indexes.  You'll find coverage there of earlier Texas executions involving Mexican citizens who had not been advised of their consular rights.

Poland Protests Connecticut Inmate's Death Sentence

"Poland's president challenges state's death penalty," is by Daniel Tepfer at CT Post.

In what could spark an international incident, the president of Poland is demanding the state not execute a former Trumbull man for the terrifying 2006 murders of a city woman, her 9-year-old daughter and a Milford landscaper.

"We strongly believe the death penalty should not be imposed," Agniestka Torres, vice consul and head of the legal section for the Polish consulate general in New York, told Hearst Connecticut Newspapers. "It doesn't matter what crimes he committed."

The government of the Republic of Poland this week notified Gov. Malloy and the Chief State's Attorney Kevin Kane that it objects to Richard Roszkowski -- whose parents were Polish -- getting the death penalty.

Torres said the appeal comes directly from their president, Bronislaw Komorowski, who recently signed a law banning the death penalty in all circumstances.

Roszkowski was born in the U.S., but both his parents, who are now dead, emigrated from Poland and Roszkowski visited Poland when he was a child.

"As far as we are concerned Mr. Roszkowski is a Polish national and is covered by our laws," Torres said.

"Poland protests death penalty of Connecticut inmate," is AP coverage, via the Day.

The president of Poland is demanding that Connecticut withdraw the death penalty against a former Trumbull man convicted of murder in the deaths of a Bridgeport woman, her 9-year-old daughter and a Milford man

The Polish government notified Gov. Dannel P. Malloy and Chief State's Attorney Kevin Kane last week it objects to the death penalty sentence imposed on Richard Roszkowski. His parents were Polish and Poland's government considers him a Polish national covered by that country's laws.

And:

Connecticut has abolished the death penalty, but it still applies to 10 men on death row.

Earlier coverage from Connecticut begins at the link.

Florida Roundup

Time Warner Cable news outlet Bay News 9 reports, "Critics weigh in on Pam Bondi's execution shift flap."

Florida Attorney General Pam Bondi has been taking some criticism over her asking to push back a death row inmate's execution over a fundraising event conflict.

But will it affect her re-election bid?

Convicted killer Marshall Lee Gore was scheduled to be executed Tuesday night. But Gov. Rick Scott delayed the execution of Gore from Sept. 10 until Oct. 1 at the request of Bondi. The Sept. 10 execution date conflicted with the date of a Bondi campaign fundraiser.

And:

"Most Floridians, whether you support the death penalty or not, believe that the execution of a criminal is maybe the most solemn thing that state government does," said Democratic strategist Steve Schale. "And to trivialize it by canceling it to go to a fundraiser is just something I think most people in Florida are going to shake their heads at."

"Convicted killer receives execution date in slaying of Lauderdale Lakes woman," is by Linda Trischitta for the South Florida Sun Sentinel.

Florida Gov. Rick Scott has signed the death warrant for William Frederick Happ, who was convicted in 1989 of kidnapping, raping and murdering Lauderdale Lakes resident Angela Crowley.

Happ, 51, originally from Gilroy, Calif., is scheduled to be executed at Florida State Prison in Raiford on Oct. 15, state officials said.

"Irish consular assistance granted to death row prisoner in Florida," is the IrishCentral post.

The Department of Foreign Affairs has confirmed it is providing consular assistance to a newly conferred Irish citizen who is currently on death row in Florida.

On Monday the retrial of Michael Fitzpatrick, 51, who is facing the death penalty, began in Florida.

Fitzpatrick, 51, had been sentenced to death for raping and killing 28-year-old Laura Romines on August 18, 1996, in Pasco County. He was born in the U.S., but it is understood his parents originally came from Tipperary.

Last week British based justice charity Reprieve called on the Government to get intervene.

And:

In a statement on Sunday the Department of Foreign Affairs said: "Mr Michael Fitzpatrick was granted Irish citizenship last week.

"As a result, the Department of Foreign Affairs and Trade is providing consular assistance to Mr Fitzpatrick and will notify the relevant US authorities of our interest in the case."

Earlier coverage from Florida begins at the link.

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.

An Update From Nebraska

"Attorneys challenge state death penalty," is the Lincoln Journal Star report written by Nicholas Bergin.

The attorneys for a man convicted of murdering a Brazilian missionary family have asked an Omaha judge to rule the state’s death penalty law unconstitutional in a bid to save their client from being sentenced to die.

A jury convicted Jose Oliveira-Coutinho on Oct. 5 of three counts of first-degree murder and one count of theft in connection with the 2009 deaths of Vanderlei Szczepanik; his wife, Jacqueline; and their 7-year-old son, Christopher. The jury found aggravating circumstances existed, clearing the way for a three-judge panel to decide whether the crimes warrant execution.

A date for sentencing has not been set.

And:

Oliveira-Coutinho's attorneys, Todd Lancaster and Horacio Wheelock, on Tuesday filed a 25-page motion in Douglas County District Court listing nine grounds on which Nebraska’s execution law allegedly violates the U.S. and state constitutions. Most of their arguments already have been presented in Nebraska courts and failed to gain traction.

One of the less tested arguments in the motion is that use of the death penalty has declined to the extent that it now amounts to cruel and unusual punishment. In 1996 -- the high-water mark for the death penalty in the United States -- 315 people were sentenced to die by 31 states and the federal government. Last year, 78 people got the death sentence, a 75 percent decrease.

The motion also argues existing state statues are vague, allow arbitrary and discriminatory application of the death penalty, and fail to give defendants proper notice of how and when a sentence of death will be applied.

Nebraska switched its method of execution to lethal injection after a 2008 ruling by the state Supreme Court that the electric chair amounted to unconstitutional cruel and unusual punishment.

When it comes to lethal injection and deciding on the chemicals, procedures and policies for execution, the motion argues it should be the call of the Legislature, not prison officials.

The Arkansas Supreme Court last year ruled unconstitutional a law there that delegated the choice of lethal injection drugs to that state's Department of Corrections.

Earlier coverage of Nebraska lethal injection issues begins at the link; also available, coverage of Nebraska legislation.

Montana Clemency Review of Ronald Smith Remains on Hold

Canada.com posts, "Ronald Smith death-row clemency case not likely to be resolved until new governor takes over."  It's by Randy Boswell of Postmedia News.

Montana’s outgoing governor has given the clearest signal yet that he won’t be granting clemency to Canadian death-row inmate Ronald Smith during his final days in office, likely placing the Alberta-born killer’s fate in the hands of governor-elect Steve Bullock when he takes over the state’s top job next week.

It’s a situation that one of Smith’s lawyers describes as “uncharted waters” for Montana’s justice system, which has been dealing with Smith’s case for more than 30 years.

The 55-year-old Albertan is one of only two Canadians currently sentenced to death in the United States; the other, Newfoundland-born Robert Bolden, 48, is appealing his death sentence after being convicted in the 2002 killing of a St. Louis bank guard.

Responding to questions about the Smith case in recent days, Montana Gov. Brian Schweitzer told The Associated Press: “The recommendation to me was not to do anything.”

He added that he’s still “not saying one way or another” whether he might commute Smith’s death sentence before his gubernatorial term ends on Monday or endorse the recommendation made by Montana’s parole board earlier this year that the execution should proceed.

But Smith’s case “is not any more on the table at this point than anyone else’s,” Schweitzer added — apparently referring to unresolved issues concerning the legality of Montana’s lethal-injection system, which must be dealt with before the Canadian’s execution could be carried out anyway.

Schweitzer’s comments point to a hands-off approach that would leave the potentially explosive issue to his successor, Bullock, currently the state’s attorney general and nominally the Montana justice official who has been responsible for fighting Smith’s legal appeals in recent years to avoid execution.

Yet Bullock, a Democrat like Schweitzer, is not considered an ardent supporter of capital punishment, and his moderate views on the subject have sparked attacks in the past by Republican rivals intent on preserving the ultimate punishment in a state sharply split over the issue.

“We are waiting for Gov. Schweitzer to act on the clemency petition, and without his action then the issue shifts to the next governor,” Ronald Waterman, one of Smith’s three main lawyers, told Postmedia News this week. “But I don’t know that the clemency petition would automatically transfer over or whether a new petition would have to be presented before Gov. Bullock would be able to act on the petition. We are in uncharted waters here.”

"Baird seeks clemency for death row Canadian," is by Bill Graveland of the Canadian Press.  It's via the Province.

The Canadian government has sent a letter to Montana's governor requesting that he spare the life of death row inmate Ronald Smith.

The Dec. 10 letter from Foreign Affairs Minister John Baird to Montana's outgoing Gov. Brian Schweitzer is almost identical to one sent to the Montana Board of Pardons and Parole a year ago prior to the Alberta man's clemency hearing. It makes it clear that the Federal Court ordered the federal government to support Smith's case for clemency.

"The government of Canada requests that you grant clemency to Mr. Smith on humanitarian grounds," writes Baird. "The government of Canada does not sympathize with violent crime and this letter should not be construed as reflecting a judgment on Mr. Smith's conduct."

Smith has been on death row since admitting he murdered Thomas Running Rabbit and Harvey Madman Jr. near East Glacier, Mont., in 1982.

The Harper government initially refused to back Smith's calls for clemency, saying he was convicted in a democratic country. But the Federal Court ruled Ottawa must follow a long-standing practice of lobbying on behalf of Canadians sentenced to death in other countries.

Earlier coverage of Ronald Smith's case begins at the link.  Montana's lethal injection procedure was ruled unconstitutional last year.  Also, available is advance coverage of the state legislature, which meets this year.

Oklahoma Executes

Today's Oklahoman reports, "Oklahoma executes man for 1993 shootings."  It's written by Sean Murphy.

A death row inmate was executed Tuesday for the 1993 shooting deaths of an Oklahoma City couple.

George Ochoa, 38, was given an injection of lethal drugs at the Oklahoma State Penitentiary at McAlester. He was pronounced dead at 6:07 p.m.

And:

Ochoa lost a late attempt at having his execution postponed when the U.S. Supreme Court on Tuesday denied his request for a stay. A federal appeals court on Monday rejected arguments that Ochoa was mentally unfit to be executed and a challenge to the state’s procedure for determining sanity.

Prosecutors said there was little evidence to suggest a motive for the killing, but no doubt that Ochoa and his co-defendant, Osbaldo Torres, 37, were responsible.

Also:

Torres, a Mexican citizen, was also convicted of first-degree murder and sentenced to death in the shootings, but his sentence was reduced by then-Gov. Brad Henry in 2004.

Henry imposed a sentence of life without parole after Mexican government officials raised concerns that Torres was not given a chance to speak with the Mexican consulate after being accused, as required by international conventions.

It was Oklahoma's sixth execution of 2012; the state's 102nd post-Furman execution since 1990.  To date, there have been 41 executions in American death penalty states this year; a total of 1,318 post-Furman executions since 1977.

Arizona is scheduled to execute Richard Stokley, today, as noted by the Arizona Republic.

Additional Coverage of Montana Lethal Injection Ruling

The order in Smith v. Montana is available in Adobe .pdf format.

"Judge rules Montana execution method unconstitutional," is the AP report filed by Matt Gouras.  It's via the Helena Independent Record.

A judge says Montana must change the way it executes prisoners after ruling that the current method is unconstitutional; giving a victory to death penalty foes that could be short-lived.  

The decision came in the case of Ronald Allen Smith, a Canadian citizen from Red Deer, Alberta, who is awaiting execution.  

The American Civil Liberties Union had filed the case in 2008, arguing that lethal injection protocol amounts to cruel and unusual punishment under the U.S. and Montana constitutions.  

Helena District Judge Jeffrey Sherlock ruled Thursday that aspects of it fail to pass constitutional muster. 

He said the protocol doesn’t ensure qualified individuals are making key decisions, such as verifying that the inmate is unconscious and incapable of feeling pain before administration of the death drugs. Sherlock said the warden is charged with that decision, although there is no training requirement in place to ensure he can properly determine the inmate is unconscious.  

The judge said the job requirements for the setup officer are also lacking. And he pointed out there is inconsistency between what state law requires of an execution procedure, and what the Department of Corrections manual says.  

But the judge said needed changes can be easily made by the state — although it could require legislative changes if the state law on the method needs adjustments to comply with requirements. The Legislature meets again in January.  

State assistant attorney general C. Mark Fowler said his office is studying the opinion and deciding what options there are to modify the protocol. In the meantime, no executions are scheduled.

Reuters Legal posts, "Montana judge strikes down state execution method," by Laura Zuckerman.

A judge has struck down Montana's lethal injection procedure as a violation of the state constitution's protections against cruel and unusual punishment, effectively suspending executions in the state, officials said on Friday.

State District Court Judge Jeffrey Sherlock did not question the constitutionality of the death penalty in Montana, which has two inmates on death row and has executed three since the death penalty was reinstated in 1976.

But he ruled, in a written decision handed down on Thursday, that the state's three-drug execution procedure differed from a two-drug protocol spelled out in law, which he said "increases the likelihood of confusion and error in the process."

Sherlock also faulted a practice in Montana that allows a prison warden with no medical training or execution experience to determine a prisoner was unconscious before a fatal drug was administered.

He also found that the prison official setting up the execution process was not required to have experience with the intravenous procedure.

Sherlock said those concerns and the disparity between the protocol in state law and the one practiced by the Department of Corrections created "a substantial risk of serious harm." He also said the problems could easily be remedied by the Legislature and the state corrections department.

And:

The decision stemmed from a lawsuit brought in 2008 by the Montana American Civil Liberties Union and attorneys for death row inmate Ronald Allen Smith, a Canadian convicted of shooting and killing two people in Montana in 1982.

"Inmates Are ‘Architects of Their Own Doom,’ Says Judge Who Nixed Mont. Lethal Injection Process," by Debra Cassens Weiss for ABA Journal.

Judge Jeffrey Sherlock found three deficiencies in the state’s lethal injection procedure, report Reuters and a blog post by the American Civil Liberties Union of Montana. They are: The three-drug cocktail used differs from the two-drug process specified by state statute; there is no requirement that the executioner have experience with intravenous procedures; nor is there an experience or medical training requirement for the warden who determines whether the inmate is unconscious.

Sherlock used heightened scrutiny to evaluate the challenge by two death-row inmates because of a “dignity clause” in the state constitution that gives “a boost” to the ban on cruel and unusual punishment. The clause provides, “The dignity of the human being is inviolable.”

"Montana judge strikes down state's lethal injection," by Yamiche Alcindor at USA Today.

State District Court Judge Jeffrey Sherlock said the execution method was a violation of the state constitution's protections against cruel and unusual punishment. He did not, however, question the constitutionality of the death penalty in Montana.

In a written decision handed down this week, Sherlock said the state's three-drug execution procedure differed from a two-drug protocol spelled out in law. That difference "increases the likelihood of confusion and error in the process," and creates "a substantial risk of serious harm," he said.

The judge also faulted a Montana practice that allows a prison warden with no medical training or execution experience to determine when a prisoner was unconscious before a fatal drug was administered, Reuters reports. Sherlock also found that the prison official setting up the execution process was not required to have experience with the intravenous procedure.

Earlier coverage of the Montana lethal injection ruling begins at the link.

Montana Judge Declares Execution Protocol Unconstitutional

That's the title of the Canadian Press report filed by Bill Graveland on the Montana lethal injection challenge.  It's via the Calgary Herald.  Here's an extended excerpt:

A Canadian who is fighting for his life on Montana’s death row scored a minor legal victory Thursday after a judge declared the state’s method of execution unconstitutional.

The American Civil Liberties Union filed a civil lawsuit in 2008 on behalf of Ronald Smith that argued the lethal injections the state uses are cruel and unusual punishment and violate the right to human dignity.

District Court Judge Jeffrey Sherlock has agreed, pointing to problems such as lack of training for the individual who administers the drug, a discrepancy over whether two or three drugs should be used in the execution and the method used to determine if the inmate is actually unconscious.

“The Montana protocol has problems,” said Sherlock in his 26-page judgment.

“All three of these concerns create a substantial risk of serious harm violative of the plaintiff’s right to be protected from cruel and unusual punishment.”

But Sherlock noted it wouldn’t be difficult to bring the protocol into line with what is expected.

“The court notes, theoretically, the legislature and the Department of Corrections can easily make changes to the protocol as are found wanting in this decision. These changes can be made quickly and, if done, the modified protocol could not be found in violation of the Montana Constitution.”

Smith’s lawyer said the ruling wasn’t a knockout but does buy his client some time.

“It’s a temporary victory. It was a given,” said Don Vernay, who practises law in Albuquerque, N.M. “When you’re executing people in a mobile home, you don’t really have your act together.

“They’ll just have to redo it. The stay remains in place. Judge Sherlock is the one who issued the stay so obviously now there’s nothing they can do until they make a new one and then it comes back to court again. So we’re years away probably.”

The order in Smith v. Montana is available in Adobe .pdf format.

"Judge finds execution method unconstitutional," is by Katie Schneider at the Sun News.

Ronald Smith cannot be put to death anytime soon, says his lawyer, after a Montana judge on Thursday declared the state's method of injection as unconstitutional.

The only Canadian on death row in the US, who will celebrate his 55th birthday Friday, received a small victory in his battle for his life following the decision by Judge Jeffrey Sherlock.

"Basically he decided as a matter of law, that Montana's lethal injection protocol was not constitutional, so what that will actually mean is they will have to go back and make a new protocol for executing people," Smith's lawyer Don Vernay said.

Vernay said while it's a decision in Smith's favour, it doesn't impact his case too much right now.

"In the event things were to go against us, there couldn't be an execution for the foreseeable future," he said.

In 2008, the American Civil Liberties Association launched a challenge against Montana's lethal injection protocol.

"The drug is just one facet of it -- it also has to do with the people who are qualified to administer it, the facility they have, it's a lot more involved than just the drug," Vernay said.

Smith was sentenced to death in 1983 for shooting to death cousins Harvey Mad Man Jr. and Thomas Running Rabbit.

The ultimate decision on whether Smith will be granted clemency rests with Montana Gov. Brian Schweitzer.

Earlier coverage of Montana lethal injection issues begins at the link.  Related posts are in the lethal injection index.

Coverage of Montana Hearing

"ACLU says Montana's execution method is unconstitutional," is Matt Gouras' AP report, via the Great Falls Tribune.

The American Civil Liberties Union is arguing in state District Court that the method Montana plans to use to execute a Canadian on death row is unconstitutional.

The ACLU on Wednesday asked District Judge Jeffrey Sherlock to rule that the lethal injection protocol amounts to cruel and unusual punishment under the U.S. and Montana constitutions.

The ACLU filed the lawsuit in 2008 on behalf of Ronald Allen Smith.

Smith originally sought the death penalty after pleading guilty in 1983 to the shooting of two Blackfeet Indian cousins. He later changed his mind and is now also seeking executive clemency from the governor.

The Montana Department of Corrections argues that its revised execution protocol meets constitutional muster.

"ACLU challenges Montana's lethal injection protocol," by Marnee Banks for KXLH-TV.

The Montana chapter of the ACLU is asking a District Court judge to rule that Montana's lethal injection protocol is unconstitutional.

They claim the execution protocol doesn't follow the state's own statute.

During a hearing on Wednesday, the ACLU attorney said that after the Legislature upheld the death penalty in 2011, the procedures changed to allow three injections.

However, the state statute only allows for two.

The state argues that there is no need to spell out the specifics as the state has had a flawless history.

The ACLU also says the protocol should include medically-trained personnel to conduct the execution, but the state counters that the warden has the authority and that he makes sure everyone is qualified.

Judge Sherlock says he hopes to make a summary judgement on the matter without having to go to trial.

"Lethal injection challenge could delay Ronald Smith's execution," by Bill Kaufmann for the Calgary Sun.

If a Montana court accepts his argument the state’s lethal injection practice is cruel, the execution of Canadian Ronald Smith could be delayed for up to three years, says a civil liberties lawyer.

 On Wednesday, American Civil Liberties Association (ACLU) lawyer Ron Waterman argued questions over the qualifications of executioners and drugs used should be cleared up before Smith is executed.

Smith is the only Canadian on death row in the U.S. for shooting to death cousins Harvey Mad Man Jr. and Thomas Running Rabbit.

But in a Helena court yesterday, Waterman sparred with state lawyers, raising questions about the executioners’ expertise and of the efficiency of the lethal drugs they use.

“The Montana protocol does not detail anything on the background of that … it can’t rule out with a reasonable degree of certainty that there’s a high risk of pain and suffering,” said Waterman, who’s challenging the constitutionality of the state’s executions.

And with the traditionally-employed sodium pentothal no longer available, the state hasn’t shown its replacements are suitably humane, he said.

“They’ve got to find other drugs and none of them satisfy that requirement,” he said.

Judge Jeffrey Sherlock, he said, listened attentively to his argument and Waterman expects him to make a ruling on the case within the next two weeks.

Earlier coverage of the Montana lethal injection hearing begins at the link.

An Update From Montana

"Montana governor meets family of Canadian on death row," is the AP report by Matt Gouras.  It's via the Missoulian.

Montana Gov. Brian Schweitzer on Friday told the family of a Canadian on death row that he is undecided on the inmate's request for executive clemency, at times expressing sympathy for his plight and at other times noting the desire of the victims' families for retribution.

The governor had a long, frank discussion with relatives of convicted murderer Ronald A. Smith. Schweitzer told them that his options include doing nothing with the clemency request, which seeks life in prison without the possibility of parole instead of the death penalty.

Schweitzer sympathized with the plight of Smith, who is scheduled to be executed in the 1982 killings of two Blackfeet Indian men. The governor said it is not fair for Smith to be executed after an accomplice was paroled, and indicated he believes that Smith may be a different man.

But the governor said he has spoken with the victims' families, Blackfeet tribal members, who have told him they need Smith's death for closure. The governor said he remains uncertain whether Smith's death would improve the situation, and said he is not sure the traditional form of justice for the Blackfeet would include the death penalty.

"In their system of justice, when people did something very bad, they were banished,'' Schweitzer said.

A tribal council member has said that many in the tribe believe that if the governor gives clemency to Smith that means the governor values Native American lives less.

Schweitzer told Smith's family, from Alberta, Canada, that he is aware of that criticism, but argued it does not have merit because he believes he has done more than past governors to include Montana's largest minority group in his administration. Still, the governor is weighing the desire of those on the reservation.

And:

The board is recommending that Schweitzer dismiss the clemency request, writing in their report that "justice is best served" by continuing with the execution. The governor makes the final call.

Smith's sister, Rita Duncan, told the governor much of the same that she and others told the parole board: Smith is a changed man who deserves to live the rest of his life behind bars. Speaking in a barely audible whisper, Duncan at times broke down in tears, as she described the impact Smith has helping the rest of his family through letters and phone calls.

Also at the meeting were Smith's dad Nelson Smith, his daughter Carmen Blackburn and her two children.

The governor told them all options remain on the table. He does not have a timetable for making a decision, but noted the best-case scenario for Smith is life behind bars.

"His sentence, one way or another, is death: slow or long," Schweitzer said.

Schweitzer also expressed anger at Smith, who originally sought the death penalty at trial before changing his mind, for putting the state of Montana in the position of aiding a suicide he once wanted.

The Calgary Sun reports, "Family pleads Montana Governor to spare Ronald Smith's life."  It's by Bill Kaufmann.

Four generations of Canadian death row inmate Ronald Smith’s family pleaded Friday with Montana Gov. Brian Schweitzer to commute the killer’s death sentence.

The five Albertans spent about an hour with Schweitzer in the governor’s Helena office, lobbying him to commute the death sentence the state’s parole board upheld last May.

Smith is the only Canadian on death row in the U.S.

Since May, Schweitzer also met with members of the families of Smith’s victims, Harvey Mad Man and Thomas Running Rabbit, whom he kidnapped and gunned down at the side of a Montana highway on Aug. 4, 1982.

The Democrat governor’s office wouldn’t comment on Friday’s meeting but Smith’s lawyer, Don Vernay, said it’s a worthwhile effort for his client’s family.

“Absolutely — they’re good people who have an incredibly strong relationship with Ron — he’s a foundation for them and the grandkids,” said Vernay.

Making the trip from Alberta to Helena was Smith’s father, Nelson, his sister Rita Duncan, his daughter Carmen Blackburn and grandchildren Myles and Nycole Blackburn.

Vernay said he’s still hopeful Schweitzer, in whose hands Smith’s fate now rests, will commute his sentence to life in prison.

Earlier coverage of the Montana case begins at the link.  Related posts are in the clemency index.

Montana Parole Board Recommends No Clemency for Canadian

The AP report is, "Mont. board: No clemency for Canadian on death row," by Matt Gouras.

The Montana Parole Board on Monday recommended that a Canadian man on death row be denied clemency, saying "justice is best served" by continuing with the execution.

Ronald A. Smith's case now goes to Gov. Brian Schweitzer, who could either grant or deny him clemency or make no decision at all before leaving office at year's end. Smith is seeking life in prison without the possibility of parole — instead of the death sentence he now faces.

Smith is believed to be one of only two Canadians on death row in the United States.

He argues his original 1983 trial for shooting two Blackfeet cousins — in which he asked for and received the death penalty — was botched. His attorneys also have argued it is fundamentally unfair that Smith, of Red Deer, Alberta, be killed while an accomplice was long ago released on parole and returned to Canada.

The Montana Parole Board earlier this month heard testimony for a full day, with Smith's family tearfully pleading for his life. But Blackfeet tribal members and family of the victims argued the execution has been postponed for too long and say it is time for Smith to pay for his crimes.

The Canadian government, after some internal policy changes, is again asking Schweitzer to spare Smith's life.

Smith's lawyers say the governor should look beyond the horrific 1982 killings of Harvey Mad Man, 23, and Thomas Running Rabbit, 20, and consider that Smith is now a different person. They are hoping Schweitzer will take an objective look at the matter since he leaves office at year's end and won't be running again due to term limits.

And:

It's unclear what, if any, action Schweitzer will take. There is no time limit for a final decision from the governor — and state law does not require him to make a decision before leaving office. That could leave the matter to his successor.

"Parole Board recommends against clemency for convicted killer Ronald Smith," is the Billings Gazette report written by Mike Dennison.

The Montana Board of Pardons and Parole on Monday unanimously recommended against clemency for death-row inmate and convicted killer Ronald Smith, saying his death penalty should stand.

The three-person board submitted its recommendation to Gov. Brian Schweitzer, who will make the final decision whether to grant Smith clemency and commute his sentence to life in prison without parole.

Schweitzer’s office gave no timeline Monday for his decision, saying only that he’ll review the recommendation and the record of Smith’s clemency hearing before the board on May 2.

The board’s recommendation, released late Monday afternoon, said it based its decision on testimony from the public at the May 2 hearing, Smith’s responses at the hearing and the board members’ “observations and evaluation of Mr. Smith himself during his hearing.”

However, the board’s letter to Schweitzer gave no specific reason for its decision — other than to say it was based “on the criteria that we use in each and every case … as provided in statute and administrative rules.”

And:

While all of Smith’s criminal appeals have failed, he is the lead plaintiff in a 2008 lawsuit challenging the constitutionality of Montana’s lethal injection execution process. A trial on the lawsuit is scheduled this September before state District Judge Jeffrey Sherlock of Helena.

Smith’s lawyer, Greg Jackson, said Monday that the board’s decision is “obviously very disappointing,” and that board members apparently ignored testimony that showed Smith had made “tremendous and remarkable strides” in prison.

“Given the testimony (on Smith’s behalf) at the hearing that was, frankly, entirely unrebutted by the state, it’s incomprehensible to me that the board could have issued a unanimous decision against clemency,” Jackson said.

"Fate of Canadian on death row for double murder now in governor’s hands," is by Bill Graveland for the Canadian Press.  It's via Canada's National Post.

A Canadian on death row in Montana for killing two men 30 years ago was dealt a major blow Monday in his bid to avoid execution.

The Montana Board of Pardons and Paroles is recommending against allowing Ronald Smith to live out the rest of his life at the state prison — despite his emotional apology from Smith at his clemency hearing earlier this month.

“It’s not a surprise at all. Even though they made a big to-do about it, this report just shows the way the state of Montana has been all along,” Smith’s longtime lawyer Don Vernay said in a telephone interview with The Canadian Press.

And:

A report done by staff at the board, obtained prior to the clemency hearing, strongly recommended against granting Smith mercy.

Vernay said the board obviously didn’t want to rock the boat.

“It’s the easy route. It’s just going with the flow and it flies in the face of all the prison officials that testified and wrote letters for him,” he said.

“It’s just ridiculous when prison guards come up and say they sought this guy out to say goodbye when they retired. These people like him. I’ve never seen anything like it. If there is a case for clemency it is this one.

“The guy really has changed. You can’t fake it for 30 years.”

Earlier coverage of the Smith case begins at the link.  Related posts are in the clemency and foreign citizen category indexes.

The Montana Clemency Hearing

"Killer pleads for life; families ask for death sentence," is David Murray's report for the Great Falls Tribune.

"It is not our intent here today to in any way minimize the significance or severity of the crimes committed by Mr. Smith," said anti-death penalty attorney Ron Waterman at the beginning of the hearing. "Simply, it is a request for mercy."

Mercy and justice were central issues of the Ronald Smith clemency hearing in Deer Lodge on Wednesday. Does Smith's behavior in prison over the past 29 years warrant mercy on behalf of the criminal justice system? Was the severity of his crimes so heinous that the cause of justice demands the end of his life?

On Wednesday, a panel of three representatives from the Montana Board of Pardons and Paroles were asked to weigh the evidence pertaining to these questions. They will now have 30 days to deliver their answer.

Smith is the admitted gunman to two, cold-blooded murders in the summer of 1982.

And:

For eight hours on Wednesday, witnesses both supporting and opposed to clemency for Smith told their stories at the Powell County Courthouse. For most of that time, Smith, the admitted gunman in the murder of two Blackfeet men nearly 30 years ago, sat quietly and without a display of emotion. One by one, the witnesses rose to deliver their testimony. From a clinical psychologist, to a retired prison guard, from the former prosecutor who convicted Smith of homicide, to the still grieving families of the victims, each and every one told their stories.

More than 20 witnesses spoke to the Montana Board of Pardons and Parole. Their testimony will inform the board's decision on whether to grant Smith's request to reduce his sentence to life in prison without the possibility of parole.

Board chairman Michael McKee said the decision will hinge on whether the board members conclude that Smith's rehabilitation and remorse is genuine.

"Death row Canadian cries at mercy hearing as sister reads letter about mother," is Bill Graveland's Canadian Press post, via the Toronto Star.

The only Canadian on death row in the United States broke down and cried at his clemency hearing in Montana on Wednesday.

Ronald Smith’s sister Rita Duncan was reading a letter he wrote to their mother after her death last year.

Smith covered his eyes, brushed away his tears and was patted on the shoulder by his lawyer.

Duncan said Smith has always loved her and she is proud to be his sister.

Smith’s daughter, Carmen Blackburn, also cried as she talked about her father and his remorse. She said she wishes she could take away the pain she can see behind his eyes.

Smith is asking the Board of Pardons and Parole to recommend his death sentence for killing two men in Montana 30 years ago be commuted.

A psychologist told the hearing that Smith is a model prisoner and poses little threat to the people around him. Dr. Bowman Smelko said Smith has shown improvement during his time in prison, and his cognitive ability has jumped 16 points from low to high average.

“He was not exposed to drugs and alcohol. He was not exposed to chaos. He has demonstrated significant change in attitude, thoughts and behaviour,” Smelko said. “He is what would be considered a model prisoner in the modern setting.”

Smelko added that Smith has shown remorse about what he did.

The hearing has also heard that Smith is well-liked by prison guards. Two are expected to testify on his behalf.

The hearing, which represents Smith’s final fight for life, began with a last-minute addition to the witness list.

The hearing heard that a Canadian consular official based in Denver plans to read a statement from the government asking the board to spare Smith’s life. Ottawa had already written a letter favouring clemency, but critics say the government’s support has been tepid.

"Canadian consular official will call for double-murderer Ronald Smith to be spared death penalty," is by Jason van Rassel for Canada's National Post.

The dramatic testimony came during the first morning of a two-day clemency hearing at the Powell County courthouse for Smith, who was sentenced to death for the 1982 shooting deaths of Harvey Mad Man and Thomas Running Rabbit.

Relatives of Mad Man and Running Rabbit, cousins from the Blackfeet Indian reservation, filled one side of the courtroom and watched impassively as Smith’s sister, Rita Duncan, began her testimony by turning to face them and offering condolences.

“Our hearts have broken along with yours,” said Duncan, who told the gallery her brother is a changed man.

“The Ron Smith who is sitting in front of you today is not the same man who committed those crimes 29 years ago.”

Smith, 54, is the only Canadian facing execution in the U.S., and Canada’s official opposition to the death penalty has given the case an added political dimension and subjected it to scrutiny on both sides of the border.

Earlier coverage of Ronald Smith's case begins at the link.

Montana Clemency Hearing for Canadian on Death Row

"Convicted murderer to plead for life at clemency hearing," is the Great Falls Tribune staff report.

Tomorrow morning convicted murderer Ronald Smith will walk into the Powell County Court House in Deer Lodge and plead for his life.

Almost 30 years earlier, Smith ignored the pleas of his two victims. He and another Canadian hitchhiker forced two young Blackfeet men into the woods near Marias Pass and shot them both in the head. It was a chilling crime — one Smith has never denied responsibility for.

During a hearing in 1983, Smith told the court that he killed Thomas Running Rabbit and Harvey Mad Man because he wanted to steal their car and because he wanted to know, "what it would feel like to kill someone." Then, in a surprise move that caught both state prosecutors and his own attorney off guard, Smith rejected an already negotiated plea agreement and requested the death penalty. At a sentencing hearing in March 1983, the court granted his request.

A few weeks later, Smith changed his mind. Since then, he and his attorneys have appealed his sentence seven times, variously arguing that Montana's method of execution is unconstitutional, that he received ineffective legal council and that a variety of mitigating circumstances warrant the commutation of his sentence. He has now exhausted that appeals process.

On Wednesday, Smith is scheduled to appear before the Montana Board of Pardons and Parole one last time. The parole board does not have the authority to commute Smith's sentence, but Smith will ask the three-member panel to recommend to the governor that his death sentence be commuted to life imprisonment without the possibility of parole. Only the governor can grant such clemency.

The CBC News reports, "Canadian on death row in U.S. hoping for clemency."

The only Canadian facing the death penalty in the United States hopes to persuade the people who will decide his fate he's not the same man he was 30 years ago.

Ron Smith, 54, has been on death row in a Montana prison since 1982 after he and an accomplice were convicted of killing two men in Montana.

Beginning Wednesday, he'll ask for clemency at a two-day hearing before the state's Board of Pardons and Parole.

"The person that committed those crimes isn't sitting here," the Red Deer, Alta., native told CBC's Mark Kelley in an interview to be aired on CBC News Network Tuesday night. "And again, I'm not trying to downplay the crime.

"I had a moment where emotions and anger got the best of me and I committed a horrible crime. That doesn't define me. If you want to define me, then take a look at the 30 years," he said.

"Canadian on death row to plead for his life," by the Canadian Press is via CP24.

His is the final name on the list of 16 witnesses put forward by his attorneys for the two-day clemency hearing before the Montana Board of Pardons and Parole beginning Wednesday in Deer Lodge, Mont.

The hearing is being held near the federal penitentiary where Smith, originally from Red Deer, Alta., has spent the last three decades locked up.

"I've always wanted an opportunity to step outside of all of this and to be able to apologize to the family and explain to them just everything about me at that point in time. I was a completely different person," Smith said in an interview last month with The Canadian Press. "It's who I am, who I've become and what I've got going into the future."

The decision to speak at the hearing before the three-member panel was entirely up to Smith, said Don Vernay, co-counsel for Smith who works out of Albuquerque, N.M.

"What we want to do is wait until everything is done and then have the last word," he said. "He's got to speak to the board. These are the people who are going to decide if he lives or dies. He's going to express his remorse and his desire to live."

A flood of support has been flowing into the office of the Board of Pardons and Parole asking it to spare Smith's life.

"Our office has received and continues to receive a colossal amount of support for the commutation from around the world based on individuals' moral beliefs against the death penalty rather than a personal investment or opinion with this particular case," writes a board staffer in a leaked report obtained by The Canadian Press last month.

"Executing Ronald Smith is simply not moral," is Naomi Lakritz' column for the Calgary Herald.

When the Montana parole board meets Wednesday to discuss the fate of death-row inmate Ronald Smith, it will consider his conduct in prison, his remorse for his crime, the feelings of his family, and the feelings of the families of the two men he murdered almost 30 years ago.

But one thing I'm willing to bet the board won't discuss is the only thing that matters — whether executing Smith for the killings of Thomas Running Rabbit and Harvey Mad Man is in itself, a moral thing to do. The answer, clearly, is no. Killing is not moral.

To say that killing Smith is immoral is not to deny or minimize the anguish that the two victims' families continue to suffer. Rather, it means that when meting out punishment, the justice system should never stoop to the level of the criminals who come before it, for then it is just as guilty as they are and has just as much blood on its hands as they do.

I don't know how Smith can live with himself after what he did, but I also don't know how members of the parole board can live with themselves if the board recommends to Montana Gov. Brian Schweitzer that Smith should die. Is the U.S. a civilized society, or not? I would have to say that when a state governor holds the power of life or death in his hands, the answer is a loud "not." How does that work?

Earlier coverage of Ronald Smith's case begins at the link.  Related posts are in the clemency and foreign citizen indexes.

From Mexico

Today's Latin American Herald Tribune reports, "Government Urged to Do More for Mexicans on U.S. Death Row."  Here's an extended excerpt:

Mexico’s independent National Human Rights Commission called on the government to intensify its efforts to prevent Mexicans from being executed in other countries, noting that 58 of the nation’s citizens are currently on death row in the United States.

The death penalty, which Mexico formally outlawed in 2005, is “the most severe penalty imposed on people, the application of which is irreversible, and it is a measure that does not guarantee that justice is served,” the commission said in a document titled “Protecting the Right to Life.”

It said therefore that it takes steps to monitor and verify that Mexicans sentenced to capital punishment abroad receive consular assistance and legal representation.

The organization said it also seeks “in appropriate cases” to have the death penalty commuted to lengthy prison sentences.

According to official figures, 745 Mexicans had their death sentence commuted between 2000 and 2011. The rights commission said its records indicate a total of 58 Mexicans on death row at U.S. prisons through 2011.

The majority of those defendants were named in a lawsuit the Mexican government brought against the United States in 2003 before the International Court of Justice in The Hague, citing violations of procedural guarantees contained in the Vienna Convention on Consular Relations.

In its 2004 ruling in what is known as the Avena case, the ICJ instructed the United States to “review and reconsider” the convictions and death sentences handed down to 51 Mexicans who were denied their right to consular notification and assistance at the time of their arrest.

However, in June 2008, the U.S. Supreme Court ruled that the ICJ’s ruling was not enforceable as domestic law because Congress had not passed implementing legislation.

Several months later, one of the Mexican citizens included in the Avena case, Jose Ernesto Medellin Rojas, convicted of partipating in the 1993 gang rape and murder of two teenage girls in Houston, Texas, was executed in that state.

Another Mexican citizen, Humberto Leal Garcia, convicted of the 1994 rape and murder in San Antonio of a 16-year-old Texas girl, was executed last year after the Supreme Court denied his attorneys’ request for a stay of execution based on authorities’ alleged failure to provide him with consular assistance at the time of his arrest.

Related posts, including coverage of the Medellin and Leal cases, are in the foreign citizen index.

Texas Observer on the Linda Carty Case

Alex Hannaford takes a lengthy examination in the current issue of the Texas Observer, "Did Death Row Inmate Linda Carty Get a Fair Trial?"  Here's the introduction:

Trafalgar Square, just a stone’s throw from the very center of the British capital, is an expanse of paved sidewalk, pretty fountains and, most notably, five statues. The central statue is of Admiral Lord Nelson, after whose infamous 1805 sea battle the square is named; King George IV stands in one corner; two historical army generals in the others. The 'fourth plinth', as it's known, remained empty for 150 years, but for the last decade or so it has been used to showcase a series of artworks. For one day in September 2009, though, it carried a cardboard cut-out of an African-American woman, while beneath it, a portable PA system broadcast her voice — calm, and with a slight Caribbean lilt — to passers-by.

“Hello Trafalgar Square,” she said. “My name is Linda Carty and I'm speaking to you from death row in Texas in the United States.”

Her name will mean little to most Texans: the arrests, charges and then sentences in the case were reported locally -- but briefly -- in the Houston Chronicle and a longer piece appeared in the same paper in 2010 following the Supreme Court's refusal to review Carty's case. But the British press had been on it for a long time. In fact, over the last eight years, thanks to news reports (in everything from broadsheets like the Independent and Guardian to tabloids like the Daily Mail and Express), magazine features, a prime time television documentary and a sustained campaign by a London-based human rights group, Carty has become something of a cause célèbre in the UK — and not just for those opposed to capital punishment. Many feel that, irrelevant of her guilt or innocence, Carty simply didn’t get a fair trial.

From the Trafalgar Square plinth, Carty’s disembodied voice continued: “I'm sorry I sound like a desperate woman but I am desperate. The British people may be my last hope. If they ask for my life to be spared, maybe Texas will listen.”

But why has a little-known inmate on Texas’s death row — one of 10 women and 311 men — got the British all a fluster?

Carty was born on the Caribbean island of St. Kitts when it was still a British colony. As such, Carty holds British citizenship, and under the terms of the Vienna Convention on Consular Relations, when she was first arrested, the British consulate in Houston should have been informed. But it wasn’t.

Earlier coverage of Linday Carty's case begins at the link.

Black, Brown and Invisible: Minorities on Death Row

That's the title of an event in Houston, tonight, at the University of St. Thomas.

Scholars and legal experts join author and former Mexican Consul General of Houston Ricardo Ampudia in a conversation about the impact of the death penalty, particularly on minority defendants.  Topics to be addressed include capital punishment, innocence, disregard of Geneva Conventions and other accords concerning consulates and detained nationals.  A Q&A will be moderated and followed by a book signing.

Participants:
· Ricardo Ampudia is a journalist, diplomat and author of Mexicans on Death Row (Arte Público, 2010), which explores the history and ethics of capital punishment and how it affects the sentencing of Mexicans in the United States.

· Scott J. Atlas, a former litigation partner for the firm Vinson & Elkins (1982 -- 2006), led the legal team that won the release of Ricardo Aldape Guerra, an undocumented immmigrant who spent 14 years on death row.  He was the first Mexican National ever released from Texas' death row.

· Nicole Casarez. attprmeu amd professor at the University of St. Thomas, teaches journalism, media law, public relations and media ethics.  Casarez's affiliation with the Texas Innocence Network has led to investigative work on numerous capital and non-capital cases, including that of exonerated Texas dath row inmate Anthony Graves.

· David R. Dow is the Cullen Professor at the University of Houston Law Center, Rorschach Visiting Professor of History at Rice University and founder of the Texas Innocence Network.  Dow is the author of The Autobiography of an Execution

The book is Mexicans on Death Row by Ricardo Ampudia.

Ricardo Ampudia explores the history and ethics of the death penalty in this fascinating look at its impact on Mexicans sentenced to death in the U.S.  Originally published in Mexico as Mexicanos al grito de muerte, this absorbing account of the history, use and flaws of the death penalty is a must-read for anyone interested in the criminal justice system.

The event is free and open to the public.  For more information, call 713-743-2999.

The event on Twitter is:

#blackbrowndeathrow

Related posts are in the books, event, and foreign citizen index.

Consular Notification Failure an Issue in Nevada

UPI posts, "Serbia appeals U.S. death sentence."

The Serbian government has appealed to a U.S. court to spare the life of a Serbian citizen currently facing execution in Nevada, officials said.

The Serbian consulate said it was not informed about the arrest of Avram Nika as required by international law, and the Serbian government maintains such notification would have meant Nika could have received assistance that may have spared him the death penalty, Serbian news agency Tanjug reported Tuesday.

Such assistance should have been available to Nika because of his inability to speak English and his lack of familiarity with the U.S. legal system, Serbia's brief filed in a Reno court says.

"The failure to notify the consulate caused no mitigating evidence to be presented at his sentencing hearing, such as that he was a hard-working family man who came from poverty and was discriminated against because he is a member of a nomadic ethnic group known as Roma," the brief says.

"Serbia seeks to block execution of citizen in Nev.," is the AP report, via CBS News.

The Serbian government is asking a Nevada court to block the execution of one of its citizens, saying its consulate was not informed of his 1994 arrest as required by international law.

Serbia, in a friend-of-the-court brief filed last week in Washoe County District Court in Reno, maintains the notification would have provided Avram Nika with assistance that could have spared him the death penalty.

Nika, 41, is on death row at Ely State Prison for the 1994 killing of a good Samaritan who stopped to help him along Interstate 80 near Reno. He has yet to exhaust his state and federal appeals.

"(Nika was) particularly vulnerable to the denial of consular assistance due to his inability to speak English and his lack of familiarity with the U.S. legal system and culture," Serbia's brief says.

The failure to notify the consulate caused no mitigating evidence to be presented at his sentencing hearing — such as that he was a hard-working family man who came from poverty and was discriminated against because he was a member of a nomadic ethnic group known as Roma, also called Gypsies, according to the document.

District Attorney Dick Gammick says there was no consulate to contact because the former Yugoslavia where Nika was from was undergoing drastic change at the time. Serbia did not exist as a country then, he said, and other countries in the region came and went.

And:

It's not the first time a foreign government has appealed to U.S. courts on behalf of one of their citizens who wasn't given the benefit of their consulates.

Last month, Mexico's government unsuccessfully petitioned the U.S. Supreme Court to stay a Texas execution to allow Congress time to consider legislation that would require court reviews for condemned foreign nationals who aren't offered the help of their consulates. The high court rejected the request 5-4 and the Mexican citizen was executed.

Mexico protested and the United Nation's top human rights official said the U.S. broke international law when it executed Humberto Leal for a 1994 rape and murder.

The Nevada case marks the first time Serbia has tried to enforce its rights under the 1963 Vienna Convention on Consular Relations, according to the prisoner advocacy group Reprieve based in London.

Related posts are in the foreign citizen index.

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.

International Takes on the Leal Case

The U.K.'s Independent carries, "Texas defies calls to delay execution of Mexican."  It's written by US editor David Usborne.

Texas appeared set last night to proceed with the execution today of Humberto Leal Garcia Jnr, rebuffing requests for a delay from defence lawyers, the White House and the State Department.

The Mexican government has joined the chorus admonishing Texas, arguing that regardless of the guilt or innocence of Leal – who was convicted of raping and murdering a 16-year-old girl in 1994 by bludgeoning her with a slab of asphalt – the state is in violation of the Vienna Convention of Consular Relations, which requires foreign nationals have access to their consulates when taken into custody in another country.

Barack Obama has also exhorted the Supreme Court to intervene with a warning from the Solicitor General, Donald Verrilli, that the execution threatened US relations with Mexico. The State Department urged Governor Rick Perry to postpone the execution, pointing out that denying these rights to foreigners in the United States could lead to American citizens being treated similarly overseas.

Canada's National Post has, "Texas execution plan gets caught in diplomatic debate," compiled by Araminta Wordsworth.

Full Comment’s Araminta Wordsworth brings you a daily round-up of quality punditry from across the globe. Today: When George W. Bush asks his successor as Texas governor to postpone an execution, you know something weird is going on.

During Bush’s stint as governor, more than 150 people were executed in Texas, the U.S.’s most punitive state. Now, Governor Rick Perry is defying claims by international courts, the UN, and the Obama administration that Texas is denying Vienna Convention rights to Humberto Leal Garcia Jr., a Mexican prisoner. He is due to be put to death by lethal injection on Thursday evening.

The President has asked the U.S. Supreme Court to intervene and order a stay of execution. Former U.S. diplomats, retired military leaders, former judges and prosecutors, and organizations representing Americans abroad are also lining up to plead for a delay.

Washington, DC based Al Jazeerah English language has, "Obama seeks delay in execution of Mexican."

The US state department said the US government had determined that when arrested, Texas authorities did not inform Garcia of his right to have access to Mexican consular officials, as they are required to under the Vienna Convention on Consular Relations.

"This is an issue of reciprocity for the United States. It is critical for our ability to get consular access and protection for our own citizens when they find themselves in similar circumstances when they are arrested or detained by foreign governments," Victoria Nuland, the state department spokesperson, said.

And:

The Texas board of pardons and paroles on Tuesday denied Garcia's request for a reprieve or commutation
of his sentence, leaving any final decision on his fate to either the Supreme Court or Rick Perry, the Texas governor.

Silvia Vazquez, a lawyer from the Mexican commission for the defence and promotion of human rights, said they were doing everything they could to halt the execution.

"We have to review the areas where the procedure was violated. If we can present something to help prove his innocence, witnesses, evidence, whatever, that could help his situation to change his sentence," Vazquez said.

A spokesperson for Perry told the Reuters news agency that the governor had no plans to halt the execution and that the Texas attorney general's office had urged the Supreme Court not to intervene.

Bloggers on the Leal case, next.

Earlier Leal coverage begins in the preceding post.

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.

 

The World Is Watching

That's the title of an editorial in this morning's New York Times.

On Tuesday, the Texas Board of Pardons turned down Mr. Leal’s request for a 180-day stay of execution following a denial by the Texas Court of Criminal Appeals. The state court ducked blame by saying that Gov. Rick Perry had the power to grant a one-time 30-day stay so Texas could “honor its duty under the Supremacy Clause to honor the treaty obligations of the United States.”

The Supreme Court is Mr. Leal’s last hope. The court ruled in 2008 that Texas did not have to comply with the treaty because there was no federal law requiring states to do so. But Chief Justice John Roberts Jr. indicated that once Congress took up the treaty issue, it would be unjust not to allow a foreign citizen to have his case reviewed.

The solicitor general filed a brief supporting a stay because that would “serve compelling national interests.” The Mexican government told the court a stay was “absolutely critical.” Congress is in the process of fixing the gap in the federal law. It would be a miscarriage of justice if the Supreme Court allowed Mr. Leal’s execution before Congress could complete that remedy.

"Leal execution puts U.S. at risk," is the San Antonio Express-News Editorial Board's message, today.

Unless Gov. Rick Perry grants a last-minute reprieve, the state of Texas will put Humberto Leal to death today in Huntsville. Leal may well be guilty of the gruesome murder of a 16-year-old girl in San Antonio in 1994. That's not the most contentious issue of his case.

What is being contended is U.S. compliance with its obligations under the Vienna Convention on Consular Relations. The U.S. Senate ratified the treaty in 1969, which requires nations to notify consular officials if a foreign national “is arrested or committed to prison or to custody pending trial or is detained in any other manner.”

Leal is a Mexican citizen. Yet officials in the Texas criminal justice system never informed him of his right to contact Mexican consular officials, nor did they inform those officials that a Mexican national was in their custody on a murder charge.

The notification might not have made any difference in the outcome of Leal's trial. But proceeding with his execution without following the Vienna protocol will have dangerous consequences for Americans who live, work or travel abroad.

“If we do not comply with our obligations under the Vienna Convention,” John B. Bellinger III, who was the U.S. government's senior international lawyer in the administration of President George W. Bush, told the New York Times, “we put at risk Americans, including Texans, who travel and may be arrested overseas.”

In the next posts, I'll link news coverage - which is being updated almost constantly at this post - blog posts and others.  I'll have a post with linked coverage during my absence.

Earlier coverage of the Leal case begins at the link.

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.

Houston Chronicle on the Leal Case

Today's Houston Chronicle carries the editorial, "Keeping our word: Scheduled Texas execution violates treaty and endangers Americans abroad."

Americans traveling abroad are protected, whether they are aware of it or not, by a treaty called the Vienna Convention on Consular Relations, ratified by about 170 countries, which guarantees them access to U.S. consular assistance if they are detained or arrested in a foreign country. In 2010, more than 6,600 Americans were arrested abroad, and more than 3,000 were incarcerated. Many of them benefited from the protections of this treaty.

But unfortunately, the U.S. has repeatedly failed to offer those same protections to foreigners on U.S. soil. The most egregious of these violations is the denial of consular assistance to foreign nationals convicted and sentenced to death. (Currently, about 100 foreign nationals are on U.S. death rows.) And in a particularly urgent case, one of those individuals whose rights were violated, a Mexican national named Humberto Leal Garcia, is scheduled to be executed on July 7 in Huntsville.

Because a bill has been introduced to bring the U.S. into compliance with the treaty, Leal's attorneys have filed a federal petition and a motion for a stay of execution so that Leal will be alive and eligible for the remedies of this legislation when it becomes law.

There are compelling reasons why these petitions should be granted. Chief among them is the fact that this pending legislation will allow for review of cases like Leal's, said his attorney Sandra Babcock, "where lack of consular assistance may well have made the difference between life and death. That's why the consular access really matters." Mexico provides top-flight legal assistance to its nationals under such circumstances.

And:

For all of these reasons, we urge Congress to act swiftly to pass this legislation, and we urge Gov. Perry to give Leal, and others in his situation, the time to benefit from its remedies if they are shown to have been harmed.

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

Rick Perry and the Vienna Convention

That's the title of Massimo Calabresi's post at Time.

Rick Perry may be a potential threat to Barack Obama’s 2012 reelection, but for now the administration is making a long-shot play to take advantage of the Texan’s potential national ambitions. At issue: whether states can execute foreigners who have been denied access to their country’s diplomats.

In theory, they can’t. The U.S. Senate ratified in 1969 a treaty called the Vienna Convention on Consular Relations, which requires countries to allow diplomats access to detained foreigners, as when a pinstriped consular official visits a detained American in some Third World dungeon.

George W. Bush abrogated that part of the treaty (the U.S. still abides by other parts, like treating foreign embassies as if they are outside the jurisdiction of U.S. law). When previous attempts were made to force compliance with the treaty, the Supreme Court ruled broadly that states didn’t have to abide by any treaty unless both chambers of Congress explicitly “implement” it.

Now Texas is preparing to execute on July 7 a Mexican national named Humberto Leal Garcia, Jr., who was convicted in 1994 of sexually assaulting and killing a 16-year-old girl, Adrea Sauceda, in San Antonio, but wasn’t given access to Mexican consular officials after his arrest. The administration mustered diplomats from both parties, military officers and former judges to try and convince Perry to stay Leal’s execution out of respect for the treaty and to protect the thousands of Americans detained abroad every year. In response, Perry spokeswoman Lucy Nashed told Reuters that “the governor would have to receive a favorable recommendation from the Board of Pardons and Paroles to consider the clemency requested.”

The Obama administration’s next move was to help draft a bill, introduced this week by Sen. Patrick Leahy, that would partially implement the Vienna convention, requiring a stay of execution in capital cases where the guilty person has been denied consular access. Leal’s lawyers are expected to seek a stay of execution from the U.S. Supreme Court until Leahy’s bill can get an up or down vote. Obama’s new solicitor general, Don Verilli, will have to consider how to weigh in on the subject.

This should all be catnip to Perry. He became a darling of the Tea Party by telling anti-tax activists at the state capitol on April 15, 2009, that Texas might secede if push came to shove with Washington. “We’ve got a great union. There’s absolutely no reason to dissolve it,” Perry said, “But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that.” And he’s been an outspoken advocate of reasserting 10th amendment states’ rights.

But the administration is hoping that now that Perry appears to have national ambitions, he might seek to build credentials as a statesman by striking a procedural compromise that keeps Leal on death row without directly flouting the treaty.

It’s a long-shot play, to say the least.

More Leal news in the next post.  Earlier coverage of Humberto Leal's case begins at the link.