The StandDown Texas Project

New Scholarship From Peter Hodgkinson

Peter Hodgkinson, OBE, is the Director of the Centre for Capital Punishment Studies at the Westminster Law School in London.  Two works he has been involved with as editor have recently been published.  Details at the links below:

Capital Punishment: New Prespectives

The International Library of Essays on Capital Punishment

• Vol 1 - Justice and Legal Issues

• Vol 2 - Abolition and Alternatives to Capital Punishment

• Vol 3 - Policy and Governance

Related posts are in the books and scholarship category indexes.

Lethal Injection Drugs

"Can Europe End the Death Penalty in America?" is by Matt Ford at the Atlantic.

Lethal injection is by far the predominant method of execution in the United States. Before the drug shortage, virtually every lethal-injection protocol used the same three-drug method. A first drug, sodium thiopental, anesthetized the prisoner. Then a second drug, pancuronium bromide, paralyzed the inmate and halted his or her breathing. Finally, an injection of potassium chloride stopped the heart. Jay Chapman, an Oklahoma medical examiner with little pharmacology experience, first proposed the three-drug protocol in 1977. Asked about his qualifications by a New York Times reporter 30 years later, Chapman described himself as “an expert in matters after death but not in getting people that way.”

Texas became the first state to use lethal injection when it executed Charles Brooks, Jr. on December 7, 1982. Since then, U.S. states have executed over 1,000 death-row inmates by lethal injection. By the time the three-drug cocktail's constitutionality came before the U.S. Supreme Court in 2008 in Baze v. Rees, lethal injection had become the preferred method of execution for 36 states and the federal government. Thirty of those states used Chapman’s method. The U.S. Supreme Court upheld the three-drug protocol in a 7-2 decision.

The European Union, for its part, makes no secret of its death-penalty stance. EU guidelines call for its “universal abolition” and declare that doing so would “[contribute] to the enhancement of human dignity and the progressive development of human rights.” EU diplomats and leaders frequently petition U.S. governors and state parole boards to halt forthcoming executions. Sometimes, the supranational organization even works in more subtle ways: EU agencies contributed over $4.8 million in donations to U.S. anti-death-penalty organizations between 2009 and 2013.

NBC News posts, "Death by Lethal Injection Faces New Hurdles," by Tracy Connor.

Until about 2010, most death-penalty states used a three-drug cocktail that was upheld as constitutional by the U.S. Supreme Court: the anesthetic sodium thiopental, the paralytic pancuronium bromide, and heart-stopping potassium chloride to stop the heart, causing death.

In 2011, Hospira, the sole U.S. producer of sodium thiopental, stopped making the drug, and the European manufacturer balked at exporting it to the U.S. if it were to be used in executions.

Manufacturers of substitute drugs like pentobarbital have also refused to supply it for executions, forcing states to turn to compounders, who mix specialty drugs from their basic components.

Defense lawyers argue that's illegal, claiming the lack of oversight prevents jailers from guaranteeing an execution won't be agonizing enough to violate the constitutional protection against cruel and unusual punishment.

They have attacked states' attempts to keep the names of the pharmacies secret — Georgia's highest court is set to decide soon whether it's legal — and it's easy to see why.

"Lethal Injection Drug Shortage Becomes More Acute," is by Jim Salter of Associated Press.  It's via HuffPost.

The nation's shortage of execution drugs is becoming increasingly acute as more pharmacies conclude that supplying the lethal chemicals is not worth the bad publicity and the legal and ethical risks.

The scarcity of drugs for lethal injections has forced states to scramble for substitutes. And experts say that whatever alternatives are found will almost certainly face costly court challenges made more complicated by laws that cloak the process in secrecy.

And:

Lethal injection has faced increasing scrutiny over the past decade. Major drug makers, many of them based in Europe with longtime opposition to the death penalty, have stopped selling to prisons and corrections departments. The source of the drugs is moving to the forefront of the death penalty debate.

Compounding pharmacies — which custom-mix prescription drugs for doctors and patients — seemed like the answer. They are generally overseen by state boards, not the U.S. Food and Drug Administration, although a law adopted last year allows larger compounding pharmacies to register with the FDA and submit to federal inspections.

But now, some compounding pharmacies are starting to back away, too.

Experts say they're not surprised, given the limited profit in selling execution drugs, ethical concerns in the medical profession, potential legal costs and unwanted publicity.

"This is not a good business model for compounding pharmacies, to be making drugs for executions, particularly with all the secret ways they're doing it," Fordam Law School professor Deborah Denno said.

Earlier coverage of international pressures and restrictions by pharmaceutical makers, at the link.

Related posts are in the international and lethal injection category indexes.

The European Impact

"Europe’s moral stand has U.S. states running out of execution drugs, complicating capital punishment," is the AP report by Juergen Baetz, datelined Brussels.  It's via CBS News and is also available from the Springfield News-Leader.  Here's the beginning of this must-read:

There's one big reason why the United States has a dearth of execution drugs so acute that some states are considering solutions such as firing squads and gas chambers: Europe's fierce hostility to capital punishment.

The phenomenon started nine years ago when the EU banned the export of products used for execution, citing its goal to be the "leading institutional actor and largest donor to the fight against the death penalty." But beefed up European rules mean the results are being most strongly felt in the United States now, with shortages becoming chronic and gruesome executions making headlines.

And:

EU nations are notorious for disagreeing on just about everything when it comes to common policy, but they all strongly — and proudly — agree on one thing: abolishing capital punishment.

Europe saw totalitarian regimes abuse the death penalty as recently as the 20th century, and public opinion across the bloc is therefore staunchly opposed to it.

The EU’s uncompromising stance has set off a cat-and-mouse game, with U.S. corrections departments devising new ways to carry out lethal injections only to hit updated export restrictions within months.

“Our political task is to push for an abolition of the death penalty, not facilitate its procedure,” said Barba Lochbihler, chairwoman of the European Parliament’s subcommittee on human rights.

Europe’s tough stance has caused U.S. states to start experimenting with new drug mixtures, even though convicts’ lawyers and activists argue they increase the risk of painful prolonged death and may violate the constitutional ban on cruel and unusual punishment.

Related posts are in the international and lethal injection category indexes.

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.

Sunday - The Diversions

I hear from readers who appreciate the left-column webrolls.  Some even make it to the last group, Diversions.

I'm adding a new site today; Travels with Sam.  My long-time friend, Austin attorney-mediator Sam Graham is a Fulbright Scholar this year, teaching at the Academy of Law, Odessa in the Ukraine.  He's been teaching there and in Russia for several years, and the stories he brings back are fascinating.  I'm looking forward to hearing them in real-time on his brand new blog.

UN Speaks Out on Hearn & Hill Cases

"UN expert urges US authorities to stop execution of two persons with disabilities," is the news release from the UN News Centre.  Here's the complete text.

An independent United Nations human rights expert has urged United States authorities to stop the execution of two people with psychosocial disabilities who are scheduled to be put to death tomorrow in the states of Georgia and Texas.

“It is a violation of death penalty safeguards to impose capital punishment on individuals suffering from psychosocial disabilities,” said the UN Special Rapporteur on arbitrary executions, Christof Heyns.

“It is also contrary to the United States Supreme Court ruling Atkins v Virginia, which held that such executions are unconstitutional,” added the expert, who reports in an independent and unpaid capacity to the UN Human Rights Council in Geneva.

Warren Hill and Yokamon Laneal Hearn were convicted of murder in separate incidents, and the convictions have been the subject of a number of legal appeals based on the defendants’ mental health, according to a news release issued by the Office of the UN High Commissioner for Human Rights (OHCHR).

However, their death sentences were upheld despite claims that the defendants had psychosocial disabilities, and the existence of a federal ban on such executions. On Monday, the Georgia Board of Pardons and Paroles rejected clemency for Mr. Hill.

Mr. Heyns called on the state authorities “to demonstrate the moral and legal leadership expected of the strong democracy that the United States is by commuting the death sentences of Hill and Hearn, and show the importance it gives to the fundamental right to life.”

In relation to Mr. Hill’s case, the Special Rapporteur voiced particular concern that Georgia is now the only US state that requires proof of what it calls ‘mental retardation beyond a reasonable doubt,’ rather than a preponderance of the evidence as in other jurisdictions, although Georgia was the first state in the US to recognize that such defendants should not be executed.

“This higher standard of proof, making it very difficult to demonstrate that one actually suffers from a psychosocial disability may, I fear, mean that Mr. Hill, scheduled for execution tomorrow, would be a fatality in violation of international as well as domestic law,” Mr. Heyns said.

Regarding Mr. Hearn’s scheduled execution in Texas, the expert noted that “there is evidence to suggest that he also suffers from psychosocial disabilities. This includes an expert opinion that he is affected by structural brain dysfunction likely to have been caused by his mother’s alcohol abuse during pregnancy.”

According to the OHCHR news release, information received by the expert raises issues of a lack of a proper investigation, including mitigating factors, arbitrariness and non-compliance with fair trial safeguards that potentially constitute violations of international standards applicable to the death penalty.

"U.N. expert: Ga., Texas executions illegal," is the UPI report.

A U.N. rights specialist appealed to Georgia and Texas not to execute two men, arguing they're mentally disabled and killing them would be unconstitutional.

"It is a violation of death penalty safeguards to impose capital punishment on individuals suffering from psychosocial disabilities," said Christof Heyns, U.N. special rapporteur on extrajudicial, summary or arbitrary executions.

"It is also contrary to the United States Supreme Court ruling Atkins vs. Virginia, which held that such executions are unconstitutional," he said.

A rapporteur is a person responsible for compiling reports and presenting them to a governing body.

The Supreme Court ruled 6-3 June 30, 2002, that executing mentally retarded individuals violates the Eighth Amendment's ban on cruel and unusual punishment.

Warren Hill was convicted of murder in Georgia and Yokamon Hearn was convicted of murder in Texas.

Their convictions have been the subject of a number of legal appeals based on the defendants' mental health.

Reuters posts, "U.N. expert says U.S. executions, due Wednesday, unconstitutional," by Stephanie Nebehay.

A United Nations human rights investigator called on the U.S. states of Georgia and Texas to halt the execution of two men, scheduled for Wednesday, saying that the prisoners were mentally disabled and killing them would breach the U.S. constitution.

Christof Heyns, U.N. special rapporteur on extrajudicial, summary or arbitrary executions, said that it was a "violation of death penalty safeguards" to execute someone suffering from "psychosocial disabilities" and said their death sentences should be commuted.

"It is also contrary to the U.S. Supreme Court ruling Atkins v. Virginia which held that such executions are unconstitutional," Heyns said in a statement, referring to a 2002 ruling that bans executing mentally retarded defendants.

Warren Hill and Yokamon Laneal Hearn were found guilty of murder in Georgia and Texas, respectively, and their convictions have been the subject of a number of legal appeals based on the defendants' mental health, he said.

Earlier coverage of the Yokamon Hearn and Warren Hill cases at the links; related posts in the international category index.

Britain to Ban Propofol Exports for US Executions

 The Guardian reports, "UK to ban export of drug approved for use in US executions."  It's by Juliette Jowit.

A bar on exports from the UK of a drug approved for use to execute prisoners in America is to be announced on on Wednesday - a move which could put pressure on the US's already strained death row prisons.

The business secretary, Vince Cable, will publish details of a export control on overseas sales of the drug propofol, which is more usually used as an anaesthetic in hospitals.

The move is being made after Missouri became the first US state to allow propofol to be used in lethal injections, with other states expected to follow suit as they struggle to make up for a shortfall in a key ingredient of the traditional cocktail of chemicals.

"This country opposes the death penalty," said a statement from Cable. "We are clear that the state should never be complicit in judiciary executions through the use of British drugs in lethal injections."

The government's move follows a long campaign by the Lib Dem MP Alistair Carmichael, now deputy chief whip, who led anger about the use of a British-made drug called sodium thiopental in executions in the US, where it has been one of the three key ingredients in lethal injections for three decades.

The coalition announced its first export control on sodium thiopental in November 2010, followed by controls on three further drugs used in lethal injections last year – decisions which prompted other European states to advise their pharmaceutical companies to avoid exports for lethal injection, and later an EU-wide ban.

Following those bans, and controls imposed by manufacturers in the US, some US states have struggled to access supplies of the drugs and there have been reports of delays to planned executions. The total number of executions – all by lethal injection – has dropped slightly in the last few years.

"Lethal injection drug exports to be banned in UK," in the Telegraph.

The Business Secretary Vince Cable is expected to introduce new legislative controls over the sale of Propofol, which will be used to prepare the injection that puts prisoners to death in America. It was also the drug used by Michael Jackson to treat his insomnia.

The move was announced after Missouri became the first state to confirm it would begin using the drug in its executions, with others expected to follow, according to the Times.

Mr Cable said: "This country opposes the death penalty. We are clear that the state should never be complicit in judiciary executions through the use of British drugs in lethal injections."

He added a ban would not stop anaesthetics being sold the US for medical purposes.

Since Missouri outlined its intention to use Propofol, campaigners have set out a legal challenge, arguing the drug causes pain before death, and humane administration of a fatal dose was unlikely.

Maya Foa, the head of Reprieve's Stop the Lethal Injection Project, said: "Propofol is a dangerous drug. Anaesthetists have 15 years’ training, a warden may have a few hours or days."

"Propofol Export Ban: Vince Cable Introduces Legislative Controls Over Drug Used For Lethal Injection," is by Paul Vale for Huffington Post UK.

The UK is to ban the export of the drug propofol, a heavy-duty anaesthetic, which was due to be used in the United States for the lethal injection of inmates.

Legislative controls, which were announced by business secretary Vince Cable on Wednesday, follow an announcement in May from the Missouri Department of Corrections that the state is to switch to propofol, the anaesthetic blamed for the death of Michael Jackson, as a single-drug solution for state executions.

Until recently most US states used sodium thiopental alongside two other drugs to kill inmates.

And:

Following Cable's announcement, other European countries are expected to follow with similar bans.

"This country opposes the death penalty,” said the business secretary on Wednesday.

“We are clear that the state should never be complicit in judiciary executions through the use of British drugs in lethal injections."

Earlier coverage of Missouri's announced drug switch and an earlier British block on selling another drug used in lethal injections, at the link.  Related posts are in the lethal injection index.

U.N. Chief Calls for End of Death Penalty

That's the title of an AP report, via USA Today.

U.N. Secretary-General Ban Ki-Moon has called for the death penalty to be abolished.

Ban told a panel on the issue convened Tuesday by the U.N. High Commissioner for Human Rights: "The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process."

Since the General Assembly endorsed a call for a death penalty moratorium in 2007, several nations have abolished the death penalty, including Argentina, Burundi, Gabon, Latvia, Togo and Uzbekistan. The U.N. says 150 nations have either abolished the death penalty or do not practice it.

Ban said he was especially concerned that the death penalty is still used for juvenile offenders, and 32 nations use it for drug-related offenses.

The U.N. News Centre issued, "Secretary-General calls on States to abolish death penalty."

United Nations Secretary-General Ban Ki-moon today called on Member States which use the death penalty to abolish this practice, stressing that the right to life lies at the heart of international human rights law.

“The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process,” Mr. Ban told a panel organized by the Office of the UN High Commissioner for Human Rights (OHCHR) on ‘Moving away from the death penalty – Lessons from national experiences’ at UN Headquarters in New York.

“Where the death penalty persists, conditions for those awaiting execution are often horrifying, leading to aggravated suffering,” he added.

In 2007, the General Assembly endorsed a call for a worldwide moratorium of the death penalty. Since then, the practice has been abolished by countries like Argentina, Burundi, Gabon, Latvia, Togo and Uzbekistan. More than 150 States have either abolished the death penalty or do not practice it.

However, Mr. Ban noted, the death penalty is still used for a wide range of crimes in various countries. In particular, he expressed concern that 32 States retain the death penalty for drug-related offences, and its use on juvenile offenders.

“I am also very concerned that some countries still allow juvenile offenders under the age of 18 at the time of the alleged offence to be sentenced to death and executed,” Mr. Ban said. “The call by the General Assembly for a global moratorium is a crucial stepping stone in the natural progression towards a full worldwide abolition of the death penalty.”

The High Commissioner for Human Rights, Navi Pillay, has also repeatedly called for the universal abolition of the death penalty, citing a host of reasons ranging from the fundamental right to life to the possibility of judicial errors.

In addition, Mr. Ban’s Guidance Note of 2008 on the UN Approach to Rule of Law Assistance stated that the UN will not establish or directly participate in any tribunal that allows for capital punishment.

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.

Innocence & Execution

"The Death Penalty and Decedent's Reputation," is the title of Christopher Brauchli's Huffington Post essay.  He's a Colorado attorney.  Here's an extended excerpt:

It is not the purpose of this column to take sides in the ongoing debate about the applicability of foreign laws to our own justice system but rather to suggest that at least one recent example of a foreign proceeding might be worth imitating in the United States. Our instructor in this procedure is Sergei L. Magnitsky and the process entitled to thoughtful consideration is found in Russia.

Mr. Magnitsky was a Russian lawyer who was arrested for allegedly having tried to expose a tax fraud perpetrated by officialdom. He said that certain interior officials had embezzled $230 million from the Russian Treasury. Arrested in 2008, he died in prison in 2009. His family said that he had not received proper medical care.

Mr. Magnitsky has now been dead for more than 2 years. In early February it was announced that the government intended to try Mr. Magnitsky for tax evasion, the offense for which he had been arrested, notwithstanding the fact that he was dead. According to reports, this would be the first posthumous prosecution ever to take place in Russia. Russian officials explained it would permit relatives and supporters to clear his name; or, alternatively, vindicate the officials who had been accused of corruption.

The government recognizes that this is a somewhat unusual procedure and sent a letter to Mr. Magnitsky's mother offering to drop the case if relatives had no "desire to protect the honor and dignity of the deceased." As of this time there is no word on whether she thinks the trial should proceed or whether she is content to have her son remembered as an accused man rather than a victim of a false accusation. The question readers are no doubt asking themselves is how this foreign procedure could be applied to United States proceedings. The answer is by adopting the Russian procedure in death penalty cases.

One of the arguments against the death penalty is that once it has been administered the results are final and the case is over. There is no way for someone who has been executed to clear his name. Troy Davis, formerly of Savannah, Georgia, for example, was on death row for many years. A large contingent of prominent citizens had come to his defense asserting that he was not guilty of the crime for which he was to be executed. Among his defenders were former president Jimmy Carter, Pope Benedict XVI (who opposes the death penalty was well as contraception), former Georgia Supreme Court Chief Justice Norman Fletcher and other prominent citizens. Appeals exhausted, Mr. Davis was executed September 20, 2011. Here is where the Russian example could usefully be invoked.

The Knoxville News Sentinel recently reported on a 1922 Tennessee execution that still reverberates, "Maurice Franklin Mays: Died claiming innocence but conviction stands."  It's written by Matt Lakin, and appeared om the February 26 edition.  Here's the beginning:

He walked to the electric chair on crutches, declaring his innocence with his dying breath.

Maurice Franklin Mays shook the hand of his executioner and settled into the death seat.

"I am as innocent," he said, "as the sun that shines. I hope the politicians are satisfied."

The electric current cut off the condemned man's last words. Four minutes and 2,800 volts later, a prison doctor pronounced him dead at age 35.

The specter of Mays' death still haunts his home city and Tennessee's judicial system, nearly nine decades after his execution for a crime that drew outrage on a level not seen again until the Chipman Street killings of 2007. Mays took his last steps inside the death house in Nashville that morning of March 15, 1922, but his life effectively ended the moment a white woman called him a killer during a lightning-quick lineup under a North Knoxville streetlight in 1919.

His name carries that stain to this day.

 

Alabama Over-Reaching Prosecution Ends

Today's Birmingham News reports, "Gabe Watson's prosecution in wife's Australian honeymoon death ends with judge's dismissal."  It's written by Eric Velasco.

A Jefferson County judge acquitted Gabe Watson on a state capital murder charge Thursday, ending his prosecution in the scuba-diving death of Tina Thomas Watson during the couple's Australian honeymoon in 2003.

Circuit Judge Tommy Nail ruled there was no evidence that a reasonable person could consider to be proof beyond a reasonable doubt that Watson, 34, committed an Alabama crime.

Watson served 18 months in an Australian prison after pleading guilty to manslaughter there in 2009.

And:

The prosecution rested its case Thursday after a lunch break. Then Bloomston asked Nail to dismiss the case, a routine motion that normally is denied.

Bloomston argued that the only witness who saw Gabe and Tina Thomas Watson together underwater testified he thought Gabe Watson was trying to save his wife's life.

"The state is relying on speculation, suspicion and opinion," Bloomston told Nail. "The state failed to show Gabe Watson received any economic gain or attempted economic gain in this jurisdiction."

Earlier coverage of the case begins at the link.  In 2010, then-Alabama Attorney General Troy King called for a death penalty proscution of Watson.  Australia agreed to extradite Watson only after Alabama agreed to drop a death penalty prosecution.

European Union Steps Up Pressure With New Controls

AP writer Greg Bluestein files, "European Union restricts sale of lethal injection drugs to US, tightening scarce supply."  It's via the Washignton Post.

The European Union said Tuesday it would place new restrictions on the sale of lethal injection drugs to countries that have yet to abolish capital punishment in a move that could worsen a supply shortage that has already delayed some U.S. executions.

The European Commission said Tuesday it would strengthen export controls on the sale of sodium thiopental, a sedative used as part of a lethal injection combination, as well as other drugs that could be used for executions. The commission said it wanted to “prevent their use for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.”

Opponents of capital punishment, who have long pressed European authorities to adopt the restrictions, cheered the decision.

It’s unknown how it will impact U.S. death penalty states. Many states, including Ohio, Texas and Georgia, have switched to an alternative sedative called pentobarbital in hopes of securing a greater supply, and some have sought other overseas suppliers or received the drug from other states.

Tuesday’s decision, which restricts the exports of “short and medium acting” anesthetics such as pentobarbital and sodium thiopental, is the latest move that targets the dwindling supply of lethal injection drugs.

In April, British officials said they would block the export of three lethal injection drugs to the U.S. That same month, an Indian pharmaceutical company that supplied sodium thiopental to Nebraska said it would no longer sell the drug to American prison officials.

In July, Lundbeck Inc., the Danish manufacturer of pentobarbital, said it would try to prevent its drug from being used in executions by requiring distributors to sign an agreement that they won’t sell it for that purpose.

To cope with the scarce supply, many state prison officials have sought to stockpile lethal injection drugs over the past year. But the EU move could make it harder for them to replenish their supplies or replace expiring drugs. It could also force some state officials to consider finding another alternative, a complicated process that could lead to a fresh round of legal challenges.

Death penalty opponents used the announcement to press for broader restrictions that would prevent any European drugs from being used in U.S. executions. Clare Algar, the executive director of the London-based human rights group Reprieve, called it a “positive first step” in the effort.

"Europeans assail U.S. capital punishment by cutting off chemical supply," by Joseph Schuman for Reuters.

U.S. application of the death penalty already has faced setbacks in the American courts and state houses. Now it could be hindered by a decision at the European Commission.

The executive body of the European Union has decided to impose sales limits on a family of anesthetics used by many states to execute prisoners, the Guardian reports. The limits apply to eight barbiturates on the grounds that they are being exported for "capital punishment, torture or other cruel, inhuman or degrading treatment or punishment," according to the Commission. All 34 states with capital punishment execute with lethal injection but Utah - which, in theory, still relies on firing squads. And almost all of them use two of the drugs on the list as part of their lethal cocktails: pentobarbital and sodium thiopental.

The two drugs were already in short supply following Britain's unilateral decision to limit exports to the United States and a decision by the Danish manufacturer of pentobarbital to block sale of its product from American penal institutions. Two years ago, the only U.S. manufacturer of sodium thiopental, Hospira, suspended production because the rest of its business was hurt by association with executions. And states' sedative stocks are running low or passing their expiration dates, while a variety of other problems plague their supply. In Georgia, for example, federal agents last March seized the sodium thiopental because it wasn't imported with the proper license.

BBC News posts, "EU imposes strict controls on 'execution drug' exports."

EU firms wanting to export drugs such as the sedative sodium thiopental will now first have to ensure the product is not going to be used for executions.

The ruling could slow down the rate of executions in the US, where the drug must be used by law in lethal injections but is in short supply.

European rights groups welcomed the restrictions as a "positive step".

The European Commission - the executive arm of the EU - said it wanted to ensure that no drugs were being exported from the union for use in "capital punishment, torture or other cruel, inhuman or degrading treatment or punishment".

The death penalty is banned in all 27 EU states and the bloc has been calling for its abolition worldwide.

"Europe moves to block trade in medical drugs used in US executions," in the Guardian is written by Ed Pilkington in New York.

The European Commission has imposed tough new restrictions on the export of anaesthetics used to execute people in the US, in a move that will exacerbate the already extreme shortage of the drugs in many of the 34 states that still practice the death penalty.

The EC has added eight barbiturates to its list of restricted products that are tightly controlled on the grounds that they may be used for "capital punishment, torture or other cruel, inhuman or degrading treatment or punishment". The eight include pentobarbital and sodium thiopental – the two drugs on which almost all American executions currently depend.

The EC said its move, which follows restrictions introduced unilaterally by the UK in November 2010, was designed to forward the European Union's stated mission to abolish the death penalty around the world. "The decision today contributes to the wider EU efforts to abolish the death penalty worldwide," said the commission's vice president, Catherine Ashton.

The new regulations were welcomed by the UK's business secretary Vince Cable, who pioneered Britain's export controls. "We have led the way by introducing national controls on the export to the United States of certain drugs, which could be used for the purpose of lethal injection. However we have always stated our clear preference for action at EU level and I am pleased that, following our initiative, these steps are now being taken."

Cable added that the new measure would ensure that the UK controls and others like it imposed by individual member states could not be circumvented by the movement of drugs around the EU.

Maya Foa, a lethal injection expert with the human rights group Reprieve who has led the campaign for greater controls on drugs used in US executions, said that the new regulations would be of huge importance both symbolically and practically. "This is going to force the states that still practice the death penalty to reconsider their protocols, and anything that gets them to think carefully about what they are doing has to be a good thing."

"EU Brings 'Execution Drug' Exports Under Strict Control," by RTT News.

The European Commission, executive arm of the EU, said on Tuesday that it wanted to ensure that no drugs were being exported from the 27-member bloc for use in "capital punishment, torture or other cruel, inhuman or degrading treatment or punishment." The EU has banned death penalty in the member-states and is seeking its abolition worldwide.

"EU stops export of lethal injection ingredients," at Deutsche Welle, by David Levitz.

Starting this Wednesday, US states that administer lethal injections will have to look even harder to find a sedative legally required for the practice.

The European Union on Tuesday ratcheted up export controls on sedatives such as sodium thiopental, pinning European exports of the substances to assurances that they will not be used in capital punishment.

"As of today, trade of certain anesthetics, such as sodium thiopental, which can be used in lethal injections, to countries that have not yet abolished the death penalty, will be tightly controlled," a statement from the European Commission said.

A shortage of sodium thiopental, which is no longer produced in the US, has already led to delays and cancelations of executions in five states, according to the US Death Penalty Information Center. The Center reported fewer executions in 2010 over previous years, partly due to the shortage.

"European Commission Extends Control Over Goods Which Could be Used for Capital Punishment or Torture," is the news release issued by the Delegation of the European Union to the United States.  It's via PR Newswire.

The European Commission decided today to extend the list of goods subject to export controls, to prevent their use for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. As of today, trade of certain anesthetics, such as sodium thiopental, which can be used in lethal injections, to countries that have not yet abolished the death penalty, will be tightly controlled. Furthermore, the scope of the European Union regulation has been enlarged to include other products such as spike batons that previously were not prohibited.

"I wish to underline that the European Union opposes the death penalty under all circumstances," said Catherine Ashton, High Representative for the Foreign Affairs and Security Policy and Vice-President of the Commission. "The Charter of Fundamental Rights of the European Union states that no one shall be condemned to the death penalty, or executed. In this regard, the decision today contributes to the wider EU efforts to abolish death penalty worldwide. This is a first step in response to the calls of civil society organizations and the European Parliament to strengthen the EU legislation. It will be followed by a full review of the relevant regulation next year."

Background:

Council Regulation (EU) No 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment was adopted on June 27, 2005. It comprises an import and export ban for certain goods listed in Annex II and an export control regime for certain other goods listed in Annex III. 

In March 2010, Amnesty International published a report asking for a number of amendments to this Regulation. The European Parliament repeated these requests in a resolution adopted on June 17, 2010. Since then, the Commission has examined possible ways to move forward in order to respond to these calls.

Today, the Commission adopted regulation amending Regulation (EC) No 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. As a result:

• exports of short and medium acting barbiturate anesthetic agents are subject to prior authorization by national authorities;
• imports and exports of spiked batons are prohibited;
• imports and exports of electric shock sleeves and cuffs are prohibited (electric shock belts were already banned before).

The Commission will carry out an in-depth review in 2012 which may result in a proposal for amendment of Regulation 1236/2005 to be adopted by the European Parliament and the Council. The lists of goods may be further amended in parallel, if other goods are identified as needing particular surveillance.

Today's decision will be published in the Official Journal of the EU on December 21.

Earlier coverage of the European Union's new restrictions begins at the link.

Europe and Lethal Injection Drugs

Time publishes, "Europe to Ban Sale of Vital Lethal Injection Drug to U.S."  It's written by Guido Bohsem for the German publication Süddeutsche Zeitung.  The translation is via Time's partnership with Worldcrunch.

The European Union is set to restrict the sale to the United States of one of the main active substances needed for lethal injections. According to information obtained by the Süddeutsche Zeitung, the export of sodium thiopental will only be possible by special permission, beginning Friday, posing a major problem for the US justice system.

The Official Journal of the European Union (OJ) is to publish a new, uniform set of authorized export regulations, valid for all short or intermediate-acting barbituric acids. One of them is the easy-to-use and fast-working anesthetic sodium thiopental, which is used to execute criminals in the states of Ohio and Washington. In 33 other states, sodium thiopental is a key ingredient in other toxic cocktails used to kill inmates.

And:

Anti-death penalty and other human rights groups have pushed for the EU decision to now require special permission to export to countries outside of Europe. The most prominent supporter of the move is Germany's Minister of Economy and head of the Free Democratic Party (FDP), Philipp Rösler. In an earlier role as Minister of Health he had written to German manufacturers of sodium thiopental to encourage them not to sell the drug to the US.

After changing jobs, he introduced to the Commission a bill to create a regulation valid Europe-wide that would effectively prevent the export of thiopental to the US. Initially, the proposal met with resistance from other states, but it has now been approved by the majority of the 27 member states.

Earlier coverage of the European Union action begins at the link.

European Union to Act on Lethal Drug Exports

Today's Lincoln Journal Star reports, "EU to ban export of lethal injection drug."  It's written by Kevin O'Hanlon.

Action by the European Union will make it tougher for Nebraska to buy more of the lethal injection drug sodium thoipental -- one of three drugs called for in the state's execution protocol.

The German newspaper Süddeutsche Zeitung reported Monday that a new EU rule will go into effect at the end of this week prohibiting the export of some barbituric acids, including the anesthetic sodium thiopental.

The drug has been in short supply since last year, when the only U.S. manufacturer, Hospira Inc., ended production because of death-penalty opposition from overseas customers.

Nebraska is among 10 states that have purchased the drug from foreign sources. But the U.S. Drug Enforcement Administration has seized supplies from several states because it was illegally imported or because of questions over how it was manufactured.

Nebraska has twice purchased sodium thiopental made overseas. The DEA did not seize the first batch but told the state it could not use it because it was imported illegally.

Nebraska since obtained a proper import license and recently bought a supply made by a Swiss company through a broker -- an action that resulted in a pending legal challenge in the Nebraska Supreme Court.

The last 32 executions in the United States have been done using pentobarbital -- which is used to treat seizures and for preoperative sedation.

However, the Danish manufacturer of pentobarbital, Lundbeck, has expressed concern over its product being used for execution and says on its website it "will deny distribution of the product to prisons in U.S. states currently active in carrying out the death penalty by lethal injection."

And:

Defense attorney Jerry Soucie, of the Nebraska Commission for Public Advocacy, said that as manufacturers and suppliers express concerns about the use of their products to conduct executions, "the state departments of corrections have sought these same chemicals from less reputable black and gray market suppliers -- 'no questions asked.'"

"If the states are going to continue to pursue the death penalty by lethal injection, then they should be held to the same standard as any other wholesale pharmaceutical importer, not less," Soucie said. "When the state seeks to take the life of another human being, governmental officials should scrupulously comply with all state and federal laws with full disclosure regarding the details of such drug purchases. This governmental transparency is sound public policy that will increase public confidence in our criminal justice institutions."

"Moore tries to withdraw appeals," by Todd Cooper for the Omaha World-Herald.

Carey Dean Moore — Nebraska's longest-serving prisoner on death row — has filed motions in Douglas County District Court asking the judge to disregard any arguments, motions or attempts to free him from death row.

His timing is interesting: His request to drop everything comes as a judge is considering attorney Jerry Soucie's arguments that Nebraska Attorney General Jon Bruning's office committed prosecutorial misconduct by seeking to execute Moore despite having an improperly imported drug.

Four years ago, Moore made a move similar to what he is doing today — asking the court to set an execution date. At that time, he told The World-Herald that he wanted to trade the "hell" of death row for heaven.

The Nebraska Supreme Court canceled the execution then over questions about the constitutionality of the electric chair, and Moore changed his mind about wanting to die. Appeals followed, including Soucie's current motion for postconviction relief.

This time, Moore's motive is unclear. He declined an interview request.

The motion, which was a surprise to at least one prosecutor, comes after questions about how the state obtained a batch of the drug in question, sodium thiopental.

The drug — the first drug administered in the three-drug lethal injection cocktail — is no longer made in the United States and is becoming increasingly scarce abroad because of the controversy surrounding its use in lethal injections. Nebraska switched its execution method from electrocution to lethal injection in 2009.

In May, questions about the drug led the Nebraska Supreme Court to grant a stay of execution for Moore.

Der Spiegel Online carries, "EU Set to Ban Export of Drug Used in US Executions."

According to a report published Monday in the daily Süddeutsche Zeitung, a new European Union regulation set to go into effect at the end of this week will prohibit the export of some barbituric acids unless a special permit has been issued. Among those chemicals on the list is the anesthetic thiopental, which is used broadly in the US for executions.

When announcing its decision to cease production of thiopental, Hospira cited the drug's use in lethal injection cocktails as the primary reason. Numerous executions in the US have had to be postponed due to shortages of the chemical as a result of the company's decision. Simply replacing it with something else is not immediately possible due to the complicated process with which chemicals are approved for inclusion in lethal injection cocktails. As a result, many states have spent months searching for new suppliers abroad.

In June, Germany's Vice Chancellor Philipp Rösler, who was health minister at the time, said he was asked by then-US Commerce Secretary Gary Locke to help in the search for new suppliers of thiopental. "I noted the request, and declined," Rösler reported saying in response. He also wrote to German pharmaceutical companies asking them not to sell the chemical in the US.

The Süddeutsche reports that Rösler was a significant supporter of the new EU regulation.

"EU to limit exports of lethal injections to the US," by Joanna Impey at Deutsche Welle.

The European Union is reported to be close to banning exports of a sedative used to carry out lethal injections in the United States. According to a report by the German daily Süddeutsche Zeitung, the export of Thiopental Natrium would in future only be permitted under special license.

And:

Germany's former health minister and current economy minister, Philipp Rösler, has called on German manufacturers to not to sell the product to the US.

According to the Süddeutsche Zeitung, a number of anesthetic substances are to be included in the new EU export regulations, which is to be published on Friday.

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

Notable posts include:

• More Roadblocks for Execution Drugs
• More on the Lundbeck Actions
• An Update on Foreign-Sourced Lethal Injection Drugs
• International Lethal Injection Developments
• Seeking Execution Drug, States Cut Legal Corners
• Additional Coverage of Indian Lethal Injection Drug Supplier
• Another Drug Manufacturer Seeks to Restrict U.S. Access

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.

National News Coverage of Leal Treaty Issue

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

The death penalty case against Humberto Leal García Jr. did not seem like the sort to draw attention from a high-profile list of former U.S. diplomats, prosecutors, politicians and military men: He was convicted in Texas of raping, kidnapping and murdering a 16-year-old girl, Adria Sauceda, bludgeoning her with a heavy chunk of asphalt.

But Mr. Leal, a Mexican citizen, was not immediately informed of his right, under an international treaty signed by the United States, to seek assistance “without delay” from Mexican consular officials in navigating a confusing foreign legal system.

Such help might have been crucial for someone like Mr. Leal who, his lawyers say, had few resources and a limited understanding of his plight.

“This was an eminently defendable case, and I don’t think it would have been a capital case if he’d had decent trial counsel” from the start, said Sandra L. Babcock, a Northwestern University law professor representing Mr. Leal on behalf of the Mexican government.

With Mr. Leal’s execution approaching on July 7 in Texas, where 14 other Mexicans are also on death row, calls have mounted for Governor Rick Perry to grant a stay.

The former officials and military men urging a delay say that only by zealously enforcing terms of the Vienna Convention on Consular Relations at home, with its guarantee of quick consular notification, can the United States expect similar treatment for Americans arrested abroad.

More than 6,600 Americans were arrested abroad in the year that ended on Sept. 30, by State Department count; nearly half were incarcerated. They include exchange students accused of buying drugs, diplomats caught up in protest marches and tourists who stray across borders.

“Consider a traffic accident in a foreign country,” said Mark Warren, an Ottawa-based legal researcher who specializes in consular rights issues. “In a lot of countries you get arrested, you are held, you are interrogated, you may be held incommunicado for weeks. It’s not speculative — this happens a lot — and if you don’t have access to your consulate, you have no friends, you are completely isolated.”

Observing the treaty is not “a favor to foreigners” but a “plainly compelling” national interest in protecting Americans abroad, said John B. Bellinger III, who was the top State Department lawyer under President George W. Bush and who joined other former diplomats in a plea to Mr. Perry, the Texas governor. Mr. Perry is awaiting a recommendation from the State Board of Pardons, his office said, though Texas has rarely granted clemency.

Senator Patrick Leahy, chairman of the Senate Judiciary Committee, introduced legislation this week to address cases like Mr. Leal’s. The bill, which has the backing of the Obama administration, would provide for review by a federal court when a prisoner facing a death sentence claims his consular rights were violated, and calls for a stay of execution, if necessary, to allow such a review.

But it does not extend to noncapital cases, and no comparable bill has been introduced in the House of Representatives.

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Commentary on the Leahy Legislation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Legislation Filed Over Consular Notification Failures

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Honor This Treaty

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

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

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

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

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

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

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

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

Austin American-Statesman on the Leal Case

The Statesman editorial is, "Execution case important to international relations."  It appeared in the Saturday issue.

The Golden Rule of life also applies to the tricky business of international relations. What we do to non-Americans in our country we can reasonably expect to be done unto Americans in other countries.

It is for that reason that Gov. Rick Perry and the Texas Board of Pardons and Paroles — both in the uncommon position of making a decision with international impact — should commute or postpone the death sentence of Humberto Leal, a Mexican raised in Texas, scheduled to die July 7 for the 1994 murder of Adria Sauceda, 16, in Bexar County.

The key issue in this case at this point is not whether Leal committed the crime. Also not central now are the circumstances involving Leal, including sexual abuse by a priest, a challenging family history and other factors that, though significant, fail to add up to justification for murder. They could, however, count as mitigating factors that argue for a life sentence.

It's what happened after Sauceda was killed that is at issue. More specifically, it's what didn't happen. Despite the Vienna Convention on Consular Relations requirements, Leal was not informed of his right to contact Mexican officials to seek legal assistance. Records indicate that he was not aware of that right until told about it by a fellow death row inmate.

Instead of getting legal help from Mexican consular officials, who have a track record of providing quality legal representation for Mexicans facing the death penalty in the U.S., Leal was represented by a court-appointed team that included a lawyer who twice had his license suspended.

Back in 2004, the International Court of Justice said Leal was entitled to a hearing to determine the extent of harm he suffered as a result of the lack of consular access. A U.S. Supreme Court ruling has said the U.S. must comply with the decision by the international court. Texas, citing state law, said no such hearing could take place. Congress now is poised to consider legislation, to be filed in coming weeks, that would establish a procedure for a federal court hearing on the extent of harm caused to Leal because he was not advised of his right to contact Mexican officials.

And:

Sandra L. Babcock, a Northwestern University law professor representing Leal, said he would not have been convicted if he had received proper consular assistance. We have no way of knowing that. But there is no arguing with Babcock's contention that "with consular access, Mr. Leal would have had competent lawyers and expert assistance that would have transformed the quality of his defense."

And, as she noted, Mexican officials have developed expertise in helping Mexicans facing the death penalty in the U.S.

"It really is a very modest remedy we are talking about," Babcock said.

Modest, indeed, but with important international ramifications.

"Franciscans request execution halt," is the San Antonio Express-News report written by Michelle Mondo.  It also ran on Saturday.

The list of those calling for Texas to stay the July execution of Humberto Leal Jr. grew on Friday when the Franciscan Order and organizations representing victims of sexual abuse by priests sent letters to the Texas Board of Pardons and Parole.

The letters from the abuse-victims organizations, including the San Antonio chapter of the Survivors Network of those Abused by Priests, and the Franciscans call for a stay or commutation of Leal's sentence so the Catholic Church can investigate the allegations he made against Father Federico Fernandez.

The allegation by Leal, 38, that Fernandez sexually abused him when he was 10 or 11 and attending St. Clare's Catholic Church was made for the first time in a recent petition for a reprieve or commutation Leal's attorney sent to the board and Gov. Rick Perry.

Leal was sentenced to die for the rape and bludgeoning death of Adria Sauceda, 16, whose naked body was found on May 21, 1994, on a dirt road not far from a party that she and Leal both attended. The execution is scheduled for July 7.

Franciscan Provincial Minister William Spencer said in a letter that he needed to add his voice to those calling for a reprieve because, he said, the sex-abuse claim could have merit. A spokesman for the San Antonio Archdiocese has said Leal's allegation would be investigated.

Fernandez, a San Antonio priest, was charged in 1988 with molesting two young boys but the charges were later dropped and a lawsuit was settled out of court.

Earlier coverage of the Leal case begins at the link.