U.S. Execution Would Violate International Law

This week, prominent bipartisan groups, including former U.S. diplomats, retired military leaders, former judges and prosecutors, and organizations representing Americans abroad called on the Texas Governor and Board of Pardons and Paroles to grant a stay of execution to Humberto Leal García, a Mexican national on death row in the United States who is scheduled to be executed on July 7. These are not the usual suspects who call for clemency in a death penalty case; in fact, many of them undoubtedly support capital punishment. What unites this diverse group is their concern that if Mr. Leal is executed in violation of a binding judgment of the International Court of Justice, other nations will be emboldened to violate the consular rights of U.S. citizens arrested in foreign countries.

Article 36 of the Vienna Convention on Consular Relations, a treaty ratified by 173 nations, establishes that whenever the authorities arrest a foreign national, they must advise her that she has the right to have her consulate notified of her detention. This applies to foreign nationals arrested in the United States as well as to Americans detained abroad. American foreign exchange students, missionaries and others who have been wrongly detained overseas often say that the assistance of the consulate is more important than the advice of a foreign lawyer. American consulates can help them contact family members, obtain evidence back home, and assist in obtaining competent legal representation.

But when Texas authorities arrested Humberto Leal García, a Mexican national with no prior criminal convictions, they tried, convicted, and sentenced him to death without ever informing him of his consular rights and without notifying the Mexican consulate of his plight. On March 31, 2004, the International Court of Justice held that the United States had breached its obligations under Article 36 of the Vienna Convention in the case of Mr. Leal and 50 other Mexican nationals on death row. The ICJ held that, as a remedy for the violations of Article 36, the United States must provide judicial « review and reconsideration » of Mr. Leal’s conviction and sentence to determine whether, and how, he was prejudiced by the violation of his consular rights.

Without the assistance of the Mexican consulate, Humberto Leal received disgracefully inadequate legal representation. One of his trial attorneys has been reprimanded or suspended from the practice of law on multiple occasions as a result of ethical violations. Mr. Leal was convicted on the basis of junk « bite mark » science, since discredited by the National Academy of Sciences, and patently unreliable forensic evidence. Although the prosecution’s case was reed thin, his defense failed to effectively challenge any of this evidence. During his sentencing hearing, which lasted only a single day, Mr. Leal’s attorneys failed to present any of the profoundly mitigating evidence that later came to light with the assistance of the Mexican government. The jury that sentenced Mr. Leal to death never learned that he was the victim of horrific sexual abuse by his parish priest, which had severe and lasting effects. Jurors never realized that Mr. Leal had struggled to overcome learning disabilities and frontal lobe brain damage and spent his childhood dodging neighborhood gangs and beatings from his parents. Based on the distorted, incomplete picture of Mr. Leal provided by the prosecution, he never stood a chance.

Former President Bush directed the Texas courts to review Mr. Leal’s conviction and sentence in accordance with the ICJ’s decision, but Texas refused. The United States Supreme Court has found that while the U.S. has an international legal obligation to comply with the ICJ’s decision, only Congress can implement the decision by passing legislation. Congress is now poised to do just that – but Texas has announced that it nonetheless intends to go forward with Mr. Leal’s execution. A stay of execution is essential to prevent an irreparable breach of the United States’ treaty commitments, and to protect the rights of all Americans who rely on the protections of the Vienna Convention. And unless Mr. Leal receives a reprieve, he will die before he ever sees justice.