Disingenuous Interference in the Humberto Leal Case

Reading and listening to the news media, the uninformed might think that the international issues surrounding Humberto Leal’s execution have only just been uncovered. It might appear that the Obama administration has some sort of leg to stand on. These impressions are entirely without merit.

The whole issue Leal’s lack of access to Mexican consular officials after his arrest has been litigated.  Let’s set aside the facts that Leal never revealed his Mexican citizenship after his arrest and that his lawyers never raised the issue before, during or after trial, including his first trip up the habeas corpus ladder. When he filed a petition based on President George W. Bush’s order to the states that they review the cases of the 51 Mexican citizens on death row across the country at that time, that was fully litigated and denied by the Texas Court of Criminal Appeals (the highest criminal appellate court in Texas). He then filed a second federal habeas petition which was denied by the district court, appealed, and rejected by the Fifth Circuit in 2009 (573 F.3d 214).

The current administration and the media have tried to bolster their position (and yes, it is the same position) by suggesting that Bush endorsed the ruling of the International Court of Justice that led to his order that the states review the Mexican cases. Rather, Bush only ordered the review because he thought he was duty-bound to do so, because the US was a signatory to the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, which says that ICJ decisions are binding on the parties before it. He was under the impression that the Optional Protocol was binding on the states. However, in 2008 the US Supreme Court said no, in Medellín v. Texas (552 U.S. 491). Since the Supreme Court, not the Executive Branch, decides what is and isn’t the law, it didn’t matter what President Bush thought and it doesn’t matter what President Obama thinks.

The Supreme Court said no because the Optional Protocol is not self-executing. In other words, it requires enabling legislation. Now at the last minute, the Administration is arguing to the Supreme Court that enabling legislation has been filed in Congress and the Court should wait to see if it passes.  This is the only arrow left in the quiver of the Administration and it is blunted, bent, splintered and missing fletchings.

Congress has had three years since Medellín to pass enabling legislation. It chose not to do so with the proposed Avena Case Implementation Act of 2008, introduced into a Nancy Pelosi-controlled House of Representatives by four liberal Democrats. It never made it out of committee, not to mention across the Capitol.

Now Senator Patrick Leahy has introduced S. 1194. It has no chance of passage, despite the Administration’s repeated assertions that it’s strong support makes a difference. I seriously doubt it would get through the Senate, but it doesn’t have the tiniest hope of getting through the House. It is telling that amicus brief goes on and on about the Senate and does not even mention the House of Representatives.

It is not even as if the passage of S. 1194 would have any effect on the execution of Humberto Leal. It might give him a chance to have a court determine whether not having had consular access unfairly prejudiced his case. The chances of success in such a challenge are infinitesimal. Leal’s guilt in perpetrating a gruesome crime is indisputable. Even the Mexicans admit that.

The last shred of his case, if the Supreme Court were to stay the execution, and if the Congress were to pass S. 1194, is a court might find that had the Mexican government hired the right attorneys for him (if they even would have done so at the time), those attorneys would have presented evidence in his punishment phase differently so that the jury would not have given him a death sentence. The Administration insists in its brief that unless this charade is played out, relations with Mexico will be irreparably damaged and all Americans traveling abroad will be put at risk. There is simply no credibility in any of this.

Unlike the characterizations by the Administration and media, this case has nothing to do with Texas refusing to follow international law. The Supreme Court answered that in 2008. This cases had been litigated and re-litigated, examined and re-examined, for years. It is time for the sentence to be carried out and the Obama Administration to stop interfering.

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6 Responses to Disingenuous Interference in the Humberto Leal Case

  1. Kay B. Day says:

    I’ve followed this case for quite some time, and your post clarified the differences between Obama and Bush’s decisions on the ICJ opinion. I also read an article in The Harvard Law Review (1-1-2010) by Ted Cruz about the Medellin case. What’s upsetting is that most Americans have no idea the sovereignty of the country is under attack. Cruz points out that every country (approx. 90) filing amicus briefs on behalf of Medellin refused to abide by ICJ court decisions in their own countries.

    Anyway, I appreciated your post and I wanted to tell you so. I mentioned and linked because it did for me soften my anger towards Bush 43. When I wrote my last column, I hadn’t thought about the time element during the Bush administration.

  2. Dave says:

    Thank you for your comments, Kay, and for the link. I read Ted Cruz’s article some time ago when looking at the Medellín case from the perspective of immigration law. I wanted to provide a link to it, because it is very good, and who would know more about Medellín than the man who successfully argued it before the Supreme Court?

    Since you didn’t link back to yourself, I’ll do it, by saying that I will be reading from The US Report regularly.

  3. cevon says:

    Right on!

  4. cpanel says:

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  5. VS says:

    Saw a link to this post over at Delicious. Thanks for posting it.

  6. Phuong Mchan says:

    Of course, what a great site and illuminating posts, I will bookmark your website.Best Regards!

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