Country Watch his consular rights when he was detained. 18
Leal cited the International Court of Justice’s (ICJ) decision in the 2004 Case Concerning Avena and Other Mexican Nationals (Mexico v. United States) to support his appeal. In Avena, the ICJ ruled that the United States violated Article 36 of the VCCR by not informing Mexican nationals ar- rested within the United States of their right to seek consular assistance. Leal was one of the 51 nationals named in this case brought by Mexico. The ICJ ruled that the U.S. needed to review the convictions and sentences of these 51 Mexican nationals in light of the VCCR violations. Follow- ing the Avena decision, then-President George W. Bush issued a memorandum stating that the U.S. will give effect to the ICJ’s decision by requiring all law enforcement to inform foreign nationals of their VCCR rights and provide a way for the state courts to review and reconsider the sentencing of these Mexican nationals. The Consular Notifi- cation Compliance Act introduced in the Senate in June 2011—but not passed—is the closest the U.S. has come to implementing the Avena decision.
Leal’s third petition for habeas corpus was based on the potential passage of the Consular Notifi- cation Compliance Act. His petition was denied by the Western District of Texas District Court and then the Fifth Circuit Court of Appeals. Both courts held that the 2008 U.S. Supreme Court case, Medellín v. Texas, made clear that the Avena decision and the President’s Memorandum were not binding on domestic courts, and that a stay of execution cannot be based on domestic legisla- tion not-yet-passed. In Medellín v. Texas, Mexican national José Medellín, also named in the Avena case, requested the federal government and Mexico to stay his execution but in 2008 was ex- ecuted by the state of Texas nonetheless.
When Leal appealed to the U.S. Supreme Court, the federal government filed an amicus curie brief in support of his petition. The U.S. argued that the
execution would “have serious repercussions for U.S. foreign relations, law enforcement and other cooperation with Mexico and the ability of Ameri- can citizens traveling abroad to have the benefits of consular assistance in the event of detention.” The U.S. and Leal tried to distinguish this case from Medellín by showing that there was impend- ing domestic legislation which would give federal courts jurisdiction to review the cases of death row inmates who were not afforded access to their country’s consulate after arrest.
In a close 5-4 ruling issued July 7, the Supreme Court denied Leal’s request for a stay of execu- tion. In its decision, the Court stated the constitu- tional premise that the Court “must rule on what the law is, not what it might eventually be.” The Court emphasized that by the United States’ own submission, Leal’s lack of access to consular as- sistance did not prejudice his criminal conviction. Leal was executed later that day.
Leal’s execution raises questions about the Unit- ed States’ compliance with international law. Con- gress has yet to pass legislation implementing the Avena decision, and it has not, in any other way, authorized the President to order a review of the convictions of the remaining Mexican na- tionals named in the Avena case. Most recently, the Mexican government warned that Leal’s ex- ecution would jeopardize Mexico’s ability to con- tinue working with the United States on issues like extradition. Navi Pillay, the UN High Commis- sioner for Human Rights, has criticized Texas and the U.S. federal government for undermining the ICJ’s legitimacy by failing to review Leal’s case. Recognizing that the U.S. Constitution prevent- ed the federal government from making Texas change the administration of its criminal system, Pillay emphasized that it is still the responsibility of a nation to make sure its states respect its gov- ernment’s international obligations.
* Submitted by Dominique D. de Vastey
ILSA Quarterly » volume 20 » issue 1 » October 2011
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