Humberto Leal Garcia Execution and International Law

The US Supreme Court declined to stay the execution of a child raping murderer over a technical violation of a treaty.

The New York Times engages in a bit of editorializing with the headline “Mexican Citizen Is Executed as Justices Refuse to Step In.” The better editorial headline would be “Supreme Court Declines to Stay Execution of Convicted Murdering Child Rapist Over Technicality.”

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.

So, why was the administration intervening in a state murder case?

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.

Fair enough. We certainly don’t want to execute innocent men.

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.”

The majority also noted that “the United States studiously refuses to argue that Leal was prejudiced by the Vienna Convention violation,” suggesting that a fresh hearing would do Mr. Leal no good. He was convicted of kidnapping, raping and killing a 16-year-old girl.

“We decline,” the majority wrote, “to follow the United States’ suggestion of granting a stay to allow Leal to bring a claim based on hypothetical legislation when it cannot even bring itself to say that his attempt to overturn his conviction has any prospect of success.”

So . . . nobody is arguing that Leal is innocent? Or that he was denied due process under American law for a horrendous crime committed in the United States? Not Leal:

In the death chamber, Leal said he admitted responsibility for the crimes. “I have hurt a lot of people. … I take full blame for everything. I am sorry for what I did,” he said. “Let this be final and be done.”

Some quick background, gleaned from Wikipedia, BBC, and other readily available online sources: Leal was born in Mexico but “came to the USA as a child.”

In 1994 Leal kidnapped, raped, and murdered 16 year old girl Adria Sauceda. Official court documents state “There was a 30- to 40-pound asphalt rock roughly twice the size of the victim’s skull lying partially on the victim’s left arm; Blood was underneath this rock. A smaller rock with blood on it was located near the victim’s right thigh.” There was also a 15 inches (380 mm) stick extending out of her vagina, with a screw at the end.

He was convicted and sentenced to death in 1995. That is, 16 years ago.

Subsequent to his conviction, he learned that, under the Vienna Convention on Consular Relations of 1963, he had a right to inform the Mexican consulate of his arrest and for them to offer him representation. He had never been informed of that right. He filed an appeal in 1998 on that basis–subsequent to the Texas Court of Criminal Appeals upholding his sentence earlier that year.

Finally, in 2004, the International Court of Justice ruled [in Avena and Other Mexican Nationals (Mexico v. United States of America)] that Leal and about 50 others had indeed had their rights violated. In 2008, the US Supreme Court declared that ruling binding (the US is a signatory to the Vienna Convention) but that the enforcement mechanism specified in the treaty was for Congress to pass legislation.

This had not happened three years later and there is a greater likelihood that John Boehner and Mitch McConnell will vote to restore a 90 percent top marginal rate and then announcing that they are going to get gay married than there is of Congress passing legislation to free a murdering child rapist on a flimsy technicality that has zero bearing on his conviction.

Still, it’s worth noting that the Obama administration is following the lead of the Bush administration on this one. BBC again:

US Solicitor General Donald Verrilli wrote in the brief that the execution would have “serious repercussions for United States foreign relations, law enforcement and other co-operation with Mexico, and the ability of American citizens travelling abroad to have the benefits of consular assistance in the event of detention”.

The Obama administration had wanted a delay to allow Congress to consider legislation covering foreign nationals who were not given proper consular access before being tried for crimes that carry the death penalty.

The Mexican government said prior to the execution that the nation regarded it as a violation of international law. “This is about the right that each person has under the Vienna Convention to be able to enjoy the support of their country of origin when they face criminal proceedings in a foreign country,” the Mexican Foreign Ministry said.

Leal is one of 51 Mexican nationals on death row who were the focus of a 2004 ruling by the International Court of Justice (ICJ). The ICJ said that their convictions should be reviewed because they were denied consular access.

President George W Bush told Texas officials they should comply with the ICJ order but the Supreme Court ruled that he had overstepped his authority.

As readers may have gathered by this point, I’m not sympathetic to Leal’s plight here and agree with the Supreme Court’s denial of stay here. Leal was not some hapless tourist arrested in a strange land and railroaded through a system he had no way of understanding; he’d lived in the United States since moving with his family as a 2-year-old. He was 20 or 21 when he committed his horrific crime.

Additionally, here is the implementation order in the ruling from the ICJ:

– unanimously finds that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America 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.”

Two presidential administrations have reviewed the case and the Supreme Court has had two bites at it.

As to the matter of “”serious repercussions for United States foreign relations, law enforcement and other co-operation with Mexico, and the ability of American citizens travelling abroad to have the benefits of consular assistance in the event of detention,” I consider it a serious issue. But it’s largely mitigated by the ICJ finding in question:

Finally, with regard to Mexico’s request for the cessation of wrongful acts by the United States, the Court finds no evidence of a “regular and continuing” pattern of breaches by the United States of Article 36 of the Vienna Convention.  And as to its request for guarantees and assurances of non‑repetition the Court recognizes the United States efforts to encourage implementation of its obligations under the Vienna Convention and considers that that commitment by the United States meets Mexico’s request.

We are in fact dealing with a minor technical breach with no impact. Leal was, for all intents and purposes, an American, having spent every day of his life that he could be expected to remember living in the United States. There’s no allegation that he was denied legal representation, merely representation from a country of whom he was only technically a citizen. Nor is there allegation that he was not read his Miranda rights in Spanish. Nor was he denied any due process rights but a technical one under a treaty:

For 16 years, Leal has exercised his right to file appeals and motions so extensively, one judge in federal district court called his case “one of the most procedurally convoluted and complex habeas corpus proceedings” he ever reviewed.

Given this background, the Obama administration’s plea for more time rings hollow.

Photo: Urban Christian News

FILED UNDER: Latin America, Law and the Courts, United Nations, US Politics, World Politics, , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. superdestroyer says:

    One has to love how progressives argue on one hard that illegal aliens who are brought to the U.S. as small children are really Americans and should be given all of the rights of Americans but when it comes to the criminal justice system, those same progressives are arguing that the illegal aliens who cam to the U.S. as small child are really the citizens of the country where they were born and should not be treated the same as U.S. citizens.

    It takes a realization that progressives are always hypocrites and that being hypocrites never bothers them.

    Maybe he would be referred to as an undocumented felon and the progressives would feel much better.

  2. PD Shaw says:

    When counsel sleeping during a trial can be found to be “harmless error” in a death penalty case, this one seems like a no-brainer.

  3. James Joyner says:

    @PD Shaw: Yes, there is that. There are multiple real flaws in our justice system. The plight of Humberto Leal Garcia is not among them.

  4. Dave Schuler says:

    This case seems to bundle up a number of contentious issues in one package: the death penalty, the U. S. and international law, the roles of the various branches of government, jus sanguinis vs. jus soli.

  5. Franklin says:

    Sorry Señor Garcia, I seem to have just run out of sympathy.

  6. Boyd says:

    I am not generally a supporter of the death penalty since our various state governments seem to be incapable of ensuring that people are not executed for crimes they didn’t commit.

    That being said, there is no substantive factor in this case which argues against Leal’s execution, as best illustrated by this slight modification to James’ suggested restatement of the editorial headline: Supreme Court Declines to Stay Execution of Confessed Convicted Murdering Child Rapist Over Technicality

  7. Uh, James, his due process rights were violated:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (United States Constitution, Art. VI, cl. 2)

    According to your own writing:

    Subsequent to his convicted, he learned that, under the Vienna Convention on Consular Relations of 1963, he had a right to inform the Mexican consulate of his arrest and for them to offer him representation. He had never been informed of that right.

  8. PD Shaw says:

    Timothy Watson, James also wrote:

    the enforcement mechanism specified in the treaty was for Congress to pass legislation

  9. James Joyner says:

    @Timothy Watson: What Drew said. Additionally, Texas authorities are not expected to be fully conversant with international treaties nor is there a Miranda requirement to notify people of every conceivable right they may have. (I also don’t know whether the officials even understood that he was a foreign national.)

    Now, had Leal asked to speak to Consul representatives and been denied, we might have a different case. But all that happened was that nobody told him he had the right to do so.

  10. I’m generally opposed to the death penalty (in theory I’m fine with it, but the government has repeatedly shown that in practice it’s not a power it should be trusted with), but this isn’t a case to fight it on.

  11. “Every government is a parliament of whores. The trouble is, in a democracy, the whores are us.” – P J O’Rourke

    Whoops, wrong comment thread.

  12. Trumwill says:

    @Stormy Dragon: I oppose the death penalty in both theory and practice. I frequently get annoyed at the cases that death penalty opponents choose to hang their hat on. They often choose the worst ones.