Lawyers for the Obama administration are taking the unusual step of asking the Supreme Court to delay the execution scheduled for Thursday of a Mexican national who is on death row in Texas.
Humberto Leal, who has lived in the United States since he was 2 years old, is set to be executed for the 1994 kidnapping, rape and murder of Adria Sauceda, a 16-year-old girl.
But Leal's case has been complicated by the fact that he and other Mexican nationals on death row across the country were never informed of their right to seek legal assistance from the Mexican consulate. Such a failure of notification is a violation of the Vienna Convention on Consular Relations -- a treaty that the United States is a party to -- which says that foreigners in custody have the right to consular notification, communication and access.
"The violation of the Vienna Convention in Mr. Leal's case was no mere technicality," said Sandra Babcock, who serves as Leal's lead counsel. "The Mexican consulate would have provided experienced and highly qualified attorneys 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."
The case is generating interest at the highest levels of the U.S. government from officials who do not want to send a message abroad that foreigners in custody have no right to consular notification. But it also has stirred a debate about the role of international courts and state death penalty convictions.
In 2004, the International Court of Justice (ICJ), the principal judicial body of the United Nations, determined that Leal and some 50 other Mexican Nationals on death row in the United States were entitled to judicial hearings to determine whether there had been a breach of their rights.
After the ruling, then President George W. Bush directed state courts to review the cases. But Texas pushed back, arguing that state courts were not subject to the rulings of an International Court.
In 2008, the issue reached the Supreme Court, which said that Congress would have to pass legislation in order for the ICJ decision to be enforced.
But it was only last month that Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, introduced the Consular Notification Compliance Act, which was meant to facilitate U.S. compliance with consular notification and provide judicial review for these particular foreign nationals who were denied access to their consulate.
As things stand now, the law has no chance of passing before the planned execution of Leal.Only the Supreme Court or Gov. Rick Perry of Texas have the power to delay the execution and Perry has indicated that he is not sympathetic to the international court's finding.
"If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws" Perry's spokesman Katherine Cesinger. Cesinger added that the governor has yet to make a final decision on the case.
Solicitor General Donald V. Verrilli jury asked the Supreme Court on Friday to delay Leal's execution until the end of the next congressional session, Jan. 3, 2012, in order to give time for congress to pass the law.
Verrilli writes that without a stay of execution, the relationship between the United States and Mexico will be strained.
"Those relations are enjoying an unprecedented level of cooperation but they are also unusually sensitive, so that a breach resulting from petitioner's execution would be particularly harmful," Verrilli writes.
Secretary of State Hillary Rodham Clinton and Attorney General Eric H. Holder praised the proposed legislation saying in a letter to Leahy it is of "fundamental importance to our ability to protect Americans overseas and preserve some of our most vital international relationships."
Arturo Sarukhan, the ambassador of Mexico, said in a letter to Clinton that while Mexico "never called into questions the heinous nature" of the crimes attributed to Leal, it believes that the United States is beholden to abide by the rules of the International Court of Justice (ICJ), which requires consular notification rights.
Sarukhan cited the 2008 execution of another Mexican National, Jose Ernesto Medellin, which he said "was in direct breach" of the United State's international legal obligations.
Clinton and Holder make clear that Leahy's proposed legislation will help protect U.S citizens overseas if they should need access to the U.S. consulates abroad.
"The United States is best positioned to demand that foreign governments respect consular rights with respect to U.S. citizens abroad when we comply with these same obligations for foreign nationals in the United States," Clinton and Holder write.
Asked about the matter at a State Department briefing on Tuesday, spokeswoman Victoria Nuland said, "The concern is that if we don't set a good example here and allow foreign governments to visit their citizens who are detained or arrested, we could face reciprocal denial of access for our consular officials when American citizens find themselves arrested or detained overseas."
Jeffrey F. Pryce, an international lawyer at Steptoe & Johnson, said the legislation is necessary.
"This is a treaty that the United States signed up to, believes it is bound by and wants to comply with," Pryce said. "What's important is that the government has the legal tools to comply with its treaty obligations."
A group of former U.S. diplomats and State Department officials wrote Perry a letter urging him to grant a reprieve for Leal pending congressional action. In the letter the officials bring up the detention of three Americans crossing into Iran in 2009 and highlight U.S. requests at that time asking the Iranian government to "live up" to its obligations to grant consular access to the three individuals.
Pryce says the example is indicative how the fate of one death row inmate in Texas can have international implications. He says, "It's very important when the United States signs a treaty for it to comply with its obligations."
But Cesinger insisted that Congress has been slow to act and without such action Texas is not bound by the ruling of an international court.
"Congress has had the opportunity to consider and pass legislation for the federal courts review of such cases sincee 2008 and has not done so," Cesinger.