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Lyle Denniston Reporter
Posted Friday, July 1st, 2011 6:26 pm

U.S. opposes Mexican’s execution
The Obama Administration takes the rare step of urging the Court to block temporarily a state from executing a convicted individual — in this case, a Mexican national who contends that Texas violated his rights under an international treaty, the Vienna Convention.
Making the unusual move of trying to stop a state execution, the Obama Administration on Friday afternoon urged the Supreme Court to delay temporarily the scheduled execution in Texas next Thursday of a Mexican national, Humberto Leal Garcia, convicted of the kidnap, rape, and murder of a 16-year-old girl in 1995. Speaking for the Justice and State Departments, Solicitor General Donald B.Verrilli, Jr., argued that Leal’s execution would cause the U.S. to violate treaty obligations with “serious repercussions” for foreign policy and would raise threats of retaliation to Americans who travel or work abroad.
Leal’s American attorneys, strongly supported by the Mexican government and several other foreign governments, are seeking to postpone his execution for the same reasons that Verrilli offered Friday: that there is not time, before next Thursday, for Congress to pass a new law that would give Leal and other foreigners convicted of crimes in the U.S. a right to challenge their conviction because they were denied their treaty rights under the Vienna Convention. That treaty supposedly guarantees a foreign national a right to consult with agents of his home country when arrested for crimes in another nation.
It is rare for the federal government to go to the Court to support delays of execution in state cases. The new legal efforts of Leal’s defense counsel and the Obama Administration are an attempt to gain a different outcome for him than similar efforts met three years ago. Then, the George W. Bush Administration and defense lawyers made the attempt to save another Mexican with the same treaty complaint, Jose Ernesto Medellin. After losing his challenge in the Supreme Court, Medellin was executed in August 2008 in Huntsville, Texas.
Medellin and Leal were among 51 Mexicans, convicted of crimes in the U.S. without having access to a home-country diplomat, who won a World Court decision in 2004 declaring that the U.S. had failed to live up to its obligations under the Vienna Convention — that is, the duty to give those individuals a chance to contest their convictions because of the breach of the treaty. Medellin’s case went to the Supreme Court after President Bush sought to directly order state officials to abide by the treaty.
The Supreme Court ruled, however. that the President’s efforts did not make the Convention enforceable in state courts. In that ruling, however, the Court left an opening: Congress, it said, would have the power to pass a law to implement the Convention, and require states to abide by it. The prospect of such legislation at the time, though, was found by the Court to be too remote to spare Medellin’s life.
That opening was at the center of the arguments made by the Solicitor General, along with Leal’s lawyers, as they argued that circumstances have changed in recent months. On June 14, the chairman of the Senate Judiciary Committee, Democrat Patrick Leahy of Vermont, introduced a bill to carry out the Vienna Convention for foreign nationals like Leal. The measure also would delay executions in such cases until the convicted foreign nationals had had a chance to show that their convictions violated the Convention. Chairman Leahy, the new filings noted, has promised to hold a Judiciary Committee hearing in July.
Verrilli noted that the Obama Administration has been engaged in strenuous efforts to craft the new Leahy bill. He also noted that the Bush Administration had not been involved in earlier efforts to craft such legislation, so that situation, too, has changed since the Medellin ruling. The Solicitor General urged the Court to delay Leal’s execution until the end of the current session of Congress — which can run no later than next Jan. 3 — in order to give Congress time to pass the new legislation.
It is vitally important to U.S. foreign relations, Verrilli contended, that the U.S. obey the obligations it undertakes under global agreements like the Vienna Convention.

In a footnote of the new government brief, Verrilli pointedly noted that the government was not intending, by seeking to intervene in the case, to support two petitions for review of his case that Leal’s lawyers have filed in addition to two applications to delay his scheduled execution.
The issue of delaying the execution is pending before Justice Antonin Scalia, the Circuit Justice for the geographic area that includes Texas. Scalia has the authority to decide the stay issue himself, but he also can share it with his eight colleagues. It has become quite common in the Court’s practice for a single Justice to bring in all members of the Court so that the stay issue is resolved all at once, rather than raising the prospect of repeated pleas to different Justices.
Leal’s stay applications are docketed as 11A1 and11A2. His two cert petitions are 11-5001, a regular petition seeking review of lower courts’ rejection of his treaty-based challenge, and 11-5002, an “original writ” of a kind that is filed only in the Supreme Court, with no prior action on it in lower courts. All of the filings are titled Leal Garcia v. Texas.
Justice Scalia and the Court are not expected to take any action until the state of Texas has responded.
© 2011 SCOTUSblog
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