An international alliance of legal professionals and Democrats are putting Texas Gov. Rick Perry in the hot seat for the state’s refusal to halt the execution of a Mexico-born murderer.
“If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws, as in this case, where [murderer Humberto] Leal was convicted of raping and bludgeoning a 16-year-old girl to death,” Perry’s press secretary Katherine Cesinger told TheDC.
“Other than a 30-day reprieve, the governor would have to receive a favorable recommendation from the Texas Board of Pardons and Paroles to grant clemency in any case,” she said, adding that “the governor has not yet made a final decision on this case, which is still pending before the courts.”
The lawyer-led alliance wants “to increase their own influence and power,” and they’re using the scheduled Texas execution to restrict the authority of U.S. politicians and courts, and to create a new layer of legal appeals, said Todd Gaziano, the director of the Heritage Foundation’s Center for Legal & Judicial Studies.
The alliance includes the Mexican government; U.S and foreign left-of-center lawyers and judges; as well as top U.N. official Navanethem Pillay, a Harvard-trained South African lawyer now serving as the U.N. High Commissioner For Human Rights.
A group of U.S. lawyers and judges, headed by Charles Baird, a Texas Democrat and judge until he was ousted in a 2010 election, also called for “delaying the execution … to ensure full opportunity for congressional action and appropriate review of the case.”
Opponents of the death penalty are also joining the fight, said Gaziano, because “they want to create so may hurdles that it is impossible for America to carry out.” (GOP congressmen call on Bureau of Prisons to remove inflammatory Islamic texts)
Perry is considering a run for the White House in 2012, and will face strong criticism from Democrats for state policies that effect the state’s fast-growing Hispanic population. Democratic consultants hope to drive a wedge between GOP candidates and Hispanics, because they want Hispanics to vote in record numbers for President Barack Obama.
U.S. Solicitor General Donald Verrilli has also intervened on behalf of the Obama administration, and on June 1, he asked that the U.S. Supreme Court delay the Texas execution, pending passage of a new federal law that would set rules related to states executing foreign nationals. Several top-level legal officials in the administration signed the request.
The federal government has an interest in the Texas case because the Vienna convention helps Americans who are arrested overseas quickly get help from U.S. diplomats. “The federal government does have a responsibility to try to implement the treaty in a way that please other nation, in part because American citizens … because other countries’ due process is not a great as ours,” said Gaziano. (Pawlenty attacks bipartisan commission to end Minnesota government shutdown)
That incentive also prompted President George W. Bush in 2004 to urge Texas to cancel the planned execution of Mexican national Jose Medellin, after the International Court of Justice in The Hague directed Texas to stop the execution of Mexican nationals.
Humberto Leal Garcia is facing execution July 7 for raping and murdering a drunken 16-year old girl in 1994. He is an illegal immigrant who had lived in the United States since he was a toddler.
But the 1963 Vienna Convention on Consular Relations allows traveling foreign nationals to call for legal advice from their home governments. The Texas police and courts didn’t inform Garcia of this right. He only learned of the convention while sitting on death row. Now the international lawyers “want [future defendants] automatically to get a new trial, no matter how fair the trial was,” if an arrested foreigner is not quickly told of the Vienna convention, said Gaziano.
The legal sector tries to “increase their own influence and power [by developing] some wonderfully nutty legal theories, and they run around saying this is customary international law” that binds elected governments in democratic states, said Gaziano. “They convince themselves it is so, and they get bent out of shape when other people say ‘saying it does not make it so,’” Gaziano said.
In this case, these alliance’s demands are unreasonable, Gaziano said, because “American’s “way of working these things out is a perfectly reasonable implementation of the Vienna conventions.”
The convention does not set a process for informing foreign nationals about their right in the convention. But U.S. judges do allow second trials if they decide that a foreign-national was badly represented in a trial, or if a lawyer funded by the foreign government would have made a difference, said Gaziano.
This American process had already been approved in 2008 by the U.S. Supreme Court’s 2008 Medellin v. Texas decision, which followed Bush’s call to halt the Texas execution. The court’s decision upheld current rulings on 51 foreign nationals now facing state death sentences, and the execution was carried out in August 2008.
“Texas is not bound by a foreign court’s ruling,” Cesinger said, adding that “the president does not have the authority to order states to review cases of the then 51 foreign nationals on death row in the U.S.”
“Congress has had the opportunity to consider and pass legislation for the federal courts review of such cases since 2008 and has not done so each time a bill was filed,” she said, and “the Fifth Circuit’s review of Leal’s case in 2009 provided the review that both the Obama administration and the United Nations now are seeking.”
“The Supreme Court said our laws govern … and international courts cannot overrule American law,” Gaziano said.
If the legal alliance wins, Gaziano said, they’ll create a situation where illegal-immigrants will have another way to game the legal system, and will put local, state and federal police in a difficult quandary. For example, illegal immigrants could hide their foreign nationality until they’re found guilty of a crime, and then could cite the Vienna convention to either win their freedom or get a new trial, he said.
“That would get them two bites of the apple,” he said. But if police countered by quickly investigating the nationality of everyone they arrested, advocates for illegal-immigrants would make accusations of “racial profiling,” he said.
“The significance of the fight is whether American courts and lawyers will govern American legal procedures, or whether American courts do what international busy-bodies want,” Gaziano said.