In an unusual move, Solicitor General Donald Verrilli Jr. filed a brief with the Supreme Court on Friday asking for a delay in the scheduled July 7 execution in Texas of Mexican national Humberto Leal Garcia.
Allowing the execution to proceed, Verrilli told the Court, would place the United States in "irreparable breach" of its international treaty obligations to review Leal's conviction. That review is required to determine if Leal's case was prejudiced by the failure to inform him of his right to assistance from the Mexican consulate when arrested in 1994. Under the Vienna Convention on Consular Rights, ratified by the United States in 1969, foreign defendants are supposed to be told of their consular rights.
As we reported here last month, Leal was one of a group of Mexican nationals arrested and convicted in Texas who filed suit at the International Court of Justice to vindicate their consular rights. That court ordered U.S. courts to review their cases, but Texas resisted. In the 2008 Supreme Court case Medellin v. Texas, a majority said the treaty obligaiton could not be imposed on states without action by Congress. Congress has been slow to act, but last month Sen. Patrick Leahy (D-Vt.) introduced S. 1194 to give effect to that obligation.
The SG's brief, filed as amicus curiae or friend of the court, tells the justices that the new bill has "the full support of the executive branch," and that Congress should be given "a reasonable period" to pass it. Invoking the All Writs Act, the brief asked a stay of Leal's execution until the end of the current session of Congress next January 3. Also on the brief are State Department Legal Adviser Harold Koh, Assistant Attorney General Lanny Breuer and Deputy Solicitor General Michael Dreeben, among others.
"This case implicates United States foreign-policy interests of the highest order," the brief asserts. "Petitioner's execution would cause irreparable harm to those interests" and would have "serious repercussions for United States foreign relations, law enforcement and other cooperation with Mexico, and the ability of American citizens traveling abroad to have the benefits of consular assitance in the event of detention." The Mexican government, the European Union and the United Nations High Commissioner for Human Rights among others have also asked for a stay.
In a statement late Friday, Leal's lawyer Northwestern University School of Law professor Sandra Babcock said, “The Solicitor General’s intervention underscores the federal government’s interest in preventing Mr. Leal’s execution and sends a strong signal to the courts and Congress that upholding our treaty obligations is critical to U.S. foreign policy interests and to the safety of Americans abroad.”