Jul 7, 2011

Posted in Uncategorized

Supreme Court, in 5-4 Per Curiam Denies Stay in Texas Execution Despite Request of SG

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The Per Curiam Opinion (from the Chief, and Justices Scalia, Kennedy, Thomas, and Alito, obviously)  in Leal Garcia v. Texas is available here.

The majority rejected a plea by the Solicitor General to stay Leal’s execution, in light of the fact that even though implementing legislation of the Vienna Convention has been  introduced by the Senate, “[n]o implementing legislation has been introduced inthe House.” Basically, Congress has had 7 years since the ICJ ruling interpreting the Vienna Convention. If they wanted to enact it, they would have done so. Because they didn’t, the Court won’t grant a stay.

First, we are doubtful that it is ever appropriate to stay a lower court judgment in lightof unenacted legislation. Our task is to rule on what the law is, not what it might eventually be . . . Neither the United States nor JUSTICE BREYER, post, at 1–6 (dissenting opinion), cites a single instance in this Court’s history in which a stayissued under analogous circumstances. . . .

It has now been seven years since the ICJ ruling and three years since our decision in Medellín I, making a stay based on the bare introductionof a bill in a single house of Congress even less justified. If a statute implementing Avena had genuinely been a priority for the political branches, it would have been enacted by now.

The Per Curiam opinion discounts fears of  “the grave international consequences that will follow from Leal’s execution.”

Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress. We have no authority tostay an execution in light of an “appeal of the President,” post, at 6, presenting free-ranging assertions of foreign policy consequences, when those assertions come unaccompanied by a persuasive legal claim.

That the SG did not argue that Leal was prejudiced seemed quite important in the Court’s rejection of the stay:

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

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan, and concurred with the United States’ argument.

As the Solicitor General points out, Leal’s execution atthis time “would place the United States in irreparable breach” of its “obligation[s]” under international law.

Justice Breyer directly calls out the Per Curiam as thumbing its nose at the President, Executive Branch Officials, Members of Congress, and 4 Members of the Court.

In reaching its contrary conclusion, the Court ignores the appeal of the President in a matter related to foreign affairs, it substitutes its own views about thelikelihood of congressional action for the views of Execu-tive Branch officials who have consulted with Members of Congress, and it denies the request by four Members of the Court to delay the execution until the Court can dis-cuss the matter at Conference in September. In my view,the Court is wrong in each respect.

Justice Breyer, relying on the introduction of the bill in the Senate, and the United States’ claim that “‘congressional . . . action’ is a reasonable possibility,” is persuaded that a stay should be granted. Additionally, he gives much credence to the possible injuries to the United States’ foreign policy interests,and finds these interests “plainly compelling.”:

At the same time, the Solicitor General sets forth strongreasons, related to the conduct of foreign affairs, for grant-ing a stay. Representing the Executive Branch (hence the President), the Solicitor General tells us that “[p]e-titioner’s execution would cause irreparable harm” to “foreign-policy interests of the highest order.” Id., at 11. The Solicitor General says that failing to halt Leal’s execu-tion would place “the United States in irremediable breach of its international-law obligation,” with“serious repercussions…”

Further, were this law to be enacted in September, the Court would GVR the petition.  In his view, the equities weigh in favor of a stay:

Thus, on the one hand, international legal obligations, related foreign policy considerations, the prospect of legis-lation, and the consequent injustice involved should thatlegislation, coming too late for Leal, help others in identi-cal circumstances all favor granting a stay. And issuing abrief stay until the end of September, when the Court could consider this matter in the ordinary course, would put Congress on clear notice that it must act quickly. On the other hand, the State has an interest in proceeding with an immediate execution. But it is difficult to see how the State’s interest in the immediate execution of an individual convicted of capital murder 16 years ago can outweigh the considerations that support additional delay, perhaps only until the end of the summer.

The majority,which opened the opinion with this graphic recitation of facts, may view the emphasized portion about waiting a few more months differently:

Petitioner Humberto Leal Garcia (Leal) is a Mexican national who has lived in the United States since before the age of two. In 1994, he kidnaped 16-year-old Adria Sauceda, raped her with a large stick, and bludgeoned her to death with a piece of asphalt. He was convicted of murder and sentenced to death by a Texas court.

Justice Breyer’s pithy opening has a different focus:

The petitioner, Humberto Leal Garcia (Leal), convicted16 years ago of capital murder, is scheduled to be executed this evening.

The Per Curiam opinion is probably a Scalia opinion since this was initially referred to him as Circuit Justice for CA5, and it heavily relies on the fact that Congress has not taken any action) rejects the Solicitor’s General plea.

Cross-Posted at ConcurringOpinions.com.

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  • http://Website steve rappoport

    I hope that Mexico retaliates against us by refusing to let one of our citizens whom it arrests to have access to a representative of our country. It would be even better if that citizen were from Texas.

    • Josh Blackman

      The interesting question here is how consular right intersects with the state’s interest in prosecuting crime. When exactly does this right attach? Before Miranda? Before interrogation? Would a Miranda framework apply? Can you imagine delaying a police investigation until you get some consular to talk to the accused? How long could that take? Also, how is an officer to know the accused is a foreign national? Is this like JDB where an officer has to guess that a suspect is a minor? Are we going to let officers make guesses based on things like “he has an accent” or “he looks a certain way” determine whether consular rights should be provided? Is there some kind of good faith exception or public safety exception, like we have with the exclusionary rule or Miranda? So many unanswered questions. This entire thing just seems procedurally absurd here.

      • http://Website steve rappoport

        Congress ought to pass a law that answers these questions. Other countries may not have Miranda rules, but how do they handle the question of access? That ought to be looked into.

        The foreign intersession is not necessarily to talk to the accused but to watch over matters to make sure that the accused is being treated properly.

        Perhaps at the time of arrest, one of the first questions ought to be: “Are you a citizen of another country?”

  • http://Website steve rappoport

    Why consular access matters for Americans: in a word, reciprocity. We need to follow the rules so tht our own nationals can take advantage of them when they are arrested or detained in other countries. See http://www.washingtonpost.com/opinions/consular-access-a-two-way-street-on-a-crucial-right/2011/06/22/AGYkPdjH_story.html