The law, even on Texas’ death row

Humberto Leal Garcia Jr. is scheduled to be executed Thursday in Texas.

He is not a sympathetic figure — he was convicted of bludgeoning a 16-year-old girl to death with a piece of asphalt after raping her — and his gruesome crime is in many ways similar to those of dozens of other death-row inmates across the country. But here’s what is different: He is a Mexican citizen, and when he was arrested in 1994, he was never told that under the Vienna Convention on Consular Relations, he was entitled to ask the Mexican consulate for help. By the time he found out, he was sitting in a cell on death row.

The International Court of Justice has called on the United States to review Leal’s case, as well as the cases of other Mexican nationals who were never told of their rights under the treaty. Then-President George W. Bush essentially ordered Texas to comply as well. But Texas refused. The case went to the U.S. Supreme Court, which ruled that the treaty was legal but that only an act of Congress could require such a review.

Leal’s current appeal isn’t about whether the death penalty ought to be abolished. It’s not even about whether he committed the crime for which he was convicted. Rather, it is a test of the United States’ willingness to afford foreign nationals accused of crimes in this country the same protections it demands for Americans when they are arrested and accused overseas.

The fact is that local authorities failed to comply with the treaty. Whether the Mexican government’s assistance would have changed the outcome of Leal’s case is unknown. Some suggest that the court-appointed attorneys weren’t up to the task (one has since been suspended twice in connection with other cases). And Leal’s current defense team, paid for by the Mexican government, says that DNA evidence used in the original case was botched. The lawyers are asking for a new test they say will prove Leal never raped the girl.

Leal’s attorneys have asked the Supreme Court to intervene and issue a stay until Congress can consider a legislative fix. Sen. Patrick J. Leahy (D-Vt.) introduced a bill late last month that would require judicial review of Leal’s case and others like it. The proposal has the support of the Justice and State departments, and a congressional hearing is set for later this month. The bill is narrow and would apply only to capital punishment cases in which denial of consular notification hurt a defendant’s case. Currently, 40 Mexican nationals who are on death row in Texas and California would be eligible. The appeal won’t result in Leal’s release from prison, only in a review of his case, which should have been granted years ago. Potentially, a judge could then order a new trial.

Both the court and Congress have an opportunity to right a wrong. They ought to seize it and ensure that the United States meets its international obligation. Doing so will protect American citizens abroad from being made to pay the price for others’ mistakes.