UN Says US Execution Of Mexican National Was Illegal

[Simon_Jester]

Dual citizenship complicates the case- I don't know how the Vienna treaty covers a situation like that.

[SVPD]

He was not a U.S. citizen, unless he actually naturalized at some point. The Reagan amnesty would have made him a LAPR (Lawfully Admitted for Permanent Residence) under Section 201 of the Immigration Reform and Control Act of 1986, provided they met the requirements which are listed at the link. I'm not reposting them here due to excessive length.

However, they must have made timely application:

"(1) TIMELY APPLICATION. --

"(A) DURING APPLICATION PERIOD. -- Except as provided in subparagraph (B), the alien must apply for such adjustment during the 12-month period beginning on a date (not later than 180 days after the date of enactment of this section) designated by the Attorney General.

"(B) APPLICATION WITHIN 30 DAYS OF SHOW-CAUSE ORDER. -- An alien who, at any time during the first 11 months of the 12-month period described in subparagraph (A), is the subject of an order to show cause issued under section 242, "8 USC 1252" must make application under this section not later than the end of the 30-day period beginning either on the first day of such 18-month period or on the date of the issuance of such order, whichever day is later.

"(C) INFORMATION INCLUDED IN APPLICATION. -- Each application under this subsection shall contain such information as the Attorney General may require, including information on living relatives of the applicant with respect to whom a petition for preference or other status may be filed by the applicant at any later date under section 204(a). "8 USC 1154"

That's the first requirement under the act and if it was not met, none of the other qualifications matter.

[Ritterin Sophia]

And what does it say if the person is under 18 at the time of the amnesty?

[SVPD]

I didn't read that far, but presumably if the parents applied in a timely manner, the child was covered as well.

[Magis]

Has anyone actually read the convention of concern?

Vienna Convention on Consular Relations, Article 26, Paragraph 2:

"2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the
laws and regulations of the receiving State, subject to the proviso, however, that the said laws and
regulations must enable full effect to be given to the purposes for which the rights accorded under this
article are intended." (bolding and emphasis mine)

1) What happened here was clearly in conformity with the laws and regulations of the receiving state (the USA) since the court ruled on it

and

2) The obligation of the US in this instance is to follow the spirit of the convention, or, more verbosely, to ensure to consular rights of the arrested individual are congruent to the purposes for which the convention was intended. Does anyone really think that the intention behind the convention was to provide to a foreign national, who did everything to conceal his true citizenship until he had already been sentenced, a technicality by which to perform an end-run around his conviction? Please.

As I believe it has already been pointed out by another poster, what happens in a case for which the true nationality of the arrested individual cannot be rigorously established? What about for someone who claims to be of citizenship X, exhausts all of his consular rights related to nation X, and then claims to be of citizenship Y, and does it all again? By deliberately hiding his citizenship, I think his action reasonably qualifies as a de facto waiver by him of his consular rights, since to exercise those rights, by definition, requires a statement by him of which consulate to contact.

[Winston Blake]

You realize that Mexico actively lobbies the US so that local law enforcement does not have to ask nationality. Mexico is asking us not to ask their citizens if they are Mexican citizens, oddly enough, blocking access to consular actions in this isolated case. So you're question is bogus. What takes priority? What your nation wants, added to what your neighboring nation wants, or some loaded question you made up?

Yes, I realize that, because Ossus mentioned it before you did.

You have a confused understanding of my post. I presented two different solutions - (1) prioritising existing & global obligation/precedent over unilateral pressure/lobbying. (2) A question which is not loaded. I don't think that term means what you think it means. 'Have you stopped beating your wife?' implies one has been beating one's wife regardless of YES or NO. Answering the question I proposed doesn't imply one's nationality one way or the other - it's the actions the person actively decides to do afterwards that either show that, or make it irrelevant.

Exactly, which is why his loaded question is bunk. International relations is very much involved, just not in they way he assumes.

Again, I don't think that term means what you think it means.

[Winston Blake]

Has anyone actually read the convention of concern?

I know I haven't - I was relying on the info in the OP.

2) The obligation of the US in this instance is to follow the spirit of the convention, or, more verbosely, to ensure to consular rights of the arrested individual are congruent to the purposes for which the convention was intended. Does anyone really think that the intention behind the convention was to provide to a foreign national, who did everything to conceal his true citizenship until he had already been sentenced, a technicality by which to perform an end-run around his conviction? Please.

Your personal incredulity combined with an appeal to belief doesn't actually constitute proof - however I won't deny that any exists.

Since you're the expert on the convention in this thread, it would cut to the heart of the argument if you would list exactly what the intended purposes were and which are invalid in this case.

As I believe it has already been pointed out by another poster, what happens in a case for which the true nationality of the arrested individual cannot be rigorously established? What about for someone who claims to be of citizenship X, exhausts all of his consular rights related to nation X, and then claims to be of citizenship Y, and does it all again? By deliberately hiding his citizenship, I think his action reasonably qualifies as a de facto waiver by him of his consular rights, since to exercise those rights, by definition, requires a statement by him of which consulate to contact.

Like a lot of things, 'due diligence' applies. An investigation into someone's citizenship with all due diligence is all that should be needed.

[Knife]

Yes, I realize that, because Ossus mentioned it before you did.

Fair enough; however, since he posted before you and I posted right after you, it didn't seem to me you were taking that into account.

You have a confused understanding of my post. I presented two different solutions - (1) prioritising existing & global obligation/precedent over unilateral pressure/lobbying. (2)

Your original post implied that you could either 1) apply international law or 2) lobbying. The problem here is that the nation that should be pushing to use the consular in this instance is the same nation that is pushing the USA not to identify the citizenship of people and not encouraging it's neighbor to identify Mexican nationality to be able to use the consular rights you want them to use. So... what we have here is the US getting bashed for actually listening to and doing what a neighboring country wants it to do. Jesus fuck we can't win with some of you people. Mexico doesn't want us to ID it's citizens, but for fucks sake if we don't then we get bashed for not following the letter of the law (and it looks like someone pointed out we actually did).

A question which is not loaded. I don't think that term means what you think it means. 'Have you stopped beating your wife?' implies one has been beating one's wife regardless of YES or NO. Answering the question I proposed doesn't imply one's nationality one way or the other - it's the actions the person actively decides to do afterwards that either show that, or make it irrelevant.

A loaded question implies a person is wrong no matter what he/she says due to the nature of the question. The classic question of "Have you stopped beating your wife" shows quite nicely that no matter how you answer that question with a yes/no, you are wrong. Your question would have the USA wrong for choosing to defy international law, or wrong for putting the needs and wants of the neighboring country ahead of international law as if actual international relations between two states is worse than international law. There is literally no good answer for the USA in your question, thus it is loaded.

Again, I don't think that term means what you think it means.

There you go thinking again. Are there rocks ahead? If there are, we'll all be dead.

[Winston Blake]

Yes, I realize that, because Ossus mentioned it before you did.

Fair enough; however, since he posted before you and I posted right after you, it didn't seem to me you were taking that into account.

If you read it again you'll see that I did explicitly quote the part where Ossus talks about the Mexican government applying pressure.

You have a confused understanding of my post. I presented two different solutions - (1) prioritising existing & global obligation/precedent over unilateral pressure/lobbying. (2)

Your original post implied that you could either 1) apply international law or 2) lobbying. The problem here is that the nation that should be pushing to use the consular in this instance is the same nation that is pushing the USA not to identify the citizenship of people and not encouraging it's neighbor to identify Mexican nationality to be able to use the consular rights you want them to use. So... what we have here is the US getting bashed for actually listening to and doing what a neighboring country wants it to do. Jesus fuck we can't win with some of you people. Mexico doesn't want us to ID it's citizens, but for fucks sake if we don't then we get bashed for not following the letter of the law (and it looks like someone pointed out we actually did).

I think I can finally see why you're getting indignant over something so simple. You seem to think I was suggesting that Mexico choose between international law or direct lobbying as tools to get its way, and that I was suggesting that using international law was a superior tool. This doesn't even make any sense relative to the comments of Ossus that I quoted, but you seem to have missed reading those. You might have been skimming too fast.

I thought I was pretty clear, but apparently not. I'll say it as bluntly as possible. The first part of my position continues to be this: that the U.S. should have said 'Fuck you' when Mexico insisted that suspects not be questioned about their nationality. Specifically 'Fuck you, because we have treaty obligations that are bigger than you, and they override your petty one-on-one lobbying'.

Is that clear now?

A question which is not loaded. I don't think that term means what you think it means. 'Have you stopped beating your wife?' implies one has been beating one's wife regardless of YES or NO. Answering the question I proposed doesn't imply one's nationality one way or the other - it's the actions the person actively decides to do afterwards that either show that, or make it irrelevant.

A loaded question implies a person is wrong no matter what he/she says due to the nature of the question. The classic question of "Have you stopped beating your wife" shows quite nicely that no matter how you answer that question with a yes/no, you are wrong.

A loaded question is simply a question loaded with, i.e. 'containing' an assumption. I don't see how 'wrongness' is required, despite the fact that loaded questions are usually asked to make the responder look bad. Here is a counterexample to your definition: 'Are you still giving all your spare income to the poor?' is also a loaded question. Specifically, loaded with the assumption that 'you have been giving all your spare income to the poor', which is implied by saying YES, and also implied by saying NO. Yet there is no implication of 'wrongness' here.

Your question would have the USA wrong for choosing to defy international law, or wrong for putting the needs and wants of the neighboring country ahead of international law as if actual international relations between two states is worse than international law. There is literally no good answer for the USA in your question, thus it is loaded.

The point of the question was that ANY answer is a good answer for the USA, because none of the 4 scenarios require a violation of either (a) the convention or (b) an agreement with Mexico not to ask 'what is your nationality?'.

• 1. Answers NO and is AMERICAN - International concerns are irrelevant.
  
  2. Answers NO and is secretly MEXICAN - Convention satisfied; suspect was given an opportunity to contact his govmt representatives. If in the future, he tries to suddenly reveal he's Mexican and use his convention right as a delaying tactic, he CAN'T, because he officially refused his right (and ideally is on video doing so).
  
  3. Answers YES and is AMERICAN - International concerns are irrelevant. Suspect given paper anyway. Can then write a letter to an American govmt representative if he desires.
  
  4. Answers YES and is secretly MEXICAN - Suspect given paper, and knows he is a Mexican citizen. (1) Can choose to write to the Mexican consulate, thus showing he is a Mexican citizen, and preventing usage of citizenship as a delaying tactic in future. (2) Or he can refuse to write (or call or similar) and thus refuse his right to contact his goverment. (3) He may write to an American govmt representative anyway, but it makes no difference - if he later reveals he is Mexican, he must also reveal that he was pretending to be American, and thus clearly failed to use his right when it was (indirectly) offered.

In each scenario, the suspect is neither denied (a) his convention right to contact his government, nor is there a violation of (b) an existing agreement with Mexico not to 'ask what a suspect's nationality is'. Now, Mexico may not like it, but it does meet America's obligations, thus America is in the clear.

After this Mexico may very well try to expand the scope of their lobbying to cover such a question. In this case the first part of my position can easily block such a move - that America can say its broader international obligations ought to trump Mexico's individual lobbying. Thus, the question can be asked.

Is that clear now?

[Knife]

Yes. I don't agree with your position and think it is naive in the face of real politic but it is more clear.

One the actual guys, you would have thought that his citizenship would have been discovered during the collection of evidence in the case; however, if the guy tried to hide his immigration status, that pretty much looks to be him passively giving up his right to consular services.

[Big Phil]

Here's a summary of the argument in this case, based on what I'm seeing people post:

The US is wrong (and immoral, uncultured, etc.) for failing to respect a rapist and murderer's rights as a foreign national. Even though no one knew that this guy was a foreign national (after all, he'd been in the US since he was TWO), and even though it would have made no material impact on the facts of the case, the evidence presented, or the guilt of the accused, the US is still a backward shithole for not respecting rights even the accused didn't know he had.

This strikes me as simply an opportunity to bash the US, rather than anyone actually attempting to argue and apply international law.


I do have one question for Thanas, since he's the only one I remembering discussing this topic with:

Take the Amanda Knox situation in Italy - she was clearly an American, but was not immediately given consular access by the Italian police, and was denied access to an attorney even after she asked for one. Based on the fact that you seem to be arguing (and correct me if I'm wrong) that consular access is a foreign national's right, doesn't that throw the entire inept prosecution of an American suspect by Italian authorities into question, as well as any subsequent "confessions" elicited after the request for an attorney?

[Simon_Jester]

Here's a summary of the argument in this case, based on what I'm seeing people post:

The US is wrong (and immoral, uncultured, etc.) for failing to respect a rapist and murderer's rights as a foreign national. Even though no one knew that this guy was a foreign national (after all, he'd been in the US since he was TWO), and even though it would have made no material impact on the facts of the case, the evidence presented, or the guilt of the accused, the US is still a backward shithole for not respecting rights even the accused didn't know he had.

This strikes me as simply an opportunity to bash the US, rather than anyone actually attempting to argue and apply international law.

Uh... no.

What I'm saying is that Texas, specifically, is probably being slipshod if they can try, convict, and execute a man without ever finding out he's a foreign national. That's what bugs me- they killed this guy without knowing some pretty basic facts about who he was. And I'm still not clear on exactly how hard he (and those around him) were trying to conceal his status as a foreign national.

[Big Phil]

Here's a summary of the argument in this case, based on what I'm seeing people post:

The US is wrong (and immoral, uncultured, etc.) for failing to respect a rapist and murderer's rights as a foreign national. Even though no one knew that this guy was a foreign national (after all, he'd been in the US since he was TWO), and even though it would have made no material impact on the facts of the case, the evidence presented, or the guilt of the accused, the US is still a backward shithole for not respecting rights even the accused didn't know he had.

This strikes me as simply an opportunity to bash the US, rather than anyone actually attempting to argue and apply international law.

Uh... no.

What I'm saying is that Texas, specifically, is probably being slipshod if they can try, convict, and execute a man without ever finding out he's a foreign national. That's what bugs me- they killed this guy without knowing some pretty basic facts about who he was. And I'm still not clear on exactly how hard he (and those around him) were trying to conceal his status as a foreign national.

And this affects the material evidence of this case how?

[Simon_Jester]

And this affects the material evidence of this case how?

Did I say it does?

I think there's a big procedural hole in the Texas death row sentencing process if this can happen. I dislike procedural holes, and think they should be closed, especially when we're talking about killing people. People should be clearly informed of their rights while in prison. And prisoners' identity should be checked fairly carefully, for a lot reasons, some of which have nothing to do with foreign consular access.

I have no idea whether Leal's behavior can be said to have "waived" his right to consular access or not. Or whether consular access would have done him any good if he'd gotten it. What concerns me is that I'd like to be sure he was at some point told he had the right, and that I'd like the Texas judiciary to exercise what I consider to be due diligence in identifying their death row inmates.

Oh, and I'd also like the US to honor the treaties it signed. That's usually a good idea.

That's about it, as far as I'm concerned.

[Big Phil]

There are also several arguments that you're implying in your posts, even if you're not making them out loud:

1. That the Mexican government would have provided the defendant with legal counsel.
2. That the legal counsel provided by the Mexican government would have been more competent than that provided by the State of Texas.
3. That the outcome of the trials could have been different.

I see no evidence that any of these are true (except for possibly the first), and if none of those implications are true, then criticism of this case is simply whining for the sake of ragging on the US (and the State of Texas).

[Simon_Jester]

There are also several arguments that you're implying in your posts, even if you're not making them out loud:

1. That the Mexican government would have provided the defendant with legal counsel.

Nope. I have no idea whether they'd have done that or not. Nor do I care.

2. That the legal counsel provided by the Mexican government would have been more competent than that provided by the State of Texas.

Ditto.

3. That the outcome of the trials could have been different.

Maybe. Dunno.

I see no evidence that any of these are true (except for possibly the first), and if none of those implications are true, then criticism of this case is simply whining for the sake of ragging on the US (and the State of Texas).

No, my criticism of this case is me seeing a problem with the Texas death row system- that they didn't put in the effort to carefully identify people before executing them, to a level that would reveal that Leal was a Mexican citizen.

If they'd just been throwing Leal in jail for a while because of a shoplifting charge, or even something middling-serious like assault and battery, I wouldn't mind that so much, since Leal clearly did take some steps to conceal his citizenship status. But since relatively few people get charged with especially heinous crimes (including capital offenses), I think it's reasonable to expect the state to dig a little deeper to get positive ID on the people in its custody for heinous crimes. To me, there's a hole there if Texas isn't doing that.

And when I see a big hole in a procedure that ought to be reliable and have safeguards built in, I comment on it.

[SVPD]

Here's a summary of the argument in this case, based on what I'm seeing people post:

The US is wrong (and immoral, uncultured, etc.) for failing to respect a rapist and murderer's rights as a foreign national. Even though no one knew that this guy was a foreign national (after all, he'd been in the US since he was TWO), and even though it would have made no material impact on the facts of the case, the evidence presented, or the guilt of the accused, the US is still a backward shithole for not respecting rights even the accused didn't know he had.

This strikes me as simply an opportunity to bash the US, rather than anyone actually attempting to argue and apply international law.

Uh... no.

What I'm saying is that Texas, specifically, is probably being slipshod if they can try, convict, and execute a man without ever finding out he's a foreign national. That's what bugs me- they killed this guy without knowing some pretty basic facts about who he was. And I'm still not clear on exactly how hard he (and those around him) were trying to conceal his status as a foreign national.

I don't see how you think they're being slipshod. If the guy came here as a young child, he most likely had most of the documents a citizen would have, probably even including a social security number. It isn't the job of states to determine alienage, that's the job of the Federal government. When a state arrests someone they suspect is an illegal alien, they call ICE or Border Patrol or something and we come determine alienage on the person. They identified who he was, and that he was the person that committed the crime.

However, if they don't suspect it, and he never claims to be an alien, it isn't their responsibility to find out if he is an alien or not. It's immaterial to the process of trying him for a state crime. The only reason it would matter is after the sentence for the state crime; if he had a jail term ICE or Border Patrol or someone would come get him and deport him as an aggravated felon as soon as he was released from jail.

However, in this case he was executed and I have a feeling that's where the rub is, for both discussion here and for the ICJ. To the best of my understanding, the right of consular access under the treaty in question is not something that pertains only to capital cases; he would have had this right under the treaty regardless of the crime or the potential sentence. Thus, his execution is not really material to the question of his treaty rights except insofar as there obviously is no way to fix the problem now. He would have had that right of consular access if he'd been arrested for drunk driving, or if we're talking about felonies only, for, say, burglary.

The fact of the matter, however, is that consular contact is a positive right, not a negative one. It is one that you must exercise. If you make an effort to hide your alienage, you are essentially waiving that right. If you want to exercise it, all you need to do is identify yourself as a foreign national. There is no good reason to require the state law enforcement or criminal justice authorities (and by state, I also mean local) to determine alienage when there is no obvious reason to suspect it. Had he been arrested, charged, tried, and punished by Federal authorities, whose job it is to deal with issues of immigration and alienage, that would be far more disturbing, whether he was executed or not.

If this had been a burglary case, the issues would be the same but it most likely would never have come to the attention of the ICJ at all, mainly because he never would have changed his mind about wanting consular access. He would have served his 5 years and gone on his way without ever being detected as an illegal alien, and if he were, ICE would simply come and get him and ship him off to Mexico at the end of his sentence.

Most likely, he didn't think he would get the death penalty because, even in murder cases, its rare. He only suddenly decided he wanted consular access when it was clear he was going to be executed and deportation became immaterial. Understandable, of course, that a man facing execution would grasp at anything that might stave it off, but this is a very unusual case just by virtue of involving the death penalty. It's not a reason to require local police agencies to fuck around worrying about alienage with everyone they arrest, or even everyone they arrest for a felony. If people want consular rights, they need to assert them. If, having been told "I'm a national of X country and I want to speak to a consular officer" the local law enforcement blows this off, then we have a problem, but even then, everything that happens up until that point is still legitimate. You should not be able to suddenly claim alienage and have it retroactively invalidate anything because you weren't detected up to that point. The state is going to proceed with criminal action against you the exact same way regardless; the only real difference in your ultimate fate is whether you get released back to society because you are a citizen, or you get deported as a felon after your sentence.

[Big Phil]

The fucker CONFESSED to the crimes prior to his execution... bitching about procedure and international treaties and legal technicalities when he was straight up guilty is in bad taste. And the thing is, if you're in Texas and searching for examples of prosecutor misconduct, denial of a defendants constitutional rights, abuse of power, and other egregious violations of the Constitution, you don't have to look too far. There are literally scores of examples of such behavior, including several that resulted in death penalty convictions. This case, however, isn't one of those, and its tasteless and tacky to hang your hat on this case as an example of a flaw in the system.

[Simon_Jester]

Re: SVPD:
Fair enough.

I think I was confused about his status- Leal isn't an "illegal immigrant" in the usual (or at least stereotypical) sense of the term, not when he spent basically his entire existence in the US. He was still in the country illegally, I'm not disputing that, but his status as a Mexican citizen is rather different from what we normally think of in cases where consular access is an issue

The one thing I'd like to know is if, at some point during or shortly after his arrest, he was informed "if you are a foreign national, you have the right to contact your home country's consulate for blah blah blah." That strikes me as something that ought to be said at some point, something sort of on par with Miranda.

It's not the state's fault if the defendant chooses not to exercise the right to remain silent, but the state is under some obligation to remind the defendant that he has such a right, and to make sure he doesn't fear being punished for exercising it. Likewise, it's not the state's fault if the defendant chooses not to exercise the right to consular access, but the state still has some due-diligence obligation to check a prisoner's status, and to inform him of his right to consular access.

Re: Phil
Suffice to say that this is the example which came up, and I was operating under some misapprehensions as to the facts. If the thread had been about some other example of a problem with the Texas judiciary, I'd be talking about that instead. No particular tastelessness was intended.

[SVPD]

Re: SVPD:
Fair enough.

I think I was confused about his status- Leal isn't an "illegal immigrant" in the usual (or at least stereotypical) sense of the term, not when he spent basically his entire existence in the US. He was still in the country illegally, I'm not disputing that, but his status as a Mexican citizen is rather different from what we normally think of in cases where consular access is an issue

He was not a stereotypical border crosser, but this really doesn't affect his immigration status. He was present illegally, and I'm aware of no special condition that he fulfills.

The one thing I'd like to know is if, at some point during or shortly after his arrest, he was informed "if you are a foreign national, you have the right to contact your home country's consulate for blah blah blah." That strikes me as something that ought to be said at some point, something sort of on par with Miranda.

I don't see why. Miranda pertains to interrogation, not to alienage. It certainly makes sense when apprehended for an immigration violation, but those only pertain to noncitizens anyhow, and for criminal proceedings, the violator will be treated the same way regardless of citizenship. I strongly suspect that the only reason this idea is occuring to anyone is because he was executed. I don't particularly see that this means there's some sort of problem with state and local law enforcement not concerning themselves with immigration issues.

It's not the state's fault if the defendant chooses not to exercise the right to remain silent, but the state is under some obligation to remind the defendant that he has such a right, and to make sure he doesn't fear being punished for exercising it. Likewise, it's not the state's fault if the defendant chooses not to exercise the right to consular access, but the state still has some due-diligence obligation to check a prisoner's status, and to inform him of his right to consular access.

I don't see that the state has any obligation whatsoever in that regard. There certainly is no legal precedent stating that they have any such obligation. The only obligation the state has is to afford due process in the actual criminal proceeding, and to inform the Federal immigration services if they suspect the person is an alien. The Federal government can then worry about his immigration status and consular access; that is the job of the Federal government. There is no need for the state to go out of its way to investigate or concern itself with his immigration status. If they suspect he is illegal, or if he volunteers that information, the Federal immigration services can deal with that. If they don't, he'll be treated as a citizen, and it's hardly valid to complain that you've been afforded all the rights of a citizen in a criminal proceeding when you were concealing your illegal status. What more does he expect?

[Simon_Jester]

He was not a stereotypical border crosser, but this really doesn't affect his immigration status. He was present illegally, and I'm aware of no special condition that he fulfills.

What it affects is how much work it would take to identify him as a foreign national if he wasn't volunteering the information. Now that I better understand the facts, I can see how despite exercising due diligence to find out who he is and where he's from, someone might still not know he was a foreign national.

The one thing I'd like to know is if, at some point during or shortly after his arrest, he was informed "if you are a foreign national, you have the right to contact your home country's consulate for blah blah blah." That strikes me as something that ought to be said at some point, something sort of on par with Miranda.

I don't see why. Miranda pertains to interrogation, not to alienage. It certainly makes sense when apprehended for an immigration violation, but those only pertain to noncitizens anyhow, and for criminal proceedings, the violator will be treated the same way regardless of citizenship. I strongly suspect that the only reason this idea is occuring to anyone is because he was executed. I don't particularly see that this means there's some sort of problem with state and local law enforcement not concerning themselves with immigration issues.

Eh. I don't think it would cost much in any sense of the word to have, at some point, some official read to the accused "If you are a foreign national, you have the right to contact the consulate of your home country and ask them for help with your case." It'd be wasted on the majority of people who hear it, but then most Americans already know they have a right to remain silent under police interrogation.

It costs very little to make sure that they know, and can save embarrassment in situations like this.

It's not the state's fault if the defendant chooses not to exercise the right to remain silent, but the state is under some obligation to remind the defendant that he has such a right, and to make sure he doesn't fear being punished for exercising it. Likewise, it's not the state's fault if the defendant chooses not to exercise the right to consular access, but the state still has some due-diligence obligation to check a prisoner's status, and to inform him of his right to consular access.

I don't see that the state has any obligation whatsoever in that regard. There certainly is no legal precedent stating that they have any such obligation. The only obligation the state has is to afford due process in the actual criminal proceeding, and to inform the Federal immigration services if they suspect the person is an alien. The Federal government can then worry about his immigration status and consular access; that is the job of the Federal government. There is no need for the state to go out of its way to investigate or concern itself with his immigration status. If they suspect he is illegal, or if he volunteers that information, the Federal immigration services can deal with that. If they don't, he'll be treated as a citizen, and it's hardly valid to complain that you've been afforded all the rights of a citizen in a criminal proceeding when you were concealing your illegal status. What more does he expect?

Put simply, I think the state reasonably should have to inform people it arrests that if they are a foreign national, they have a right to consular access. That takes about five to ten seconds- it's not an undue burden.

Should they have to do exhaustive background checks of everyone? No. But I'd think it would be smart to check the background of people who commit heinous crimes, though- it may be worth knowing that they had false ID on them when they were arrested, or that they've committed other crimes under another name. And, more or less as a side effect, this kind of investigation would probably (not always) reveal the non-citizen status of someone who'd come into the country as an adult and was living on fake ID.

It would still be possible to fool this process, and I don't think the state should be blamed for failing to deduce that people are foreign nationals if they don't volunteer the information and the state took reasonable steps to check their identity.

But some level of checking should go on.

[TheHammer]

Re: SVPD:
Fair enough.

I think I was confused about his status- Leal isn't an "illegal immigrant" in the usual (or at least stereotypical) sense of the term, not when he spent basically his entire existence in the US. He was still in the country illegally, I'm not disputing that, but his status as a Mexican citizen is rather different from what we normally think of in cases where consular access is an issue

The one thing I'd like to know is if, at some point during or shortly after his arrest, he was informed "if you are a foreign national, you have the right to contact your home country's consulate for blah blah blah." That strikes me as something that ought to be said at some point, something sort of on par with Miranda.

It's not the state's fault if the defendant chooses not to exercise the right to remain silent, but the state is under some obligation to remind the defendant that he has such a right, and to make sure he doesn't fear being punished for exercising it. Likewise, it's not the state's fault if the defendant chooses not to exercise the right to consular access, but the state still has some due-diligence obligation to check a prisoner's status, and to inform him of his right to consular access.

Well, strangely enough the EU has been working on a new draft called "letter of rights" that would be read to persons arrested including the mention of consular access - essentially an extended version of Miranda rights. However, as of now I did not find any foreign equivalent of Miranda that includes such language. http://en.wikipedia.org/wiki/Miranda_wa ... _countries

I found some interesting legal reading here:

http://www3.law.columbia.edu/hrlr/jlm/i ... ion-ii.pdf

What happens if your right to consular access is denied and you do not have access to your consulate
until after you are convicted? In some capital cases, foreign countries have tried to stay (delay or stop) an
execution order because the defendant’s right to consular access was violated before conviction. They argue
that if the consul had been able to get in touch with the defendant, the consulate might have been able to
help the defendant to avoid the death penalty. In the past, this argument has generally not worked in
convincing a court to stay an execution.

Although courts have been unwilling to stay executions, the International Court of Justice (“ICJ”) has
ordered courts to re-examine decisions in which a defendant’s right to consular access has been violated. In
Mexico v. United States (Avena), the ICJ ordered the United States to review the death sentences of fifty-one
Mexican prisoners because their right to speak with Mexican consular officials after their arrests had been
violated. Although the ICJ refused Mexico’s demand that the United States annul all fifty-one convictions,
the court did order that the United States re-examine each case in order to determine if the defendant
suffered legal prejudice (unfair case outcome) by not having early access to a diplomat. The ICJ held that
such re-examination must be conducted by a court, rather than in a clemency proceeding before a state
governor. The ICJ suggested that the ruling applied to “other foreign nationals finding themselves in
similar situations in the United States.”

Note the bolded portions, it would seem that in this case that point was satisified. This case was reviewed by courts and they did not find that the defendant suffered any legal prejudice. I believe someone else alluded to this earlier. Thus I could understand, Texas' refusal in this case to grant a stay.

All that being said, I would agree that moving forward adding the simple statement to Miranda advising that "If you are a foreign national, you have the right to communication with your government regarding your detention" would be fine. In fact, if the EU's forthcomming "Letter of rights" is any indication, I think that's where this is ultimately headed.

[Alyeska]

The fucker CONFESSED to the crimes prior to his execution... bitching about procedure and international treaties and legal technicalities when he was straight up guilty is in bad taste. And the thing is, if you're in Texas and searching for examples of prosecutor misconduct, denial of a defendants constitutional rights, abuse of power, and other egregious violations of the Constitution, you don't have to look too far. There are literally scores of examples of such behavior, including several that resulted in death penalty convictions. This case, however, isn't one of those, and its tasteless and tacky to hang your hat on this case as an example of a flaw in the system.

Just because the conviction was "right" doesn't mean it was done right. A broken clock that is right twice a day is still broken[/i]. That the conviction matched the guilt has no bearing on the argument.

[SVPD]

He was not a stereotypical border crosser, but this really doesn't affect his immigration status. He was present illegally, and I'm aware of no special condition that he fulfills.

What it affects is how much work it would take to identify him as a foreign national if he wasn't volunteering the information. Now that I better understand the facts, I can see how despite exercising due diligence to find out who he is and where he's from, someone might still not know he was a foreign national.

Fair enough.

Eh. I don't think it would cost much in any sense of the word to have, at some point, some official read to the accused "If you are a foreign national, you have the right to contact the consulate of your home country and ask them for help with your case." It'd be wasted on the majority of people who hear it, but then most Americans already know they have a right to remain silent under police interrogation.

It costs very little to make sure that they know, and can save embarrassment in situations like this.

I agree it would cost practically nothing in a monetary sense, but I think as a practical matter it simply creates another legality people can use to get out of criminal proceedings. Once the lawyers get hold of such a requirement, it will almost certainly become a technicality to use to get out of a criminal charge, even for citizens, who could argue "well, I wasn't read that right and what if I was an alien?" I'm not in favor of creating additional duties for the government in this regard, partly because it blurs the responsibilities of the state and Federal governments, and partly because it really is immaterial. The defendant will be treated the same way regardless; contact with a consular officer is not going to change the outcome of the case. This is not like Miranda, where a person who does not understand that they have the right to remain silent and to a lawyer has a much higher chance of an unfavorable and unfair outcome.

As to embarassment, I don't see any need to create a requirement like this just to avoid such things. The "embarassment" here is a result of the ICJ shooting its mouth off, not any impropriety on the part of the U.S. Had he not been executed, this would never have come up, and in my opinin it calls the motives of the ICJ into serious question because it appears that there is at least some level of an attempt to make political commentary about the death penalty through this issue. I'm neither defending nor condemning the death penalty by that comment; what I'm saying is that there isn't any embarassment here that isn't created by a conflation of two issues: consular access, and the death penalty. The ICJ seems, to me at least, to have gone out of its way to ignore the fact that this guy was not easily determined to be an alien, and hid that fact until he thought he could use it to get out of being executed. Again, understandable that he would do that, but I think that any judicial body should be able to do a better job of separating the issues, regardless of political and social dispute over the death penalty.

Put simply, I think the state reasonably should have to inform people it arrests that if they are a foreign national, they have a right to consular access. That takes about five to ten seconds- it's not an undue burden.

I don't see that the state reasonably should have to inform people of this at all. International travellers should take it upon themselves to understand this. No, the physical time and expense burden is not great; you are correct about that, but I see no reason to create new duties for the state which can create new loopholes to escape prosecution, over an issue that is really immaterial to the result of the case.

Should they have to do exhaustive background checks of everyone? No. But I'd think it would be smart to check the background of people who commit heinous crimes, though- it may be worth knowing that they had false ID on them when they were arrested, or that they've committed other crimes under another name. And, more or less as a side effect, this kind of investigation would probably (not always) reveal the non-citizen status of someone who'd come into the country as an adult and was living on fake ID.

I don't understand why you think that such checks were not conducted here. This guy was unusual in the length of time he had spent in the U.S. illegally, and that made him hard to detect as an illegal alien, especially to an agency which is not responsible for such matters. He was charged with a serious crime, so I don't see that any assumption that he was not thoroughly investigated really holds water.

Had he come into the U.S. later in life he would be much easier to detect because he would not have an established history here that made him appear to be a citizen.

It would still be possible to fool this process, and I don't think the state should be blamed for failing to deduce that people are foreign nationals if they don't volunteer the information and the state took reasonable steps to check their identity.

But some level of checking should go on.

Some level of checking does go on. This guy was unusually hard to detect; even a trained immigration officer would have found it difficult to get him to admit to alienage if he did not want to. The longer you stay in this country, the more history you establish and the easier it becomes to pass as a citizen.

[Simon_Jester]

I don't see that the state reasonably should have to inform people of this at all. International travellers should take it upon themselves to understand this. No, the physical time and expense burden is not great; you are correct about that, but I see no reason to create new duties for the state which can create new loopholes to escape prosecution, over an issue that is really immaterial to the result of the case.

I'm going to have to think about that one.

Some level of checking does go on. This guy was unusually hard to detect; even a trained immigration officer would have found it difficult to get him to admit to alienage if he did not want to. The longer you stay in this country, the more history you establish and the easier it becomes to pass as a citizen.

The fact that I think it should happen doesn't mean it doesn't happen, sorry for rambling about that.

Basically, when I came to the case I didn't do enough background checking to know that Leal was so hard to detect as a non-citizen. Thus, I made the wrong assumption- that he wasn't detected because the government hadn't made reasonable attempts to check up on his identity, the sort that they ought to make whether a person is an illegal alien or not.

But since Leal could pass undetected even when such reasonable efforts were made, this becomes a moot point.