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July 11, 2011

Honoring Our Treaties

Michael Kurtianyk

Texas did it again. On July 7 the state government, whose governor is Rick Perry, executed Humberto Leal Garcia, Jr., a 38-year-old mechanic from Mexico. He was charged in 1994 with the murder of 16-year-old Adria Sauceda. Her body was found hours after he left a party in San Antonio with her.


This column is not about whether Mr. Garcia was guilty or not. None of us was there, and the two subjects are now both dead. This column is not about whether there should be a death penalty or not. Those reading this who are for the death penalty will immediately contact me and ask: “What if this were your daughter?” Those against the death penalty will say that this is yet another example of a miscarriage of justice, and we as a society should not kill those who are charged with murder.


Rather, this is an exploration as to the judicial process in this specific case. It seems to have come down on one issue – why wasn’t Mr. Garcia told that he could contact the Mexican Consulate after his arrest for this murder? What the state of Texas did was provide Garcia with court-appointed lawyers; but at no point during his arrest or trial did the state inform him of his right to contact the Mexican consulate, which could have provided him legal aid.


This right to contact the Mexican Consulate is guaranteed by the Vienna Convention on Consular Relations, signed by the U.S., Mexico, and 171 other nations. Let’s look at this treaty for a moment.


Completed at Vienna on April 24, 1963, and entered into force on March 19, 1967, Article 36 of the document states:


Article 36 Communication and contact with nationals of the sending State:


1.      With a view to facilitating the exercise of consular functions relating to nationals of the sending State:


(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;


(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;


(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.


They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.


In its treatment of Garcia, Texas was in violation of this international law.


Mexico, the Obama Administration and others had asked the Supreme Court of The United States to delay Garcia’s execution so Congress could consider a specific law put forward: one that would require court reviews in cases where foreign nationals who were arrested did not receive help from their consulates. The logic behind this request is obvious: if the roles were reversed, and an American was detained in a foreign country (like Mexico), whether guilty or not, and was not given the right to contact the American government, there would be a great outcry from Americans for due judicial process.


The Supreme Court rejected the request 5-4. The five justices in the majority did not feel that executing Garcia would cause terrible international consequences. The other four justices said they would have granted the stay.


So, what are we left with? It seems that due judicial process was not done, and Texas executed another criminal. The judicial process must be honored. Without due process, we lack freedom. “Due process” is even mentioned twice in our Constitution:


Fifth Amendment – No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.


Fourteenth Amendment – All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.


Heaven help the next American detained in Mexico….


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