IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
HUMBERTO LEAL GARCIA, §
§ CIVIL ACTION NO. ______
RICK THALER, §
Director, Texas Department of §
Criminal Justice, Correctional §
Institutions Division, §
PETITION FOR WRIT OF HABEAS CORPUS
THIS IS A CAPITAL CASE. MR. LEAL IS SCHEDULED TO BE EXECUTED
ON JULY 7, 2011
Sandra L. Babcock
Texas Bar No. 01481700
Clinical Professor of Law
Northwestern University School of Law
357 E. Chicago Avenue
Chicago, Illinois 60611
(312) 503-0114 (tel.)
(312) 503-2798 (fax)
Texas Bar No. 00789452
University of Texas School of Law
Capital Punishment Center
727 East Dean Keeton
Austin, TX 78705
(512) 232-9171 (fax)
Attorneys for Petitioner
TABLE OF CONTENTS
I. JURISDICTION, VENUE, AND TIMELINESS ......................................................................6
II. STATEMENT OF FACTS ........................................................................................................7
III. PRIOR PROCEEDINGS ...........................................................................................................8
A. Proceedings Prior to the Avena Judgment and President‘s Determination ..........................8
B. The Avena Case in the International Court of Justice ..........................................................8
C. The Determination by the President of the United States to Comply with the
Avena Judgment in the Case of Mr. Leal and the 50 Other Mexican Nationals ................10
D. The Texas Court of Criminal Appeals‘ Dismissal of Mr. Leal‘s Petition Filed
Pursuant to the Presidential Determination........................................................................10
E. Prior Proceedings Before this Court (2007).......................................................................11
F. The U.S. Supreme Court‘s Decision in Medellin v. Texas (2008) .....................................11
G. Proceedings in the Fifth Circuit (2008) .............................................................................13
H. Proceedings Before the International Court of Justice (2008-09) .....................................13
I. Proceedings Before the Inter-American Commission on Human Rights ..........................14
J. Legislative Efforts to Implement Avena (2008-11) ..........................................................16
K. Further Political and Diplomatic Efforts to Effect Compliance with the Avena
IV. STANDARD OF REVIEW .....................................................................................................20
V. GROUNDS FOR RELIEF. ......................................................................................................21
A. The Supreme Court and Executive Branch Agree that Mr. Leal Has the Right to
Review and Reconsideration of His Conviction and Sentence Under the Avena
B. Congress Has Moved Steadily Toward Passage of Legislation That Would
Implement Mr. Leal‘s Right to a Judicial Hearing. ...........................................................22
C. Mr. Leal Has Rights to Life and Due Process Under the United States
Constitution That Entitle Him to Reasonable Access to a Remedy Required Under
a Binding International Legal Obligation. .........................................................................24
D. Mr. Leal Would Benefit from the Consular Notification Compliance Act Because
He Has Not Received the Review and Reconsideration Mandated by the Avena
Judgment, and Because the Violation of Article 36 in His Case Resulted in Actual
1. Mr. Leal Has Not Received Review and Reconsideration as Required by
2. The Vienna Convention in Mr. Leal‘s Case Resulted in Actual and Substantial
a. Mr. Leal Did Not Know He Had a Right to Contact His Consulate for
b. Mr. Leal Would Have Contacted the Mexican Consulate Had He Been
Apprised of His Rights...........................................................................................30
c. Mexico Would Have Provided Substantial Assistance to Mr. Leal.......................31
3. Even Under a Stricter Prejudice Standard, the Record in This Case Clearly
Establishes Overwhelming Prejudice. .........................................................................33
a. Consular Assistance Would Have Transformed the Quality of Mr. Leal‘s
Defense at the Culpability Phase ...........................................................................34
i. The Testimony of the Law Witnesses Did Not and Could Not
Establish That Mr. Leal Kidnapped or Sexually Assaulted Ms.
ii. The State's DNA Evidence Was Antiquated and Meaningless, Yet
the Defense Failed Effectively to Challenge It ................................................37
iii. Bite Mark Evidence Generally, as well as the Bite Mark "Evidence"
Introduced Against Mr. Leal at Trial Specifically, Both Amount to
iv. Mr. Leal's Parents Were Never Called as Witnesses To Explain the
Presence of Ms. Sauceda's Blouse in Mr. Leal's House...................................42
v. Others Had the Opportunity and Motive to Sexually Assault the
vi. A Rational Jury Could Not Have Convicted Mr. Leal of Kidnapping
on the Basis of the Evidence Introduced at Trial .............................................44
b. Consular Assistance Would Have Resulted in the Presentation of Powerful
and Compelling Mitigation ....................................................................................46
i. The Prosecution's Aggravating Evidence Was Weak Yet Uncontested
by the Defense..................................................................................................47
ii. With the Assistance of Investigators and Experts Funded by the
Mexican Consulate, the Jury Would Have Heard Compelling
Mitigating Evidence That Would Have Persuaded at Least One of
Them Not to Vote for Death ............................................................................49
c. Consular Assistance Would Have Facilitated a Plea Agreement ..........................56
d. The Inter-American Commission Has Determined That Mr. Leal Was
Prejudiced by the Violation of the Vienna Convention in His Case......................57
VI. PRAYER FOR RELIEF ..........................................................................................................59
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Applicant Humberto Leal García hereby petitions this Court to issue a writ of habeas
corpus on grounds that his custody violates the Constitution, laws and treaties of the United
States. Mr. Leal also seeks a stay of execution to allow Congress a meaningful opportunity to
implement the ―Consular Notification Compliance Act,‖ legislation that would provide Mr. Leal
with the right to federal review of his consular rights violation in accordance with the judgment
of the International Court of Justice in Avena and Other Mexican Nationals (Mex. v. U.S.A.),
2004 I.C.J. 12 [hereinafter ―Avena Judgment‖].
Mr. Leal raises a single claim in this petition: namely, that he has a federal due process
right to remain alive so that he can benefit from legislation introduced June 14, 2011 in the
United States Senate. This legislation has the full support of the U.S. Government, and is the
product of years of careful consultation and negotiations between departments of the Executive
Branch and Members of Congress. Most important, the legislation is designed specifically to
provide a remedy to Mr. Leal and other Mexican nationals whose cases were adjudicated by the
ICJ in Avena.
This petition is not successive. The claim raised here arises as a result of legislation that
was introduced two days prior to the filing of the petition. The Fifth Circuit has recognized that
these circumstances entitle Mr. Leal to file a habeas petition that is not subject to the strictures of
28 U.S.C. § 2244:
Leal contends that Congress will pass legislation requiring state compliance with the
Avena decision. Such a law, or a State‘s refusal to comply with such a law, might
provide a previously unavailable basis for a petition for habeas corpus, so our denial of
Leal‘s instant petition with prejudice will not be an impediment to his filing yet another
such petition, as it would not be successive either.
Leal v. Quarterman, 573 F. 3d 214, 224 n. 54 (5th Cir. 2009). In addition, this claim was not and
could not have been raised in the prior petition for habeas corpus relief filed with this Court as it
was not yet ripe for review. Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). Therefore, this
petition is properly filed in this Court and may not be dismissed as successive or as an abuse of
the writ under 28 U.S.C. § 2244.
Mr. Leal has filed this petition at the earliest possible opportunity, only two days after the
introduction of legislation that would implement the ICJ‘s judgment in Avena. He intends to
simultaneously seek relief from the Texas courts on similar grounds. Because the Texas Court of
Criminal Appeals will not hear his claim if federal proceedings are ongoing, see Ex parte Soffar,
143 S.W.3d 804, 805-07 (Tex. 2004), he has therefore filed a motion to stay and abate these
proceedings to allow the Texas courts an opportunity to rule on his claims prior to his execution.
INTRODUCTION AND SUMMARY OF GROUNDS FOR RELIEF.
Petitioner is one of the 51 Mexican nationals specifically named in the Avena judgment
of the ICJ. In the Avena case, Mexico brought suit against the United States on the ground that
the United States had violated the rights of Mr. Leal and other Mexican nationals on death row in
the United States under Article 36 of the Vienna Convention on Consular Relations, 21 U.S.T.
77, 596 U.N.T.S. 261 (―Vienna Convention‖), a treaty to which the United States and Mexico are
both parties. Among other things, Article 36 of the Vienna Convention requires authorities who
detain a foreign national to notify the individual of his rights to contact his nation‘s consulate,
and to afford the detained individual the opportunity to communicate with and seek assistance
from his nation‘s consulate. The ICJ held that the United States had violated the rights of Mr.
Leal under Article 36 and that, as a remedy, the United States was required to provide judicial
―review and reconsideration‖ of his conviction and sentence to determine whether, and how, the
Vienna Convention violation affected the fairness of his capital murder prosecution.
Significantly, the ICJ held that such review must take place without regard to procedural default
rules that would otherwise prevent the court from reaching the merits.
In Medellin v. Texas, 128 S. Ct. 1346 (2008), the Supreme Court unanimously affirmed
that the United States has an international legal obligation to provide Mr. Leal with judicial
―review and reconsideration‖ under Avena and Other Mexican Nationals. Although the Court
held that neither it nor the President could unilaterally implement the ICJ‘s decision, it made
clear that the nation was not thereby absolved of its obligation to adhere to the judgment. To the
contrary, the Court held that Congress had the power to implement the judgment through the
On June 14, 2011, Senator Patrick Leahy introduced the ―Consular Notification
Compliance Act,‖ which would grant Mr. Leal a right to the judicial process required by Avena.
The proposed bill specifically authorizes federal courts
to review the merits of a petition claiming a violation of Article 36(1)(b) or (c) of the
Vienna Convention on Consular Relations, or a comparable provision of a bilateral
agreement addressing consular notification and access, filed by a person convicted and
sentenced to death by any federal or state court prior to the date of enactment of this
Ex. 1, Consular Notification Compliance Act, 112th Cong. (1st Sess. 2011), § 4(a)(1).
Significantly, the legislation provides that a petition raising a violation of Article 36 shall not ―be
considered a second or successive habeas corpus application or subjected to any bars to relief
based on pre-enactment proceedings other than as specified in paragraph (2) of this subsection.‖
Id. § 4(a)(4). The legislation further provides that if an execution date has been set, ―the court
shall grant a stay of execution if necessary to allow for its review of a petition filed pursuant to
Section 4(a)(1).‖ Id., § 4(a)(2). Although the legislation has the full backing of the U.S.
Government, including the Department of State, the Department of Justice, the Department of
Defense, and the Department of Homeland Security, there is insufficient time remaining before
July 7 for Congress to consider and pass the Act. Mr. Leal therefore respectfully requests that
this Court determine:
Under these circumstances, Mr. Leal‘s rights to life and due process under the Fifth and
Fourteenth Amendments to the U.S. Constitution and to congressional implementation of the
protections afforded him by treaty commitments that constitute the ―supreme Law of the Land‖
under U.S. Const. art. VI, cl. 2, entitle him to habeas relief. Specifically, Mr. Leal has the right
to remain alive so that he may secure his access to the judicial review and reconsideration of his
conviction and sentence to which he is entitled by virtue of a binding international legal
obligation of the United States. Moreover, he is entitled to a stay of execution in order to prevent
the irreparable harm that would result to his rights to habeas, life, and due process arising from
that binding international legal obligation of the United States, when that obligation is in the
process of legislative implementation as a matter of U.S. law.
Mr. Leal stands to benefit directly from the Consular Notification and Compliance Act.
As an initial matter, he has not received review and reconsideration of his Vienna Convention
violation in accordance with the criteria set forth by the ICJ in Avena. Every court to have
considered his claim has applied a procedural bar.1 The one body to have reviewed the evidence
pertaining to Mr. Leal‘s Vienna Convention violation under the standard required by the ICJ has
concluded that Mr. Leal was prejudiced by the violation of his Vienna Convention rights, and
recommended that he receive a new trial. Ex. 2, Medellín, Ramírez Cárdenas and Leal v. United
For reasons set forth, infra, this Court‘s previous ―alternative‖ review of the merits does not constitute adequate
review and reconsideration.
States, Case 12.644, Inter-Am. C.H.R., Report No. 90/09, OEA/Ser/L/V/II.135, doc. 37 ¶¶ 128,
131-32, 160 (2009).
Mr. Leal suffered actual prejudice as a result of the consular rights violation in his case.
Mr. Leal has presented undisputed evidence that the Mexican consulate would have provided
substantial and meaningful assistance in his capital murder trial if it had learned of his detention
prior to trial. Among other things, Mexico would have ensured that he was represented by
highly qualified and experienced defense counsel who would have challenged the prosecution‘s
reliance on junk science to obtain a conviction, and would have presented powerful mitigating
evidence at the penalty phase, including expert testimony regarding Mr. Leal‘s learning
disabilities, brain damage, and sexual abuse at the hands of his parish priest. With consular
assistance, there is a reasonable likelihood that Mr. Leal would not have been convicted, let
alone sentenced to death.
In order to allow this case to proceed, a stay of execution is required. As explained
below and in the accompanying motion for stay of execution, this Court has the power to take
action that will avert an irreparable breach of the nation‘s treaty obligations in a manner fully
consistent with federal law. Moreover, this Court has the inherent power to grant a stay to
preserve its jurisdiction in the event that Congress passes legislation that will permit full
consideration of the issues raised in this application. All Writs Act, 28 U.S.C. §1651(a); See also
SEC v. Vision Communs, 74 F. 3d 287, 291 (D.C. Cir. 1996) (the All Writs Act ―empowers a
district court to issue injunctions to preserve its jurisdiction‖). Such a stay will avoid irreparable
harm not only to Mr. Leal‘s ability to vindicate his undisputed rights, but to the United States‘
ability to enforce its treaty commitments and to protect the lives of all Americans living, working
and traveling abroad. Because ―the Avena decision—a decision that flows from the treaties
through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention
disputes—constitutes an international law obligation on the part of the United States,‖ Medellin
v. Texas, 128 S. Ct. 1346, 1356 (2008), the agencies of the United States – including its courts –
have a responsibility to act diligently to assure that that obligation is met.
Simply put, an execution in these circumstances would be contrary to the interests of law
and justice, and this Court has a singular duty to prevent it. This Court should exercise its
undisputed power to stay the execution and grant habeas relief until Congress can act consistent
with the Supreme Court‘s direction to bring the nation into compliance with its treaty
I. JURISDICTION, VENUE, AND TIMELINESS
This court has personal jurisdiction and venue is proper under 28 U.S.C. § 2241(d)
because Mr. Leal Garcia was convicted in the 186th Judicial District Court in Bexar County,
Texas, located within the Western District of Texas, and is confined in Texas. The court has
subject matter jurisdiction under 28 U.S.C. §§ 1331, 2241, and 2254.
Petitioner‘s instant application is timely filed under 28 U.S.C. § 2244(d) as it is filed
within one year of the introduction of the Consular Notification Compliance Act that would grant
Mr. Leal Garcia a federal right to the remedy mandated by the ICJ in Avena. This is not a
―second or successive habeas corpus application‖ within the meaning of 28 U.S.C. § 2244(b)
because the grounds asserted herein were premature, unripe, and did not exist at the time of filing
of petitioner‘s previous habeas corpus application. See, e.g., Slack v. McDaniel, 529 U.S. 473,
485-86 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-44 (1998). In particular, in
Leal v. Quarterman, the Fifth Circuit expressly recognized that Mr. Leal would be entitled to file
a future petition relying on new legislation. 573 F. 3d at 224 n. 54. Although the legislation has
not yet passed, its introduction with the full support of the U.S. Government—including the
Department of State, the Department of Justice, the Department of Defense, and the Department
of Homeland Security—is a substantial step toward full compliance with Avena.
II. STATEMENT OF FACTS
On March 31, 2004, the International Court of Justice (―ICJ‖) handed down its judgment
in Avena and Other Mexican Nationals. In the case of Mr. Leal, the Court found that the United
States had violated all of its obligations under Article 36(1) of the Vienna Convention on
Consular Relations, 21 U.S.T. 77, 596 UNTS 261 (hereinafter ―Vienna Convention‖), including
Mr. Leal‘s right to consular notification and access, and Mexico‘s corresponding right to assist in
his defense. The Avena judgment establishes, first, that the United States violated Mr. Leal‘s
Vienna Convention rights, and second, that the courts must now provide review and
reconsideration of his conviction and sentence in light of that violation, addressing the prejudice
caused by the Article 36 violation on its own terms, and without applying any procedural bars.
The Vienna Convention violation in this case was no mere technicality. Consular
authorities did not learn of Mr. Leal‘s plight until two years after he was condemned to death
when, in 1997, he wrote to them from death row after having learned of his consular rights – not
from notification by law enforcement, but from another death row inmate. It was clearly too late
by then for Mexico‘s assistance to affect the course of Mr. Leal‘s trial. As detailed below, the
Government of Mexico had an active and far-reaching program of consular assistance in 1994,
the year Mr. Leal was arrested. The United States has acknowledged that Mexico‘s consular
assistance program is ―extraordinary.‖ 1 Counter-Memorial of the United States of America
(Mex. v. U.S.), 2003 I.C.J. Pleadings (Avena and Other Mexican Nationals) 186 (Nov. 3, 2003).
And Oklahoma‘s highest court has recognized that Mexico was providing crucial assistance to its
nationals facing the death penalty since at least 1989. Valdez v. State, 46 P.3d 703, 710 (Okla.
Crim. App. 2002) (―It is evident from the record before this Court that the Government of
Mexico would have intervened in the case, assisted with Petitioner's defense, and provided
resources to ensure that he received a fair trial and sentencing hearing‖).
III. PRIOR PROCEEDINGS
A. Proceedings Prior to the Avena Judgment and President’s
In July of 1995, Mr. Leal was convicted of capital murder and, upon the jury‘s
recommendation, the trial court sentenced Mr. Leal to death. On February 4, 1998, the Texas
Court of Criminal Appeals affirmed Mr. Leal‘s conviction and sentence in an unpublished
opinion. State v. Leal, No. 72,210 (Tex. Crim. App. 1998). Mr. Leal‘s state habeas petition was
denied on October 20, 1999 and, after seeking relief in federal habeas, this Court denied his
petition for a writ of habeas corpus on October 20, 2004. Leal v. Dretke, No. SA-99-CA-1301-
RF. On October 13, 2005, the Fifth circuit denied his request for a Certificate of Appealability.
Leal v. Dretke, 428 F.3d. 543 (5th Cir. 2005). On April 17, 2006, the Supreme Court denied
certiorari. Leal v. Dretke, 547 U.S. 1073 (No. 05-8680) (Apr. 17, 2006).
B. The Avena Case in the International Court of Justice.
On January 9, 2003, while Mr. Leal‘s case was pending before the District Court, the
Government of Mexico initiated the Avena case in the I.C.J. against the United States, alleging
violations of the Vienna Convention in the case of Mr. Leal specifically, along with the cases of
53 other Mexican nationals who had been sentenced to death in state criminal proceedings in the
United States. Mexico sought relief both on its own behalf and, in the exercise of its right of
diplomatic protection, on behalf of its nationals, Avena, para. 12, specifically including Mr. Leal
by name, id. para. 16(38). The ICJ held a hearing during the week of December 15, 2003, and
issued a final judgment on March 31, 2004. In the Avena judgment, the ICJ expressly
adjudicated Mr. Leal‘s own rights, as well as those of the other nationals on whose behalf
Mexico had sought relief. Id. paras. 40, 106.
Specifically, the ICJ adjudged that Texas authorities violated Mr. Leal‘s Vienna
Convention rights. In particular, the ICJ held that the United States—acting through various
state and local officials—had breached its obligation under Article 36(1)(b) in the case of 51
Mexican nationals, including Mr. Leal, ―to inform detained Mexican nationals of their rights
under that paragraph.‖ In 49 of those cases, again including that of Mr. Leal, the ICJ also found
that the United States breached Article 36(1)(b) when officials failed ―to notify the Mexican
consular post of the[ir] detention.‖ Avena, paras. 106(1)-(2), 153(4)-(5). In the cases of Mr. Leal
and 48 other Mexican nationals, the ICJ further held that the United States had breached its
obligation under Article 36(1)(a) ―to enable Mexican consular officers to communicate with and
have access to their nationals, as well as its obligation under paragraph 1(c) of that Article
regarding the right of consular officers to visit their detained nationals.‖ Avena, paras. 106(3),
153(6). And, in the cases of Mr. Leal and 33 other Mexican nationals, the ICJ also held that the
United States had breached its obligation under Article 36(1)(c) ―to enable Mexican consular
officers to arrange for legal representation of their nationals.‖ Avena, paras. 106(4), 153(7).
The ICJ then turned to remedies. It held that the United States must provide ―review and
reconsideration‖ of the convictions and sentences of Mr. Leal and the other Mexican nationals in
whose cases it found violations. Avena, paras. 14, 121-122, 153(9). The ICJ then specified the
nature of the review and reconsideration that the United States would need to provide to Mr.
Leal: first, the required review and reconsideration must take place ―within the overall judicial
proceedings relating to the individual defendant concerned;‖ second, procedural default doctrines
could not bar the required review and reconsideration when the competent authorities of the
detaining State had themselves failed in their obligation of notification; third, the review and
reconsideration must take account of the Article 36 violation on its own terms and not require
that it qualify also as a violation of some other procedural or constitutional right; and finally, the
forum in which the review and reconsideration occurs must be capable of ―examin[ing] the facts,
and in particular the prejudice and its causes, taking account of the violation of the rights set
forth in the Convention.‖ Avena, paras. 111-113, 120-122, 133-134, 138-141.
C. The Determination by the President of the United States to Comply
with the Avena Judgment in the Case of Mr. Leal and the 50 Other
On February 28, 2005, President George W. Bush issued a signed, written determination
that state courts must provide review and reconsideration to the 51 Mexican nationals named in
the Avena judgment, including Mr. Leal, pursuant to the criteria set forth by the ICJ in the Avena
judgment, notwithstanding any state procedural rules that might otherwise bar review of the
claim on the merits. The President declared:
I have determined, pursuant to the authority vested in me as President by the
Constitution and laws of the United States, that the United States will discharge
its international obligations under the decision of the International Court of
Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v.
United States of America (Avena), 2004 I.C.J. 128 (Mar. 31), by having State
courts give effect to the decision in accordance with general principles of comity
in cases filed by the 51 Mexican nationals addressed in that decision.
See Exhibit 3 (Presidential Declaration).
D. The Texas Court of Criminal Appeals’ Dismissal of Mr. Leal’s
Petition Filed Pursuant to the Presidential Determination
Pursuant to the President‘s order, Mr. Leal filed a subsequent application in the Texas
state courts seeking enforcement of the rights he was denied. On November 15, 2006, in Ex
parte Medellin, the Texas Court of Criminal Appeals held that Texas Criminal Procedure Code
Article 11.071, § 5 barred consideration of a subsequent post-conviction application filed
pursuant to Avena and the President‘s determination. Ex parte Medellín, 2006 WL 3302639
(Tex. Crim. App. Nov. 15, 2006) (to be published in S.W.3d). On March 7, 2007, Mr. Leal‘s
application was dismissed by the Court of Criminal Appeals citing to its decision in Medellin. On
March 31, 2008, the Supreme Court denied certiorari. Leal Garcia v. Texas, 552 U.S. 1295 (No.
06-11711) (Mar. 31, 2008).
E. Prior Proceedings Before this Court (2007)
Mr. Leal immediately filed a petition in this Court seeking relief based on the Avena
judgment and the presidential determination. On December 17, 2007 the Court determined that
Mr. Leal‘s petition was a successive petition pursuant to 28 U.S.C. § 2244 and, absent any
response or briefing from Respondent, the Court alternatively adjudicated the merits of Mr.
Leal‘s claim. Leal v. Quarterman, 2007 WL 4521519 (W.D. Tex. Dec. 17, 2007). This Court
granted a Certificate of Appealability, and Mr. Leal timely filed a notice of appeal.
F. The U.S. Supreme Court’s Decision in Medellin v. Texas (2008)
On March 25, 2008, while Mr. Leal‘s case was pending before the Fifth Circuit, the
Supreme Court decided Medellin v. Texas, 552 U.S. 491 (2008). The Supreme Court held that
neither the Avena Judgment nor the President‘s determination to comply constituted directly
enforceable federal law that precluded Texas from applying the procedural bar set forth in Tex.
Code Crim. P. Art. 11.071, § 5. Id. at 503-32. The Supreme Court acknowledged that the
United States is obligated as a matter of international law to comply with the Avena Judgment,
noting that ―[n]o one disputes that the Avena decision—a decision that flows from the treaties
through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention
disputes—constitutes an international law obligation on the part of the United States.‖ Id. at 504.
The Court was unanimous on this point. Id. at 504, 531, 538-39.
The Supreme Court further clarified the means available to the United States under the
Constitution to come into compliance with its obligations under Avena, including legislation by
the U.S. Congress. Id. at 520. Justice Stevens, concurring in the judgment but not the opinion,
urged the State of Texas to effect statewide compliance with Avena, noting that ―the United
States‘ obligation to ‗undertak[e] to comply‘ with the ICJ‘s decision falls on each of the States as
well as the Federal Government.‖ Id. at 536 (Stevens, J., concurring). ―[T]he fact that the
President cannot legislate unilaterally does not absolve the United States from its promise to take
action necessary to comply with the ICJ‘s judgment.‖ Id.
All nine justices of the Supreme Court also recognized that the United States has a vital
public interest in complying with its obligations under the Avena Judgment. Writing for the
majority, Chief Justice Roberts noted that
[I]n this case, the President seeks to vindicate United States interests in ensuring
the reciprocal observance of the Vienna Convention, protecting relations with
foreign governments, and demonstrating commitment to the role of international
law. These interests are plainly compelling.
Id. at 524. Justice Stevens agreed that ―the costs of refusing to respect the ICJ‘s judgment are
significant.‖ Id. at 537 (citation omitted). And Justice Breyer, joined by Justices Souter and
Ginsburg, observed in his dissenting opinion that noncompliance with the Avena Judgment
would exact a heavy toll on the United States by ―increase[ing] the likelihood of Security
Council Avena enforcement proceedings,  worsening relations with our neighbor Mexico, 
precipitating actions by other nations putting at risk American citizens who have the misfortune
to be arrested while traveling abroad, or  diminishing our Nation‘s reputation abroad as a result
of our failure to follow the ‗rule of law‘ principles that we preach.‖ Id. at 566.
G. Proceedings in the Fifth Circuit (2008)
After the Supreme Court issued its decision in Medellin v. Texas, the Fifth Circuit
dismissed Mr. Leal‘s appeal from this Court‘s 2007 ruling. Leal v. Quarterman, 573 F. 3d at
214. The Court held that Mr. Leal‘s petition was not successive because it relied on the Avena
judgment and the 2005 determination of President Bush that the state courts would implement
the judgment. Id. at 224. The Court also vacated this Court‘s alternative prejudice analysis,
holding that the exercise of ―hypothetical jurisdiction‖ to engage in such an analysis was
inappropriate. Id. at 216 n.4, 225. Nevertheless, the Court dismissed Mr. Leal‘s petition with
prejudice on the basis of Medellin v. Texas, 552 U.S. at 491, concluding that the Supreme Court's
decision ―has deprived the Avena decision and the Bush declaration of whatever legal force Leal
might claim they ever had.‖ 573 F. 3d at 224. The Court made clear, however, that Mr. Leal
would be entitled to file another petition for writ of habeas corpus that would likewise be non-
successive, if Congress were to pass legislation requiring compliance with the Avena judgment.
Id. at 225 n. 54.
H. Proceedings Before the International Court of Justice (2008-09)
On June 5, 2008, Mexico filed in the ICJ a Request for Interpretation of the Avena
Judgment, asking the ICJ to declare that the United States has an obligation to use any and all
means necessary to provide the judicial review and reconsideration mandated by the Judgment
before any execution is carried out. See Application Instituting Proceedings, Request for
Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other
Mexican Nationals (Mex. v. U.S.), June 5, 2008.2 In conjunction with its Request for
Interpretation, Mexico also asked the ICJ to indicate provisional measures with respect to Mr.
The parties‘ written and oral pleadings and the judgment, orders and press releases of the ICJ in respect
of the Request for Interpretation are available at http://www.icj-
Leal and four other Mexican nationals named in the Avena Judgment who face imminent
execution in Texas.3
The ICJ held oral proceedings on the request for provisional measures on June 19 and 20,
2008. At oral argument, the Legal Adviser to the Secretary of State confirmed ―that the United
States takes its international law obligation to comply with the Avena Judgment seriously‖ and
agreed that Avena requires the provision of review and reconsideration prior to the imposition of
any death sentence. See Exhibit 4, ICJ Oral Argument Tr. (June 19, 2008), at 60; Exhibit 5, ICJ
Oral Argument Tr. (June 20, 2008), at 14-15.
On January 19, 2009, the Court issued its judgment. Although it refrained from issuing a
reinterpretation of Avena, it held that the United States had violated its international legal
obligations by executing José Medellín on August 5, 2008. Request for Interpretation of the
Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mex.
v. U.S.), 2009 I.C.J. 139, ¶ 53. It declared that the United States‘ commitments under Avena
―must be met within a reasonable period of time,‖ and noted that the United States ―has insisted
that it fully accepts‖ this obligation. Id. ¶ 28. Meanwhile, the Court emphasized that ―the
obligation upon the United States not to execute . . . Humberto Leal García . . . pending review
and reconsideration being afforded to [him] is fully intact.‖ Id. ¶ 54.
I. Proceedings Before the Inter-American Commission on Human
On December 12, 2006, Mr. Leal filed a petition before the Inter-American Commission
on Human Rights raising the violation of his consular rights as well as several violations of the
1948 Declaration of the Rights and Duties of Man (―American Declaration‖). The Inter-
The four other Mexican nationals subject to the Order have not received execution dates but are eligible
under state law to have dates scheduled.
American Commission is the principal human rights organ of the Organization of American
States (―OAS‖) and is empowered to consider and evaluate the merits of human rights violations
raised by individuals from any OAS member state. See Inter-American Commission on Human
Rights, What is the IACHR?, at http://www.cidh.oas.org/what.htm; see also Thomas
Buergenthal, International Human Rights in a Nutshell 174, 179, 181-82 (2d ed. 1995). As a
member of the OAS, the United States has recognized the Commission‘s competence to consider
On August 7, 2009, after reviewing the legal arguments of both parties and the facts
submitted in support of Mr. Leal‘s claims for relief, the Inter-American Commission on Human
Rights issued a report concluding, in pertinent part, that Mr. Leal was prejudiced by the violation
of his rights to consular notification and assistance. Specifically, the Commission found that it
was ―apparent from the record before the Commission that, following [Mr.] Leal Garcia‘s
conviction and sentencing, consular officials were instrumental in gathering significant evidence
concerning [his] character and background. This evidence, including information relating to
[his] family life as well as expert psychological reports, could have had a decisive impact upon
the jury‘s evaluation of aggravating and mitigating factors in [his] case. . . .‖ Exhibit 2,
Medellín. Ramírez Cárdenas and Leal García v. United States, Case 12.644, Inter-Am. Comm‘n
H.R., Report No. 90/09, OEA/Ser.L/V/II.135, doc. 37 ¶¶ 128, 131 (2009).
The United States has signed and ratified the Charter of the Organization of American States, Apr. 30,
1948, 2 U.S.T. 2394, as well as the Protocol of Buenos Aires that amended the OAS Charter and
established the Commission as a principal organ through which the OAS would accomplish its purposes.
Protocol of Buenos Aires, Feb. 27, 1967, 21 U.S.T. 607, T.I.A.S. No. 6847. As ratified treaties of the
United States, both instruments apply with equal force and supremacy to all states, including Texas. U.S.
Const. art. VI, cl. 2. The amended OAS Charter specifically provided that ―[t]here shall be an Inter-
American Commission on Human Rights, whose principal function shall be to promote the observance
and protection of human rights and to serve as a consultative organ of the Organization in these matters.‖
Id. art. 106. Under Article 145, the Inter-American Commission is given the responsibility to ―keep
vigilance over the observance of human rights.‖ Id. art. 145.
As to remedies, the Commission recommended that Mr. Leal‘s death sentence be vacated
and that he be afforded ―a new trial in accordance with the equality, due process and fair trial
protections, prescribed under . . . the American Declaration, including the right to competent
legal representation.‖ Id. ¶¶ 160(1), 169(1). The Commission also reiterated that the United
States is required to ―take the necessary measures to preserve‖ Mr. Leal‘s life and physical
integrity ―pending the implementation of the Commission‘s recommendations in the matter.‖ Id.
¶ 159. His execution under these circumstances, the Commission warned, would constitute a
failure by the United States ―to act in accordance with its fundamental human rights obligations
as a member of the Organization of American States.‖ Id. ¶ 168.
J. Legislative Efforts to Implement Avena (2008-11)
Following the Supreme Court opinion, on July 14, 2008, Members of the House of
Representatives introduced legislation to give the Avena Judgment domestic legal effect. The
―Avena Case Implementation Act of 2008‖ would have granted foreign nationals such as Mr.
Leal a right to judicial review of their convictions and sentences in light of Vienna Convention
violations in their cases. Avena Case Implementation Act of 2008, H.R. 6481, 110th Cong. (2d
Sess. 2008). Introduced late in the congressional term during a presidential election year, the bill
failed to pass.
On July 29, 2010, the Senate Appropriations Committee included legislative language to
implement the Avena judgment as part of the Department of State, Foreign Operations, and
Related Programs Appropriation Act for Fiscal Year 2011. The bill would have provided
Federal courts with jurisdiction to review the merits of Mr. Leal‘s Vienna Convention claim.
Upon a finding of actual prejudice from the violation of Mr. Leal‘s consular rights, the bill would
have required the court to fashion ―appropriate relief, including ordering a new trial or
sentencing proceeding.‖ S. 3676, 111th Cong. (2d Sess. 2010). In December 2010, the
appropriations bill failed to pass.
On June 14, 2011, Senator Patrick Leahy introduced the ―Consular Notification
Compliance Act,‖ which would grant Mr. Leal a right to the judicial process required by Avena.
The new legislation has the full support of the U.S. Departments of Justice and State—a fact that
distinguishes this legislation from previous congressional efforts and greatly enhances the
chances of passage. Ex. 6, Affidavit of Katharine Huffman. The proposed bill specifically
authorizes federal courts
to review the merits of a petition claiming a violation of Article 36(1)(b) or (c) of the
Vienna Convention on Consular Relations, or a comparable provision of a bilateral
agreement addressing consular notification and access, filed by a person convicted and
sentenced to death by any federal or state court prior to the date of enactment of this
Ex. 1. Consular Notification Compliance Act, § 4 (a)(1). Significantly, the legislation provides
that a petition raising a violation of Article 36 shall not ―be considered a second or successive
habeas corpus application or subjected to any bars to relief based on pre-enactment
proceedings other than as specified in paragraph (2) of this subsection.‖ Id. § 4(a)(4).
The legislation has drawn broad support from a bipartisan array of former diplomats,
business leaders, retired military leaders, and organizations representing the millions of
Americans who live, work and travel abroad.
In a letter to Secretary of State Hillary Rodham Clinton urging Congress to pass
legislation implementing Avena, Peter M. Robinson, President and CEO of the United States
Council for International Business observed that
The security of Americans doing business abroad is clearly and directly at risk by
U.S. noncompliance with its obligations under the Vienna Convention. As recent
history has shown, American citizens abroad are at times detained by oppressive
or undemocratic regimes, and access to the American consular officers may be
their lifeline. Overseas employees of the U.S. business community as well as all
other Americans traveling or living abroad need this vital safety net. As it stands
now, U.S. citizens abroad are at grave risk that other countries may not honor
their reciprocal obligation.
Exhibit 7, Letter to The Honorable Hillary Rodham Clinton, Secretary of State, from Peter M.
Robinson (Nov. 16, 2009). A group of retired military leaders has appealed to the Texas Board
of Pardons to stay Mr. Leal‘s execution, noting, ―As retired military leaders, we understand that
the preservation of consular access protections is especially important for U.S. military
personnel, who when serving our country overseas are at greater risk of being arrested by a
foreign government.‖ Ex. 8, Letter from Retired Military Leaders. A bipartisan group of former
diplomats has echoed the need for legislation, citing the risk to Americans abroad:
Clearly, the safety and well-being of Americans abroad is endangered by the United
States maintaining the double standard of protesting denials of consular notification and
access to its own citizens while simultaneously failing to comply with its obligation to
remedy identical violations. We cannot realistically expect other nations to continue to
comply with consular treaty commitments that we refuse to uphold.
Ex. 9, Letter from Former Diplomats. An additional letter of support from former prosecutors
and judges observes that ―[d]elaying the execution of Humberto Leal García to ensure full
opportunity for congressional action and appropriate review of the case will demonstrate to
foreign governments the United States‘ good faith in upholding its consular access obligations,
increasing the likelihood that foreign governments will grant access to Americans in their
custody.‖ Ex. 10, Letter from Former Judges and Prosecutors.
Americans who have a direct stake in compliance with the Vienna Convention have also
called for a stay of Mr. Leal‘s execution and for the passage of legislation. Billy Hayes, whose
terrifying experience in a Turkish prison gave rise to the book and film, ―Midnight Express,‖ has
stated that U.S. consular assistance was critical to his ability to obtain legal counsel. In a letter to
the Texas Board of Pardons and Paroles, he highlights the vulnerability of Americans detained
overseas, and asks the Board to grant a reprieve so that Congress can address ―this vitally
important concern.‖ Ex. 11, Letter from Billy Hayes. Euna Lee, a journalist who was detained
in North Korea, describes the ―unbearable‖ ―sense of darkness‖ she experienced while in North
Korean custody. Ex. 12, Letter from Euna Lee. She states that it is ―hard to describe in words‖
the significance of her first consular visit. Id. ―For every endangered American hidden in a
foreign prison—and for their fearful families back at home—there can be no more important
priority than upholding the reciprocal right to consular protection.‖ Id. Finally, a coalition of
organizations that represent the concerns of the countless American citizens who live overseas
has joined in the call to stop Mr. Leal‘s execution, noting that ―[i]nternational compliance with
these provisions is essential to the protection of the United States‘ vast overseas population:
thousands of our fellow-citizens are held in foreign custody each year, while many thousands
more rely on access to U.S. consular support after natural disasters, civil unrest or other
emergencies.‖ Ex. 13, Letter from Organizations Representing Americans Abroad.
K. Further Political and Diplomatic Efforts to Effect Compliance with
the Avena Judgment
The Executive Branch has repeatedly reaffirmed its commitment to enforcing the Avena
judgment. Both Republican and Democratic administrations have emphasized the importance of
complying with this obligation. On June 17, 2008, Secretary of State Condoleezza Rice and
Attorney General Michael B. Mukasey asked for Texas‘ help in complying with the Avena
Judgment. In a joint letter to Governor Rick Perry, the Secretary of State and Attorney General
The United States attaches great importance to complying with its obligations
under international law . . . . We continue to seek a practical and timely way to
carry out our nation‘s international legal obligation [under Avena], a goal that the
United States needs the assistance of Texas to achieve. In this connection, we
respectfully request that Texas take the steps necessary to give effect to the Avena
decision with respect to the convictions and sentences addressed therein.
Ex. 14, Letter from Condoleezza Rice, Secretary of State, and Michael B. Mukasey, Attorney
General, to Rick Perry, Governor of Texas (June 17, 2008). For its part, the Obama
Administration has assured the international community of its intent to comply with Avena
judgment. HUMAN RIGHTS COUNCIL, Draft Report of the Working Group on the Universal
Periodic Review: United States of America, U.N. Doc. A/HRC/WB.6/9/L.9, ¶ 55 (Nov. 10,
2010). On July 12, 2010, State Department Legal Adviser Harold H. Koh wrote to Bexar County
district court judge Maria Herr to ask that she refrain from scheduling Mr. Leal‘s execution. He
noted that the Executive Branch was engaged in consultations with Congress and with the
Government of Mexico ―to determine how best to ensure the United States complies with its
obligations under Avena,‖ and that passage of legislation would take time. Mr. Koh concluded:
This case is. . . an important issue affecting U.S. foreign relations. Mexico and
numerous other foreign governments have urged the United States to comply with this
international obligation. Most important, millions of American citizens who travel
abroad annually rely on the protections of the Vienna Convention for access to U.S.
consular officials. We must ensure that neither this case nor any other weakens their
ability to rely on that access.
Ex. 15, Letter from Harold Hongju Koh to the Honorable Maria Herr, July 12, 2010. Since July
2010, the Executive Branch has been actively engaged in consultations with leading Members of
Congress over legislative language and strategies to assure passage of a bill that fully implements
the United States‘ obligations under Avena.
IV. STANDARD OF REVIEW
Since this claim is filed pursuant to federal legislation passed on June 14, 2011, the Texas
courts have not yet had an opportunity to consider the claim presented here. Mr. Leal is
therefore requesting that this Court stay and abate these proceedings out of comity to the state
courts so that they may consider the state and federal constitutional grounds for granting habeas
relief and a stay of execution.
Whatever the eventual ruling of the Texas Court of Criminal Appeals, however, this
Court will not be obligated to defer to the state court‘s decision, and may review the matter de
novo. See 28 U.S.C. § 2254(d). In addition, this Court will have the power to enter a stay of
execution regardless of the Texas court‘s decision, since the Court retains the inherent power to
issue orders necessary to preserve its jurisdiction over Mr. Leal‘s petition in light of the pending
V. GROUNDS FOR RELIEF.
A. The Supreme Court and Executive Branch Agree that Mr. Leal Has
the Right to Review and Reconsideration of His Conviction and
Sentence Under the Avena Judgment.
There is consensus among all relevant actors that Mr. Leal is entitled to review and
reconsideration of his conviction and sentence consistent with the Avena Judgment. No one—
not the Supreme Court, not the United States, not Mexico, not Texas—disputes that there is a
binding international obligation to comply under a treaty that the United States willingly entered
into and that was duly ratified by the President and the Senate. See, e.g., Medellin v. Texas, 552
U.S. at 504. No one disputes that by virtue of the Supremacy Clause of the Constitution, the
treaties made ―under the Authority of the United States, shall be the supreme Law of the Land.‖
U.S. Const. art. VI, cl. 2. The Supreme Court clarified that the Constitution required further
action by the federal political branches to render the Avena decision enforceable in domestic
courts, including in Mr. Leal‘s case. Medellín, 552 U.S. at 521 (―Congress is up to the task of
implementing non-self-executing treaties.‖); see also id. at 526-27, 529-30 (noting action by
Congress and/or by the President); id. at 536 (Stevens, J., concurring in judgment) (―[T]he fact
that the President cannot legislate unilaterally does not absolve the United States from its
promise to take action necessary to comply with the ICJ‘s judgment.‖).
B. Congress Has Moved Steadily Toward Passage of Legislation That
Would Implement Mr. Leal’s Right to a Judicial Hearing.
For the past three years, Congress has been moving steadily toward the passage of
legislation to implement the Avena judgment. Significantly, two experts on congressional
procedure believe there is a substantial likelihood that the Consular Notification Act will pass
before the end of 2011. See Ex. 6 (Affidavit of Katharine Huffman); Ex. 16 (Affidavit of Prof.
Ross Baker). As Professor Ross Baker explains, the time that Congress has taken to introduce
legislative language should not be considered as an indication of Congress‘ disinterest in
implementing Avena; the process by which bills are introduced, considered and presented for a
vote is cumbersome and complex. Ex. 16 (Affidavit of Prof. Ross Baker). In addition, the
introduction of legislation to implement the Avena judgment has required extensive consultation
with both the Department of State and the Department of Justice, and has involved difficult
questions of federalism, habeas corpus procedure, and international law. Nonetheless, Members
of Congress and the Executive Branch have worked diligently to promote Avena legislation.
Significantly, the introduction of the Consular Notification Compliance Act marks the first time
that the legislation has been introduced with the full support of all relevant departments of the
Executive Branch. With the Administration‘s vigorous support, experts believe that there is a
substantial likelihood that the Consular Notification Compliance Act will be passed by
December 2011. See Ex. 6 at ¶ 10; Ex. 16 at ¶ 16. There is no time, however, for committee
hearings, deliberations and floor debates in both the House and Senate before Mr. Leal‘s
scheduled execution on July 7, 2011.
Texas has itself on several occasions advocated the importance of allowing the political
branches to determine whether and how to give effect to the Nation‘s obligations under the
Avena Judgment. It emphasized, in particular, implementing legislation. For example, in its
brief to the Supreme Court in Medellin v. Dretke, Texas argued:
It is beyond cavil that . . . America should keep her word. But the choice of how
to do so, and how to respond to alleged treaty violations, is left to the political
branches of government . . . . The President and Congress could seek to pass
legislation addressing the Avena decision[.]
Respondent‘s Br. at 7, Medellin v. Dretke, 544 U.S. 660 (No. 04-5928). And in Medellin v.
Texas, Texas echoed: ―To be sure, Texas recognizes the existence of an international obligation
to comply with the United States‘ treaty commitments, including, as appropriate, through
changes to domestic law.‖ Br. for Respondent at 12, Medellin v. Texas, 552 U.S. 491 (No. 06-
Nearly half the states espoused this position in amicus briefs submitted to the Supreme
Court in Medellin v. Texas, 522 U.S. 491. Twenty states argued in the Supreme Court that
As a delicate matter of foreign policy, [the] task [of choosing how to comply with
Avena] should be left to the Executive Branch and Congress, at least in the first
instance . . . . The political branches can work toward a solution that protects and
balances the United States‘ sovereignty interests, the States‘ interests in finality
and the efficient administration of criminal justice, and foreign nationals‘ interests
in consular notification in an equitable fashion—all the while bearing in mind the
important ramifications such a solution would have for United States citizens
living and traveling abroad.
Br. for the States of Alabama et al., as Amici Curiae, in Support of Respondent at 17-18,
Medellin v. Dretke, (No. 04-5928).
Texas‘ decision to proceed with Mr. Leal‘s execution and preempt the legislative process
places Congress, the President, and indeed the Nation as a whole in an impossible race against
time. The execution of Mr. Leal would interfere with the institutional prerogative of Congress,
working in concert with the Executive, to implement the Nation‘s freely-undertaken treaty
C. Mr. Leal Has Rights to Life and Due Process Under the United States
Constitution That Entitle Him to Reasonable Access to a Remedy
Required Under a Binding International Legal Obligation.
Mr. Leal is on the verge of execution without having received review and reconsideration
when every federal and state actor agrees that there is a binding international legal obligation to
provide him that review. Indeed, the Executive has been working diligently to effect compliance
through all the means available to prevent this Nation‘s breach of one of its most important treaty
commitments. And although the Consular Notification Compliance Act has been introduced,
there simply is insufficient time to consider and pass the legislation before July 7. Despite the
unanimity of views that the United States should comply and that Mr. Leal has a binding legal
right to a remedy, Texas is rushing to execute Mr. Leal before Congress has the opportunity to
exercise the very competence that Texas argued and the Supreme Court has clarified it has, to
transform that legal obligation into a justiciable federal right.
In these unique circumstances, Mr. Leal‘s execution would violate his right under federal
law in the form of the United States‘ treaty commitments to receive review and reconsideration
in accord with the Avena judgment. Those treaty commitments, in turn, are the ―supreme Law of
the Land‖ by operation of the Supremacy Clause. U.S. Const. art. VI, cl. 2. Though the right to
receive review and reconsideration is not yet enforceable in domestic courts, the process to make
it so is now underway in Congress, and Mr. Leal has a right to remain alive in order to seek
vindication of that right once implemented as a matter of domestic law. To deprive him of that
right would impinge on the constitutional authority of Congress, as confirmed by the Supreme
Court, to give effect to the United States‘ obligation under Article 94(1) of the United Nations
Charter to comply with the Avena judgment. And vindication of that right would be no empty
gesture: for the reasons set forth infra in Part D (2) – (3), the undisputed violation of his Vienna
Convention rights in Mr. Leal‘s case goes to the very heart of the validity of his conviction and
Further, in these unique circumstances, Mr. Leal‘s execution would violate his right to
life and his right not to be deprived of his life without due process of law guaranteed under the
U.S. Constitution. See U.S. Const. amend. V, XIV; Ohio Adult Parole Authority v. Woodard,
523 U.S. 272, 288 (1998) (―[a] prisoner under death sentence remains a living person and
consequently has an interest in his life‖) (O‘Connor, J., concurring); id. at 291 (―There is . . .no
room for legitimate debate about whether a living person has a constitutionally protected interest
in life. He obviously does.‖) (Stevens, J., concurring in part and dissenting in part). Mr. Leal‘s
current sentence of death does not deprive him of that right, because neither the sentence nor the
conviction underlying it can be considered valid unless and until he receives the review and
reconsideration mandated by the United States‘ treaty commitments. ―[A]s [the Supreme Court
has] often stated, there is a significant constitutional difference between the death penalty and
lesser punishments.‖ Beck v. Alabama, 447 U.S. 625, 638 (1980); see also Gardner v. Florida,
430 U.S. 349, 357 (1977) (―[D]eath is a different kind of punishment from any other which may
be imposed in this country.‖) (opinion of Stevens, J.). It is thus ―of vital importance to the
defendant and to the community that any decision to impose the death sentence be, and appear to
be, based on reason rather than caprice or emotion.‖ Gardner, 430 U.S. at 358; see also Barefoot
v. Estelle, 463 U.S. 880, 888 (1983) (―[A] death sentence cannot begin to be carried out by the
State while substantial legal issues remain outstanding.‖).
Here, the State of Texas is poised to carry out Mr. Leal‘s execution before he receives the
full process to which he is entitled under law. That entitlement is no less weighty simply
because appropriate federal actor has not yet had an opportunity to implement the undoubted
international obligation that confers it. Texas authorities cannot be permitted to subvert due
process by an unseemly rush to execution before the U.S. Congress has had a chance to act, and
any doubt that Congress will adopt the necessary legislation to avoid a breach of the relevant
treaties must be resolved in favor of the presumption that the United States will act to comply
with its treaty commitments. Cf. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64,
118 (1804) (in the absence of clear instruction from Congress, courts should not construe statutes
in a manner that would place the United States in breach of its treaty obligations); see Br. for the
United States as Amicus Curiae Supporting Respondent at 43, 45, Medellin v. Dretke, 544 U.S.
660 (2005) (No.04-5928) (President has determined it is in the ―paramount interest of the United
States‖ to achieve ―prompt compliance with the ICJ‘s decision with respect to the 51 named
individuals‖). At the very least, due process requires that Mr. Leal be allowed to live while
Congress considers implementation of the international obligation.
D. Mr. Leal Would Benefit from the Consular Notification Compliance
Act Because He Has Not Received the Review and Reconsideration
Mandated by the Avena Judgment, and Because the Violation of
Article 36 in His Case Resulted in Actual Prejudice.
1. Mr. Leal Has Not Received Review and Reconsideration as
Required by Avena.
No U.S. court has yet provided review and reconsideration of Mr. Leal‘s consular rights
claim in accordance with the criteria set forth by the ICJ in Avena. Every court that has reviewed
the VCCR violation in Mr. Leal‘s case has found the issue to be procedurally defaulted.
Although some of those courts concluded, in the alternative, that Mr. Leal had not been
prejudiced by the violation, this sort of ―alternative‖ prejudice finding does not constitute
sufficient review and reconsideration. Indeed, this is precisely the sort of review that the state
and federal courts provided in the case of José Medellín, another Mexican national whose case
was adjudicated by the ICJ in Avena, and who was executed by the state of Texas in 2008. In
assessing whether the United States had complied with its obligations to provide review and
reconsideration in Medellín‘s case, the ICJ concluded that it had not—despite Texas‘ strenuous
arguments that such ―alternative‖ merits assessments were sufficient ―review and
reconsideration‖ under Avena. 2009 I.C.J. 139 at ¶ 53. The ICJ concluded that the United States
had violated its international legal obligations by executing Medellín without providing him the
requisite review and reconsideration. Id.
According to the Avena Judgment, the review and reconsideration of Mr. Leal‘s
conviction and sentence must be ―effective‖ and ―‗tak[e] account of the violation of the rights set
forth in [the] Convention‘ and guarantee that the violation and the possible prejudice caused by
that violation will be fully examined . . . .‖ Avena Judgment at ¶ 138 (emphasis added; citation
omitted). The Court also held that the violation of Mr. Leal‘s Article 36 rights must be
addressed on its own terms, not under the rubric of other due process rights afforded in the
United States criminal justice system. Id. at ¶ 139. As the Court explained, ―[t]he rights
guaranteed under the Vienna Convention are treaty rights which the United States has
undertaken to comply with in relation to the individual concerned, irrespective of the due process
rights under United States constitutional law.‖ Id. Further, consistent with the Avena Judgment
and proposed legislation, the review and reconsideration must be provided free of any procedural
impediments, including the procedural bars set forth in 28 U.S.C. § 2244.
In his initial post-conviction application before the Texas post-conviction court, Mr. Leal
raised the violation of his Vienna Convention rights but at the time, the Avena Judgment had not
yet issued. Accordingly, that court‘s analysis failed to apply the specific criteria set forth by the
Avena court. First, the state court found that the claim was procedurally defaulted. Ex Parte
Leal, No. 94-CR-4696-WI (186th Dist. Tex., Oct. 20, 1999), at 69. Second, the court rejected
the claim based on the lack of any parallel state or federal constitutional rights – a framework
specifically rejected by the ICJ in Avena.5 See Avena Judgment at ¶ 139.
In a habeas petition filed with this Court in 2007, Mr. Leal again raised the violation of
his Article 36 rights. This Court, however, determined that Mr. Leal‘s claims were subject to a
procedural bar – namely, the successive petition requirements as set forth in 28 U.S.C. § 2244 –
and dismissed the petition without receiving a response from the Attorney General and in the
absence of discovery, factual development and an evidentiary hearing. The Court‘s assessment
of the facts of Mr. Leal‘s case, unsurprisingly, is riddled with misstatements and fails to consider
critical evidence. More important, on appeal the Fifth Circuit vacated the part of this Court‘s
opinion that concluded that Mr. Leal had not been prejudiced. Leal Garcia v. Quarterman, 573
F. 3d 214, 225 (5th Cir. 2009). The Fifth Circuit held that the district court‘s ―hypothetical‖
analysis was improper, and on that basis vacated the court‘s ―alternative‖ prejudice
determination. Id. at 216, n 4.
Even if the Fifth Circuit had not vacated this Court‘s ―alternative‖ prejudice
determination, it would not have sufficed as ―review and reconsideration under the Avena
Judgment. First, any ―alternative‖ finding that a national was prejudiced by the VCCR violation
would be wholly unenforceable. Second, the Court‘s ―alternative‖ prejudice determination was
made on the basis of pleadings, without providing for any of the fact-finding procedures that are
necessary to create a complete and accurate record for the purposes of review and
reconsideration. Third, an ―alternative‖ evaluation of prejudice conducted after a court has
The state court noted that that there was no ―federal or state constitutional requirement that the rights
listed in Article 36 of the Vienna Convention must be given to a foreign national by police prior to
questioning or taking a statement from the foreign national, whether the foreign national is in custody or
is not in custody.‖ Ex Parte Leal, No. 94-CR-4696-WI, at 63.
already determined that a claim is procedurally barred pre-disposes the court to conclude there is
no prejudice. Where a court finds a claim to be procedurally barred, there is no institutional
incentive to ferret out the truth and to fully examine, in the ICJ‘s words, whether actual prejudice
has been shown.
In sum, there is no difference between the ―review‖ provided in Leal and the inadequate
―review‖ provided in Medellín. In both cases, courts found the Avena claims to be defaulted,
and then conducted an alternative prejudice analysis. In Leal, as in Medellin, the state court
applied the wrong analytical framework. This Court cited Avena but applied a procedural bar
and failed to allow for any process by which the parties could present evidence, make oral
arguments, and engage in discovery.
2. The Vienna Convention in Mr. Leal’s Case Resulted in Actual
and Substantial Prejudice.
Although the ICJ did not elaborate on the meaning of ―actual prejudice,‖ the Supreme
Court has suggested that a petition must show that the violation had ―some effect‖ on the fairness
of the trial. Breard v. Greene, 523 U.S. 371, 377 (1998). Lower courts considering Vienna
Convention claims have used a three prong test for determining if a prisoner has demonstrated
prejudice: ―(1) the defendant did not know he had a right to contact his consulate for assistance;
(2) he would have availed himself of the right had he known of it; and (3) it was likely that the
consulate would have assisted the defendant.‖ Torres v. State, 120 P.3d 1184, 1186 (Okla. Crim.
App. 2005); see also United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir. 1980)
(assessing whether Vienna Convention violation ―harmed [petitioner‘s] interests in such a way as
to affect potentially‖ his conviction or sentence). But even under a more stringent test, Mr. Leal
easily carries his burden. For example, the factual showing made by Mr. Leal readily meets the
prejudice standard applied in Kyles v. Whitley, 514 U.S. 419 (1972) (where there is a ―reasonable
probability‖ that the result of the proceeding would have been different, prosecutor‘s
withholding of exculpatory evidence is material and requires a new trial).,
The current petition elaborates on the prejudice arguments presented in the previous
petition and provides further information regarding mitigating evidence that was not presented
by counsel and that would have compelled at least one juror to vote for life. Based on the
uncontested evidence of Mexico‘s aggressive and far-reaching consular assistance program, the
sworn statements of a Mexican official that the consulate would have provided high quality and
experienced legal counsel to Mr. Leal, the abysmal performance of Mr. Leal‘s appointed
counsel, and the powerful evidence that competent counsel would have been able to effectively
undermine the prosecution‘s case at both the culpability and penalty phases of trial, there can be
little doubt that Mr. Leal easily meets any formulation of the prejudice requirement.
a. Mr. Leal Did Not Know He Had a Right to Contact His
Consulate for Assistance.
Mr. Leal did not know, nor did anyone attempt to inform him of, his right to consular
assistance. Throughout all previous forums, in the domestic courts and in the International Court
of Justice, the State has never contested the fact that Mr. Leal was not informed of his rights
under the Vienna Convention, nor have they suggested that he had independent knowledge of his
rights. There can be no credible debate that Mr. Leal has satisfied this first element of the test.
b. Mr. Leal Would Have Contacted the Mexican
Consulate Had He Been Apprised of His Rights.
Had Mr. Leal been properly informed of his right to consular notification upon arrest —
or at any time during his pre-trial detention—he would have sought out the consulate‘s help.
Indeed, it was Mr. Leal himself who first contacted the consulate by letter while on death row.
See Ex. 17, Affidavit of Victor Manuel Uribe.
There was no reason why Mr. Leal would have hesitated to apprise the Mexican
consulate of his situation; quite the reverse, in fact. He had no criminal record in Mexico to
conceal, and was not wanted there by the authorities on any charges. His ties to Mexico and his
native culture were deep and enduring. Furthermore, he has gratefully accepted the consular
assistance offered to him in his post-conviction proceedings; indeed, it was Mr. Leal himself who
contacted the consulate to seek the assistance to which he was entitled from the time of his arrest.
This is evidence of his willingness to work with the consulate and is entirely consistent with the
experience of Mexican consular officers in cases involving serious criminal charges. See id.
c. Mexico Would Have Provided Substantial Assistance to
There is no question that Mexico would have provided substantial assistance to Mr. Leal
throughout 1994, when he was detained on capital murder charges, had the consulate been aware
of his case. Since at least 1920, the Mexican government has extended legal assistance to its
nationals sentenced to death in the United States. See Ex. 18 Affidavit of Everard Kidder Meade
IV, ¶ 7. As early as 1921, upon the motion of Nobel laureate Octavio Paz, who was then a
congressman in Mexico, Mexico appropriated special funding for criminal defense attorneys to
represent Mexican nationals in United States courts. Id. at ¶ 10.
At least one court has already recognized the ―significance and importance‖ of the
assistance provided by Mexican consular officials. Valdez v. State, 46 P.3d 703, 710 (Okla.
Crim. App. 2002). In the case of Mr. Valdez, who was arrested in 1989, the Oklahoma Court of
Criminal Appeals found that ―the Government of Mexico would have intervened in the case,
assisted with Petitioner‘s defense, and provided resources to ensure that he received a fair trial
and sentencing hearing.‖ Id. (emphasis added). Mr. Leal was arrested some five years after Mr.
Valdez. From 1989 to 1994, Mexico‘s involvement in the defense of its nationals only increased
in intensity. Shortly before Mr. Leal‘s prosecution, for example, consular officials in Texas were
heavily involved in the defense of Ricardo Aldape Guerra, who was convicted and sentenced to
death in Houston without the benefit of consular assistance. See Affidavit of Scott J. Atlas,
attached as Appendix 3 to Ex. 17, Affidavit of Victor Manuel Uribe. In the case of Mr. Aldape,
the consulate‘s assistance quite literally made the difference between life and death, just as it
would have in the case of Mr. Leal. Id.; see also Declaration of Michael Iaria, attached as
Appendix 3 to Ex. 17, Affidavit of Victor Manuel Uribe (describing assistance provided by
Mexican government to national facing capital charges in Oregon which resulted, among other
things, in the withdrawal of incompetent counsel and the appointment of a qualified capital
defense attorney); Affidavit of Bonnie Goldstein, attached as Appendix 3 to Ex. 17, Affidavit of
Victor Manuel Uribe (describing assistance provided by Mexico during the 1992-1997 period to
nationals on Texas‘ death row in habeas proceedings); Ex. 19, Affidavit of Peter Lopez, III
(describing assistance provided by Mexico, including obtaining documents in Mexico
unavailable to defense counsel under Texas law). As early as 1988, the Mexican Ministry of
Foreign Relations had designated a specific point-person charged specifically with monitoring
legal cases of Mexican citizens in the United States. See Ex. 20, Affidavit of Barbara K.
Strickland. The Ministry was particularly interested in the cases of Mexican nationals facing the
death penalty. Id. This emphasis persisted throughout the 1990s. Id.; see also Declaration of
Roberto Rodriguez Hernandez, attached as Appendix 1 to Ex. 17, Affidavit of Victor Manuel
Uribe. The fact that the Mexican government took an active interest in Mr. Leal‘s case
immediately upon learning of it, and promptly sought to take a vigorous role in his defense from
that time forward belies any argument that the consulate would have ignored any pleas for
assistance from Mr. Leal or his attorneys.
3. Mr. Leal Easily Meets An Even Stricter Prejudice Standard.
There can be no question that Mexico‘s involvement in Mr. Leal‘s case would have
transformed the quality of his defense, and, at minimum, prevented the imposition of a death
sentence by ensuring that Mr. Leal was defended by highly qualified and experienced trial
counsel aided by competent investigators and necessary forensic and mental health experts. Ex.
17, Affidavit of Víctor Manuel Uribe. Just as Mexico has done in other capital cases involving
Mexican nationals, consular officials would have taken measures to ensure Mr. Leal was
represented by competent counsel, and taken decisive steps to have trial counsel removed if they
failed to mount a vigorous defense for Mr. Leal. Mexican consular protection officers are
specially trained to understand and respond to the various stages of a capital case, and closely
monitor the performance of trial counsel to ensure they provide high quality legal representation.
Much of this assistance is comparable to that provided by effective capital defense attorneys
since the early 1980s. see also 2003 ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, 31 Hofstra L.R. 913, 1015-27, available at
Such consular assistance would have made a critical difference at both the guilt and
penalty phases of Mr. Leal‘s capital murder trial. Since finally learning of his plight, Mexico
has, among other things, retained counsel to represent Mr. Leal, provided funding for forensic
experts, including a DNA and bite mark expert, and has retained experts in the fields of sexual
abuse of children and neuropsychology. It has also funded a mitigation investigation by a
bilingual mitigation specialist that led to discovery of school records demonstrating Mr. Leal‘s
learning disabilities, which alerted counsel to the need for a neuropsychological evaluation.
Through her interviews with Mr. Leal‘s Spanish-speaking parents and multiple other Spanish-
speaking witnesses, the mitigation specialist uncovered evidence of the domestic violence that
scarred Mr. Leal‘s childhood and his horrific sexual abuse by a parish priest. All of this
evidence could have been uncovered at the time of trial with consular assistance.
Without the comprehensive aid and resources provided by the consulate, Mr. Leal was
represented by two court appointed attorneys who were inexperienced, under-funded, and inept.
One of his appointed lawyers, Jose M. Guerrero, has twice been suspended from the practice of
law and was publicly reprimanded on two other occasions for failing to carry out his obligations
to clients. Review of Mr. Leal‘s trial transcript reveals an appalling lack of trial preparation. The
appointed lawyers failed to retain an independent DNA expert, failed to introduce evidence
demonstrating that the prosecution‘s ―bite mark evidence‖ was junk science, failed to cross-
examine the prosecution‘s witness who testified that ―luminol‖ testing revealed the presence of
human blood in Mr. Leal‘s car, failed to retain any independent mental health experts, conducted
only the most cursory investigation, and presented a feeble penalty-phase defense that rested
primarily on his parents‘ pleas to save their son‘s life, and Mr. Leal‘s own unhelpful testimony.
a. Consular Assistance Would Have Transformed the
Quality of Mr. Leal’s Defense at the Culpability Phase
Mr. Leal was accused of the sexual assault, kidnapping and murder of Adria Sauceda..
Because Mr. Leal informed the police that he may have accidentally caused Ms. Sauceda‘s
death, and because he was the last person seen with her before her body was discovered, the
argument that Mr. Leal was responsible for Ms. Sauceda‘s death was at least plausible. But the
state‘s case for capital murder, or even anything greater than manslaughter, —required proof that
Mr. Leal either kidnapped or sexually assaulted Ms. Sauceda. For this, the State built its case on
on junk science, willful ignorance, and profoundly problematic DNA evidence.
Mr. Leal consistently and repeatedly denied that he had kidnapped or sexually assaulted
Ms. Sauceda. Tr. 14:353-54; see also Tr. 14:318-19. The ―evidence‖ supporting the kidnapping
charge was virtually nonexistent. Indeed, the court hesitated even to charge the jury on that
element.6 Tr. 16:771. As for the sexual assault, the state had no conclusive forensic evidence
proving that Mr. Leal had ―intentionally or knowingly cause[d] the penetration, by any means, of
the anus or female sexual organ‖7 of Ms. Sauceda. Although sperm cells were found on rectal
swabs and smears taken from the victim,8 they were not matched to Mr. Leal. The victim was
discovered with a stick protruding from her vagina, but Mr. Leal‘s fingerprints were not present
on the stick. P.C. Tr. 3:131-32. The absence of any direct evidence linking Mr. Leal to the
sexual assault was even more problematic for the state in light of the testimony of its own
witnesses, who stated that numerous men had sexually assaulted the victim on the night of her
death.9 Tr. 13:29. Two of those men were later seen with the victim‘s purse within a few
hundred yards of where her body was found. Tr. 13:42-44; 46-47; 62; 121.
Because the prosecution‘s lay witnesses could not link Mr. Leal to conduct that would
have made him eligible for the death penalty, the state relied principally on forensic ―experts‖
and police officers to try to find a basis for an argument that he had sexually assaulted or
Ultimately, the jury returned a general verdict of capital murder without specifying which underlying
offense was established beyond a reasonable doubt. Tr. 16:836.
This definition is taken from the trial court‘s instructions to the jury. See Tr. 16:780.
Lonnie Ginsberg, chief forensic serologist with Bexar County Forensics Science Center, testified that
sperm cells were found on both the rectal swabs and smears. Tr. 15:462. Inexplicably, only the swabs,
not the smears, were sent to the Austin crime lab for further tests. Id. at 486. Donna Stanley, a serologist
at Texas Department of Public Safety testified that she could not find any sperm on the swabs. Id. at 568-
None of those men – identified by the state‘s witnesses – were ever prosecuted for sexual assault.
Likewise, neither the swabs nor the smears were tested to obtain the easily available proof of who was
kidnapped the victim. Yet the defense failed to retain independent experts who would have
exposed the fallacies in the state‘s expert testimony. With consular assistance, however, they
would have been provided funding for such experts. See Exhibits 17; 19 (Declaration of Peter
Lopez, III). Those resources would have provided the means to effectively challenge the
purported ―bloodstains,‖ DNA and bite mark evidence on which the prosecution‘s case
i. The Testimony of the Lay Witnesses Did Not and Could
Not Establish That Mr. Leal Kidnapped or Sexually
Assaulted Ms. Sauceda.
The victim in this case was a sixteen year old girl named Adria Sauceda. On the night
she was killed, Ms. Sauceda attended a party in a cul de sac on Vincent Street in San Antonio,
Texas. Tr. 13:25. Ms. Sauceda became extremely intoxicated. Late in the evening, a number of
men surrounded her and began to sexually assault her. Tr. 13:29; see also id. at 151. Mirasol
Torres, one of the state's witnesses, heard one of the men encouraging others to stick a bottle—or
some other object—inside her vagina. Id. at 59 (stating that she overheard someone, possibly
Ralph Guerrero, suggesting that the men stick something into Adria Sauceda's vagina). Another
state witness reported that Ms. Sauceda was unconscious as several men took turns raping her.
Id. at 151.
Mr. Leal took no part in this horrific assault. Id. at 34-35. He was not even present at the
time, as he was driving two other girls safely to their homes. Tr. 14:348-49. When he returned
to the party, witnesses heard Mr. Leal arguing with some of the men who had been raping Ms.
Sauceda. He asked one man, angrily, "Why did you let them do this?‖ Tr. 13:35. Mr. Leal then
offered to take Ms. Sauceda home. Ms. Sauceda was last seen giggling as she was placed in Mr.
Leal's car. Id. at 106.
Later that morning, Ms. Sauceda was found naked in a field 100 yards from the party,
with a stick protruding from her vagina. Id. at 77-78. There was a large rock lying on her arm.
There were several tire marks around her body. The tire marks did not match the tires on Mr.
Leal's car, and were not compared to the tires of the cars of the other men at the party.
P.C. Tr. 3:136. The discovery of Ms. Sauceda‘s body was reported by some of the men who
attended the party. Tr. 13:109-111. Before her body was discovered, Ralph Guerrero and
Mickey Sanchez were seen with her purse. Id. at 42-44; 46-47; 62. They scattered its contents
and threw the purse into a tree. Id. at 44; 173-74. According to two witnesses, Ralph Guerrero
and Paco Delgado had blood on their legs. P.C. Tr. 3:117-18.
The following day, Mr. Leal went voluntarily to the police station where he told the
police that Ms. Sauceda had gotten out of his car as he was driving her home. They quarreled, he
pushed her, and she fell and hit her head. She then appeared to lose consciousness. He panicked
and left. He denied sexually assaulting her, and stated that he had not meant to hurt her or kill
Because the prosecution‘s lay witnesses were unable to link Mr. Leal to the kidnapping
and sexual assault, the prosecution relied on antiquated and meaningless DNA evidence and junk
science to prove that he sexually assaulted or kidnapped the victim.
ii. The State’s DNA Evidence Was Antiquated and Meaningless,
Yet the Defense Failed Effectively to Challenge It.
To convince the jury that Mr. Leal sexually assaulted the victim, the state relied heavily
on the testimony of Megan Clement, a DNA expert employed by LabCorp, who concluded that
the victim was a ―possible donor‖ of blood discovered on Mr. Leal‘s underwear. Tr. 16:665-66.
This was by far the most damaging evidence to emerge at trial, particularly since no blood
consistent with that of Ms. Sauceda was found on the outer clothing Mr. Leal wore on the night
of her death. Tr. 15:454-55; 459-60; 490. The prosecution repeatedly argued that this evidence
proved beyond a reasonable doubt that Mr. Leal had raped and killed Ms. Sauceda:
How did that blood get on his underwear? Why is that significant? Why did the
State of Texas spend money to show you that there was blood on the defendant‘s
underwear? Because, I submit to you that a defendant who is wearing only his
underwear when he is beating this girl with this rock is in the course of
committing a sexual assault. What else could it show? Why else would he have
his pants off?
Tr. 16:825; see also id. at 798 (―He is the only one who has DNA, consistent with the victim, on
his underwear.‖10). And the prosecution went even further than their expert, arguing that the
DNA lab had found blood ―that could only have come from Adria Sauceda‖ on Mr. Leal‘s
underwear. Id. at 828-29 (emphasis added). ). This was not only a misstatement of Megan
Clement‘s testimony, but her testimony revealed the fallacies in her method, and the
inconclusiveness of the results.
Dr. Elizabeth Johnson, a forensic scientist formerly with the Harris County Medical
Examiner‘s Office, reviewed the testimony of Megan Clement and documents released by
LabCorp at the request of Mr. Leal. In an affidavit tendered in support of Mr. Leal‘s Chapter 64
request for access to DNA evidence, Dr. Johnson concluded that the protocol followed by Ms.
Clement was deeply flawed and that her testimony was highly misleading. First, LabCorp failed
to ensure that the blood samples were free from contamination:
Samples from the victim‘s blouse11 and samples from the defendant‘s underwear
were tested at LabCorp in the same runs and often were adjacent to one another.
Of course, Mr. Leal‘s underwear was the only pair tested – despite the undisputed testimony that Ms.
Sauceda was raped by numerous men, none of whom were alleged to be Mr. Leal. None of these men
were ever charged or prosecuted, and the state noticeably failed to do any testing of the readily available
forensic evidence that would have proved the identity of the perpetrators.
Because Dr. Johnson refers to the victim‘s item of clothing as a ―blouse‖, we will keep that designation
throughout this Memorandum of Law. However, as the annexed photograph of the piece of clothing
shows, what Dr. Johnson calls ―blouse‖ would more commonly be known as a sweater. App. F.
It is poor laboratory practice to place samples collected from the victim in close
proximity with samples collected from the suspect. In the event of careless
handling and tube to tube carry over contamination of DNA, false results could be
obtained that could incriminate the suspect. In this case the DNA on the victim‘s
blouse proved to be hers and was in high concentration. By processing the blouse
samples along with samples cut from the defendant‘s underwear, the possibility of
obtaining falsely incriminating results is increased. This risk would be minimized
or eliminated if the samples had been kept separate.
Ex. 21, Affidavit of Dr. Elizabeth Johnson, ¶ 8 (May 13, 2008).
Second, ―testimony given by Ms. Clement was misleading because it focused only on the
possibility that only [Humberto Leal García, Mr. Leal‘s girlfriend, or the victim] could be the
source of the DNA that was detected. Testimony should have been given about the frequency of
occurrence of these DNA alleles in the general population since persons other than the victim,
defendant or his girlfriend could have been the source of the detected DNA.‖ Id. ¶ 9.
Most important, the technology LabCorp used produced results that did not establish to
any degree of certainty that Adria Sauceda‘s blood was on Mr. Leal‘s underwear. The now
outmoded technology LabCorp used:
was very limited in its power of discrimination. Using the Polymarker test,
underwear sample-5 gave results such that no one in the population could be
eliminated as a contributor of the DNA detected at four of the five loci tested.
The Polymarker results for underwear samples -1 and -3 could not eliminate
anyone in the population at three of five loci tested at reportable levels, however
the fourth locus, GC, showed low level activity that included everyone in the
population as a possible contributor.
Id. ¶ 10 (emphasis added).
Had appointed counsel sought funding for an independent expert, they could have
effectively rebutted this equivocal and misleading evidence. Instead, their cross-examination
was ineffectual and failed to expose the flaws in LabCorp‘s testing methodology.
Apart from the testimony of the DNA expert, the state relied on the following evidence to
support the allegation of sexual assault: (1) the testimony of a bite mark expert; and (2) a brown
pullover belonging to the victim that was found in Mr. Leal's home. Neither piece of evidence,
however, established that Mr. Leal had sexually assaulted the victim.
iii. Bite Mark Evidence Generally, as well as the Bite Mark
“Evidence” Introduced Against Mr. Leal at Trial Specifically,
Both Amount to Junk Science.
At trial, the state presented the testimony of Dr. Alder, a so-called ―bite mark expert,‖
who testified that Mr. Leal‘s teeth had a unique pattern consistent with one of the bite marks
found on the victim's body. Tr. 16:714-717. Evidence available at the time could have, but was
not used to reveal the sham nature of Dr. Alder‘s testimony, and bitemark evidence in general.12
That evidence has only increased in the intervening years. For example, the National Research
Council of the National Academies recently released a study regarding forensic science in the
United States. Committee on Identifying the Needs of the Forensic Sciences Community,
National Research Council, Strengthening Forensic Science in the United States: A Path
Forward (2009) (―NAS Report‖). The NAS Report notes that the field of forensic odontology
lacks solid scientific foundations, that forensic odontologists apply inconsistent methodologies to
identify bite marks, and that ―[e]ven when using the guidelines, different experts provide widely
differing results and a high percentage of false positive matches of bite marks.‖ 13 NAS Report at
128; see also Ex. 22 (Affidavit of Charles Michael Bowers) (detailing scientific studies finding
Dr. Michael Bowers, a Board Certified Forensic Dentist, Associate Professor, and Deputy Medical
Examiner, reviewed Dr. Alder‘s testimony and report, and provided an affidavit detailing the fallacies in
Dr. Alder‘s methods and testimony, and bitemark evidence generally. See Ex. 22, Affidavit of Dr.
Michael Bowers, App. E. As Dr. Bower notes: ―significant skepticism about the scientific validity and
basis for bite-mark matching has existed since it was accepted into evidence in People v. Marx, 126 Cal.
Rptr. (Cal. Ct. App. 1975),‖ App. E, p.2.
―The primary source of controversy relates to the absence of scientific and empirical underpinnings
associated with real scientific disciplines. . . . Real science is marked by factors that include a reliance on
the scientific method, the ability for other researchers to replicate the tests conducted, clear statements of
operational definitions, full exposition of research methodology and statistical analysis, and limits on the
extent to which subjectivity plays a role in rendering conclusions.‖ App. E, p.3 (citations omitted).
frighteningly high error rates in bitemark identification analysis). In light of these concerns, the
report concludes that bite mark analysis should not be used for the positive identification of
suspects in criminal proceedings. NAS Report at 128. In 2007, the New York Times reported
that ―[p]rosecutors have invoked bite-mark matches to secure convictions in numerous cases,
only to see these convictions overturned when DNA or other evidence has become available.‖
Fernanda Santos, Evidence From Bite Marks, It Turns Out, Is Not So Elementary, N.Y. TIMES,
Jan. 28, 2007, available at http://www.nytimes.com/2007/01/28/weekinreview/28santos.html.
―In fact, it is now widely recognized that bitemark analysis – when used to make ―positive‖
matches - masquerades as a reliable scientific discipline.‖ Ex. 22 at p.8
Mysteriously, saliva samples from the alleged bite marks on Ms. Sauceda‘s body were
never tested, even though samples could have been subjected to DNA testing which could have
definitively identified the assailant. See Joseph L. Peterson & Anna S. Leggett, The Evolution of
Forensic Science: Progress Amid the Pitfalls, 36 STETSON L. REV. 621, 654 (2007) (citing case
in which DNA testing of saliva from bite-marks that were originally thought to be from the
suspect determined that the saliva sample actually had DNA of different origins). See also
Santos, N.Y. TIMES, Jan. 28, 2007; see also Andrew Pollack, A Revolution at 50: How the Arms
of the Helixes Are Poised to Serve, N.Y. TIMES, Feb. 25, 2003, at F5 (describing the exoneration
of Ray Krone after saliva tests disproved the testimony of state's bite-mark expert); Ex. 22 at 14-
17 (listing cases in which bitemark ―experts‖ identified a purported match between a defendant‘s
teeth and impressions on a victim‘s skin, only to be proven wrong by subsequent DNA testing).
In light of the undisputed evidence that the victim had been viciously gang raped on the evening
she was killed, the state's failure to obtain saliva samples and subject them to DNA testing is
both inexplicable and inexcusable.
Testimony introduced at the state post-conviction hearing further illustrated the flaws
inherent in the conclusions of state‘s witness Dr. Alder. Dr. Paul Stimson, a forensic
odontologist, testified that at least four of the students in his dental school class—who took
impressions of their teeth as a school exercise—would leave bite marks similar to Mr. Leal‘s.
P.C. Tr. 5:81. As Dr. Bowers explains, none of the bitemark comparison principles necessary to
reach a scientifically defensible conclusion that Mr. Leal‘s teeth matched the purported
―bitemark‖ on Ms. Sauceda‘s skin ―can be considered as scientifically valid.‖ Ex. 22 at p.2.
Although Dr. Alder admits there are ―inconsistencies‖ between the impressions and exemplars of
Mr. Leal‘s teeth, he terms them ―explainable.‖ However, ―‗[e]xplainable inconsistencies‘ only
exist for use in comparison of dental radiographs and records to postmortem dental exams of
unknown persons. . . . If there are inconsistencies in a bitemark comparison, the default result is a
mis or non-match.‖ Ex. 22 at p. 8. In sum, ―Dr. Alder‘s assumptions, methods and opinions in
this case are scientifically unsupportable and are wholly unreliable.‖ Ex. 22, Affidavit of
Michael Bowers, App. E, p. 18.
Neither the evidence regarding the general unreliability of bitemark evidence, nor the
evidence demonstrating the invalidity of the methods used by the state‘s bitemark ―expert,‖ were
introduced at trial.
iv. Mr. Leal’s Parents Were Never Called as Witnesses to Explain
the Presence of Ms. Sauceda’s Blouse in Mr. Leal’s House.
At trial, the state introduced the blouse worn by the victim on the night she was killed,
which was found in Mr. Leal‘s house. The defense failed to introduce the testimony of Mr.
Leal‘s parents, who would have provided an innocent explanation for the presence of the blouse
inside their home. At the state post-conviction hearing, Mr. Leal‘s father explained that he found
the blouse on the street early on the morning of the murder and put it into a pile of clothing to
donate to Mexico. P.C. Tr. 2:81. Mr. Leal‘s mother testified that she often took clothing to
Mexico and explained that she had intended to wash the shirt because it was ―dirty.‖14 Id. at 92-
93. Given the close proximity of the party, the site of the murder, and the Leal García home—
which was steps away from where the victim was gang raped and near where her body was
found—this testimony is entirely credible. Yet defense counsel never introduced this testimony
v. Others Had the Opportunity and Motive to Sexually Assault
It is undisputed that Ms. Sauceda was gang-raped by numerous men at the party the
evening before her murder. Tr. 13:29; 151. Her body was discovered only 100 yards east of the
party. Tr. 13:121. One of the men involved in the gang-rape—possibly Ralph Guerrero—
suggested that a foreign object be placed in the victim‘s vagina. Id. at 59. Guerrero later took
the victim‘s purse and threw it into a tree to prevent the police from discovering it. Id. at 42-44;
46-47; 62; 173-74. Tire castings taken from the scene of the murder did not match Mr. Leal‘s
car. P.C. Tr. 3:136. According to the medical examiner, it is possible that the beating Ms.
Sauceda suffered occurred at two distinct times with up to a 30-minute gap in between.
Tr. 15:631. This evidence casts serious doubt on Mr. Leal‘s guilt and suggests that one or more
of the rapists may have discovered her unconscious, whereupon they sexually assaulted her
again. The State‘s failure to prosecute any of the men at the party who were known to have
participated in the gang rape, failure to conduct any of the testing which would have linked those
men to the assault by forensic means, and the unreliable forensics they were forced to rely on to
The attached photograph of the shirt in question demonstrates that it looks dirty, rather than bloody.
pursue a capital case against Mr. Leal, all raise valid questions about Mr. Leal‘s guilt, and the
reasons for the state‘s decisions.
vi. A Rational Jury Could Not Have Convicted Mr. Leal of
Kidnapping on the Basis of the Evidence Introduced at Trial.
The state relied on two pieces of evidence to suggest that a kidnapping occurred. First,
the state argued that luminol testing revealed the presence of Ms. Sauceda's blood in Mr. Leal's
car, indicating, the state argued, that Ms. Sauceda had struggled to get away from him while still
inside the car, and, thus, Ms. Sauceda was being taken against her will. Second, the state argued
that because the location of the victim's body was not en route to her house, Mr. Leal must have
taken her there against her wishes. Tr. 16:793. ). Neither the state‘s evidence nor argument can
Police Officer Warren Titus testified that he had sprayed luminol on the interior of Mr.
Leal's car. According to Officer Titus, the luminol revealed the presence of blood. Tr. 14:293-
94. This, argued the prosecution, proved that Mr. Leal had kidnapped the victim. Tr. 16:793
("you have heard that there was blood in the car, blood that the defendant and/or his family
attempted to wipe up so that you would not see it, she was kidnapped"); 823 ("she bled all over
the inside of that door, as she tried to get out‖).
In reality, the luminol testing proved nothing. Luminol is merely a presumptive test for
blood. Luminol cannot discern animal blood from human blood, and it also reacts to substances
that are not blood at all. See Filippo Barni et al., Forensic Application of the Luminol Reaction
as a Presumptive Test for Latent Blood Detection, 72 TALANTA 896, 905 (2007), available at
http://www.sciencedirect.com ("There is a wide range of environmental and pharmaceutical,
domestic and industrial substances which are able to affect luminol blood-induced
chemiluminescence . . . such as soils, detergents, bleaches, carpet, metal objects, tools, plastic
panels, wood, and vegetable compounds."). Scientists, lawyers, and courts have long known that
luminol cannot detect human blood and the research demonstrating luminol's fallibility was
available long before Mr. Leal's trial. See, e.g., Brenk v. State, 847 S.W.2d 1, 9 (Ark. 1993);
State v. Moody, 573 A.2d 716, 722 (Conn. 1990).
Luminol testing is so unreliable, and can be so misleading to the jury, that courts
frequently exclude the results of luminol testing unless additional, confirmatory tests have been
done to determine the presence of human blood.15 As the Arkansas Supreme Court observed:
Luminol reacts with certain metals and vegetable matters as well as blood, animal
and human to give off a light blue luminescence similar to a luminescent watch
dial. It is impossible to tell without follow-up testing which of the possible
reactants is causing the reaction . . . . Additionally, luminol is not time specific.
That is, a reaction will occur even many years after a reacting substance has been
in place, so it is impossible to tell how long the substance that is causing the
reaction has been in place.
Brenk, 847 S.W.2d at 9. Yet in this case no confirmatory tests were done, and there was no
blood found on Mr. Leal's jeans, boots, socks, red T-shirt, or on the floor mats of the Mercedes.
Tr. 15:454-55; 459-60; 490. ). Nonetheless, the State argued that the luminol testing revealed the
presence of Ms. Sauceda‘s blood. There is absolutely no scientifically defensible evidence
available – at trial or otherwise – that permits such a definitve argument. Yet both the argument
and the evidence were left unchallenged by trial counsel.
There is likewise no evidence that Mr. Leal drove Ms. Sauceda anywhere against her
will. She was seen "willingly" entering Mr. Leal‘s car. Tr. 13:106. At the time, she was highly
See, e.g., Brenk v. State, 847 S.W.2d at 9 (finding luminol testing inadmissible because "luminol tests
done without follow-up procedures are unreliable to prove the presence of human blood or that the
substance causing the reaction was related to the alleged crime"); State v. Daniels, 179 S.W.3d 273, 287
(Mo. Ct. App. 2005) (holding that the use of luminol testing without confirmatory scientific testing to
confirm a positive luminol test prejudiced the defendant's right to a fair trial); U.S. v. Hill, 41 M.J. 596,
602 (A. Ct. Crim. App. 1994) (holding that military judge ―erred in admitting the expert testimony on
Luminol testing of the appellant's PT uniform to show that there was blood on it").
intoxicated. Id. at 157-58. One witness testified that she could not explain where she lived when
he asked her, id., and another witness testified that he heard her giggling when she entered Mr.
Leal‘s car. Id. at 106. No foreign tissue was found underneath Ms. Sauceda's fingernails, which
further undermines the state's unsupported theory that the two struggled inside the car.
Tr. 15:463-64; 467; 634.
The court recognized that this evidence was weak—so weak that it hesitated to instruct
the jury on the charge of kidnapping (notwithstanding the fact that the Court did not have before
it the full breadth of evidence indicating the profound unreliability of the luminol ―evidence‖
presented by the state). Tr.16:771. In sum, there was no reliable evidence to prove that a
kidnapping occurred – only the state‘s unsubstantiated arguments. Consular assistance would
have assured that trial counsel moved to preclude the luminol testing, and effectively countered
the state‘s threadbare ―proof‖ that Mr. Leal kidnapped Ms. Sauceda.
b. Consular Assistance Would Have Resulted in the
Presentation of Powerful and Compelling Mitigation
Unlike many death penalty cases, the prosecution had very little aggravating evidence to
convince a jury that Mr. Leal was the worst of the worst, and deserving of a sentence of death.
Mr. Leal had no criminal record, and was only 21 years old at the time of the offense. The
state‘s entire penalty phase case consisted of evidence that Mr. Leal had allegedly committed an
unadjudicated sexual assault, and testimony from a high school administrator that he had
behaved badly in school.
Had they received the assistance of consular officials, defense counsel could have
rebutted both pieces of aggravating evidence and countered the state‘s characterization of Mr.
Leal with powerful and compelling mitigation. Since learning of Mr. Leal‘s plight, Mexico has
funded a mitigation investigation in his case that has led to the discovery of evidence that would
have transformed the penalty phase defense, including Mr. Leal‘s childhood sexual abuse by a
parish priest, physical abuse at the hands of his parents, learning disabilities and brain damage.
i. The Prosecution’s Aggravating Evidence Was Weak
Yet Uncontested by the Defense
At the penalty phase, the state‘s main aggravating evidence was an alleged prior sexual
assault for which Mr. Leal was never arrested or charged.16 Inexplicably, the defense failed to
introduce evidence contained in the prosecution‘s file that would have substantially undermined
the testimony of the alleged victim in that case. Specifically, the police had interviewed a
witness, Joe Bernal, who told them that he had seen Mr. Leal and the alleged victim at a party
They were having a conversation, they were not kissing or anything like that, the only
touching I saw them do was when she touched his arm. I saw them walking off together,
but I don‘t know where they went. Later, they came back to the party together, and they
were holding hands. I saw hickies all over Melissa‘s neck. They looked happy together.
Melissa did not seem scared at all.
Ex. 23 (Statement of Joe John Bernal).
The State‘s other significant penalty-phase witness, Hoyt Garner, has since been
discredited by his colleagues at South San Antonio High School. Mr. Garner, a former vice-
principal, testified that in his opinion Mr. Leal had ―no respect for authority‖ and would never
As noted by the Inter-American Commission on Human Rights, ―using evidence of unadjudicated
crimes in this manner is, effectively to presume the defendant‘s guilt and impose punishment . . . through
a sentencing hearing rather than a proper and fair trial process accompanied by all of the substantive and
procedural protections necessary for determining individual criminal responsibility.‖ The Inter-American
Commission on Human Rights found that use of this unadjudicated offense during the punishment phase
of Mr. Leal‘s trial violated his rights to fair trial and due process under the American Declaration.
IACHR Report No 90-09 at 29 ¶ 145.
change. Tr. 17 at 8. However, Mr. Garner has been described as ―the most unprofessional
teacher‖ by his colleagues and was known for being physically rough with students. Other
teachers and school staff did not share Mr. Garner‘s opinions of Humberto Leal. Mr. Calhoun,
who later served as vice principal of Mr. Leal‘s high school, stated that he would have testified
in Mr. Leal‘s favor if asked. Ex. 24 (Interview Memo with Richard Calhoun). However, Mr.
Leal‘s trial attorneys failed to contact any of his teachers to ask them to testify on Mr. Leal‘s
behalf, and the jury never heard any of the evidence of Mr. Leal‘s positive achievements and
relationships with teachers in high school.
Mr. Leal‘s appointed lawyers conducted no meaningful mitigation investigation, retained
no experts, and had no apparent penalty phase strategy—so their penalty phase defense was
predictably unfocused and slipshod. The sole expert called by the defense to testify regarding
Mr. Leal‘s mental state at the time of the crime was a court-appointed psychiatrist, Dr. Potterf,
who was not a member of the defense team, who was provided with no records regarding Mr.
Leal, who had no contact with his family and was not even interviewed by the defense prior to
giving testimony. P.C. Tr. Vol. 2, 17:13-15, 19:1-3, 4-10, 15-23 (Oct. 19, 1998).
Originally retained by the court only to determine if Mr. Leal was competent to stand
trial, Potterf merely served to confirm the jury‘s erroneous perception that Mr. Leal represented a
future danger. First, Dr. Potterf testified that Mr. Leal suffers from alcohol dependence and
pathological intoxication, and that pathological intoxication, an incurable condition, can produce
a ―sudden change in mental status, to the extent that [the person] become[s] very aggressive,
very much out of contact with reality.‖ Tr. 17:78-79 (July 12, 1995). Second, when asked what
effect being ―repeatedly beaten‖ by his father would have on a boy, Dr. Potterf stated, ―[p]eople
who are treated like that tend to…develop into antisocial [personalities]‖ who are prone to ―not
adhering to rules and regulations that ordinary people adhere to.‖ Tr. 17:82-83. Dr. Potterf
further stated that people with antisocial personality disorder are usually characterized as
dangerous. Tr. 17:84.
In light of the jury‘s task at the sentencing stage, the damage caused by Dr. Potterf‘s
testimony far outweighed its benefits. In Texas, the jury must determine ―whether there is a
probability that the defendant would commit criminal acts of violence that would constitute a
continuing threat to society.‖ Tex. Code. Crim. Proc. Article 37.071, § (2)(b)(1). By testifying
that Mr. Leal might ―develop into‖ an antisocial personality who was ―dangerous,‖ Potterf
essentially answered the future dangerousness question for the jury.
The defense also utterly failed to explore Mr. Leal‘s life history to provide a mitigating
explanation for his role in the crime. At trial, Mr. Leal‘s mother testified only briefly. Tr. 17:
132-135. His mother mentioned that she had spanked Humberto as a child, ―[s]ometimes lightly,
sometimes very strong,‖ and that he had a drinking problem, an assessment based on one
occurrence when Humberto passed out drinking beer. Tr. 17:133-134. Mr. Leal‘s brother,
Carlos, only testified as to Humberto‘s relationship with Melissa Ruiz, the alleged rape victim
whose testimony the prosecution used to show that Mr. Leal presented a continuing danger to
society. Tr. 17:128-130.
ii. With the Assistance of Investigators and Experts Funded by
the Mexican Consulate, the Jury Would Have Heard
Compelling Mitigating Evidence That Would Have Persuaded
at Least One of Them Not to Vote for Death.
With the investigative resources and expert funding provided by the consulate, effective
counsel could have presented a powerful case in mitigation. With Mexico‘s assistance, the
following mitigating evidence has come to light.
Both of Mr. Leal‘s parents grew up in slums outside of Monterrey, Mexico and were
brought up in homes where domestic violence was an accepted part of life. His mother,
Francisca, and her six siblings were raised on a meager diet of soup and beans in a one-room
home. Francisca‘s father was murdered in jail when Francisca was seven. Francisca‘s mother
would beat the children violently with a belt when she was angry. Francisca met Mr. Leal‘s
father, Humberto Sr., when she was fourteen years old. Although Humberto Sr. came from a
family that was even more impoverished than her own, Francisca ran away to marry him when
she was just sixteen in order to escape her abusive mother. Unfortunately, Humberto Sr. was
also extremely violent towards Francisca, especially when intoxicated, and beat her once a week
throughout their marriage. Ex. 25 (Social History of Humberto Leal García).
Francisca became pregnant with Humberto, her second child, when she was only 18 years
old. Due to the family‘s poverty, Francisca had very little to eat while she was carrying
Humberto. Malnutrition may have been a factor in Humberto‘s slow childhood development;
Francisca recalls that he began walking and talking later than other children. Id. When
Humberto was one and a half years old, the family moved to San Antonio, Texas. Humberto Sr.
spent all his time working as a mechanic to provide for his family, and left the child-rearing
responsibilities to Francisca. Francisca was young and felt isolated in a foreign country where
she did not speak the language. With no outside guidance on childrearing, Francisca fell into old
patterns of abuse with her own children, beating Humberto and his older sister Nancy with a belt.
On one occasion, she tied Nancy and Humberto to a tree by their legs and hit them when they
tried to escape. Francisca and Humberto Sr. also fought frequently in front of the children. Id.
Once, when Humberto tried to protect Francisca from his father, Humberto Sr. beat Humberto so
hard that Francisca called the police. Ex. 26, Offense report [File 0096 - 0100] (Nov. 8, 1988).
Francisca‘s isolation from the community and embarrassment over her inability to speak
English directly affected Humberto‘s education. As a child, he was required to repeat the first,
third, fifth, sixth, and ninth grades. Ex. 25. When he was in second grade his teachers suspected
he had serious learning disabilities and recommended him for special education. However,
because Humberto‘s parents refused to grant permission, his teachers were unable to test him and
place him in special education. Humberto also had a hard time socially in elementary school.
According to his brother Wally, who is one year younger than Humberto, neighborhood children
often mocked him for his strange name, appearance (one of Humberto‘s eyes appears lower than
the other), gait (Humberto fell down a flight of stairs when he was four and had reconstructive
foot surgery that required him to wear special shoes), and for being ―slow.‖
To find a safe haven from the violence at home and in his neighborhood, Humberto
sought refuge in the church. He took communion classes at St. Clare church, where the nuns
would frequently scold him for misbehaving in class. As punishment, he was sent to Father
Federico Fernandez, the parish priest. Had the sisters known the sort of punishment that Father
Fernandez inflicted, they never would have allowed young Humberto to stray into his clutches.
Dr. David Lisak, a clinical psychologist and expert in the field of male sexual abuse, has
examined Mr. Leal, who reluctantly reported the series of events when Humberto was in fourth
grade that culminated in his anal rape by Father Fernandez. Dr. Lisak reports:
Mr. Leal described various incidents that occurred during these ―punishments‖ that are
entirely consistent with how child abusers groom their victims. For example, Mr. Leal
described how Father Fernandez would approach him from behind while he was bent
over cleaning the pews. At first he would ―accidentally‖ bump into Mr. Leal, always
touching him somewhere near his buttocks. At a later point the priest‘s touch became
increasingly explicit. He would run his finger between Mr. Leal‘s buttocks.
When Mr. Leal had to go to the storage supply closet to collect or return cleaning
supplies, Father Fernandez would follow him and in the confined space of the closet run
his hands over Mr. Leal‘s body. At other times, he would pull Mr. Leal to him as if to
hug him, but push Mr. Leal‘s face into his crotch in the course of doing so. He would
also follow Mr. Leal into the bathroom and expose himself. At first, he would do so
while urinating, but at a later point he would pull out his penis and tell Mr. Leal that one
day his penis would also be big. At a later point he showed Mr. Leal photographs of
After exposing his penis to Mr. Leal several times, Father Fernandez began telling him to
touch it. Using the tremendous authority and power vested in him as a priest, Father
Fernandez told him that he would not get into trouble for doing so. When Mr. Leal began
disclosing this phase of the abuse his voice became much more halting. At various points
he had to stop speaking, and it was evident that he was experiencing both intense shame
Eventually, Mr. Leal disclosed that the abuse escalated to Father Fernandez rubbing his
penis all over Mr. Leal‘s face. When I asked Mr. Leal if the priest had penetrated his
mouth with his penis, Mr. Leal said that he could not remember. However, he did
remember feeling wetness all over his face.
Father Fernandez‘s sexual abuse of Mr. Leal culminated in a violent, anal rape. Mr. Leal
could not remember where it occurred. His memories are fragments: feeling the priest‘s
penis rubbing against his back and his buttocks; feeling the priest pushing his penis into
his rectum; feeling intense pain in his rectum. Mr. Leal also remembered feeling searing
pain in his rectum for days following the rape, especially when he defecated.
Ex. 27, Report of Dr. David Lisak, pp. 5-7. Dr. Lisak explains that these repeated sexual
assaults caused unimaginable emotional and psychological pain and enduring trauma:
Mr. Leal‘s disclosure was anguished, and at several points during his description of the
sexual abuse he experienced physical sensations which, by his description, were very
likely body memories associated with being raped by Father Fernandez. It was apparent
that he was experiencing intense humiliation and shame, emotional states that at times
were so intense that he could not continue speaking…
The effects on Mr. Leal of being abused and raped by his parish priest were profound and
lifelong. He has been plagued his entire life by chronic nightmares. In the nightmares,
he is often surrounded by men and knows that something terrible is about to happen.
Then he sees a penis in front of his face and in that instant he wakes up covered in sweat
and feeling intense pain in his rectum.
These nightmares are referred to as ―re-experiencing symptoms‖ and are a core part of
the symptoms associated with Posttraumatic Stress Disorder (PTSD), the most common
mental disorder that afflicts victims of serious trauma, such as childhood abuse, rape and
combat. Even a single incident of rape can cause severe and long lasting PTSD. [citation
omitted] The overwhelming terror and helplessness experienced at the time of the rape
are re-experienced over and over through nightmares and intrusive memories and
flashbacks. With each re-experience, the brain is bathed in the same neurochemicals that
flooded it at the time of the rape. Thus, victims of rape- including childhood rape- are
effectively raped over and over again.
Id. at pp. 5, 10-11.
Dr. Lisak explains that the trauma Humberto experienced as a result of his victimization
was severe and lasting:
Childhood sexual abuse is devastating to the developing child. To a child like Mr. Leal,
who is growing up in a home filled with violence and abuse, it is often catastrophic. And
in Mr. Leal‘s case, the fact that he was abused and then raped by a Catholic priest, a man
who represented the authority of the Church and was viewed as an emissary of God,
profoundly magnified this trauma. The abuse and rape left Mr. Leal with lifelong scars.
It ruptured his capacity to trust people, and cast him into a permanent state of confusion
and doubt about his essential worth as a person and as a man.
Id. at pp. 14-15.
Mr. Leal‘s account of his sexual abuse is corroborated by accounts of other victims.
Fernandez was charged with indecency with a child in 1988 after two neighborhood boys
accused him of having fondled them. See Ex. 28 (Police Reports from 1988 fondling incidents).
In 1983, he was charged with indecent exposure. Ex. 29 (Police Reports from 1983 indecent
exposure case). Four other victims have recently disclosed that they, too, were sexually abused
by Father Fernandez.17 Exs. 30 - 33. Sister Maria, who taught Humberto Leal‘s communion
classes, told other sisters in her order that the priest was an ―evil man.‖ She warned a parishioner
not to leave her children alone with Fr. Fernandez or drink anything that Fr. Fernandez gave her.
Ex. 34, ¶ 8. Sister Maria requested a transfer from St. Clare‘s, and eventually left the church
entirely. Ex. 34, ¶ 5; Ex. 35, ¶ 12. Shortly after Fr. Fernandez was criminally charged with
sexual abuse in 1988, Sister Maria sent a book dedication to her good friend in which she stated,
The names of these victims and any identifying information have been redacted to protect their privacy.
―It‘s all over! The victory is won through Jesus Christ our Lord! Sister Maria later killed herself.
According to Dr. Lisak, Mr. Leal‘s account is credible and consistent with other sexual
It is my professional opinion, based upon my interview with Mr. Leal, my review of
relevant materials, and my evaluation of Mr. Leal‘s disclosure that he was sexually
abused by his parish priest by the age of 11 or younger. Mr. Leal‘s description of the
priest‘s behavior, his description of his own symptoms and of the impact of the rape over
time are all entirely consistent with the experience of victims of sexual abuse, and they
leave no doubt that Mr. Leal has made a credible disclosure.
Ex. 27 at p. 14.
Mr. Leal also suffers from brain damage, the effects of which were exacerbated by the
trauma of his sexual abuse and family violence. As a child, he sustained a number of traumatic
head injuries that went untreated. Once he fell backwards off a swing onto concrete and another
time he fell head first from the bed of a truck onto a concrete driveway. As a teenager, Mr. Leal
was involved in four automobile accidents and a motorcycle accident. According to Dr. Ricardo
Weinstein, a clinical psychologist retained by the government of Mexico, neuropsychological
tests indicate that Mr. Leal has significant damage to the frontal lobes of his brain. His scores on
subtests of the WAIS IV, which measure abstract reasoning and understanding of social norms,
place him within the mildly mentally retarded range. Dr. Weinstein also stated that Mr. Leal
scored in the second percentile rank on the NAB Executive Functions Index and the CNS Vital
Signs tests, and scored two standard deviations below the mean on the D-KEFS tests. A
Quantitative Electroencephalogram, or QEEG, showed ―abnormalities in his brainwave patterns‖
indicative of developmental and acquired brain dysfunction. All of these tests demonstrate that
Humberto has extensive damage to the frontal lobes of his brain, which direct the brain‘s
executive functions. Ex. 37, Affidavit of Dr. Ricardo Weinstein, ¶¶ 17-22.
Dr. Weinstein‘s report attests that Humberto‘s frontal lobe dysfunction had pronounced
effects on his behavior. Frontal lobe dysfunction inhibited his ability to make decisions, foresee
the consequences of his actions, assess risk, and adjust to different social environments. In his
affidavit, Dr. Weinstein drew extensively on research on the effects of childhood abuse and
neglect on adults. He noted that adult survivors of childhood trauma, such as abuse and neglect,
may be ―significantly more vulnerable to the effects of stress.‖ Id. at ¶ 37.
Dr. Weinstein also expressed concern about Mr. Leal‘s youth when he was convicted (he
was only 21 years old at the time of his arrest). He notes that ―[t]he frontal lobes are the last part
of the brain to develop and are not fully mature in males until they reach their early 20s,‖ and
that ―[m]ultiple studies show that this lack of maturity can impair executive functions, including
decision-making abilities and judgment.‖ Id. at ¶ 21.
While Mr. Leal faced great challenges in his personal life as a result of a troubled home
life, developmental disabilities, sexual abuse, and neurological damage, he was never involved
with drugs or gangs like many other youths from his neighborhood. Neighbors remember him as
the most responsible of his siblings. He began working in his father‘s garage at age thirteen, and
would typically go straight to work after school. Family and friends recall Humberto as
something of a loner, but talkative and eager to help others when he could, helping his younger
sister Angela with her homework and assisting other students in his vocational classes in high
school. Ex. 25 (Social History of Humberto Leal García).
Several high school teachers remember him as being generally well behaved and friends
remember he was popular with his teachers. Mr. Leal formed personal relationships with his
guidance counselor, Joann Danklef, and his 9th grade geography teacher Sharon Trujillo, taking
an interest in their families and continuing to stay in touch for years after high school. When he
was unable to pass the Texas Assessment of Academic Skills tests required to graduate, Ms.
Danklef helped Humberto sign himself into special education when he turned eighteen and could
finally enroll without the consent of his parents. Ex. 25 (Social History of Humberto Leal
García). On his own initiative, and because of the positive relationships he built with his
teachers, Mr. Leal became the first member of his family to hold a high school diploma.
Graduating from high school was one of the proudest moments of Humberto‘s life.
Testimony regarding these profound experiences would have provided the jury with
mitigating evidence to counter the state‘s portrayal of Mr. Leal as a monstrous and violent beast.
The evidence regarding Mr. Leal‘s sexual abuse, in particular, is profoundly humanizing. Had
the jury heard all of the mitigating evidence that could have been presented with consular
assistance, there is a reasonable likelihood that at least one juror would have voted to spare Mr.
c. Consular Assistance Would Have Facilitated a Plea
Another crucial aspect of Mexican consular expertise is active intervention to facilitate
plea agreements. As Mexico noted in its brief to the International Court of Justice in Avena,
Consular officers play two critical functions in the delicate, often protracted
negotiations that lead to a plea bargain. First, consular officers meet with
prosecutors, or present written submissions, that contain crucial mitigating
evidence. Often, consular officers will have gathered this evidence themselves, in
Mexico, after learning of the defendant‘s detention. The consulate commonly
searches all archives and databases in Mexico to determine whether the defendant
has a prior criminal record, and provides documentation of that search to defense
counsel. Other times, consular officers will obtain school and hospital records that
provide proof of a defendant‘s mental or physical condition. Sometimes, consular
officers can explain cultural factors that mitigate the defendant‘s culpability.
Memorial of Mexico (20 June 2003), para. 63. In the several years alone, Mexican consular
assistance has been crucial in averting capital sentences in hundreds of cases. See Gregory J.
Kuykendall, Alicia Amezcua-Rodriguez, and Mark Warren, Mitigation Abroad:
Preparing a Successful Case for Life for the Foreign National Client , 36 HOFSTRA L. R. 1006,
1000 (2008). As early as 1990, in the Texas death penalty case of Mexican nationals Hector
Morales Villa and Omar Ayala Mendoza, consular assistance was crucial in obtaining a plea
agreement prior to trial. Ex. 17 at App. 3 (Affidavit of Victor Manuel Uribe). Mexican consular
officers are trained to recognize and emphasize the importance of the early development of
mitigating evidence (particularly evidence of mental impairments), precisely because of the
significance of that evidence in persuading prosecutors to exercise their discretion by not seeking
the death penalty. In a case like Mr. Leal‘s, where the defendant was 21 years old with no prior
criminal record or propensity for violence, and the evidence in support of capital murder was
strained at best, timely consular involvement could easily have resulted in a reduced charge.
d. The Inter-American Commission Has Determined That
Mr. Leal Was Prejudiced by the Violation of the Vienna
Convention in His Case.
The only body to consider Mr. Leal‘s claim of prejudice resulting from the Vienna
Convention violation, using the standard mandated by the Avena Judgment, concurs that he was
prejudiced by the violation. The competence and expertise of that body to reach that conclusion
cannot be questioned. Indeed, the United States, appearing before the Inter-American
Commission, has itself argued that ―under the Charter of the OAS, the Commission has of course
the competence and responsibility to promote observance of and respect for the standards and
principles set forth in the American Declaration of the Rights and Duties of Man (―American
Declaration‖). The United States has consistently displayed its respect for and support of the
Commission in this regard, inter alia by responding to petitions presented against it on the basis
of the Charter and the Declaration.‖ Andrews v. United States, Case 11.139, Inter Am. C.H.R.,
Report No. 57/96, OEA/Ser.L/V/II.98, doc. 6 rev. ¶ 59 (1996). See also U.S. Views on the
American Convention on Human Rights and the Inter-American Human Rights System,
Remarks by Victor Marrero, U.S. Permanent Representative to the OAS, presented to the
Committee on Juridical and Political Affairs, Organization of American States, October 20, 1999
(―We affirm no standard that we are not prepared to have applied to ourselves and our support is
for a process to which we ourselves have submitted.‖).
On August 7, 2009, the Inter-American Commission on Human Rights found that the
United States had violated Articles I, XVIII and XXVI of the American Declaration of the Rights
and Duties of Man in Mr. Leal‘s case. Exhibit 2, Medellín. Ramírez Cárdenas and Leal García v.
United States, Case 12.644, Inter-Am. Comm‘n H.R., Report No. 90/09, OEA/Ser.L/V/II.135,
doc. 37 ¶ 157 (2009). Further, after examining the evidence in the record before it, the
Commission determined that Mr. Leal was prejudiced by the violation of his rights to consular
notification and assistance. Specifically, the Commission found:
It is apparent from the record before the Commission that, following [Mr.] Leal
Garcia‘s conviction and sentencing, consular officials were instrumental in gathering
significant evidence concerning their [his] character and background. This evidence,
including information relating to [his] family life as well as expert psychological
reports, could have had a decisive impact upon the jury‘s evaluation of aggravating and
mitigating factors in [his] case. In the Commission‘s view, this information was
clearly relevant to the jury‘s determination as to whether the death penalty was the
appropriate punishment in light of [his] particular circumstances and those of the
The potential significance of the additional evidence in Mr. Leal García‘s case is
enhanced by the fact that apart from the circumstances of his crime, the only
aggravating factors against him consisted of evidence of an unadjudicated crime.
Moreover, the petitioner made additional submissions based on evidence gathered
before and after his conviction and sentencing, which raises serious doubts regarding
the criminal conduct attributed to him. These elements confirm that the evidence
gathered through the assistance of consular officials may have had a particularly
significant impact upon the jury‘s determination of responsibility, or at the very least
the appropriate punishment for Mr. Leal García.
Id. ¶¶ 128, 131 (2009). Based upon the foregoing, the Commission concluded that the United
States‘ obligation under Article 36(1) of the Vienna Convention to inform Mr. Leal of his right
to consular notification and assistance constituted a fundamental component of the due process
standards to which he was entitled under the American Declaration, and that the State‘s failure to
respect and ensure this obligation deprived him of a criminal process that satisfied the minimum
standards of due process and a fair trial required by the Declaration. Id. ¶ 132.
As to remedies, the Commission recommended that Mr. Leal‘s death sentence be vacated
and that he be afforded ―a new trial in accordance with the equality, due process and fair trial
protections, prescribed under . . . the American Declaration, including the right to competent
legal representation.‖ Id. ¶¶ 160(1), 169(1).
VI. PRAYER FOR RELIEF
WHEREFORE, Mr. Leal prays that this Court stay his execution to allow Congress a
meaningful opportunity to enact the Consular Notification Compliance Act, which would grant
Mr. Leal a right to review and reconsideration of his conviction and sentence in light of Texas‘
undisputed violation of Article 36 of the Vienna Convention on Consular Relations; grant a writ
of habeas corpus vacating his conviction and death sentence and discharging him from
confinement; and grant other relief, both in law and in equity, to which Petitioner may show
Petitioner respectfully requests that this petition be stayed and held in abeyance pending
the resolution of Mr. Leal‘s successive application for writ of habeas corpus in the Texas Court
of Criminal Appeals.
June 15, 2011 Respectfully submitted,
SANDRA L. BABCOCK
Texas Bar No. 01481700
Clinical Professor of Law
Northwestern University School of Law
357 E. Chicago Avenue
Chicago, Illinois 60611
(312) 503-0114 (tel.)
(312) 503-2798 (fax)
Texas Bar No. 00789452
University of Texas School of Law
Capital Punishment Center
727 East Dean Keeton
Austin, TX 78705
(512) 232-9171 (fax)
Counsel for Petitioner
CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of June 2011, a true and correct copy of the
foregoing was served upon opposing counsel by electronic mail to:
Office of the Attorney General
Capital Litigation Division
300 W 15th Street
Austin, TX 78701
Mr. Marshall consented to electronic service.
Sandra L. Babcock