ABA Criminal Litigation Committee Month In Review - July 2011

Published by the American Bar Association

U.S. SUPREME COURT

Garcia v. Texas 131 S. Ct. 2866 (July 7, 2011)

In this 5–4 per curiam opinion, the Supreme Court denied Humberto Leal Garcia's petitions for a stay of execution and for habeas corpus relief, holding that the Due Process Clause does not necessitate staying an execution in light of unenacted legislation. Garcia, a Mexican national, was convicted of murder and sentenced to death after kidnapping, raping, and bludgeoning a 16- year-old girl. Garcia argued that his conviction violated the Vienna Convention on Consular Relations because the United States had not informed him that he had the right to consular assistance, a finding made by the International Court of Justice (ICJ) in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31, 2004)). Garcia argued that due process entitled him to a stay pending Congress's decision whether to enact legislation to enforce Avena. Declining to join in Garcia's due-process argument, the United States, as amicus curiae, sought a stay of Garcia's execution on other grounds, namely "in support of [the Supreme Court's] future jurisdiction to review the judgment in a proceeding."

The majority rejected Garcia's due-process argument, noting that "[t]he Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment." Also rejecting the United States' request for a stay, the Court cited its decisions in Medellín v. Texas, 552 U.S. 491 (2008) and Medellín v. Texas, 554 U.S. 759 (2008) (per curiam), in which it denied a similar petition for a stay based on the prospect of potential legislation following Avena. Noting that in the seven years since the ICJ decided Avena, Congress has taken no steps to legislate beyond "the bare introduction of a bill," the Court reasoned: "If the statute implementing Avena had genuinely been a priority for the political branches, it would have been enacted by now." The Court further criticized the United States' position by noting that the United States "studiously refuse[d] to argue that [Garcia] was prejudiced by the Vienna Convention violation," such that the United States was seeking a stay of an execution when it did not even maintain that the defendant might be successful in eventually overturning his conviction.

For its part, the dissent found that despite Congress's failure to enact legislation enforcing Avena, the United States was still party to the Vienna Convention, which requires the United States "to inform an arrested foreign national . . . that he has a right to request the assistance of his country's consulate" or violate international law. The dissent distinguished the current case from the Court's opinions in Medellín, finding that Congress has progressed in its potential passage of an Avena bill:

The Solicitor General has filed an amicus brief in which he states that "after extensive consultation with the Department of State and the Department of Justice," Senate Committee on the Judiciary has introduced (and expressed an intention to hold speedy hearing on) a bill that would permit [foreign nationals] to obtain a hearing that international law requires.

FEDERAL CIRCUIT COURTS

Hodges v. Epps, et al. No. 10-70027 (5th Cir. July 29, 2011)

In this case regarding the effect of erroneous jury instructions at sentencing, the Fifth Circuit Court of Appeals affirmed the district court's holding that the trial court violated Hodges's dueprocess rights...