By Andrew Quinn and Jeremy Pelofsky
WASHINGTON (Reuters) - The U.S. government has called on Texas to delay the execution this week of a Mexican national because he was not told at the appropriate time of his rights to diplomatic counsel, the U.S. State Department said on Tuesday.
State Department spokeswoman Victoria Nuland said the federal government had filed a brief with the U.S. Supreme Court on July 1 supporting Humberto Leal Garcia's bid for a stay of execution until the end of this year.
"This is to allow some consideration of the fact that Mr. Leal was not afforded a visit by Mexican consular officials at an appropriate moment in the trial proceeding -- so to allow that to be taken into account," Nuland said.
Leal Garcia, now 38, was convicted of raping a 16-year old girl and then bludgeoning her to death with a piece of asphalt in Texas. He is scheduled to be executed by lethal injection on July 7.
The Texas Board of Pardons and Paroles on Tuesday denied Leal Garcia's request for a reprieve or commutation of his sentence, leaving any final decision on his fate to either the Supreme Court or Texas Governor Rick Perry.
Nuland said the U.S. government had determined that when arrested, Texas authorities did not inform Leal Garcia of his right to have consular assistance from Mexican authorities, which, as a foreign national, he is entitled to under the Vienna Convention on Consular Relations.
A spokeswoman for Perry told Reuters that the governor has no plans to halt the execution and the Texas Attorney General's office has urged the Supreme Court not to intervene.
Texas officials argue that Leal Garcia made statements to authorities before he was in custody and thus outside the purview of the Vienna Convention.
The Obama administration urged the Supreme Court to delay the execution until the end of this year so Congress could pass legislation that would give Leal Garcia and other foreign nationals the right to federal review of his claim that he was not given the option of consular access.
The administration warned that allowing his execution to go forward could have serious repercussions on U.S. foreign relations and implications for Americans arrested abroad.
"The United States is best positioned to demand that foreign governments respect consular rights with respect to U.S. citizens abroad when we comply with these same obligations for foreign nationals in the United States," U.S. Secretary of State Hillary Clinton and Attorney General Eric Holder wrote in a June 28 letter.
SENDING A SIGNAL
The United States also wanted to comply with a 2004 ruling by the International Court of Justice that held that the United States must review Leal Garcia's conviction and sentence to remedy earlier instances in which the Vienna Convention had not been honored in U.S. criminal cases, Nuland said.
"It sends a strong signal to the international community about our commitment to respecting these important obligations," Nuland said.
The top U.N. human rights official last week urged Texas call off Leal Garcia's execution, as have dozens of former U.S. law enforcement officials and ex-diplomats who argue that it would put Americans at risk in prosecutions abroad.
Sandra Babcock, a Northwestern University Law School professor who has been hired by the Mexican government to represent Leal, says the U.S. Supreme Court three years ago rejected a similar appeal by a Mexican national convicted in Texas who objected to the lack of consular consultation.
"We have presented substantial evidence that in this case, the Vienna Convention really mattered," Babcock said. "The fact is that, if Mr. Leal had received the consular assistance that he was entitled to, he never would have been convicted, let alone sentenced to death."
So far, lower courts have not been impressed. The Texas Court of Criminal Appeals, the state's highest criminal court, rejected Leal's request for a stay of execution, saying Leal "doesn't have a due process right to remain alive until the proposed legislation becomes law."
Texas executes more criminals than any other state and that has long caused friction with Mexico, which has no death penalty. Although the U.S. government has signed the Vienna Convention, Congress has not passed a law to implement it.
(Additional reporting by Jim Forsyth in San Antonio, Texas; editing by David Alexander and Todd Eastham)