Texas plans to exe­cute a Mexican nation­al on November 8, despite claims that he is inno­cent and that Texas vio­lat­ed U.S. inter­na­tion­al treaty oblig­a­tions by deny­ing him access to legal assis­tance from his gov­ern­ment. Senior Mexican diplo­mats called the death sen­tence imposed on Ruben Ramírez Cárdenas (pic­tured) ​“ille­gal” and a vio­la­tion of due process. In a news con­fer­ence in Mexico City on November 6, Carlos Sada, Mexico’s deputy for­eign min­is­ter for North America, said ​“From the start, there has been a fail­ure, and from our per­spec­tive, this is an ille­gal act.” Cárdenas was con­vict­ed and sen­tenced to death in Hidalgo County in 1998 for the kid­nap­ping, rape, and mur­der of his 15-year-old cousin. No phys­i­cal evi­dence links him to the crime, and his lawyers say there is no foren­sic evi­dence of sex­u­al inter­course or any sex­u­al assault. In a plead­ing filed with Texas Court of Criminal Appeals, his lawyer, Maurie Levin, has sought a stay of exe­cu­tion to obtain DNA test­ing of scrap­ings tak­en from under the victim’s fin­ger­nails, argu­ing that that Cárdenas’s ​“con­vic­tion and death sen­tence bear all the indi­cia of a wrong­ful con­vic­tion.” Those indi­ca­tors, she writes, include ​“ques­tion­able eye­wit­ness tes­ti­mo­ny, coerced, uncoun­seled con­fes­sions, and unre­li­able foren­sic evi­dence.” Prosecutors have opposed per­mit­ting the DNA test­ing. Despite U.S. treaty oblig­a­tions under the Vienna Convention on Consular Relations requir­ing law enforce­ment to noti­fy for­eign cit­i­zens of their right to assis­tance from their nation’s con­sulate, police failed to noti­fy Mexico of Cárdenas’s arrest or Cárdenas of his right to speak with offi­cials from his gov­ern­ment. Levin said that Cárdenas repeat­ed­ly asked for a lawyer, but that the state did not appoint coun­sel for 11 days, dur­ing which time he was sub­ject to inter­ro­ga­tion and gave a series of incon­sis­tent state­ments, includ­ing a coerced con­fes­sion that was incon­sis­tent with the phys­i­cal evi­dence. Eyewitnesses to the abduc­tion — includ­ing the victim’s sis­ter, who knew Cárdenas — either did not iden­ti­fy Cárdenas in state­ments they gave to police or gave descrip­tions of the assailant that did not match Cárdenas. Mexico did not learn of Cárdenas’s arrest for five months, and has been attempt­ing to assist him since that time. In 2004, the International Court of Justice ruled that the United States had vio­lat­ed the Vienna Convention rights of 51 Mexican nation­als sen­tenced to death in the United States, includ­ing Cárdenas, and ordered that for­eign nation­als whose con­sular rights are vio­lat­ed must be pro­vid­ed judi­cial review to deter­mine whether that vio­la­tion influ­enced the out­come of their cas­es. Cárdenas has sought review of his case in the Inter-American Commission on Human Rights, which has grant­ed ​“pre­cau­tion­ary mea­sures” — a form of injunc­tion — against his exe­cu­tion until the treaty vio­la­tion is adju­di­cat­ed. However, in 2008, in a case in which Texas failed to pro­vide such a hear­ing to Jose Ernesto Medellin, the U.S. Supreme Court ruled that although the world court deci­sion ​“con­sti­tutes an inter­na­tion­al law oblig­a­tion” on the United States, it is nev­er­the­less unen­force­able against the states unless and until Congress pass­es leg­is­la­tion, which Congress has yet to do. Since then, a num­ber of for­eign nation­als have been exe­cut­ed in the U.S. in vio­la­tion of inter­na­tion­al treaty oblig­a­tions with­out judi­cial review of their treaty claims. Gregory Kuykendall, a lawyer who rep­re­sents Mexico, said ​“It’s a sig­nif­i­cant treaty vio­la­tion. … What sep­a­rates us from anar­chy is our com­mit­ment to due process and that’s the process­es of the laws that are in effect in both the United States as well as inter­na­tion­al­ly.” Cárdenas has nev­er been grant­ed review of his treaty claim in the U.S. courts.

(“Mexico says upcom­ing U.S. exe­cu­tion of nation­al is ​‘ille­gal’,” Reuters, November 6, 2017; S. Marloff, ​“Forced Testimony Over Evidence? No phys­i­cal evi­dence impli­cates Cardenas in his cousin’s mur­der,” Austin Chronicle, November 3, 2017; K. Balkinger, ​“Mexican nation­al set for exe­cu­tion in Texas files last-minute appeal over DNA test­ing,” Houston Chronicle, November 1, 2017; K. Blakinger, ​“Texas set to exe­cute Mexican nation­al amid inter­na­tion­al dis­pute,” Houston Chronicle, October 27, 2017.) Read the International Court of Justice’s opin­ion in Case Concerning Avena and Other Mexican Nationals (Mar. 31, 2004) and the U.S. Supreme Court deci­sion in Medellin v. Texas, No. 06 – 984 (March 25, 2008). See Foreign Nationals and Innocence.

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