Illegal injections: How Texas is breaking the law, one execution at a time 

In the early hours of May 21, 1994, 16-year-old Adria Sauceda and dozens of others attended a raucous Southside house party on Vincent Street, where witnesses reported seeing a dazed Sauceda — pumped full of alcohol, cocaine, and marijuana — pulled to the backyard. There she was stripped and circled by eight or nine men, each “taking turns” on the disoriented teenager. Friends who came to her aid were told to shut up, drink, and quit spoiling the party.

Later that morning, Humberto Leal, Jr. showed up, furious about what had happened to Sauceda, according to witnesses. He insisted on taking the girl home, saying she was a neighbor of his. Hours after Leal drove off with the victim in his father’s 1977 Mercedes, police found the girl’s naked and beaten body in a field just yards away from the house. She had been repeatedly raped, lastly with a crude wooden plank, and bludgeoned to death.

The account of that tragedy, pulled from hundreds of pages of trial transcripts and case files, is complex and, Leal’s defense now claims, filled with holes. Leal has always claimed he left the party with the victim that drunken night, and admitted to police he may have accidentally killed her during an alcohol-fueled fight on the side of the road. But for over a decade, Leal has denied he ever kidnapped or raped the victim.

But Leal’s imminent execution is now entangled in a controversy that has dogged the administrations of two U.S. presidents. Set to die by lethal injection this summer, the execution of the Mexican national flies in the face of international law, the wishes of the Mexican government, and even the U.S. Supreme Court. Leal, born in Monterrey, Mexico, is one of 50 Mexicans sitting on death row who have been charged, tried, and sentenced to die without gaining access to Mexican consular officials — a clear violation of a long-standing international treaty that protects thousands of Americans arrested abroad each year.

Leal’s lawyers claim the lack of access to the Mexican consulate sabotaged his case from the start, equipping him with a hopelessly inadequate defense team that failed to challenge the case against him. A review of the trial, they say, reveals a shoddy investigation that left more questions than answers in the wake of Sauceda’s brutal 1994 slaying.

While denied a retrial and, as of yet, the ability to re-test a crucial piece of evidence that secured his conviction, Leal’s lawyers say a judicial review, as requested by numerous U.S. and Mexican officials, would give the case a fair shake and flush out any uncertainty that still looms over the investigation into the teenager’s tragic murder.

 

 

International law & Texas

In 1988, after Javier Suarez Medina, a Mexican citizen, shot and killed an undercover Dallas police officer, authorities quickly charged, tried, and sentenced him to death before learning of his right, under the Vienna Convention on Consular Affairs, to contact the Mexican consulate.

When the Mexican government learned of the case against Medina, it launched a campaign urging the U.S. to retry him, sparking a cause célèbre in Mexico as waves of politicians vowed to force the Lone Star State into compliance with international law.

Governor Rick Perry rebuffed the Mexican government and executed Medina in 2002, prompting Mexico to take the U.S. before the International Court of Justice in The Hague for violating the long-standing international treaty. In response, the international court ordered the U.S. to review some 50 capital murder cases like Medina’s, including Leal’s. Still stinging from the execution, then-President Vicente Fox, a close U.S. ally, canceled a trip to meet with President George W. Bush at his Crawford ranch, saying, “It would be inappropriate to carry out this trip to Texas given these lamentable circumstances.”

John Bellinger, lead attorney with the U.S. State Department under President Bush’s second term, saw firsthand the administration grappling with how to approach the death-row cases after the ICJ’s ruling. “We had very lengthy discussions inside the federal government. These were very unpleasant cases, and nobody wanted to appear to be siding with some convicted Mexican rapists and murderers,” he recalled.

To the shock of many, Bush, a pro-death penalty president from a pro-death penalty state, chose to enforce the international court’s ruling. “This really surprised both liberals and conservatives because no one expected that President Bush was going to order compliance with an international tribunal in The Hague. … If you remember, no one at that time thought that he was really all that committed to international law,” Bellinger said.

Bush, he said, was persuaded by the State Department’s argument that reviewing the cases was “not a favor for the Mexicans” but rather ensured the protection of Americans traveling abroad. “If we don’t comply with our obligations … how can we expect other countries will comply with theirs?”

Texas pushed back against its former governor, and fought the case up to the U.S. Supreme Court, which ruled that while it is crucial for Texas to review the death-row cases, only Congress has the authority to force the state do so. In a concurring opinion, now-retired Supreme Court Justice John Paul Stevens still explicitly told Texas to settle the issue. Having already “ensnared the United States in the current controversy,” Stevens wrote it was up to Texas to prevent the breach of international law.

After the administration lost the Supreme Court case, Mexico took the U.S. back to the international court, and the ICJ ordered the U.S. to stay the execution of Jose Medellin, another Mexican citizen who never saw help from his consulate after he was convicted of the heinous 1993 strangulation and rape of two Houston-area teenage girls.

Perry went ahead with the execution, his staff telling reporters, “The [ICJ] has no jurisdiction here in Texas. We’re concerned about following Texas law and that’s what we’re doing.”

“This case, it’s quite troubling, speaking for myself as the former legal advisor of the State Department, the department that protects Americans around the world,” said Bellinger. “Texas authorities did not see the importance of complying with the Vienna Convention for their own citizens in Texas. … I’m sure they’d feel rather differently if Mexico had arrested residents of Texas who were U.S. citizens and then failed to give them access to the State Department.”

 

 

‘There was just so much drinking’

Humberto Leal’s lawyers, citing the break from the Vienna Convention, still hope for a review of the case, despite Texas’ clear unwillingness to abide with the ICJ’s ruling and Leal’s fast-approaching execution date. Calling Leal’s initial defense team hopelessly deficient, his lawyers cite what they call glaring errors in the investigation, trial, and punishment phase of the case against him 16 years ago.

Sandra Babcock, a Northwestern University law professor and clinical director of the school’s Center for International Human Rights, took over Leal’s defense in 2008, and has since sued Bexar County for refusing to allow re-testing of the one piece of DNA evidence used to convict Leal of capital murder.

Babcock first learned of Leal’s case while working as director of the Mexican Capital Legal Assistance Program, the vast network for defending Mexicans charged with capital cases in Texas that she headed from 2000 to 2006. “The more I read in this case, there were just all these questions about the evidence used to convict him of a capital crime. And the more I learned, I just became convinced that there was not sufficient evidence for a capital crime,” she said.

According to court records, police searched for and found Sauceda’s body after Leal’s brother and sister rushed back to the house party that morning, saying their brother had returned home rattled and mumbling he had killed someone. Leal walked into a police station later that day and gave two written statements to authorities, first saying he argued with the victim and left her on the side of the road near the party. In the second statement, given almost two hours later, he admitted he pushed the girl to the ground during a fight and ran away scared when she hit her head and stopped breathing.

But convicting Leal of capital murder, and sentencing him to death for it, hinged on proof that he kidnapped and raped the victim, evidence that Babcock insists isn’t there.

When contacted about the case, Jose Guerrero, part of Leal’s initial defense team, said he couldn’t say if his former client had kidnapped, raped, or killed Sauceda. “I don’t really know anymore, to be honest with you. With all that testimony that was taken … there was just so much drinking, the drugs, I don’t know if any of them really remembers.”

Babcock, however, argues that Guerrero, formerly a public defender who has since walked away from capital murder cases, was part of an appallingly poor defense team — something she says would have been remedied had the Mexican consulate been involved. Records from the State Bar of Texas show Guerrero has been suspended or reprimanded for faulty defense multiple times, both before and after Leal’s trial. Guerrero, who has since shifted his focus to immigration cases, said, “I mean, we were court-appointed. Anytime you’re court-appointed, there are several problems, hoops you have to jump through.” Guerrero said the defense never had the resources to call its own expert witnesses to analyze or challenge the prosecution’s evidence, and admitted that the involvement of the Mexican consulate could have likely changed the case.

Records show investigators found no blood on the jeans, boots, socks, or T-shirt Leal wore the night of the murder, nor did investigators find blood on the floor mats of his car. What the prosecution called a “minute” spot of blood on Leal’s underwear was the sole piece of DNA discovered and admitted as evidence against him during the trial: blood, the prosecution argued, that “could only have come from Adria Sauceda.”

Elizabeth Johnson, a forensic scientist formerly with the Harris County Medical Examiner’s Office hired by Babcock to review the DNA testimony and original test results, stated the prosecution’s interpretation of the DNA at trial was misleading at best, and said those results neither eliminated nor confirmed that the blood belonged to the victim.

In an affidavit in Leal’s appeal to re-test the DNA, Johnson stated the technology used 16 years ago is now outmoded, saying the state should re-test the evidence. Though it denied Leal’s appeal, the Texas Court of Criminal Appeals wrote in 2009, “[W]ith the science available at the time of trial in 1994, no one could credibly say that an unknown blood sample came from a given individual.”

 

 

Junk science

Apart from DNA evidence, Leal’s lawyers insist his capital murder conviction was buttressed by pieces of dubious evidence that should have been questioned by his initial defense team.

One of the most alarming pieces of the story surrounding the murder is witness testimony that Sauceda was gang-raped the night of the party. The state’s own witnesses threw some of the darkest shadows over the case, claiming that the severely intoxicated victim was taken to the backyard and repeatedly assaulted before Leal arrived. One of the state’s witnesses even heard one of the men crudely encouraging partygoers to stick a bottle, or some other object, inside the victim — a gruesome foreshadowing of what would later befall the teenage girl.

The witnesses, under oath, also recalled Leal being furious when he drove up and learned of the rape, yelling, “Why? Why? Why did you let them do this?” and fighting with some of the other men.

Hours later, when the victim’s body was found, police marked tire tracks circling the body — none of which matched Leal’s car. Witnesses later testified they saw some of the men from the party with the victim’s purse, scattering and possibly even trying to destroy its contents. Leal’s sister, at a post-conviction hearing, claimed to have seen at least two men at the party with blood on their legs, though the state claimed she wasn’t a credible witness.

Remarkably, no other suspects were questioned or charged with rape. Even more alarming: sperm swabs were taken from the victim’s body but never tested for DNA. Leal has always claimed those tests would prove he never raped the victim. “That’s the part of this case I have found so outrageous,” Babcock said. “I do not understand why none of those men were ever questioned, charged, or prosecuted for rape. I can’t believe that. I mean, when I look at the investigation, this is the kind of investigation that you would be shocked to find even in a robbery case. ... There are so many gaps, and frankly, I think the way that investigation was handled, it’s insulting to the victim.”

At trial, the prosecution also presented so-called Luminol tests, saying they proved the victim bled inside Leal’s car when he attacked her. While the Luminol reacted to something, the trial record shows the substance was never actually tested. Luminol, which forensic scientists deem a precursory test for blood, reacts to a number of substances, including animal blood, simple household cleaners, and even some vegetable and organic compounds.

Many courts now rule out Luminol tests unless labs confirm for blood, Babcock said, arguing the evidence can be highly misleading. Babcock’s team also discovered a sworn affidavit from Leal’s father, where he claims he often used the car when he went deer hunting — something the prosecution never presented before the court, either to question the evidence or to even have it tested for Sauceda’s DNA.

Another damning piece of evidence came from a forensic odontologist who testified that bite marks found on the victim’s body matched Leal’s teeth. (Investigators never took saliva swabs to test for DNA.) The prosecution used the bite marks as evidence to convict Leal, and even used it during the punishment phase of the trial when pushing for the death penalty, saying, “Humberto, he is the wolf with his fangs bared with the blood dripping, tasting. Imagine it. Tasting her terminal fear. What does it take for an animal like that to bite her as she dies?”

Yet, the forensic science community has largely rejected so-called bite-mark technology as junk science. According to a 2009 congressionally mandated study by the National Research Council of the National Academy of Sciences, there’s “no evidence of an existing scientific basis for identifying an individual to the exclusion of others.” The technique, the study also found, proved to have an alarmingly high rate of false-positive matches, and shouldn’t be considered valid forensic evidence.

 

 

Battle for DNA

When the Bexar County District Attorney’s Office filed a brief in 2009 denying access to re-test the DNA evidence, Assistant District Attorney Alan Battaglia stated further testing, regardless of the result, wouldn’t prove Leal’s innocence. He wrote that multiple pieces of irrefutable evidence tied Leal to the victim’s kidnapping, rape, and death — not least of which were Leal’s own statements to police that morning.

The DA’s office also pointed out one of the most injurious pieces of evidence in the case, the fact that police found the victim’s bloody blouse in a pile of dirty clothing at Leal’s home. Leal’s parents have a rationalization for the blouse, though it’s one they never gave on the stand at trial. At a post-conviction hearing, Leal’s father swore he found the blouse on the street early that morning and put it into a pile where he and his wife would collect clothing to donate to Mexico.

Guerrero, part of Leal’s initial 1994 defense team, remembered the explanation, and remarked, “Yea, that seemed kind of suspect to us,” adding that the defense team never thought the jury would buy it.

Babcock insists Leal’s lawyers also failed him at his sentencing hearing by neglecting to conduct even the most basic research into Leal’s life and history to present to the jury. A psychological test done on Leal within the past three years showed significant frontal lobe damage to his brain, and testing put him within the mildly mentally retarded range, Babcock said. Leal, she said, was frequently beat by his parents as a child and had to repeat five school grades.

First Assistant District Attorney Cliff Herberg insisted the push from Leal’s lawyers over the consular-rights issue is simply the latest in a long string of failed appeals at the state and federal levels, meant to stall his inevitable execution. “The evidence in this case is overwhelming, it wasn’t just the DNA,” Herberg said. “The time for justice has come for Mr. Leal.”

When contacted, the victim’s father declined to comment.

State District Judge Maria Teresa Herr initially delayed setting Leal’s execution date after U.S. State Department officials asked that she postpone the decision indefinitely while waiting for Congress to iron out a solution. That solution never came, and in November, Herr decided Texas had waited long enough, setting Leal’s execution date for July 7. And there’s no sign that a legislative fix could come any time soon, suggesting Leal will likely be the second Mexican to die at the hands of Texas in violation of international law.

And while Leal’s lawyers think a judicial review could overturn his death sentence, Bellinger, the former State Department attorney, doubts a retrial would change the results of any of Texas’ contentious cases involving Mexicans on death row.

While researching the problem for the Bush administration, Bellinger and others with the State Department flew to Texas to meet with local officials and browse the cases, including Leal’s. “While we did not dig through all of the evidence ourselves, we were familiar with the individual cases. … It appeared to us that it would be unlikely that a review would change the original decision in those cases.”

All the more reason, Bellinger insisted, that Texas authorities should review the death-row cases and then administer justice as they see fit.

But Katharine Huffman, a Washington-based attorney lobbying federal lawmakers to conform to international law, said both the departments of State and Justice “know this is really important, know about the execution date that’s pending, and are working hard to try to address this problem quickly. … There’s an enormous amount of attention that’s being paid to this by the international community.”

The right to consular access is something that U.S. citizens abroad rely on “literally every day,” Huffman said. “We’ve already got one irrevocable violation of that international obligation, and that’s something that is taken very seriously by our international partners.

“To do that again? It’s hard to dismiss it as an aberration if it happens again.”

Should the U.S. continue to disregard its obligations under the Vienna Convention, American travelers risk losing what Bellinger called “one of the most important rights that Americans have if they’re arrested abroad.” And they’ll only have Texas, and our unresponsive Congress, to blame.

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