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9. Department of State communications with Texas Board of Pardons and Paroles and Governor in death penalty case


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THE LEGAL ADViSER
DSPAPTMENT of STATS
WASHINGTON

August 5, 2002

BY FAX TO 512-463-8120
(ORIGINAL TO FOLLOW)

Gerald Garrett, Chairman
Texas Board of Pardons and Paroles
Price Daniels Sr Building
209 West 14th Street, Suite 500
Austin, Texas 78701

Dear Mr. Garrett:

The Department of State understands that the Board is currently considering a clemency petition on behalf of Javier SUAREZ Medina, a Mexican national scheduled for execution on Wednesday, August 14, 2002.

The Government of Mexico has written the Department about this case to express its concern that Mr. Suarez was not advised at the time of his arrest of his right to have a Mexican consular official notified of his detention under Article 35(1) (b) of the Vienna Convention on Consular Relations ("Vienna Convention"), a treaty to which the United States and Mexico are parties, a foreign national who is arrested or detained must be so notified "without delay." The Department of State places great importance on our consular notification obligation, the reciprocal observance of which serves to protect all Americans who travel or live abroad. We have worked closely with the State of Texas in recent years to improve compliance with this obligation by state and local officials.

We have also been in touch with the Office of the Governor for the State of Texas about this case since 1997, when it first came to our attention. According toinformation we received from the Governor's office in 1998, arresting and detaining officials in Dallas learned that Mr. Suarez was a Mexican citizen shortly after his 1988 arrest, in the course of his tape-recorded confession. We understand that Mr. Suarez nevertheless was not advised of his right to request consular assistance from Mexican consular officials at any time prior to his trial. The information available to us at this time indicates that Mexican consular officials first learned about Mr. Suarez's case shortly after his sentencing.

The information we have received from Texas authorities indicates that there was a failure to comply with the consular notification obligation of Article 36(1) of the Vienna Convention. If Mr. Suarez had been so advised, in accordance with the Convention's requirements, and then requested that Mexican consular officials be notified, it would have been incumbent upon Texas authorities to notify the nearest Mexican consulate of the fact of Mr. Suarez' s detention, so that the consulate could have provided whatever consular assistance it deemed appropriate. In view of the above facts, the Department of State will convey to the Government of Mexico on behalf of the United States the Department's deepest regrets over the failure of consular notification in this case.

In addition, we understand that the Board has before it a pending clemency request for Mr. Suarez that raises the issue of consular notification. We respectfully request that, in the course of its careful consideration of this petition, the Board give specific attention to the failure of authorities to provide Mr. Suarez with consular notification pursuant to Article 36 of the Vienna Convention. We further request that the Board also give specific consideration to the representations made by the Government of Mexico on Mr. Suarez's behalf.

In this regard, we also wish to call the Board's attention to the decision of the International Court of Justice in Germany v. United States (LaGrand, a case in which the Federal Republic of Germany contended that the United States violated Article 36 of the Vienna Convention in connection with the arrest, trial and execution by the State of Arizona of the two LaGrand brothers, who were German nationals. In that case, as in the case of Mr. Suarez, it was not disputed that the United States had not acted in accordance with the requirements of Article 36(1) In its decision, the Court also stated that, under the circumstances presented, Article 36(2) was violated "by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the convictions and sentences of the LaGrand brothers . . . ."

It is with these points in mind that the Department
respectfully requests that, as part of the Board's
consideration of Mr. Suarez's petition, it specifically
consider in light of the rights set forth in the Vienna
Convention, the conviction and sentence of Mr. Suarez. We
believe that, in light of the unique role Of the Texas Board
of Pardons and Paroles, a careful consideration of this issue
by the Board would be consistent with the "review and
reconsideration" described by the International Court of
Justice in its decision construing the Vienna Convention in
LaGrand. We recommend that, in rendering its decision,
regardless of the outcome, the Board consider preparing a
written statement setting out the Board's consideration of
this issue. Such a written statement would be useful in
establishing that the Board in fact reviewed and reconsidered
Mr. Suarez's conviction and sentence in light of the failure
of consular notification, should that be necessary in any
subsequent legal proceedings.

I enclose copies of the correspondence the Department has received from the Government of Mexico and the Court's decision in LaGrand. At the suggestion of your staff, we are providing copies of this letter separately to all Board members.

Thank you for your careful attention to this important issue.

Sincerely,

William H. Taft,IV

Enclosures:
Mexican Note 006544 of July 17, 2002.
LaGrand decision.

Cc: Members of the Board of Pardons and Paroles
Governor Rick Perry

STATE OF TEXAS
BOARD OF PARDONS AND PAROLES

Gerald Garrett Chairman August 7, 2002

Mr. William H. Taft IV The Legal Adviser
Department of State
Washington, D.C. 20520

RE: Javier Suarez Medina TDCJ #000944

Dear Mr. Taft:

Thank you for your letter of August 6, 2002 to the members of the Texas Board of Pardons and Paroles in which you express your concerns on behalf of Javier Suarez Medina. Mr. Medina is scheduled for execution on August 14, 2002. Board Members are in the process of reviewing Mr. Medina's clemency petition at this writing. The letter you provided, with enclosed information, will be carefully reviewed by each member.
Please be assured that all 17 Board Members will fully consider all the materials provided by the attorneys for Mr. Medina, including any information on the Vienna Convention on Consular Relations regarding consular notification. Each Board Member takes very seriously the responsibility of deciding whether to recommend clemency to the Governor.
On Thursday, August 8, I will be meeting with officials of the Consulado General de Mexico regarding these matters. Information from that meeting will be distributed to each Board Member for their full consideration.

GG/cj

Cc: Governor Rick Perry
Board Members
General Counsel
Board Administrator
Clemency Administrator

420 South Main • San Antonio, TX 78204 • (210) 226-6862 • Fax: (210) 226-1114

Price Daniel, Sr. Bldg. • 209 West 141h St., Suite 500 • Austin. TX 78701 • (512) 475-3407 • Fax: (512) 463-8120


STATE OF TEXAS
BOARD OF PARDONS AND PAROLES

Gerald Garrett
Chairman

August 14, 2002

Mr. William H. Taft IV
The Legal Adviser
United States Department of State Washington, D. C. 20520

Re: Javier Suarez Medina TDCJ No. 000944
Execution Date August 14, 2002

Dear Mr. Taft:

This letter is to follow up to my letter of August 7, 2002, in reply to your letter of August 5, 2002, with attached material. As you know by now, on yesterday, the members of the Texas Board of Pardons and Paroles completed their review of Javier Suarez Medina's petition for clemency and decided not to recommend that the Governor grant clemency.
For your information, I am providing more detail about the powers of the Texas Board of Pardons and Paroles to recommend that the Governor grant clemency. Under Article 4, Section 11, of the Texas Constitution, the Board has broad authority to review all information relevant to an individual's conviction and sentence and to recommend that the Governor grant inter alia a full pardon, pardon for innocence, reprieve of execution, or commutation of sentence to a lesser penalty (including time served).
Under the Texas Constitution, the Board of Pardons and Paroles by a written vote of a majority of all the Board members (17 at present) may recommend that the Governor grant clemency. In death penalty cases, without the written recommendation of the Board members, the Governor is limited to granting a one-time, 30-day reprieve of execution.

420 South Main • San Antonio, TX 78204 • (210) 226-6862 • Fax: (210) 226-1114
Price Daniel, Sr. Bldg. • 209 West 14th St., Suite 500 • Austin, TX 78701 • (512) 475-3407 • Fax; (512) 463-8120

In furtherance of exercising that authority, the Board members may consider any and all information provided, even information that was not available to the courts or that was not considered by the courts at trial or on appeal. The Board does not place any limitations on the information which may be submitted by the inmate or interested parties, and by law solicits input from the state prosecutor, the trial judge, and law enforcement, and survivors of the victim of the crime. The Board members also consider letters of support and protest from other interest groups and from the general public.

In this instance, Javier Suarez Medina had requested through his attorney Lydia Brandt a commutation of the death sentence to a lesser penalty or a 90-day reprieve of the execution date. The petition was received on July 22, 2002. The Board members on August 13, 2002, completed their review of Mr. Medina's clemency petition and decided by a vote of 17 to 0 not to recommend to the Governor a commutation of the sentence to a lesser penalty. The Board members also decided by a vote of 16-1 not to recommend that the Governor issue a 90-day reprieve of execution.

The Board members have been provided authority under the Texas Constitution to recommend that the Governor grant relief if they decide it is appropriate, for example, if Javier Suarez Medina had been prejudiced by the apparent failure of Dallas County law enforcement officials to inform him of his right to request Mexican Consular assistance.

The Board has in place a process for full consideration of petitions for clemency from death row inmates (see 37 TAC �� 143.43 and 143.57), which include full opportunity for the inmate or attorney to present information in writing (including videotapes) to the Board. Those rights include an interview with a Board member designated by the Chair. Mr. Medina's attorney requested such an interview for him. A Board member interviewed Mr. Medina, and a summary was distributed to each Board member for consideration.

In this particular case, Mr. Medina and his attorney had a full opportunity to provide all available information to the Board members. As indicated in my prior letter, the Board members had before them and carefully evaluated information from not only Javier Suarez Medina through his attorney, Lydia Brandt, but also from the Mexican Consular Officials, presented through their attorney Sandra Babcock, on the requirement of consular notification under Article 36 of the Vienna Convention on Consular Relations.

Other information was received and considered as well as from the Dallas County Criminal
District Attorney, the judge of the Dallas County Criminal District Court Number Two, the
Dallas County Sheriff, and the Dallas Chief of Police, as well as many letters of support and protest from interest groups and the public.

420 South Main • San Antonio, TX 78204 • (210) 226-6862 • Fax: (210) 226-1114
Price Daniel, Sr. Bldg. • 209 West 14th St, Suite 500 • Austin, TX 78701 • (512) 475-3407 • Fax: (512) 463-8120

On August 8, 2002, along with the Board's General Counsel and Clemency staff, I met in my official capacity with Mexican Consular Officials and Ms. Babcock. From representations made, this meeting was requested with the full knowledge and consent of Mr. Medina's attorney, Lydia Brandt. Mexican Consular Officials present at the meeting were Mr. Francisco Javier Alejo, Consul General, and Mr. Vicente Sanchez, Deputy Consul, both from Austin. Also present was Ms. Sandra Babcock, their Legal Counsel.

During the meeting, which lasted over one hour, Mr. Alejo and Ms. Babcock made detailed oral presentations, and provided supporting documentation, including affidavits, with emphasis and specific discussion on the concerns of the Mexican Government regarding the apparent violation of the consular notification requirement of Article 36 of the Vienna Convention on Consular Relations.

Following the meeting, I requested that Ms. Babcock submit a synopsis of her presentation on
behalf of the Mexican Government at the meeting. She did submit this letter, and Board members were provided a copy. They reviewed and considered the supplemental information. In addition, following the meeting, in order to give the Board members adequate time to review and consider the material submitted on the consular notification issue, I made the decision to extend the earlier request for written vote submissions to Tuesday, August 13 (from Monday, August 12).

In summary, all 17 Board members received and carefully reviewed information from attorneys
for Mr. Medina and from officials of the Mexican Consulate, including the materials regarding consular notification under Article 36 of the Vienna Convention on Consular Relations.

It is my hope that this letter and the information contained therein gives you a greater understanding of the processes of the Texas Board of Pardons and Paroles and the extent to which the Board members were able to consider the right of consular notification provided under Article 36 of the Vienna Convention on Consular Relations.



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