Interview

Sandra Babcock calls herself Mexico’s counsel. Babcock directs the Mexican Capital Legal Assistance Program. Funded by the Mexican government, the program provides legal aid to Mexican nationals who are charged with capital crimes or who are on death row awaiting execution in the United States. The 38-year-old Maryland native has been at the forefront of using international law as an anti-death penalty strategy for more than ten years. In the early 1990s she was one of the first defense attorneys to use the Vienna Convention in a capital case.

Earlier this year, Babcock was in the news protesting Texas’ execution of Mexican national Javier Suárez Medina. Suárez Medina was convicted of the death of undercover narcotics agent Lawrence Cadena in Dallas in 1988. At the time of his arrest the Dallas authorities failed to inform him of his right to contact the Mexican Consulate, a right guaranteed in Article 36 of the 1963 Vienna Convention on Consular Relations and Optional Protocols to which Mexico and the United States are both signatories. His attorney later argued that his rights to due process were violated because he was never informed of his right to contact the Consulate. Police procedure–not Suárez Medina’s guilt–turned into a point of conflict between Texas and Mexico. While the defense’s legal battle failed to save Suárez Medina’s life, Mexican President Vicente Fox canceled a state visit to Texas in protest. Meanwhile, in Oklahoma, the Mexican Capital Legal Assistance Program succeeded in overturning the capital sentence of Gerardo Valdéz on the basis of Article 36 violations. Valdéz is now awaiting a new trial. Currently there are 53 Mexican nationals on death row in the United States; 16 are in Texas. About 140 Mexican nationals accused of capital murders are awaiting trials nationwide.

Babcock, an attorney in private practice in Minneapolis, spoke to the Observer during a recent trip to Austin.

Texas Observer: What’s the purpose of the Mexican Capital Legal Assistance Program?

Sandra Babcock: The whole idea behind Mexico’s Capital Legal Assistance Program is to rectify what is inherently an unequal position Mexicans have vis-à-vis U.S. nationals [on death row]. The profile of the Mexican national who finds himself in jail charged with a capital offense is somebody who has certainly not graduated from high school, has as little as a first-grade education, and who often has some form of neurological impairments due to exposure to pesticides and head injuries. There is an extraordinarily high incidence of head injuries amongst Mexican nationals who grew up in parts of rural Mexico. Often Mexican nationals accused of capital crimes don’t speak English and are inherently more vulnerable than a U.S. national for all these reasons I’ve mentioned. They don’t understand the legal system, they don’t trust their lawyers because most of their lawyers don’t speak Spanish. So they really need the help of the consulate to overcome all of those barriers.

The assistance Mexico provides in capital cases is more than what many poor people in Texas receive. Everybody should be entitled to experts. But the fact is that Texas does not adequately fund the defense of people charged with capital crimes. That creates disparity among cases. The answer should really be to raise the quality of defense for all people on death row.

TO: What are some specific issues that confront Mexican nationals on death row?

SB: With U.S. inmates there may be a wealth of school records and child protection services records to help build up a better picture of a defendant. With Mexican nationals there are no records. Most of our clients grew up in very rural communities. Many have no more than a primary school education. Some of them have finished the second grade, maybe the third grade. By and large the schools they go to are very poor and they don’t keep records. It’s rare to find records. So what we’ve found in a lot of cases is that attorneys representing Mexican nationals don’t visit Mexico to do the oral histories necessary to gain a sense of a person’s background. Attorneys have to find family members, they have to find teachers, they have to talk to the extended family to get a full picture. That’s one example of what the program does. We go to Mexico and do research. It’s a very challenging task.

TO: Capital punishment in Texas is overwhelming. There are many capital cases and people on death row. What’s your view of Texas’ capital punishment system?

SB: The thing that happens in this state is that people have become so inured to all the arguments that lawyers make time and again. They’re good arguments about the abysmal representation that the guys on death row are getting. Lawyers are blowing critical deadlines all the time. We have a case right now where the lawyer failed to file a notice of appeal. The effect of that is to waive his client’s right to appeal his case to the Fifth Circuit and the Supreme Court. The lawyer has sacrificed at least two years of his client’s life; he did that unilaterally and never discussed it with his client. In fact, his client has never met his lawyer. It’s just one example, but you can go on and on and on.

The cases of Mexican nationals are no different from everybody else. They are more isolated, they know less about the legal system, so in that sense they are different, but the quality of legal representation is bad across the board. People talk about that all the time but it gets little media play and nobody does anything about it. It amazes me that a death penalty state can be so blasé about these really serious flaws in the system. I don’t support the death penalty, but if I did then the morally appropriate stance to take would be to make sure that it is fairly applied. Is that so hard? Is that a controversial statement? It seems to me that it’s not.

TO: Didn’t the state used to provide similar assistance to the Mexican Capital Legal Assistance Program? Opponents have said that it has become more difficult to apply the death penalty fairly ever since Congress defunded the state death penalty resource centers.

SB: Mexico is propping up the criminal justice system of Texas and other states. I think it’s shameful. Mexico is a developing country. There’s extreme poverty and here we have the wealthiest country in the world that cannot provide adequate resources and competent legal counsel to people who are facing the loss of their lives.

TO: How did you get involved in using international law as part of a capital appeals strategy?

SB: It goes back a while. I represented a Canadian called Stan Faulder. He was the first client I represented when I finished law school. He had been on death row for 15 years at the time that I started representing him. When I went to see him I contacted the Canadian Consulate to let them know he was there. They had no idea he had been on death row for fifteen years. The thing that made his case more dramatic was that his family had no idea he was on death row either. He’d had no contact with anybody from his family since his arrest. He’d been very isolated. And the Canadian Consulate told me about the treaty, the Vienna Convention on Consular Relations, so I decided to raise that as an issue. I don’t think that issue had been raised before; certainly not in a capital case. There were only two published decisions at the time and both were immigration cases out of the Ninth Circuit in California. I called a few international law professors and I talked to a law firm up in Minneapolis that helped me draft this argument and presented it to the courts sometime in ’92.

Around the time this was happening I also represented a Mexican national named Ricardo Aldape Guerra, who was innocent. He was convicted of killing a Houston cop and he was wrongfully convicted. So I began to work with the Mexican government. The publicity surrounding that case was overwhelming. As a result of those two cases and in the course of three years I represented other foreign nationals accused of capital crimes: somebody from Vietnam, another Mexican national’s case, and a Dominican. Then in ’96 the Fifth Circuit Court of Appeals in New Orleans published an opinion in the Faulder case. People read about it and other attorneys started to raise the issue and it mushroomed from there. I developed this very bizarre expertise on the representation of foreign nationals.

The problem is that law students in this country don’t learn anything about international law. It’s not a required subject in law school unlike in Europe. In most European countries, I think it’s a core course, in the U.K. for example. In America, judges are lawyers and, like defense lawyers and prosecutors, they know very little about international law. One of the exciting things to me about my field is that by doing this kind of work you can create law. Because nobody has been litigating it, nobody knows anything about it, so if you can craft a compelling argument you actually have a chance of making new law in an important area.

TO: What are your perceptions of Texas? Is it changing here or getting worse? There does seem to be great deal of complacency over capital cases here.

SB: I really firmly believe what Justice [Thurgood] Marshall believed; that if people were really educated about the death penalty, and about what really happens in every case, then they wouldn’t support it. Texans aren’t fundamentally different from anybody else, I just think that there is a law-and- order political atmosphere and the death penalty is a quick and easy answer to violent crime. The death penalty isn’t a deterrent but that’s not the message that gets out.

Texas politicians resist taking any moral responsibility for the executions that are carried out in the state. Another problem is the media. The media in Texas too often in the past has accepted the official orthodoxy about the death penalty, which is that the people who are executed are the worst of the worst, they are all evil sociopaths who are guilty and convicted by the good folks, who are the prosecutors and the police who never commit misconduct and who do the right thing. That’s the official orthodoxy about the death penalty. Those of us who work on these cases know that that’s not true. There are many cases involving police and prosecutorial misconduct and many cases where the guilt of the convicted person is questionable. Too few reporters have actually looked into those issues.

TO: Where do you get your inspiration?

SB: You gain inspiration from feeling what you are doing is the right thing. I feel very strongly that I am doing work that is good work, that is the right thing to be doing, and that someday we are going to prevail. I have a sense that even though we might not win in a certain case, we are making a historical record and someday somebody’s going to look back at what happened to Suárez Medina, to name just one example, and they are going to say, “My God, how barbaric was that!” They will at least know who he was and that there were some people who were protesting his execution.

There is a lot of anger as well. I feel very angry a lot of the time. Especially when I come to Texas and see cases involving incompetent lawyers who don’t seem to care. I’m talking about defense lawyers. For prosecutors, it’s their job. I might not agree with it but that’s what they are there to do. For a defense lawyer, his job is to defend his client. When a defense lawyer abandons a client in a capital case or writes just a five-page petition for writ of habeas corpus–which is what happened in one of our cases–then why aren’t those lawyers just doing divorces? Don’t do capital work, I say. If you are incompetent and you don’t want to work hard, don’t do death penalty work. I think really their license should be taken away. It’s very, very frustrating and makes me pretty livid to deal with lawyers who are like that. Incompetent doesn’t even begin to describe them.

Being angry keeps you going. I like a good fight. There are certain people who really don’t like conflict. I think if you are somebody who shies away from conflict then this is not the right job. But in a way, to me, conflict is energizing.

Patrick Timmons is a history doctoral candidate at UT-Austin where he studies the death penalty in nineteenth century Mexico. He covered the execution of Mexican national Javier Suárez Medina for The Daily Texan this summer.