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

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.

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