March 28
TEXAS:
Texas Accuses Bush of Trampling Its Autonomy in Death Penalty Case
As a presidential candidate in 2000, then-Gov. George W. Bush had a ready
reply for those who would criticize the governance of his state: "Don't
mess with Texas."
Yet, 5 years later, as president, Bush stands accused of doing just that.
And the accuser is none other than the State of Texas, which says Bush is
attempting to impose on a sovereign state not only his will, but also the
will of an international court that has no authority over criminal justice
in the United States.
The dispute will be aired today at oral arguments in the Supreme Court in
a case that may test just how far the justices are prepared to push their
recent interest in using international law as a source of authority for
interpreting the U.S. Constitution and U.S. statutes.
"The justices presumably took the case to clarify basic questions about
the interface between international, federal and state law," said Lori F.
Damrosch, a professor of international law at Columbia University.
At issue in the case, Medellin v. Dretke, No. 04-5928, is the fate of 51
Mexicans who were convicted of murder and sentenced to death in Texas and
other states without first having access to diplomats from their home
country. The International Court of Justice (ICJ) in The Hague has ruled
that their rights under the Vienna Convention on Consular Relations were
violated, and that they are entitled to new hearings in Texas courts to
determine whether the violation caused their convictions or sentences.
On Feb. 28, Bush intervened to say, in effect, that he would take care of
the case. Citing his constitutional power to set the nation's foreign
policy, he issued a "determination" instructing the Texas courts to comply
with the ICJ's ruling by holding a hearing for one of the Mexicans, Jose
Ernesto Medellin, a Houston gang member convicted in 1994 of raping and
murdering 2 teenage girls in Houston.
Then the president withdrew the United States from the part of the treaty
that gives the ICJ enforcement authority, ensuring that, although Medellin
and the 50 other Mexicans would be entitled to relief under his Feb. 28
determination, no similar cases could arise at the ICJ again.
Bush took these steps to smooth diplomatic tensions with Mexico and other
nations over the death penalty cases, while also appeasing those in his
administration who are skeptical of international bodies such as the ICJ,
lawyers familiar with the case said.
But his approach did not play so well north of the Rio Grande, where state
officials say their ex-governor is trampling on Texas's sovereignty.
"[T]he claimed authority is all the more extraordinary in that it
commandeers state courts and directs them to set aside state criminal
statutes in deference . . . to an ICJ decision that the Executive has
simultaneously recognized misinterprets U.S. treaty obligations," Texas
Attorney General Greg Abbott wrote in a brief filed March 15 at the
Supreme Court.
Medellin's lawyers have said they are satisfied with the president's
approach, at least for now, and have asked the Supreme Court to put its
proceedings on hold while they try their luck in Texas courts.
But the justices have not acted on that request. Apparently they are not
willing to accept Bush's invitation to bow out until they at least have
had a chance to hear administration lawyers clarify their position, which
legal analysts describe as probably unprecedented.
"It's not so Earth-shattering that the president should say we'll follow
our international obligations," said Damrosch, who drafted a
friend-of-the-court brief for the European Union supporting Medellin.
"What's odd is that the president is saying we'll discharge the obligation
by action in state courts. That's a twist."
Still, Damrosch said that, in her view, the president has done nothing
more than enforce Article VI of the Constitution, which provides that
treaties will be "the supreme law of the land; and the judges in every
state shall be bound thereby, anything in the . . . laws of any state to
the contrary notwithstanding." But Texas and its supporters note that
Medellin broke the state's procedural rules by not bringing up the alleged
Vienna Convention violations at his trial, and that he is not entitled to
a 2nd chance.
Last year, the U.S. Court of Appeals for the 5th Circuit, based in New
Orleans, cited those state procedural rules in denying Medellin the right
to take his Vienna Convention claims to federal court. The Vienna
Convention confers no judicially enforceable rights on individuals, the
5th Circuit said. That is the decision that Medellin has asked the Supreme
Court to review.
Richard A. Samp, chief counsel of the conservative Washington Legal
Foundation, who wrote a friend-of-the-court brief supporting Texas on
behalf of Sandra and Randy Ertman, parents of Jennifer Ertman, one of the
murdered teenagers, said there is no reason to prefer the ICJ ruling over
a 1996 federal law that limits post-conviction appeals such as Medellin's.
"What I find unfortunate is that we're 12 years after the murder," Samp
said, "and the parents of the victims have had to go through this for 12
years, and as a result of what President Bush has done, it could be 4 to 4
more years." <
(source: Washington Post)
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What influence international law has in US courtrooms----High Court Monday
considers conflicting rights surrounding noncitizens on death row.
When police in Houston arrested Jose Ernesto Medellin on gang rape and
murder charges in June 1993, he was advised of his right to remain silent,
his right to consult a lawyer, and his right to have a lawyer appointed if
he couldn't afford one.
But police failed to notify the 18-year-old of another right - his right
to seek help from officials at the Mexican consulate.
Although Mr. Medellin had lived in the US since grade school and speaks
fluent English, he had never become a US citizen. As a Mexican national in
US police custody he was entitled under an international treaty to notify
Mexican diplomats of his situation.
But it wasn't until four years after his arrest - long after he'd already
been tried, convicted, and sentenced to death, and had his death sentence
affirmed by an appeals court - that he learned of this right.
Monday, the US Supreme Court takes up Medellin's case to consider whether
a violation of an international treaty can be used to challenge a
conviction and death sentence in an American court.
The case arises amid an intensifying debate over how much influence
international law, treaties, and foreign judgments should have in the US
justice system.
Those who favor an internationalist approach say the US should honor its
treaty obligations to help guarantee that those same protections will
apply to Americans overseas.
Others warn that treaties may empower international tribunals to take
actions that change key areas of US law. They say such changes undermine
the constitutional powers of Congress and the president, and erode other
government safeguards enacted by the founding fathers.
In Medellin's case, the International Court of Justice ruled that the US
had breached its obligations under the Vienna Convention on Consular
Relations. The ICJ ordered American judges to conduct a "review and
reconsideration" of the convictions and sentences of Medellin and 50 other
Mexican nationals also facing US death sentences.
Judges in Texas have declined to authorize what would amount to another
level of appeal for Medellin. They have ruled that he should have raised
the issue during his trial many years ago and that since he failed to do
so in a timely manner US law does not entitle him to do so now. They say
US law and existing Supreme Court precedent trumps the ICJ order.
Lawyers for Medellin counter that rights created by treaty are binding and
judicially enforceable as a matter of US law. Treaties, like federal
statutes and the Constitution itself, are the supreme law of the land and
must preempt conflicting state laws, they say.
"This is about the willingness of the United States to keep its word,"
writes Donald Donovan in his brief to the court on behalf of Medellin.
"This court must ensure that the courts of the State of Texas and other
state and federal courts throughout the land comply with the legally
binding international commitments that the United States has made."
Texas officials offer a different perspective. "It is beyond cavil that,
as Medellin puts it, America should keep her word. But the choice of how
to do so, and how to respond to alleged treaty violations, is left to the
political branches of government," writes Texas Attorney General R. Ted
Cruz in his brief to the court.
The Bush administration has embraced a similar view. "It is for the
president, not the courts, to determine whether the United States should
comply with the [ICJ] decision, and, if so, how," says the brief filed by
Acting US Solicitor General Paul Clement.
On Feb. 28, exactly one month prior to Monday's oral argument, President
Bush issued an executive order directing state courts to comply with the
ICJ ruling. He instructed the courts to review whether the treaty
violation in any way prejudiced the capital cases of Medellin or any of
the 50 other Mexican nationals on death row in the US.
A week later, on March 7, Secretary of State Condoleezza Rice informed the
United Nations that the US was withdrawing from a portion of the Vienna
Convention on Consular Relations. While the US would continue to be a
signatory to the convention itself, it would no longer subject itself to
the enforcement powers of the International Court of Justice on that
issue.
What the action means is that in the president's view judicial review must
take place in past cases in which consulates were not notified. But in
future cases the ICJ will no longer have authority to order such review.
It is unclear whether the justices will view these late-breaking
developments as rendering moot their involvement in the case.
Legal analysts say it is unlikely that a new review of the Medellin case
will result in a reversal of his murder conviction.
Instead of focusing on the conviction, lawyers will more likely attempt to
show how the involvement of Mexican consular officials might have helped
convince Medellin's jury not to vote for a death sentence. "I think
sentencing is really what is on the table in a lot of these cases," says
Richard Dieter, executive director of the Death Penalty Information
Center.
(source: Christian Science Monitor)
