Dear Colleagues,
Here is something that came through on Law.com. I think the danger here is that, if we do not abide by our treaties, than how can we expect others to do the same? In my view, it is a mistake to say that it was not necessary to afford treaty rights because they would not have affected the outcome. Treaty rights should have been afforded because that was what the treaty required, and we should not leave it up to a treaty party to decide if it would make a difference or not, because that vitiates the treaty. I believe Chuck Biblowit did some work on this case in the past. If so, he may have something to add.
Best regards,
Jim
Supreme Court Backs Texas in Dispute With President Over Mexican Death Row Prisoner
The ICJ ruled in 2004 that the convictions of 51 Mexicans on death row around the U.S. violated the 1963 Vienna Convention
Mark Sherman
The Associated Press
March 25, 2008
President George W. Bush overstepped his authority when he ordered a court in the state of Texas to reopen the case of a Mexican on death row for rape and murder, the U.S. Supreme Court said Tuesday.
In a case that mixes presidential power, international relations and the death penalty, the court sided with Texas 6-3.
Bush was in the unusual position of siding with death row prisoner Jose Ernesto Medellin, a Mexican citizen whom police prevented from consulting with Mexican diplomats, as provided by international treaty.
An international court ruled in 2004 that the convictions of Medellin and 50 other Mexicans on death row around the United States violated the 1963 Vienna Convention, which provides that people arrested abroad should have access to their home country's consular officials. The International Court of Justice, also known as the world court, said the Mexican prisoners should have new court hearings to determine whether the violation affected their cases.
Bush, who oversaw 152 executions as Texas governor, disagreed with the decision. But he said it must be carried out by state courts because the United States had agreed to abide by the world court's rulings in such cases. The administration argued that the president's declaration is reason enough for Texas to grant Medellin a new hearing.
Chief Justice John Roberts, writing for the majority, disagreed. Roberts said the international court decision cannot be forced upon the states.
The president may not "establish binding rules of decision that pre-empt contrary state law," Roberts said. Neither does the treaty, by itself, require individual states to take action, he said.
Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter dissented.
The international court judgment should be enforced, Breyer wrote. "The nation may well break its word even though the president seeks to live up to that word," he said.
Justice John Paul Stevens, while agreeing with the outcome of the case, said nothing prevents Texas from giving Medellin another hearing even though it is not compelled to do so.
"Texas' duty in this respect is all the greater since it was Texas that -- by failing to provide consular notice in accordance with the Vienna Convention -- ensnared the United States in the current controversy," Stevens said.
Medellin was arrested a few days after the killings of Jennifer Ertman, 14, and Elizabeth Pena, 16, in June 1993. He was told he had a right to remain silent and have a lawyer present, but the police did not tell him that he could request assistance from the Mexican consulate.
Medellin, who speaks, reads and writes English, gave a written confession. He was convicted of murder in the course of a sexual assault, a capital offense in Texas. A judge sentenced him to death in October 1994.
Texas acknowledged that Medellin was not told he could ask for help from Mexican diplomats, but argued that he forfeited the right because he never raised the issue at trial or sentencing. In any case, the state said, the diplomats' intercession would not have made any difference in the outcome of the case.
State and federal courts rejected Medellin's claim when he raised it on appeal.
Then, in 2003, Mexico sued the United States in the International Court of Justice in The Hague on behalf of Medellin and 50 other Mexicans on death row in the U.S. who also had been denied access to their country's diplomats following their arrests.
Mexico has no death penalty. Mexico and other opponents of capital punishment have sought to use the court to fight for foreigners facing execution in the U.S.
Forty-four Mexican prisoners affected by the decision remain on death row around the country, including 14 in Texas. One Mexican inmate formerly facing execution now is imprisoned for life because of the Supreme Court decision outlawing capital punishment for anyone under 18 at the time the crime was committed.
Bush has since said the United States will no longer allow the World Court to judge the consular access cases because of how death penalty opponents have tried to use the international tribunal.