Court to hear pivotal death penalty appeal

States' rights, power of president, world law at issue in Mexican's case
8:46 PM CDT on Tuesday, September 13, 2005
By ALLEN PUSEY / The Dallas Morning News

WASHINGTON – The Texas Court of Criminal Appeals is expected to hear arguments Wednesday that will place the court between the rock of a controversial death penalty case and the hard place of international law.

And to increase the stakes, the space in between involves presidential power.

The case involves the 1994 conviction in Houston of Jose Ernesto Medellin for his part in the rape and murder of two teen girls.

Although he has lived in the U.S. since he was a small child, Mr. Medellin was born in Mexico. He is arguing that his conviction is tainted by the state's failure to inform the Mexican consul of the charges against him, as required by international treaty.

The state argues that Mr. Medellin never asserted the treaty obligation until a jury had placed him on Texas' death row. It argues that Mr. Medellin is asserting a constitutional right that is unavailable to U.S. citizens.

The case, which has been rejected once by the Texas court, has profound importance in Mexico, where there is no civilian death penalty. Mexico has long complained that its citizens should not be subjected to the death penalty in the U.S.

But the case is also being followed closely by those in the U.S. concerned by an unusual assertion of presidential power and by those who decry the growing influence of international law on U.S. cases.

The Vienna Convention of Consular Relations, approved by the U.S. in 1969, requires that governments inform the appropriate embassy when they have arrested foreigners for serious crimes if the suspects request that they do so. But many suspects are not told that they can ask for such a step.

Last year, the International Court of Justice in The Hague, Netherlands, ruled that the U.S. was obligated to review all 51 complaints by Mexican citizens facing execution in Texas and several other states that the Mexican government had not been informed of their arrest.

Armed with that ruling, Mr. Medellin appealed his death sentence to the U.S. Supreme Court. But in February, shortly before the case was to be heard, the Bush administration ordered the states to conduct the case-by-case review requested by the International Court.

In June, the high court returned Mr. Medellin's case to the lower courts. Now back before the state's highest criminal court, the issues in the Medellin case have become more complicated.

In a "friend of the court" brief, the Bush administration asked the court to consider the president's order as binding, reflecting his power to administer the nation's treaty obligations.

But Alabama, Montana, Nevada and New Mexico – all of whom have Mexican citizens facing execution – asked the Texas court to, in effect, reject the presidential order without ignoring it. Viewing it as an affront to the state court systems, they have asked the Texas judges to consider the White House action only a "request."

The states said the White House document, referred to as a presidential memorandum, is "clearly a request to the state courts rather than an order of any kind."

"It is unlikely, to put it mildly, that President Bush intended his two-sentence memorandum to invite a judicial inquiry into such basic questions of constitutional structure," they wrote to the court.

Tom Goldstein, a Washington lawyer who practices frequently before the U.S. Supreme Court, said that with so many interests at stake, the justices will follow the case closely.

"The Supreme Court is very focused on it. The world is focused on it," he said. "It's a major case that will determine whether the U.S. is going to bend a little to world opinion or chart its own course."