FINAL UPDATE 11:15 p.m.

Splitting 5-4, the Supreme Court refused Tuesday night to delay the execution in Texas of Mexican national Jose Ernesto Medellin.  The majority’s unsigned opinion, and dissents by each of the other four Justices, can be read here.  Since the death warrant was to remain in effect until 1 a.m. Eastern time, Texas went ahead with the exection that had originally been scheduled for 7 p.m.  It was delayed at least three hours by the Court’s review of a series of claims for relief by Medellin’s attorneys.  The Houston Chronicle reported: “Medellin was pronounced dead at 9:57 p.m., nine minutes after the lethal dose was administered.” (Texas is on Central time.)

The Supreme Court majority said that the chance that Congress or the Texas legislature would act to provide a remedy for the treaty violation in Medellin’s case was “too remote” to justify delaying the execution. The majority’s Per Curiam (“By the Court”) opnion relied in part on the fact that the Justice Department had not opted to take any part in this latest round of the Medellin case, even though it was actively involved when the Court last ruled on it on March 25.

“The Department of Justice,” the majority said, “is well aware of these proceedings and has not chosen to seek our intervention.  Its silence is no surprise.  The United States has not wavered in its position that [Medellin] was not prejudiced by his lack of consular access [guaranteed to foreign nationals by the Vienna Convention].”

While noting again, as it had in March, that it was up to Congress to make the Vienna Convention binding law within the U.S., the majority said that “Congress has not progressed beyond the bare introduction of a bill in the four years since the [World Court] ruling and the four months since our ruling in Medellin v. Texas.  This inaction is consistent with the United States’ decision in 2005 to withdraw the Untied States’ accession to jurisdiction of the [World Court] with regard to matters arising under the Convention.”

The majority also relied on its view that Medellin’s confession to his role in the gang rape and murder that led to his death sentence was probably not obtained illegally, under U.S. or international law. It also found “insubstantial” the defense attorneys other arguments why the violation of Medellin’s treaty rights undermined his conviction and sentence.

Justice John Paul Stevens, who voted in March to support the Court’s ruling at that time denying President Bush the power to order Texas to remedy the treaty violation in Medellin’s case, dissented on Tuesday night.   Stevens wrote that the Court should invite the U.S. Solicitor General to submit the government’s views “before allowing Texas to proceed with the execution….[W]aiting a short time to guarantee that the views of the Executive have been given respectful consideration is only prudent.  Balancing the honor of the Nation against the modest burden of a short delay to ensure that the breach is unavoidable convinces me that the application for a stay should be granted.”

Each of the other three dissenters — Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — filed separate opinions.

  Souter said he would postpone Medellin’s execution until the Court’s new Term begins Oct. 6 to allow the Solicitor General to offer the government’s views and for Congress to consider any action. Ginsburg, too, said the Court should await the receipt of views from the Solicitor General.

Breyer, who wrote the dissenting opinion in March, filed the longest of the dissents Tuesday night — three and a half pages.  He cited these factors in favor of delaying the execution: first, the fact that the World Court, after a new plea by the government of Mexico, has again asked the U.S. to take steps to enforce the treaty rights of Medellin and other Mexican nationals facing imminent execution; second, the fact that legislation has been introduced in Congress to provide a remedy; third, the fact that, before the Court’s March 25 decision, Congress might not have understood the need for it to act; fourth, permitting the execution puts the U.S. in violation of international law “and breaks our treaty promises”; fifth, President Bush has stressed the importance of carrying out treaty duties in this case; and sixth, the differences of views among the nine Justices themselves.

Breyer said the majority was wrong on Tuesday in suggesting that the key issue in whether to delay the execution was the validity, or not, of Medellin’s confession. The issue, Breyer said, is whether the U.S. government would carry out its international obligations.

Like his three colleagues in dissent, Breyer said he would call for the views of the Solicitor General. He noted that it takes only the votes of four Justices to do that, and added that “it is particularly disappointing that no Member of the majority has proved willing to provide a courtesy vote for a stay so that we can consider the Solicitor General’s views once received.”  Such an invitation to the Solicitor, he added, would be made moot by the execution.

NOTE TO READERS: What follows below are the earlier posts on the events of Tuesday in Medellin’s case.

UPDATE 7:40 p.m. Tuesday. The scheduled time for execution of Jose Ernesto Medellin in Texas came and went Tuesday evening, with prison officials indicating they were awaiting word from the Supreme Court before proceeding, according to news accounts in Texas.  The death warrant remains in effect until midnight — 1 a.m. Eastern time, it is understood.

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 In what may be the last round of legal arguments on Texas’ scheduled execution at 7 p.m. Tuesday of Jose Ernesto Medellin, attorneys for the Mexican national told the Supreme Court that if he is put to death, “the world will have every reason to question” the U.S. government’s commitment to treaty obligations in general.  A reply brief, filed Monday evening, is here, and a new appendix is here.

Seeking to keep the Court’s attention focused on the international aspects of the case, in contrast to Texas’ emphasis on its sovereign power to enforce its criminal laws, Medellin’s counsel said the execution would run counter to the design of the Constitution itself — a design his lawyers said was reaffirmed by the Supreme Court in its most recent ruling in Medellin v. Texas on March 25.

That ruling, the reply brief said, settled the legal fact that the U.S. government has “an international obligation” to provide a new review of whether Medellin’s treaty rights were violated during his prosecutor for a gang rape and murder in 1993.  The President, the brief added, has reinforced that obligation.  And Congress, the branch that the Supreme Court said must act to enforce Medellin’s treaty rights, “has now begun to take steps to comply.”

In the face of all that, the brief said, “Texas is about to execute Mr. Medellin anyway, taking the decision out of Congress’ hands and placing the United States irrevocably in breach.  That course of affairs is fundamentally inconsistent with the holding and rationale of this Court’s decision in Medellin v. Texas.”

Since Texas’ pardon board on Monday refused to provide any legal relief, Texas’ governor only has authority to delay the execution another 30 days, Texas’ highest criminal court has said it may not block the execution, “the decision to breach the treaty has effectively been made by the District Attorney of Harris County, Texas, who, with the approval of a state trial-court judge, set an execution date at the earliest point allowed under Texas law,” the brief asserted.

That is not where the question over observing treaty rights should be left, it concluded.

In the course of the reply brief, Medellin’s attorneys specified that they were asking the Supreme Court to put the execution on hold “for a period of one year to allow Congress an opportunity to enact implementing legislation” to carry out U.S. obligations under the treaty involved — the Vienna Convention on Consular Relations.

Medellin’s final challenge is before Justice Antonin Scalia, as Circuit Justice for the area that includes Texas.  He has authority to take action on his own, but it seems likely that the decision will be shared with his eight colleagues.

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