Texas asks no delay of execution

By Lyle Denniston
on Aug 4, 2008 at 4:01 pm

The state of Texas urged the Supreme Court on Monday to allow it to go ahead on Tuesday with the execution of Mexican national Jose Ernesto Medellin, arguing that he has several times received all of the review of his case that American or international law requires. But, the state added, if there are other foreign nationals in Texas who have not had the same review of their treaty-based claims, the state will join in to make sure that it happens.

Medellin’s lawyers have asked Justice Antonin Scalia, as Circuit Justice for the area that includes Texas, to postpone his execution until the Supreme Court can act on new appeals by his counsel.  Scalia has the authority to act on his own, or to share the decision with his colleagues.

The Medelllin case has gained high visibility as a running dispute between Texas, the government of Mexico and the World Court over the state’s duties toward death-row inmates under the Vienna Convention on Consular Relations.  In two filings on Monday (found here and here), the state insisted that “proceeding with Medellin’s execution fully complies with international law.” Medellin is scheduled to die by lethal injection for his part in a gang rape and murder of two teenaged girls in Houston in 1993.

In both of the state’s Monday filings, Texas said that it “acknowledges the international sensitivities” presented by a 2004 World Court ruling that Texas failed to provide Medellin and other Mexican nationals accused of crime in that state with access to a diplomatic officer from their home country.

The state also noted that Justice John Paul Stevens, in the most recent of two Supreme Court rulings in the Medellin case, had commented that it would be only a “minimal” cost to Texas to obey the World Court ruling. 

Because of both of those considerations, the state said, “in future proceedings” involving Mexican nationals covered by the World Court ruling who have not had review of their cases as required by that decision, the state would support any such inmate’s plea for review in federal court.  “The State of Texas will not only refrain from objecting, but will join the defense in asking the reviewing court to address” such an inmate’s claim that violation of Vienna Convention consular rights caused legal prejudice during his prosecution, the state said.

As for Medellin, the state argued, he has had that review, several times, and no court has yet accepted his argument that his case was prejudiced by the violation of his Vienna Convention rights.

Medellin’s lawyers have argued, and continue to do so, that he has never had the kind of review the World Court decision mandates. State courts, they noted, have refused to consider his Vienna Convention challenge because he did not raise it while his case proceeded in state courts, but did so only after being convicted.  The state Court of Criminal Appeals gave that reason last Thursday in refusing to put off Medellin’s execution and in declining again to require review of his Vienna claim.

 The state of Texas has been under some pressure from Bush Administration officials to take steps to assure that Medellin and other Mexican nationals obtain the review required by the World Court. 

In addition, last Friday, Democratic leaders of the House Judiciary Committee urged Texas to delay Medellin’s execution to give Congress time to consider proposed new legislation to implement the World Court decision.  Their letter to Texas Gov. Rick Perry, provided to the Supreme Court Monday by Medellin’s lawyer, can be found here.

The state’s top legal officers, who filed responses opposing both Medellin’s petition for certiorari (docket 08-5573) and his petition for an original habeas writ (docket 08-5574), as well as his request for a delay of execution, contended that the Court should not postpone the execution merely because one member of Congress had introduced proposed legislation.

“Nothing in the Constitution, statute, or case law,” the officials argued, “authorizes relief based on legislation that has been introduced but not enacted — especially not where Congress has taken no action in the over four years since [the World Court decision], and where there is no remote, let alone reasonable, expectation that both Houses of Congress will approve the legislation.  Nor does any rule of law exist to determine how much 9more) delay is needed to further confirm that no action is indeed forthcoming.”

To hold otherwise, they argued, “would be to license a single member of the House of Representatives to enjoin the administration of criminal justice by a sovereign State.  The Court has already held that the President of the United States, alone, cannot give domestic legal effect to [the World Court decision] and override Texas law.  A fortiori, one member of the House of Representatives cannot do so.”