Worldview Commentary No. 284 on Chicago Public Radio, 91.5 FM WBEZ

Author: Susan Good

“The Texas Death Penalty: Rights of Mexicans Here and Americans Abroad”

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The Texas death sentence imposed on José Medellín – whose execution is now set for August 5 – is a classic case of what’s wrong with the death penalty. Putting to death this Mexican citizen, with no hearing on whether he was prejudiced by the denial of his consular rights, would also violate a legally binding order of the International Court of Justice. Executing him would place Americans overseas at risk. Congress needs to step in to defend our national honor.

The crimes of which a Texas jury convicted Medellín were horrendous: the gang rape and murder of two young teenage girls in 1993, when he was barely 18 years of age. But is he guilty? If so, does he deserve the death penalty?

Medellín had a court-appointed lawyer. While supposedly defending Mr. Medellín, the lawyer was suspended from practicing law for six months because of ethical violations. The lawyer was booked in jail. Less than three weeks before Medellín’s trial, the lawyer was scrambling to write a habeas corpus petition to keep himself out of jail.

The lawyer also suffered serious health problems, leading to his death not long after the trial. His defense of Medellín was grossly deficient. He filed only boilerplate motions. He failed to challenge jurors who said they would automatically impose the death penalty. His co-counsel played only a marginal role. His investigator spent only eight hours on the case before trial. His only evidence in mitigation, other than brief pleas by Medellín’s parents, came from a psychologist who had never met Medellín.

Medellín was sentenced to death. Not until three years later did the Mexican consulate learn about the case for the first time – and then not from Texas, but from Medellín, who wrote from prison. The consulate arranged for an investigation and for new defense counsel. The consulate’s team discovered that the trial attorney defended Medellín while suspended from practicing law. It also found mitigating evidence never presented to the jury – Medellín’s abandonment by his parents when he was four years old, his being shot at three times while in middle school, and his attempted suicide.

But when the consulate’s team tried to present this evidence to Texas courts, the answer was: too late. The trial attorney, said Texas, should have presented this evidence. Because he did not, new lawyers could not now present it.

Mexico argued that the only reason its team was late was that Texas failed, as required by the Vienna Convention on Consular Relations, to advise Medellín of his right to contact the Mexican consulate for assistance.

Pressing the point, Mexico sued the United States in the International Court of Justice in The Hague. In 2004 that Court ordered the US to ensure a reconsideration of the case, to determine whether Medellín was prejudiced by the denial of his consular rights.

President Bush decided to comply. He determined that the US would “discharge its international obligations” by having Texas courts “give effect” to the World Court order.

Texas, however, refused. The US Supreme Court, by a six to three vote, recently agreed with Texas that the international court order is not enforceable in Texas courts. While acknowledging that the Supremacy Clause of the Constitution makes treaties like the Vienna Convention the “supreme law of the land,” the Supreme Court majority ruled that only Congress, not the President, can require Texas to comply with the World Court order.

This week I traveled to Houston, called by the defense as an expert witness on international law. I planned to recommend that the Texas court delay the execution until after Congress has time to act, and until after another international body – the Inter-American Commission on Human Rights – can rule on Medellín’s unfair trial claims at its next meeting in October. Judge Caprice Cosper of the Texas criminal court – who stands for election by the voters of Texas — declined to hear my testimony.

She also declined to hear from Billy Hayes, the American citizen whose imprisonment and torture in Turkey were depicted in the film Midnight Express. Mr. Hayes would have explained the importance of consular rights to Americans arrested overseas – rights that would be in jeopardy if the US fails to respect the consular rights of foreign citizens here.

The judge also refused to hear a brief statement from Ambassador Joel Hernández, legal advisor to the Mexican Foreign Ministry. She did hear a brief argument by Medellín’s defense counsel. She then accepted the prosecutor’s request to set an August 5 execution date.

As pointed out by one of Medellín’s new lawyers, Donald Donovan of Debevoise & Plimpton, no one – not the Supreme Court, not the President and not even Texas – disputes that the US violated its treaty obligations and is obligated to comply with the World Court order. The question is how to comply.

The Supreme Court majority has answered by stating that Congress has the power to pass a law requiring a new hearing for Mr. Medellín. Whether conducted before Texas courts or federal courts, the hearing would determine whether Medellín was prejudiced by Texas’ failure to advise him of his consular rights. If the court finds no prejudice, Texas would be free to execute Mr. Medellín.

In brief, the Supreme Court has tossed the ball to Congress. The Texas court has set an August 5 deadline. Congress must act swiftly, not only to protect the right to life of one individual whose so-called legal defense was an embarrassment, but also to show that the US is capable of meeting its treaty commitments. If not, we can hardly complain the next time an American is arrested abroad and denied consular assistance.

Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the Worldview program on Chicago Public Radio, 91.5 FM, and rebroadcast at 9 PM in the evening. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.