President Tries to Moot Texas Death Row Case; Withdraws from Treaty Provision

April 7, 2005
By Jack King
NACDL Director of Communication and Public Affairs


One of the Term’s most interesting cases, with implications for 51 Mexican nationals on Texas’ death row, took a strange turn when the United States filed an amicus curiae brief in support of the state of Texas and then tried to keep the case from being decided in the state’s favor. Texas death row inmate Jose Ernesto Medellin asked the U.S. Supreme Court to overturn his state conviction and sentence because he had not been informed of his right under the Vienna Convention on Consular Relations to seek assistance from the Mexican consulate after his arrest. But during oral arguments on March 28, thanks to an unusual amicus curiae brief filed by the United States, the real question on the justices’ minds seemed to be not how the Court should decide the case, but how it might just get rid of it.

In March 2004, the International Court of Justice in The Hague issued the Avena decision declaring the death sentences of 51 Mexican nationals in Texas invalid on the grounds that the prisoners had not been advised of their rights under the treaty. The ICJ ruled in the lawsuit, brought by Mexico against the United States, that the Mexicans have a right under the treaty to seek “review and reconsideration” of their sentences and ordered the United States, a signatory to the treaty, to reopen their cases. At the time, the United States was a party to an agreement that disputes under the Vienna Convention would be decided by the ICJ.

Medellin was denied habeas corpus relief and the U.S. Court of Appeals for the Fifth Circuit refused to issue a certificate of appealability (COA). The appeals court held that the Vienna Convention dealt with relations between signatories and conferred no “individually enforceable right.” It further held that Medellin’s Vienna Convention claim was procedurally defaulted under Breard v. Greene, 523 U.S. 371 (1998) and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), since it was never raised at trial.

The National Association of Criminal Defense Lawyers joined a number of national and international legal and human rights organizations in urging the Court to grant certiorari. Among the questions for review were whether denial of a right under a treaty was the same as denial of a constitutional right for purposes of issuing a COA; whether the Vienna Convention on Consular Relations confers a judicially enforceable right on foreign nationals held in a criminal case abroad; and whether the ICJ’s decision in Avena controls Medellin’s case.

Complicating Medellin v. Dretke, No. 04-5928, was President Bush’s decision February 28 – the same day that the Departments of Justice and State filed their amicus brief – to direct Texas and several other states to revisit the death sentences of Mexican nationals in U.S. prisons. Bush’s memorandum to Attorney General Alberto Gonzales was attached to the United States’ brief as an exhibit. The memo states that “the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States),” 2004 ICJ 128, and then directs that “State courts give effect to the decision in accordance with general principles of comity….” NACDL member Sandra Babcock, of Minneapolis, represented Mexico in Avena. “The law is on our side,” she told the New York Times. “The president is on our side. I keep having to slap myself.”

Medellin’s lawyer Donald F. Donovan, of the New York firm of Debevoise & Plimpton, filed a motion asking the Court to stay oral arguments until the Texas court acted on his treaty claim. A spokesman for Texas Attorney General Greg Abbott issued a statement questioning the former governor and president’s constitutional authority to dictate in state court proceedings.

As if that was not some kind of monkey wrench in the gearbox, on March 9, the State Department announced that the United States was withdrawing from an “optional” provision under the Vienna Convention giving the ICJ jurisdiction to hear disputes arising under the treaty.

Donovan asked the court during oral argument to simply stay the case until the Texas courts had reviewed Medellin’s case as the White House directed. The justices did not seem to like that suggestion. Justice Sandra Day O’Connor called the request “very unusual” saying that dismissal might be more appropriate. She tossed out the possibility that the Supreme Court could independently rule that the Vienna Convention grants individual rights and sidestep ruling from the ICJ is binding on U.S. courts. Chief Justice William Rehnquist thought that granting a stay would in effect validate the president’s position without issuing a formal opinion.

Texas Solicitor General R. Ted Cruz vainly tried to keep the Court focused on Medellin’s alleged procedural default. He urged the Court not to even delve into the “many interesting questions of international law” that surround the case. Those would be addressed later in “a million law review articles,” he said. But Justice David Souter said the Court would not even have to go that far if it defers to the president.

What do you suggest we do then, asked Justice Stephen Breyer. Issue a short per curiam?

Justice Ruth Bader Ginsburg suggested that if the Vienna Convention grants an enforceable individual right then the proper place for litigating the issue should be in the state courts.

Cruz ominously advised the Court that there are 104 foreign nationals on death rows across the country. But Ginsburg countered that there are only 51 affected by Avena. “There is no judgment affecting anybody else,” she said.

U.S. Deputy Solicitor General Michael Dreeben, who ostensibly was invited to argue on behalf of the United States in support of Texas, instead argued that the Court dismiss the writ as improvidently granted and urged the Court to follow the president’s lead and let the state courts hear the Mexicans’ claims. In the alternative, if the Court decided to reach the merits of the case, then it should affirm the Fifth Circuit and hold that Medellin’s claim was procedurally defaulted under the AEDPA. To recognize the ICJ as a source of international law would in effect rob the president of his executive power to interpret treaties, he explained.

The Court occasionally visited the merits of the case. Justice Antonin Scalia noted that to get a certificate of appeal under the AEDPA, the petitioner must show that the state violated a constitutional right. “What constitutional right was violated here?” he asked Donovan.

Donovan argued that, since a treaty has the same force and effect as a law of the United States, Medellin’s due process right was violated, reasoning that the Supremacy Clause and president’s declaration overpower state law.

But Cruz disagreed, saying that Medellin improperly raised his due process claim for the first time in his reply brief and that the Court should not even consider it.

The case will be decided by the end of June, if it has not been decided already. Some in the capital litigation community fear that rather than recognize Avena as binding on the federal and state courts, the Court might dismiss Medellin, as the United States requests. But that might not be such a bad thing.

"Anyone who thinks that dismissing Medellin will discourage the Mexican nationals named in the Avena judgment is mistaken,” said Kathryn M. Kase, a Texas Defender in Houston with two clients currently on death row. “We're going to continue to see litigation at every level over the meaning and enforceability of the ICJ's decision, as well as the President's determination. So, dismissal only prolongs the litigation and the lives of our clients. And that's not a bad result.”


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