Perry has chance to show another side of Texas justice

July 21, 2008, 10:10PM

Perry has chance to show another side of Texas justice

Governor should honor U.S. commitment to treaty terms

By STATE SEN. RODNEY ELLIS and CRAIG JACKSON
Copyright 2008 Houston Chronicle

Last Wednesday's decision by the International Court of Justice, the
World Court, ordering the stay of the executions of several Mexican
inmates in Texas, pending review and reconsideration of their
convictions, was the right thing to do. Before Gov. Rick Perry
rejects this decision out of hand, he would do well to consider how
defiance of the World Court ruling will affect the safety of
Americans abroad who rely on the same treaty protections that Texas
violated in these cases. Gov. Perry and the Texas Board of Pardons
and Paroles should concur with the World Court and order a reprieve
of the executions until those convictions are reviewed and reconsidered.

In 2005, President Bush ordered state courts to review and reconsider
the capital convictions of Mexican citizens who were listed in the
World Court judgment and who were arrested and convicted without
being told that they had the right to contact any of dozens of
Mexican consulates throughout the country. This order was in response
to a World Court decision which said that the United States was not
in compliance with a treaty that the U.S. government signed saying
that, among other things, U.S. law enforcement would see to it that
arrests of foreigners will be reported to their nations' consulates
in an appropriate time.

The Vienna Convention on Consular Relations was a treaty that the
United States entered into purposely, willingly and enthusiastically.
Why? Because American citizens need to have access to American
consular officials if they are ever arrested in a foreign country.

American officials can provide a number of services for Americans in
trouble to assure proper and fair treatment. And on countless
occasions, U.S. consular officials have interceded with foreign
authorities to protect the rights of wrongly detained Americans. But
in order to secure this access for Americans traveling abroad, the
United States had to ensure that it would provide access for
foreigners in the United States. This is what it did in signing and
ratifying the treaty.

Our good faith goes a long way in securing the good faith of other
nations. This is not a capitulation of sovereignty, as has been
suggested by agenda-pushing commentators. Indeed, it is the ultimate
exercise of sovereignty for the United States to accept treaty
obligations which will benefit Americans abroad.

Jose Ernesto Medellin, a Mexican national, took his conviction and
sentence of execution to the United States Supreme Court to get that
body to enforce the World Court decision so that he could get a
review and reconsideration of his 1994 conviction for one of the most
shocking and despicable murders in recent Houston history.

Far from a sympathetic figure, Medellin was convicted for the rape
and murder of Elizabeth Pena, a young teenage girl whose friend
Jennifer Ertman was killed by Medellin's friends. He was convicted of
doing so, and bragging about it later, after a night of drinking
during a gang initiation ceremony, according to news reports in 1993.
Very little exculpatory evidence has been found, and few people
believe that his conviction was a miscarriage of justice — except for
the fact that police officers did not give Medellin the opportunity
to be in contact with his consulate and notify it of his arrest, a
requirement under the treaty.

Earlier this year, the Supreme Court, in a 6-3 decision and an
opinion written by Chief Justice John Roberts, rejected the argument
that the World Court's decision should be automatically enforced in
the United States judicial system. That view was based upon a series
of analytical legal arguments surrounding the role of the president
to issue such an order, and whether or not a treaty binding the
United States to adhere to the World Court's ruling is enforceable in
the absence of congressional legislation.

All nine members of the Supreme Court agreed that the United States
does have an obligation under the treaty to provide access to
national consulates for foreigners arrested here, even though members
disagreed as to whether rights created by the treaty were enforceable
in U.S. courts.

Lawyers representing Texas in the Supreme Court agreed with the Bush
administration that the United States does have an international
obligation to comply with the World Court's opinion; they just
disagreed as to how that obligation should be enforced. No credible
legal commentators dispute the basic holding of the World Court that
rights were created and that the United States, by the failure of
local law enforcement to provide access to national consulates, was
in violation of the treaty. By his order, the president sought to
shore up our credibility on the matter.

Under the Constitution, Congress and the president decide the foreign
policy of the United States; and in this case, the president decided
that the United States would comply with the World Court's judgment.

There is no doubt in this case that President Bush took into account
the need to show good faith toward foreign nationals to protect the
interests of American nationals, even if it meant granting a
convicted murderer like Medellin a review and reconsideration of his
conviction.

And such a review would simply determine whether Medellin and other
Mexican nationals on death row got what they would have gotten in
terms of access to justice had police officers followed the treaty.

Would such a process result in overturning the verdict? Possibly so,
just like any other reversal of a capital conviction by a higher
court calling for a review and reconsideration in our domestic court
system. But then again, an exoneration of Medellin and the others
mentioned in the World Court's judgment is not likely, as the Texas
state courts would conduct the review of the earlier conviction as
severely as this state's judicial branch's reputation would require.
Chances are that neither Medellin nor others will escape the death
penalty.

Texas has an opportunity now to set all of this right without
sacrificing its view of the role of international court judgments in
its courts and the courts of other states as a result of the Supreme
Court's ruling.

The Texas Board of Pardons and Paroles and Gov. Perry can order a
temporary reprieve of execution while the Texas Legislature produces
legislation allowing review and reconsideration of the convictions.
Such legislation is already before the U.S. Congress. In our great
democracy, passing such laws cannot be done without full debate and
consideration. Given the issues at stake for all Americans, it is
only right that Congress and the Texas Legislature be given the
opportunity to ensure our nation lives up to the promises it made to
its treaty partners.

By granting a reprieve, Gov. Perry and the Board of Pardons will
enhance the reputation of Texas and the United States throughout the
world.

That may not mean much to some, but to the American missionary,
teacher or tourist in Central Asia, in East Asia, Africa or the
Middle East or elsewhere, it just might mean a lot.

Ellis, a Democrat, represents Texas Senate District 13 in Houston.
Jackson is a professor of law at the Texas Southern University's
Thurgood Marshall School of Law and co-director of the school's
Institute for International and Immigration Law.

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