USA (Texas) Jose Ernesto Medellin Rojas (m), Mexican national, aged 33

URGENT ACTION APPEAL
- From Amnesty International USA

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17 July 2008

UA 204/08 - Death penalty / Legal concern

USA (Texas) Jose Ernesto Medellin Rojas (m), Mexican national, aged 33

Mexican national Jose Medellin is due to be executed in
Texas on 5 August 2008. He was sentenced to death in 1994
for his part in the murders of two girls, 14-year-old
Jennifer Ertman and 16-year-old Elizabeth Pena, in Houston
in 1993.

Jose Medellin, who has been on death row for 14 years, was
barely 18 years old at the time of the crime (two co-
defendants who were 17 subsequently had their death
sentences commuted after the US Supreme Court outlawed the
death penalty for under-18-year-olds in 2005). He was never
advised by Texas authorities of his right as a detained
foreign national to seek consular assistance, as required
under article 36 of the Vienna Convention on Consular
Relations (VCCR). Because of this treaty violation, Jose
Medellin was deprived of the extensive assistance that
Mexico provides for the defense of its citizens facing
capital charges in the USA. The Mexican Consulate did not
learn about the case until nearly four years after Jose
Medellin's arrest, by which time his trial and the initial
appeal affirming his conviction and death sentence had
already concluded.

According to his clemency petition, during the investigation
and prosecution of Jose Medellin's case, his court-appointed
lead lawyer was under a six-month suspension from practicing
law for acting unethically in another case. He continued to
represent Jose Medellin while suspended. Prior to the trial,
the lawyer was held in contempt of court and arrested for
violating his suspension. Time that should have been spent
preparing his client's defense went instead to preparing and
filing a habeas corpus petition to keep himself out of jail.
Records indicate that the only investigator for the defense
spent a total of just eight hours on the case prior to the
trial. The defense failed to oppose the selection of jurors
who indicated that they would automatically impose the death
penalty. Jose Medellin's lawyers called no witnesses during
the guilt phase of the trial. At the sentencing phase, their
presentation of mitigating evidence lasted less than two
hours.

An investigation funded by the Mexican Consulate has found
that Jose Medellin grew up in an environment of abject
poverty in Mexico and was exposed to gang violence after he
came to Houston to join his parents when he was nine. It has
also established that he suffered from depression, suicidal
tendencies and alcohol dependency. If his trial lawyers had
sought consular assistance, experts and investigators could
have been retained by the Mexican Consulate to present the
full range of mitigating evidence to the sentencing jury. In
addition, consular monitoring of the case in the pre-trial
stages could have exposed and remedied the inadequate legal
representation that Jose Medellin was receiving.

On 31 March 2004, the International Court of Justice (ICJ)
ruled in Avena and Other Mexican Nationals that the USA had
violated its VCCR obligations in the cases of Jose Medellin
and 50 other Mexican nationals on death row in the USA. As
the necessary remedy, the ICJ ordered the USA to provide
judicial review and reconsideration of the convictions
and sentences, to determine if the defendants had been
prejudiced by the VCCR violations. On 28 February 2005,
President George W. Bush responded to the binding ICJ
decision by seeking to have the state courts provide the
necessary review and reconsideration in all of the
affected cases. The Texas Court of Criminal Appeals later
ruled that the President lacked the constitutional authority
to order state court compliance and that the Avena decision
was not enforceable in the domestic courts.

Jose Medellin's lawyers appealed to the US Supreme Court.
Although the State of Texas argued to the Court that the
President had overstepped his authority, it acknowledged
that Nobody disputes that the United States has an
international law obligation to satisfy Avena. On 25 March
2008, in Medellin v. Texas, the Supreme Court unanimously
found that the ICJ's Avena decision constitutes an
international law obligation on the part of the United
States. The Court also unanimously agreed that the reasons
for complying with the ICJ judgment were plainly
compelling, since its domestic enforcement would uphold
United States interests in ensuring the reciprocal
observance of the Vienna Convention, protecting relations
with foreign governments, and demonstrating commitment to
the role of international law. However, a 6-3 majority
ruled that the ICJ's decision is not automatically binding
domestic law and that the authority for implementing it
rested not with the President but with the US Congress. In a
concurring opinion, one of the Justices urged Texas to
recognize what was at stake and to do its part to ensure
compliance with the USA's international obligations (see
USA: Government must ensure meaningful judicial review of
Mexican death row cases, 27 March 2008,
http://www.amnesty.org/en/library/info/AMR51/025/2008/en).
In a joint letter to the Texas Governor, Rick Perry, on 17
June 2008, US Secretary of State Condoleezza Rice and US
Attorney General Michael Mukasey called on Texas to take the
steps necessary to give effect to the Avena decision.

On 14 July 2008, a bill known as the Avena Case
Implementation Act was introduced in the US House of
Representatives. Under its terms, Jose Medellin and other
affected foreign nationals would be granted access to
appropriate remedies through the domestic courts for
VCCR violations, including the reversal of the conviction
or sentence, where appropriate The bill has been referred
to the House Judiciary Committee for review, but
insufficient time remains for it to be passed into law
before Medellin's scheduled execution. Similar legislation
is expected to be introduced in the Texas Legislature when
it reconvenes in early 2009. On 16 July 2008, the ICJ
issued provisional measures in the cases of Jose
Medellin and four other Mexican nationals facing execution
in Texas (the other four do not currently have execution
dates). The ICJ ordered the United States to take all
measures necessary to ensure that these individuals are
not executed¦ unless and until these five Mexican nationals
receive review and reconsideration. The Inter-American
Commission on Human Rights has also issued precautionary
Measures calling on Texas not to execute Jose Medellin
until the Commission has ruled on his petition asserting
that he was deprived of a fair trial. There have been 1,111
executions in the USA since judicial killing resumed there
in 1977, 407 of them in Texas. There have been 12 executions
in the USA so far in 2008, two of them in Texas.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible (please include Jose Medellin's prisoner identification number, TDCJ # 999134):

- expressing sympathy for the relatives of Jennifer Ertman
and Elizabeth Pena, and explaining that you are not seeking
to excuse the manner of their deaths or to downplay the
suffering caused;

- expressing concern that the violation by Texas authorities
of its duty to inform Jose Medellin of his right to obtain
assistance from the Mexican Consulate may have severely
undermined the fairness of his trial and the adequacy of his
defense;

- pointing out that the US Supreme Court, the State of Texas
and the US Government all agree that there is a binding
legal obligation to comply with the decision of the
International Court of Justice ordering review and
Reconsideration of the consular treaty violation in Jose
Medellin's case;

- noting that the US Congress is currently reviewing
legislation that would implement the ICJ decision;

- calling for clemency for Jose Ernesto Medellin, and that
he at least be granted a reprieve from execution to provide
time for federal and state legislators to comply with the
USA's international obligations in his case.

APPEALS TO:

Rissie L. Owens, Presiding Officer,
Board of Pardons and Paroles,
Executive Clemency Section
8610 Shoal Creek Boulevard,
Austin, TX 78757
Fax: 1 512 463 8120

Salutation: Dear Ms Owens

Governor Rick Perry,
Office of the Governor,
P.O. Box 12428,
Austin, TX 78711-2428
Fax: 1 512 463 1849

Salutation: Dear Governor

PLEASE SEND APPEALS IMMEDIATELY.

Check with the AIUSA Urgent Action office if sending appeals after 5 August 2008.

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Thank you for your help with this appeal.

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END OF URGENT ACTION APPEAL
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