From Scotus BLOG :
Move to head off Medellin execution
Friday, August 1st, 2008 1:58 pm | Lyle Denniston
FURTHER UPDATE 4:50 p.m. The Texas Court of Criminal Appeals has now refused to issue a stay of the execution and has dismissed the latest state court challenge. Links to the Court’s order, along with separate opinions, can be found here. This appears to mean the execution of Jose Ernesto Medellin can occur Tuesday, unless there is action either by the Texas governor, who has a clemency plea before him, or by the Supreme Court. One judge on the Texas court, Judge Tom Price, urged the governor to grant a reprieve.
Lawyers for a Mexican national on death row in Texas, who is at the center of a long-running international dispute over enforcing treaty rights, filed a flurry of legal pleas at the Supreme Court Friday morning, seeking to head off his execution next Tuesday. The papers in the case of Jose Ernesto Medellin — a case that has been before the Court twice previously — included a new appeal, a request for an extraordinary habeas writ, and a request to pull back a ruling earlier this year that rejected a prior appeal. Until action is taken on those challenges, his lawyers asked the Court to order a delay of Medellin’s execution for the gang rape and murder of two Houston teenagers 15 years ago.
The stay application (08A99) can be found here, the petition for certiorari (08-5573) is here, the petition for a writ of habeas corpus (08-5574) is here, and the motion (08A98) to recall and stay the Court’s mandate in Medellin v. Texas is here. The appendix to the two petitions (a large document) is here.
The World Court (formally, the International Court of Justice at The Hague, Netherlands) has twice ruled that the U.S. has a duty under the Vienna Convention on Consular Relations to provide a way for foreign nationals convicted of crimes in the U.S. and facing the death penalty to challenge the denial of their rights to consult with diplomats from their own country. In its most recent ruling, on July 16, the World Court told the U.S. government to act to stop the executions of Jose Medellin and four other Mexican nationals on death row in Texas (this ruling is discussed in this post).
In the Supreme Court’s most recent action March 25 on Medellin’s case (docket 06-984), it ruled by a 6-3 vote that, while the U.S. was bound by the Vienna Convention, Congress had not taken steps to provide for its actual enforcement in the U.S. It also ruled that President Bush did not have the authority on his own to order Texas or any other state to comply with the World Court ruling and give foreign nationals a new chance to challenge their conviction and sentences.
In asking the Court on Friday to pull back that decision, Medellin’s counsel said they were not seeking to reopen the issues resolved there, but rather wanted it kept on hold “to allow Congress a reasonable opportunity to implement legislation consistent with the Court’s decision in that case.”
The papers do not specify any specific time period to allow Congress slatuand the Texas legislature to take action, but they do note that Congress it not expected to act during this year on a proposed measure to enforce Vienna Convention rights, and the state legislature in Texas does not meet again until January. (In a clemency plea to Texas’ governor, Medellin’s lawyers have asked for a 240-day reprieve.)
“In the four months since this Court’s decision in Medellin v. Texas,” his lawyers said in one of the filings, “federal and state actors have been engaging in unprecedented efforts to find an alternative and expeditious means of implementing the United States’s obligations under” the World Court rulings. “The [U.S.] House of Representatives has introduced legislation, the Secretary of State and Attorney General have called upon Texas to work with the federal government to avoid a breach of its treaty commitments, a Texas senator has promised to introduce legislation to implement [the World Court decision] as soon as the Texas Legislature reconvenes, and leaders of the diplomatic and business communities have warned that Mr. Medellin’s execution could have grave consequences for Americans abroad.”
The Court, the attorneys added, “must not allow Texas to subvert Mr. Medellin’s constitutional rights and the compelling institutional interests of Congress and the Executive in a race to execution.”
If the execution goes forward now, the attorneys asserted, “Texas will effectively usurp the institutional prerogative of the federal political branches — advocated by Texas in Medellin v. Texas and confirmed by this Court — to determine whether and how to give domestic legal effect to the treaty obligations of the Nation.”
Since the Supreme Court’s decision in March, there have been these developments, according to the two petitions on Friday:
** A state judge on May 5 ordered a new execution date set for Medellin; the actual date is next Tuesday.
** On June 5, Mexico returned to the World Court, claiming that all parts of U.S. government — national and state — have been involved in violations of the Vienna Convention, so all must take steps to prevent the imminent executions of Medellin and four others in Texas. That led to the World Court’s July 16 order that the executions of those five be put off while that tribunal considers Mexico’s new claim.
** On June 17, U.S. Attorney General Michael B. Mukasey and Secretary of State Condoleeza Rice wrote to the governor of Texas, Rick Perry, asking for help to carry out the World Court ruling in Texas. Gov. Perry replied that it was up to the federal government to comply with international obligations.
** On July 14, leading Democrats in the U.S. House of Representatives introduced a new bill to create rights for Medellin and others covered by the World Court’s rulings.
** On July 24, the Inter-American Commission on Human Rights, a part of the Organization of American States, issued a preliminary report finding that Medellin’s rights were violated by denial of access to Mexican diplomats while his case went forward to Texas courts.
** On July 22, a federal judge turned down a reopened habeas challenge by Medellin, based on his Vienna Convention rights, finding that he had no legal right to pursue that new claim without first getting permission from the Fifth Circuit Court.
** On July 28, after the federal habeas plea was dismissed, Medellin’s lawyers filed a new challenge in the Texas Court of Criminal Appeals. According to Friday’s filing in the Supreme Court, that state court had not yet ruled, leading his attorneys to go ahead with their petition to the Supreme Court because the execution was imminent and they sought relief in the event the state court turned them down prior to Tuesday. (UPDATE 4:50 p.m. Friday: The Court of Criminal Appeals, in an opinion dated Thursday, dismissed this latest challenge and refused to stay the scheduled execution on Tuesday.)