Thursday, 7 August 2008

A Renewed Focus on Consular Notification and Heliberto Chi

A Renewed Focus on Consular Notification and Heliberto Chi

With the clock ticking toward's a 6:00 p.m. death warrant and legal papers filed at the Supreme Court, there is a new focus on the Chi case.

At The BLT, Tony Mauro posts, "Supreme Court Weighs Another Texas Execution."

What makes Chi's case different from Medellin's, according to lawyer Morris Moon from the Texas Defender Service, is that Chi is covered by a separate treaty between Honduras and the United States, not just the broad-based Vienna Convention on Consular Relations of 1963.

The bilateral treaty is self-executing, Moon's brief argues, meaning that once it was ratified, it did not require further action by Congress to enforce its provisions. The Vienna treaty, by contrast, was deemed by the Supreme Court in Medellin v. Texas not to be self-executing, giving it no power to keep Texas from proceeding with its exeuction. "Nonetheless, [Chi] faces execution in a matter of hours without any court having addressed the merits of his interpretation" of the treaty, Moon writes. The plea is before Justice Antonin Scalia, who handles emergency applications from the U.S. Court of Appeals for the 5th Circuit, but he can bounce the case to the full court.

Ashby Jones posts, "Two Days After Medellin Execution, Similar Issues Back at High Court,"at the Wall Street Journal Law Blog.

All those who found the case of Jose Medellin compelling might want to pay attention for the next several hours to the latest death-penalty showdown that’s landed on the U.S. Supreme Court’s doorstep. It involves a Honduran national named Heliberto Chi, who was sentenced to death in Texas for a 2001 killing.

As was the case with Medellin, who was executed by lethal injection on Tuesday, Chi was not notified of his right to seek assistance from his consulate after he was arrested, a violation of the Vienna Convention on Consular Rights.

But there exist two main differences between the cases, one which would seem to weigh in Chi’s favor, one against. (Click here, here and here for background on the Medellin case.)


There’s some intuitive appeal to Chi’s argument, at least assuming that the Honduran treaty is, in fact, self-executing. But a stay of his execution is still likely a longshot. Yesterday, in a concurring opinion addressing the argument, a justice on the Texas Court of Criminal Appeals said Chi “faces an insurmountable burden” in raising his challenge at this stage. Writes Scotusblog: “The burden [Justice Tom] Price cited included the Supreme Court’s ruling in 2006 in Sanchez-Llamas v. Oregon (another Vienna Convention case) saying that a treaty could override state procedural rules only if the agreement contained a clear statement doing so. Price found no such statement.”

Still, Wes Ball, Chi’s attorney, is hopeful, citing the Court’s 5-4 ruling allowing Medellin’s execution to go forward. “All we need is to persuade one of those five justices,” he told the Law Blog. “I think the argument we have is a good one.”

Earlier coverage is here.

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