Urgent action Jose Medellin

http://www.josemedellin.info/legal/urgentaction.htm

http://www.josemedellin.info/legal/uaa20408.pdf

Amnesty International's mission is to undertake research and action focused on preventing and ending grave abuses of the

rights to physical and mental integrity, freedom of conscience and expression, and freedom from discrimination, within the

context of its work to promote all human rights.

UANetwork Office AIUSA 600 Pennsylvania Ave SE, Washington DC 20003 T. 202.544.0200 F. 202.675.8566 E. uan@aiusa.org amnestyusa.org/urgent/

17 July 2008

UA 204/08 Death penalty / Legal concern

USA (Texas) José Ernesto Medellín Rojas (m), Mexican national, aged 33

Mexican national José Medellín 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.

José Medellín, who has been on death row for 14 years, was barely 18 years old at the time of the crime (two codefendants

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, José Medellín 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 José Medellín’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 José Medellín’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 José Medellín 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. José Medellín’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 José Medellín 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 José Medellín 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 José Medellín 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.

José Medellín’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 Medellín 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, José Medellín 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 Medellín’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 José Medellín 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 José Medellín 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 José

Medellín’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 José Medellín 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 José Medellín’s case;

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

- calling for clemency for José Ernesto Medellín, 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.