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Comments on Criminal Issues
January 4, 2008
THE MEDELLIN CONSTITUTIONAL CRISIS
Houston Criminal Attorney John Floyd Discusses Consular Notification Under the Article 36 of the Vienna Convention
They were called the “Black and Whites” in 1993 – a Harris County predatory street gang. There were eight of them, including Jose “Joe” Ernesto Medellin. It was 11:30 p.m. on the evening of June 24. Earlier in the evening 17-year-old Raul Villareal has been initiated into the gang by fighting a rival gang member. The Black and Whites were in a city park drinking beer and celebrating the outcome of that initiation ritual.
14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena, two students at Houston’s Waltrip High School, left a friend’s house to return to their homes. They took a short cut through the city park which caused them to cross paths with the Blacks and Whites. The gang quickly saw the teenaged girls as prey.
Medellin grabbed Elizabeth and dragged her down a hill. He threw her to the ground when she tried to flee his grasp. The 16-year-old cried out to Jennifer to help her. Ertman, who had managed to run away, returned to help her friend.
The gang members proceeded to brutally rape both girls.
After enduring these brutal sexual assaults, the girls were told that they were about to die. Medellin took off his shoe laces and used them to strangle one of the girls. He also used a red nylon belt to strangle Ertman. To make sure the girls were dead, the gang stomped their lifeless bodies. The gang then fled, leaving the tortured bodies of the two girls in nearby woods where they were found four days later.
The crime was so horrific, and the gang members so bold in their boasting about it, that the brother of one of the gang members tipped the police about the gang’s involvement in it. All eight members were arrested on June 29.
One of the gang members, Derrick Sean O’Brien, who had smiled openly for local news cameras following the arrest, was convicted in 1994 and executed last year. Medellin, and three others, were also convicted and sentenced to death. Two of them had their death sentences commuted in 2005 following a Supreme Court decision that barred execution for those who were seventeen years or younger when their crimes were committed.
Medellin informed the arresting officers that he was born in Mexico. He also informed the Harris County Pretrial Services that he was not a United States citizen.
Article 36 of the Vienna Convention on Consular Relations (“Vienna Convention” 1963) authorizes consular officers to protect the rights of nationals detained in foreign countries. This international provision requires detaining authorities to notify “without delay” a detained foreign national of his/her right to seek assistance from the consul of his own state. Further, if the detained national requests, the detaining authorities must inform the consular post of the national’s arrest or detention “without delay.”
The United States has always demanded strict compliance with Article 36 when Americans have been detained in foreign countries while allowing its own state and local authorities to disregard the article.
In 2003 Mexico brought an action against the United States in the International Court of Justice on behalf 54 Mexican nationals who were then under death sentences in this country alleging violations of Article 36 of the Vienna Convention. See: Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), ICJ No. 128 (March 31, 2004).
Article 92 of the United Nations Charter provides that the ICJ is “the principal judicial organ of the United Nations.” This Charter is an international treaty ratified by over 190 nations, including the United States. Article 94(1) of the Charter requires that each “member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” Further, Article 93(1) provides that all parties to the Charter “are ipso facto parties to the Statute of the International Court of Justice.”
By ratifying the UN Charter, the United States ratified the ICJ and agreed to accept the international court’s judgments as “final and without appeal” and binding “between the parties and in respect to [the] particular case.”
Article 36(1) of the Vienna Convention provides that the ICJ’s jurisdiction depends upon the consent of the parties. In the “Avena” case Mexico invoked the Vienna Convention’s “Optional Protocol” of which both Mexico and United States are parties. Article I of this Protocol provides that “disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.”
The United States not only consented to the ICJ’s jurisdiction in the Avena case but actively participated in the case’s proceedings before court. On March 31, 2004 the ICJ held that the United States had to review and reconsider the convictions and death sentences of the Mexican nationals in the Avena case whose rights under the Vienna Convention had been violated. The ICJ specifically held that the United States had violated its obligations under Article 36(1)(a) in 49 of those cases, including Medellin, “to enable Mexican consular officers to communicate with and have access to their nationals, as well as its obligations under paragraph 1(c) of that Article regarding the right of consular officers to visit their detained nationals.” Further, ICJ held that in 34 of the cases, including Medellin, the United States had also violated its obligation under Article 36(1)(c) “to enable Mexican consular officers to arrange for legal representation of their nationals.”
The ICJ in the Avena case imposed four strict conditions on the United States:
• The review and reconsideration of the cases had to take place in the “judicial process.”
• The review and reconsideration could not be barred by state or federal “procedural default” doctrines.
• The review and reconsideration had to take into account Article 36 violation on its own terms, and not as a violation of some other procedural or constitutional right.
• The review and reconsideration forum had to have the authority of “examining the facts, and in particular the prejudice and its causes, taking account of the violation of the rights set forth in the Convention.”
At the time of Medellin’s arrest and conviction, it was the practice of Mexican consular officers to provide funding for counsel, experts and investigators in capital cases to seek mitigating evidence and to serve as a liaison with the defendant’s Spanish-speaking family members. Medellin was deprived of this Mexican assistance by Texas authorities. His conviction and death sentence were upheld in an unpublished opinion by the Texas Court of Criminal Appeals on March 19, 1997.
On April 29, 1997 Mexican consular authorities received a letter from Medellin informing them that of his capital conviction and death sentence. The Mexican consular authorities immediately secured legal assistance for Medellin, and, on March 26, 1998, this legal team filed a state application for a writ of habeas corpus alleging that Medellin’s conviction/death sentence should be reversed because of the Article 36 violation. The trial court denied the writ application, and on September 7, 2001 the Texas Court of Criminal Appeals upheld that decision.
On November 28, 2001 Medellin filed an application for a writ of habeas corpus in the United States District Court for the Southern District of Texas. In an amended petition filed on July 28, 2002, Medellin once again raised the Article 36 violation. On June 26, 2003 the U.S. District Court denied habeas relief, and on May 20, 2004 the Fifth Circuit Court of Appeals denied Medellin’s application for a certificate of appealability.
It was while Medellin’s case was pending before the Fifth Circuit that the ICJ issued its Avena decision – and even though this decision had not been raised by Medellin, the appeals court took pains to point out that Article 36 was not judicially enforceable in the United States. See: Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004).
Medellin sought, and was granted, certiorari review before the United States Supreme Court on December 10, 2004. The Supreme Court granted this review to decide the issue of whether the Supremacy Clause of the U.S. Constitution required courts in the United States to comply with the Avena judgment issued by the ICJ.
This judicial review, however, was effectively cut short when President Bush issued a directive to the United States Attorney General that this nation would “have State courts give effect to the [Avena] decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals (including Medellin) addressed in that decision..”
In a 5-4 decision, the Supreme Court dismissed Medellin’s certiorari application as “improvidently granted” given the likelihood that he would obtain relief in the state courts based on the President’s directive. See: Medellin v. Dretke, 544 U.S. 660 2005)(per curiam).
The Supreme Court, however, was a bit too optimistic. In a plurality decision issued on November 15, 2006, the Texas Court of Criminal Appeals rejected both Medellin and the United States government’s argument supporting the President’s directive, holding that the President of the United States does not have the authority to impose this nation’s treaty obligation stated in the Avena decision on the state courts of Texas.
That constitutional issue is now squarely before the United States Supreme Court in the Medellin case.
Donald Francis Donovan, counsel of record for Medellin, succinctly outlined the reasons why the U.S. Supreme Court should uphold the President’s directive to apply the Avena decision on state courts:
“It is fundamental that the federal government - not the individual states - is responsible for the conduct of this nation's relations with foreign powers. The President, together with his subordinates in the executive branch, *18 speaks for the United States in these relations. In this case, however, the Texas Court of Criminal Appeals has declared invalid an exercise of the federal foreign affairs power by the President. That decision cannot be allowed to stand unreviewed.
“In his February 2005 determination, the President made clear that his determination to ‘discharge [the] international obligations’ of the United States by giving effect to the Avena judgment was made ‘pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America.’ As the United States has explained, this determination reflects the President's decision ‘that the foreign policy interests of the United States in meeting its international obligations and in protecting Americans abroad justify compliance with the ICJ's decision.’
“The state court, however, held that the President of the United States had no authority to act in this manner. The plurality opinion by Judge Keasler concluded that, in issuing his determination, ‘the President has exceeded his constitutional authority by intruding into the independent powers of the judiciary.’ The plurality recognized that ‘[t]he President's independent foreign affairs power to enter into an executive agreement to settle a dispute with a foreign nation under Article II of the Constitution’ was well established. It nonetheless concluded, however, that the President did not have authority to direct compliance with the result of an existing dispute resolution mechanism - even though that mechanism had been established by treaties ratified by the President with the advice and consent of the Senate. Presiding Judge Keller, concurring, would have gone even further, suggesting that a new treaty would be required before the states must abide by the result of the mechanism set up by the Optional Protocol to the Vienna Convention.
“Notwithstanding the Texas plurality's characterization of the issue as one of ‘separation of powers,’ this case squarely presents an issue of federalism - specifically, the paramount authority of the federal government in matters of international relations. As this Court has made clear, ‘[i]n our dealings with the outside world the United States speaks with one voice and acts as one, unembarrassed by the complications as to domestic issues which are inherent in the distribution of political power between the national government and the individual states.’ Review of the state court's decision in this case, which refuses to enforce an exercise of federal foreign affairs authority, is necessary to give effect to the constitutional ‘concern for uniformity in this country's dealings with foreign nations.’ Allowing the Texas state court to have the last word - or courts of the various states to have several potentially inconsistent last words - on the enforcement of the President's determination that the United States will abide by its treaty obligations would gravely compromise the nation's ‘capacity … to speak … with one voice in dealing with other governments’.” [Internal citations omitted]
In an amicus curiae brief, James A. Thessin, Acting Legal Adviser for the U.S. State Department, and Paul D. Clement, Solicitor General of the United States Supreme Court, outlined the position of the United States government on this issue:
“The Texas Court of Criminal Appeals expressly held that the President exceeded his authority in having state courts give effect to the Arena decision. A majority of the court concluded that the President lacked authority under the treaties, statutes, and Constitution of the United States to ensure that the United States complies with the Avena decision. A state court decision invalidating such an action of the President and effectively frustrating efforts to comply with international treaty obligations clearly warrants this Court's review.
“The President's determination that state courts give effect to the Avena decision was intended to discharge the United States' international law obligation to comply with that decision and reflects the President's considered judgment that the United States' foreign policy interests in meeting its international obligations and protecting Americans abroad require the United States to comply with the ICJ's decision. In setting aside the President's determination, the Texas Court of Criminal Appeals has not only decided fundamental questions of federal law relating to the authority of the President to bring the United States into compliance with its treaty obligations. It has also set a course that, if not reversed, will place the United States in breach of its international law obligation to comply with the Avena decision, leave unresolved the dispute between Mexico and the United States over the treatment of petitioner, and frustrate the President's judgment that foreign policy interests are best served by giving effect to that decision. The importance of the question of the Presidential authority resolved by the Texas Court of Criminal Appeals, and the foreign policy ramifications of that decision, make the need for this Court's review manifest.”
In an amicus curiae brief submitted by the parents of Jennifer Ertman, Kent S. Scheidegger, Criminal Justice Legal Foundation, outlined the best argument for the State of Texas - Medellin’s claims have been either considered on the merits or defaulted after actual notice, and the Texas court properly refused to hear the successive petition:
“In his successive state habeas application, petitioner claimed that the State's noncompliance with the Vienna Convention deprived him of the assistance of the Mexican Consulate in building his case in mitigation at the penalty phase of his capital murder trial. Not a word of this argument appears in his first state habeas petition, filed 11 months after the consulate had actual notice of the case. See Appendix to this brief. Application of the standard Texas rules to this claim violates neither the spirit nor the letter of the Avena decision. Like the Brady claim in Gray, while the violation itself may be considered ‘cause’ not to raise it at trial or on direct appeal, there was no cause for failure to raise it in the first state habeas. Texas's standard procedural rules therefore remain applicable to that default, whether the State is obligated to comply with Avena or not.
“’Nothing the State did or omitted to do here ‘precluded counsel from … rais [ing]’ in the first state habeas proceeding the prejudice petitioner now claims. Therefore, even if this Court concludes that the Texas Court of Criminal Appeals erred in not treating Avena as binding, its judgment should still be affirmed as to all of Medellín's Vienna Convention claims, except the confession claim, on the ground that Avena does not preempt the Texas statute as to these claims. ‘[T]his Court reviews judgments, not opinions ….’
“Petitioner's brief in this Court makes no mention of the only Vienna Convention claim he made in his first state habeas petition, i.e., that his confession was the fruit of a Vienna Convention violation and had to be suppressed. That omission is not surprising, given that the Avena decision which is the central pillar of his argument also demolishes the confession claim. We will discuss it only briefly here, in case it comes up in the reply brief or at oral argument.
“… the state trial court did not rest its rejection of Medellín's Vienna Convention claims on procedural default alone. The court also held, ‘the applicant … fails to show that any non-notification of the Mexican authorities impacted on the validity of his conviction and punishments.’ The Court of Criminal Appeals adopted this finding. Before Avena had even been decided, Medellín had already received the determination of prejudice he now claims to be entitled to.
“Medellín made the same claim again in the Federal District Court. That court rejected the claim on multiple alternate grounds, including the merits. ‘Medellin fails to establish a ‘causal connection between the [Vienna Convention] violation and [his] statements.’ Petitioner has failed to show prejudice for the Vienna Convention violation.’
“The International Court of Justice (ICJ) did not render an individualized determination that the required review had not yet occurred in Medellín's case. In the court below, petitioner maintained that the ICJ had so held in paragraphs 112-113 of the Avena decision, but it did not.
“… the ICJ recaps what it said about the procedural default rule in its previous opinion in LaGrand. After noting that LaGrand had been prevented from effectively challenging his judgment by the procedural default rule, the ICJ states, ‘This statement of the Court seems equally valid in relation to the present case, where a number of the Mexican nationals have been placed exactly in such a situation.’ This equivocal statement does not even specify how many cases it refers to, much less which cases, and cannot be considered a holding in this specific case.
“ … the court notes that the procedural default rule has not been revised since LaGrand, and ‘the procedural default rule may continue to prevent courts from attaching legal significance to the fact, inter alia, that the [Vienna Convention] violation … prevented Mexico, in a timely fashion, from retaining private counsel for certain nationals and otherwise assisting in their defence.’ The actual holding in paragraph 113 is that the ICJ will not consider whether there is a violation of the duty to provide a remedy until all judicial proceedings have concluded. The ICJ therefore did not examine the individual circumstances of any of the cases that had not yet reached that point, including Medellín's case. The United States has already discharged any obligation it may have to consider Medellín's confession claim, and Avena does not hold otherwise.
“…In addition, in light of Avena …rejection of the confession claim by the state and federal courts was clearly correct. The opinion of the Court in Sanchez-Llamas explains why suppression is not required by the Vienna Convention. Justice Ginsburg's concurring opinion explains why suppression was not required under Avena. There is no requirement that notification of the consulate precede questioning, and notification was not overdue at the time Medellín confessed. His confession and its subsequent introduction into evidence were not the fruit of the Vienna Convention violation.
“To make a case for mandatory review of a defaulted claim of prejudice under Avena, the petitioner must establish two causal connections. First, the prejudice he claims must be the result of the Vienna Convention violation. Second, the earlier default of the claim must also be the result of the violation. At least one of these connections fails for each claim in this case. Medellín's confession was not the result of the violation. His failure to bring the claim of prejudice regarding preparation of his case in mitigation in his first habeas petition was not the result of the violation. Whether Avena is binding or not, Texas may lawfully apply its successive petition statute to deny further consideration of this case.
“This case has produced much lofty discussion about international law and the separation of powers. We must not forget, though, that this case is about a real crime against real people. Even in the sordid company of other capital cases, this crime stands out as an act of exceptional, unspeakable savagery and depravity. Two teenage girls suffered unimaginable horrors at the hands of José Medellín and his pack of predators and then had their young lives snuffed out when they had barely begun. Thirteen long years of litigation have followed the rendition of the thoroughly deserved judgment in this case, and most of that litigation has had nothing to do with Medellín's guilt of the crime. Enough is enough. Regardless of how the international law issue is decided, this case can and should end with this Court's decision.”
The Medellin crime was indeed horrific – and if the U.S. Supreme Court can find a procedural route around the constitutional issue squarely before the court, it will probably do so because of the nature of the crime. The rule of law, however, should not be determined by either the circumstances of a particular crime or the reaction of crime victims to it. The rule of law should stand alone, determined solely by the mandate of the Constitution. If the Supreme Court should find in favor of Medellin, the State of Texas certainly has the option to retry the case.
The axiom “justice delayed is justice denied” does not apply in this constitutional crisis. “Justice delayed” for the State of Texas and the parents of the murdered victims is necessary to accommodate the interests of the United States in the world community. The bottom line is this: had the Houston police and the Harris County District Attorney’s office abided by the law in 1993, there would be no constitutional crisis today in the Medellin case.
SOURCES: On Petition for Writ of Certiorari to the Court of Criminal Appeals of Texas, Petition for Writ of Certiorari, Donald Francis Donovan, (Counsel of Record), Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York 10022-3916, Attorneys for Petitioner; Brief for the United States as Amicus Curiae Supporting Petitioner, James H. Thessin, Acting Legal Adviser, Department of State, Washington, D.C. 20520-6310 and Paul D. Clement, Solicitor General, Counsel of Record, Washington, D.C. 20530-0001; Brief Amici Curiae of Randy and Sandra Ertman and the Criminal Justice Legal Foundation In Support of Respondent, Kent S. Scheidegger Criminal Justice Legal Fdn., 2131 L Street,Sacramento, CA 95816, Attorney for Amici Curiae
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