By Houston Criminal Defense Attorney John T. Floyd and Mr. Billy Sinclair


The State of Texas executed two foreign nationals during the week of August 5 and 7, 2008. Both men, Jose Ernesto Medellin and Heliberto Chi, were found guilty of committing brutal murders. There was little doubt about their guilt. Had they not been foreign nationals, their executions would have passed under the Texas execution radar basically unnoticed. This is a sad fact in this great state where executions have become all too common.


But they were foreign nationals and their executions had, and will continue to have, international legal and political implications. The controversy associated with these executions centers on this country’s refusal to honor – if not the intent, the spirit – of its international treaty obligations. The treaty obligation in Medellin’s case involved Vienna Convention which provides that when a person is arrested in a foreign country, the arresting officials have an obligation to inform that person of his/her right to consult with, and seek assistance from, the “consular” of their country. Medellin, a Mexican national, was not advised of his “consular rights” when arrested in Harris County in 1994.


Chi’s case, a Honduran national, involved a different treaty – a 1927 U.S. Bilateral Treaty of Friendship, Commerce and Consular Rights with Honduras. Unlike the Vienna Convention, the Honduran Bilateral Treaty was “self-executing” – meaning the treaty did not require legislation by the United States Congress to have full force and effect. Last March, the U.S. Supreme Court ruled in the Medellin case that the Vienna Convention was not self-executing and, therefore, did not have automatic effect on federal law in this country because Congress had never passed legislation to give rights guaranteed under the treaty full legal force.


The Vienna Convention became a bone of international contention in 2004 when the International Court of Justice, located in the Hague, issued a decision that said the United States had violated the “consular rights” of 51 Mexican nationals convicted of capital crimes in this country and, therefore, they were entitled to a review of their convictions and death sentences. Although his case was not one of the 51 Mexican nationals involved in the ICJ decision, Medellin’s case became the one that ultimately worked its way to the U.S. Supreme Court and led to the precedent ruling that the Vienna Convention was not “self executing.”

Attorneys for Chi immediately saw a constitutional opening in the Medellin ruling because the 1927 Bilateral Treaty between the U.S. and Honduras was “self executing.” That means the “consular rights” involved in that particular treaty were binding on federal law and enforceable in domestic courts in this country.


Terry O’Rourke, who teaches international law at the University of St. Thomas in Houston, represented the Honduran government in the Chi case and was adamant that the 1927 Bilateral Treaty conferred mandatory “consular rights” for Chi.

“Chi [was] a murderer, Medellin [was] a murderer,” O’Rourke was quoted in the Houston Chronicle following Chi’s execution. “But we don’t kill all murderers. We don’t execute all murderers. We do it according to the law. When your state violates international law to kill somebody, it has very negative consequences.”


O’Rourke hit the proverbial nail on the head. Even though the Vienna Convention was not “self executing,” the spirit of the treaty was that any person arrested in a foreign country enjoys “consular rights” that must be respected if the rule of international law is to have any real legal force in the affairs of nations.


Many Americans, and most Texans, clearly resented the Court of International Justice efforts to impose its legal will on this nation’s federal and state courts. That resentment is understandable – especially since none of the 171 nations who ratified the Convention accept ICJ decisions as binding on their domestic courts.


But there are larger international ramifications that must be considered. The majority of the countries in the Western Hemisphere have abolished the death penalty. This has created an international “sore” between America and these countries. While America has historically held itself out to the international community as a moral leader in justice and equity, the death penalty does not square with those principles from the vantage point of those countries that have rejected the punishment. On the issue of the death penalty, the reality is that America now finds itself in an unholy league with nations like China and Iran who have notorious international reputations for brutalizing human rights.


While the writers of this column do not believe opinions from the Court of International Justice are legally binding on American domestic courts, we do feel this country has a fundamental obligation to honor both the intent and spirit of its obligations under international treaties such as the Vienna Convention and particularly the 1927 Bilateral Treaty with Honduras. Certainly in the wake of the Medellin and Chi executions and the international outraged generated by those executions, Texas and other states where “consular rights” are an issue would serve America’s international interests by at the very least conducting fact-finding hearings to determine if a violation of “consular rights” contributed to any foreign nationals receiving the death penalty.


This would not be a pointless legal undertaking. For example, in the Chi case, state prosecutors used the inmate’s bad behavior and misconduct in jail during the “punishment phase” of his trial as evidence that the death penalty was an appropriate punishment. Had Chi been allowed to speak with a representative of the Honduran Embassy immediately after his arrest, it can reasonably be assumed that the representative would have advised him not to engage in any behavior in jail that would prejudice him before an American jury. Like most foreign nationals, Chi knew nothing about the American justice system or that his jail antics could, and would, be used against him by prosecutors to get the death penalty.


Critics of the “consular rights” issue argue – and some with rational, well-meaning intent – that even had Medellin and Chi been advised of their “consular rights,” it would not have changed the death penalty verdicts in those cases. That’s a reasonable argument. Both men committed horrific crimes and apparently immediately confessed to them without any law enforcement duress or manipulation. But it’s still supposition. No one will ever know what kind of assistance the Mexican and Honduran governments could have provided in these cases had they been notified at the outset of Medellin and Chi’s arrests. The historical evidence in this country is overwhelming that wealthy defendants enjoy greater access to “justice” than impoverished defendants. The Mexican and Honduran governments certainly had the resources available to provide Medellin and Chi with immediate legal assistance that would have at least avoided the diplomatic controversies.


The fact that both men were poor, guilty, and foreign nationals should not have precluded them from having the best possible legal assistance in defending against the death penalty. This point is underscored by the fact that Chi’s court-appointed attorneys raised the “consular rights” issue prior to trial but did not present the issue on direct appeal. That failure resulted in the issue being “procedurally defaulted” – meaning that Chi could not raise it in future post-conviction proceedings.


Did this failure by Chi’s appellate counsel sufficiently “prejudice” his client’s rights. We will never know. Had the “consular rights” in the self executing 1927 Bilateral Treaty been presented on direct appeal in Texas courts and then presented in federal habeas corpus proceedings, Chi’s case would have been in the better procedural posture to have “consular rights” issue heard by the Supreme Court than the Medellin case. Would the U.S. Supreme Court have ruled differently on the “consular rights” issue in a case involving a self-executing treaty than the non-self executing treaty in the Medellin case?

Again, we will never know.


But what we do know for certain is that the Medellin and Chi executions are going to have long term consequences on America’s standing in the international community. Death penalty supporters, especially in Texas, may not find this prospect cause for any real concern – but they will if they, or any of their loved ones, are ever arrested in Mexico or Honduras.