Wednesday, the U.S. Supreme Court hears arguments in a case that has ugly all over it:
- The near unbearable ugliness of a crime by a group of savages, the leader of which finds himself with a hearing before the most exclusive court in our land;
- The potential ugliness of an outcome allowing a foreign court virtual veto power over criminal judgments of the courts of Texas and other states; and
- The continued ugliness of indiscriminate attacks on a President by those who once supported him but now bitterly accuse him of the vilest intentions and deeds, up to and including treason.
The crime was a group rape and murder of two girls by a subhuman gang, including Jose Medellin, the Petitioner in the Supreme Court. The 1993 atrocities resulted in a conviction and death sentence, followed by numerous proceedings through state, federal and international courts.
All domestic tribunals have affirmed Medellin’s sentence. It is the decision of the international court concerning enforcement of a treaty ratified by the United States decades ago – along with the President’s efforts to compel enforcement of that decision – which led to this Supreme Court hearing.
Article 36 of the Vienna Convention on Consular Relations (1963) states that consulates in a foreign country shall have access to their citizens while in that country, and any communication addressed to a consular office by a person under arrest “shall be forwarded . . . without delay.” Further, the arresting “authorities shall inform the person concerned without delay of his rights under this subparagraph; ….”
It is apparently undisputed that Medellin was not informed as required by the treaty. It is also true he did not raise this in his defense at the trial level.
Years later, through involvement of the Mexican government, the case of Medellin and over 50 others reached the International Court of Justice. In March 2004, the ICJ issued its ruling (opinion here).
NOTE: As an attorney, I am interested in and want to provide links to source documents and my own thoughts on the law; if you are more interested in the politics of the case, skip ahead to where noted, below.
Contrary to much partisan myth-making, the Court did not purport to set aside Medellin’s conviction or sentence; in fact, the Court rejected Mexico’s position that “partial or total annulment of conviction or sentence provides the necessary and sole remedy.” (Opinion, para. 123.) Likewise, it refused to accept Mexico’s argument that consular communication is a fundamental human right and is required for due process in criminal proceedings. (Para. 124.)
However, the Court found that the U.S. had violated the convention and held that U.S. courts must provide a judicial review of the conviction and sentence and take into account the prejudice resulting from the violation of Article 36. In doing so, the Court indicated that Texas procedure regarding limitations on habeas corpus review, including the notion that Medellin had waived the complaint by not raising it at trial, could not bar the required review. (See the discussion in paras. 113-140.)
Notably, the Court stated it was not assessing the “correctness” of the conviction or sentencing, as it was left to the United States courts to determine if the Article 36 violation led to an improper conviction. (Para. 122.) In essence, the Court held only that the United States Courts should provide hearings to review whether the failure to advise Medellin of his consular rights led to his conviction.
After Medellin had filed his first brief with the Supreme Court (in a previous 2005 appeal), President Bush issued his Presidential Memorandum indicating that the state courts should give effect to the ICJ ruling. The United States filed an amicus curiae brief in that prior proceeding, which presented the President’s view that enforcement would protect the interests of US citizens abroad, and reinforce the commitment of the US to the rule of law. (See pages 8-9).
Again, the President did not suggest that the conviction or sentence was wrong, or should be overturned. He simply said the state courts should provide for judicial review of the effect of the violation of the treaty as discussed by the ICJ.
In fact, the U.S. brief was actually filed against Medellin claims as to international law, and went to great pains to argue that the ICJ opinion was not privately enforceable and the Vienna Treaty gave Medellin no individual rights; only the President’s determination, in his conduct of foreign policy, to enforce the ICJ opinion required the new hearings in state courts. (Almost 28 pages of the brief are devoted to arguments against Medellin’s claims under the Vienna Convention and ICJ ruling, and 10 pages are spent arguing the state court review is nonetheless required by virtue of the President’s decision.)
In the Supreme Court, Medellin argues that the United States’ agreement to the treaty and ICJ jurisdiction constitutes federal law which the state is obliged to follow, and which can be enforced by the President. (See Medellin’s brief, here.) These arguments seem to me to advocate the creation of a “Miranda-plus” safeguard for foreign nationals, building in an extra layer of procedural protection not available to United States citizens.
Among other things, Texas argues that the Presidential Memorandum violates separation of powers, invades the sovereignty of the states, and cannot pre-empt state law. Texas further asserts that the Vienna Convention does not create individual rights – instead they are enforceable only politically and diplomatically, through the UN Security Council. (See Texas’ brief, here.)
NOTE: Legalese ends; political discussion begins.
As far as the President is concerned, the case has provoked anger, outrage and misinformation – perhaps better characterized, in some respects, as propaganda. It has fueled yet another broadside by conservatives against President Bush, who, by now, owing largely to his profligate spending and heavy-handed attempts to force amnesty for illegal aliens down the throats of an unwilling America, has all but scattered his one-time majority coalition like leaves in a gale.
Though I have been generally unwilling to defend the President on any front since he backhanded his base with his strident behavior during the immigration fiasco, intellectual honesty compels us to look at the real facts of this – not just the shrill rhetoric of Bush bashers and right wing bloggers – and determine if the harsh claims being made against him are fair, or rather dishonest or ignorant attacks.
It is too easy (and silly, really) to flippantly say that Bush has taken this stance because he “likes” Mexicans better than Americans, or because he has sold out the sovereignty of this country to Mexico, or that he is willing to enforce the rights of Mexicans over the rights of Americans (if that were the case, Governor Bush could have pardoned Medellin long ago). With a little information, and an even relatively objective eye, one sees it’s just not that simple.
While he may be wrong (and, in fact, I think he is and hope the Supreme Court will so find), Bush has legitimate concerns about how this country treats its treaty obligations, and what the effect of that treatment will be – not for foreign nationals – but for United States citizens.
There are two main arguments that lend credence to Bush’s action.
First, surely Americans believe the collective word of the US – given through its Legislative and Executive branches – should count for something. Bush expresses a real worry about the credibility of this nation, in the eyes of friend and foe alike, if we enter into international agreements with our fingers crossed behind our backs.
To approve treaties such as the Vienna Convention, and the operation of the International Court of Justice, only to ignore those terms and decisions we don’t happen to agree with, makes others consider us no more trustworthy than the petty dictatorships and totalitarian regimes we repeatedly accused of treaty-breaking in the 20th century. If we don’t want to be held to our word, let’s not give it (a sound prinicple, in my book). If we don’t like the way the treaty is enforced, let’s get out of it. But let’s not pretend to be committed to and bound by an international agreement and then refuse to recognize its effect.
Second, and perhaps more importantly, is the concern Bush has expressed for United States citizens when they are abroad.
Each year, an estimated 6,000 United States citizens are charged with crimes in other countries. If the US will not conform to treaty obligations with respect to foreign nationals in this country, do we really expect many other countries to live up to those same obligations? If we do not provide the required access of a Japanese citizen to his consulate, can we cry foul when a U.S. citizen is held incommunicado – perhaps held even unbeknownst to the U.S. government – in Tokyo? These protections are intended not just to apply to a guilty Medellin in Texas, but also an innocent John Doe in any other signatory country.
In the uproar over the President’s intervention, I have seldom heard these factors discussed, let alone treated even-handedly.
Moreover, Bush’s detractors usually fail to mention that he was so displeased with the ruling that he subsequently decreed the U.S. would no longer be party to that portion of the treaty which made ICJ rulings the final say in such international disputes. (That decision only applies to future cases.) But then, an honest recognition of all the facts might tend to make him look less than the public enemy many insist he is.
Even the State of Texas does not deny the treaty obligations, but argues Medellin has no individual right to enforce them. Texas’ arguments may well carry the day. (Having read both briefs, and while disclaiming expertise in Constitutional law, I think the State clearly got the better of the argument.)
One encouraging sign is that, just last month, the infamously liberal Ninth Circuit Court of Appeals held that the Treaty created no individual rights.
And Texas Senator John Cornyn (who filed an amicus brief against Medellin during an earlier hearing in the Supreme Court), once again on the opposite side from the president, wrote in a National Review article in 2005 that we cannot let foreign courts dictate the operation of judicial proceedings in this country. (This is, btw, yet another sign that Sen. Cornyn’s positions on relations wih Mexico are not as simple and “cowardly” as his far-right critics frequently like to portray.)
Of course, the Supreme Court, which granted Medellin’s petition to hear the case, has the final say. If it rules for Texas, Bush will have been proven wrong in his interpretation of Presidential power.
But that is a far cry from the petulant and almost embarrassing tirades of those who say this is all part of “Jorge” Bush’s plan to sell out the U.S.A.
Many seem to be more interested in denigrating Dubya than in making logical arguments of their own. Indeed, the rise of discontent with this President has seemed to blur the reason and judgment of otherwise fair-minded men, to the point that a civil discussion, let alone rational analyses, is nearly impossible.
And for whatever other problems he can be blamed, loss of our willingness to reason is not among them.
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Wow. Very good post, Rick. People simply cannot think rationally when discussing GW or the border. Combine the two and you get total loss of reason.
Job well done, Rick. I would strongly encourage everyone to read the complete post and not skip the legal portion. It is clearly written and not, as Rick put it, legalese.
Shortly before I became a contributor, we had quite a discussion and debate here on LST about this very subject. I tried lay out the history and facts of the case. I also made the comment at the time the President and his team would have picked any case but this one on which to stake a constitutional claim. They didn’t get to choose - the government of Mexico did.
Excellent post, Rick. Agree with BJ #1. Too many conservatives have been whipped into an apparently permanent froth over “comprehensive immigration reform” (amnesty no matter how you disguise it) and the agonizingly incomprehensible squishiness on border control, border patrol and county law enforcement, and relations with Mexico.
Outrage on those matters is absolutely justified in my opinion. But the heat of that correct outrage is leaking over to cloud rational thought on other matters involving President Bush’s opinions and exercse of executive power, pretty much except for the veto of runaway liberal legislation and in making war on the islamofacists, which is greeted with relief.
I fear conservatives are in danger of becoming schizoid, which will only help the socialist liberals. We all have to look carefully before we leap to conclusions these days. It is not solely the devil who inhabits the details.
Great post!!
I have a couple of questions since you do seem to know a lot about the case.
Was Jose Medellin here illegally?
Does that affect the treaty?
How would that apply to US citizens if in another country? Meaning if I was in Mexico illegally and committed a crime, would I still have this option to get counsel from the American consulate, or would they treat me differently since I was not legally in the country?
4.
My understanding is that Medellin was not a legal resident. He had come here as a boy and attended U.S. schools since elementary schools. That information comes from other sources, as his legal status is not mentioned in either his brief or the State’s.
Article 36 of the treaty does not mention legal status, thus it applies to any foreign national and a country should NOT treat an illegal different than a legal under the treaty (but who knows what goes on some places?).
Sometimes I think that we as a Nation are no longer capable of reasoned debate. We determine who the enemy is first, and then find the evidence to convict them. Bush seems to be trying to uphold our treaty obligations, even when it means doing unpopular things. To me, that is the right thing to do, however, it also seems he has some really bad advisers explaining these things to him. Hopefully the worst that will come out of this is re-sentencing, and not a retrial.
RickG:
Excellent post.
As always, a lot of these situations are more complex than what first meets the eye. This is further supported by the Supreme Court getting involved (they don’t take every case presented to them).
I would also like to add that the crime Medellin was convicted of was particularly gross and heinous. I know that I was very “touched” by it and would tell others that, “some people don’t deserve to breathe air on this planet, even if it’s polluted - especially these guys”. (My skin still crawls when I recall some of the particulars of this crime.) Didn’t Medellin try to kick reporters when he was being “perp walked” to police station that he was going to be booked in and held (it may have been one of the other perps)…?
I understand the rational side of this of wanting to make sure every letter of the law has been followed, but this guy is using the system, including
having his own web site (as part of the Canadian Coalition Against the Death Penalty)..
If ever a crime deserved the death penalty, this is it. He deserves to be dispatched ASAP. As soon as this “loop hole” is closed out.
The most important thing in this? Remember the victims, Jennifer Ertman(14) and Elizabeth Pena(16) and their parents. Please say prayers for them.
I know that the rational side says that this further legal wrangling must be done, but I can’t help but feel that Jennifer and Elizabeth are being victimized again….
It seems that any foreigner, especially ones like Medellin, who came to this country when they were a child and, unless they inform the court, would have 2 chances at freedom. If they lose in the first trial, they simply say that they are a foreigner who was denied access to their consulate. Nevermind that they never mentioned that they were not from the U.S. It think that this treaty should only apply if the accused informs the court/cops/etc. right away that they wish to exercise their right to consulate counsel. Otherwise, too bad.
I’m actually hoping that the court rules in favor of President Bush.
If we are honor bound to follow this treaty that we have signed, then we must determine the citizenship of every criminal apprehended by the police.
Think of it, we can use this treaty to eliminate sanctuary cities. By this treaty, we have sworn to inform all foreigners that they are allowed legal access to their consulate. That cannot happen unless the police verify the citizenship of all perps they apprehend.
Eliminating sanctuary cities would be a huge step in fixing the illegal alien problem we currently have. I say we follow this treaty to the letter and found out just who is a citizen and who isn’t.
On the case itself, it seems that either way, the scumbag will fry for his vile actions. As long as justice is done, I will be happy.
If you remember a few months ago when we first discussed this case, a lot of commenters were screaming that Bush was going to give Medellin a pardon. It took all day for everyone to get to the truth. I’m glad that isn’t happening today.
As I understand it, the US courts are only concerned whether the violations of the treaty had a direct effect on the outcome of the verdict. I would be shocked if they rule that it did. I believe Mr. Medellin is not much longer for this world.
If the issue is the death penalty, or lack thereof, then, if TX loses, they should be able to incarcerate him for life in the exact same conditions he would find in a Mexicao prison. As a matter of fact, maybe we could actually build a Mexican prison over the border and house our illegal residents there, or just rent a jail cell for him
Even if the Supreme Court sides with Bush (or with Medellin for that matter, as their positions are apparently a little different), the course seems clear: Texas has its evidentiary hearing to assess the prejudicial effect of the treaty violation, finds that the error was harmless and sets an execution date. Bush has already said the ICJ judgments won’t be considered binding in the future, so unless the Texas hearing is a mere sham, wouldn’t that end it?
Has Jorge w been evaluated to see whether he is clinically insane?
Why is he so concerned with a treaty when he could care less about our immigration laws. He does not believe in the rule of law as he has shown the last 7 years.
His immigration policy is based on his feelings not his duty. Again he picks and chooses which is why he has Zero credibility.
Maybe he can pray to Allah for more guidance.
Rick, I gave you props for an excellent post here on Grits.
Yeah, all these intellectual-procedural-limbo tricks make for some fancy conversation over paper cups filled with the finest Brandy but as this pin-head sees it… no-harm no-foul. Did he kill? Yes. Shall Texas punish? Yes.
I know it is late, but I just got home from work.
In law there are two tenets that must be observed. The first is the letter or intent of the law and the second is equity. The fact he did not or was not allowed to contact is Embassy or Counselor does not affect the out come of the trial.
This post was written by an attorney so he addresses it as an attorney. Since I am part of the criminal justice system I am well acquainted with the way attorneys defend their clients. A good attorney will use everything in their power to get their client acquitted. If I were charged with a crime I would expect my attorney to do everything possible to get me found not guilty of the crime I was alleged to commit.
This is what is called the letter or intent of the law.
But there is another part of the law that is often overlooked and that is equity (justice). This is the justice that the victims, Jennifer Ertman and Elizabeth Pena and their families so justly deserve. The President should’ve simply told the court that the fact that the perpetrator was not allowed or did not contact a representative of his government would not have affected the outcome of the trial and then not interfered with the execution of the criminal illegal alien Jose Medellin.
I am too suspicious of the MEXICAN connection. President Bush has lost his integrity with me and a host of other people of the United States.
I disagree with this comment strongly: “I can’t help but feel that Jennifer and Elizabeth are being victimized again”
Respecting the rule of law honors the victims. Medellin may be a vicious killer, but our society should not emulate HIS values.
We can and should pursue justice, equity, whatever you want to call it, but “Vengeance is mine, saith the Lord.”
Same story, different President, and familiar governor. What happens when the shoe is on the other foot….?
http://www.cnn.com/US/9812/09/texas.execution/
Is Bush a hypocrite I ask?
18.
It’s not the same story. There are lots of differences.
I hate the thought of that rotting carcass to our south having any say in any thing we do.