Supreme Court to hear International Death Penalty Case

Decision Expected by July, 2005

The Supreme Court agreed today to decide whether the federal courts must give a hearing to a Mexican death-row inmate in Texas who says the state violated international law by trying him for murder without first notifying Mexican diplomats who might have helped him.

The case, which has attracted worldwide attention, is seen as a test of the willingness of the judicial branch of the U.S. government to accept an international institution's authority at a time when the executive branch under President Bush is taking criticism from many quarters abroad for operating unilaterally in world affairs.

The fact that it arises in the context of the death penalty, for which the United States in general and Texas in particular are under fire in Europe and Latin America, adds to its potential international impact.

The case marks the Supreme Court's first opportunity to respond to a March 31 decision by the International Court of Justice (ICJ) in the Hague, which ruled that the United States had violated the Vienna Convention on consular relations in the case of the Texas inmate, Jose Ernesto Medellin, and 48 other Mexican nationals on death row.

The application of the Vienna Convention to criminal cases is no small issue in the United States, where the population includes millions of noncitizens. Including the Mexicans directly involved in the ICJ ruling, there are 118 foreign nationals on death row in the United States, from 32 countries.

The court received friend-of-the court briefs from the European Union, Argentina, Bolivia, Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, Uruguay, Venezuela and Mexico, all urging it to hear the case. Also supporting Medellin's appeal was a group of former U.S. diplomats, including former Iran hostage L. Bruce Laingen, who argued that U.S. citizens abroad will "suffer in kind" if their own courts do not enforce consular access.

In its March ruling, the ICJ did not attempt to overturn the men's death sentences. It said only that the treaty -- which the United States has ratified and pledged to enforce in cases involving citizens of other ratifying countries, including Mexico -- gives Medellin and the other Mexicans an individual right to claim in a federal court that their cases might have turned out differently if they had had consular access. U.S. rules that require them to raise such claims in state court first do not apply, the ICJ ruled.

The Bush administration had argued against this interpretation, but the vote in the ICJ was 14-1, with a U.S. judge joining the majority.

The ICJ ruling brought to a head a long-simmering conflict between that court and the conservative majority on the Supreme Court, which generally favors limiting the avenues by which death-row inmates may challenge their sentences on constitutional and other legal grounds.

Just six years ago, the Supreme Court said that a treaty-based right of consular access could not trump the requirement in U.S. law that inmates seeking to overturn their sentences must raise their constitutional and legal claims in state court first -- or forfeit the right to bring them up later in federal court.

In that case, Breard v. Greene, the court refused to stay the pending execution of a Paraguayan convicted of murder and rape in Virginia. Its unsigned opinion said that, even if the Paraguayan, Angel Francisco Breard, were permitted to raise his claim in federal court, he could not show that the violation of his right to see a consul would have made a difference. He had insisted on going to trial against the advice of his U.S. attorneys, who urged him to plead guilty in return for a life sentence.

The vote was 6 to 3, with liberal justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer dissenting.

The court acted in Breard even though Paraguay had taken the case to the ICJ, and the ICJ had called on Virginia not to execute Breard until it had finished considering the matter.

But now it faces a direct and clear judgment by the ICJ.

The case accepted for review today is Medellin v. Dretke, No. 04-5928. Oral argument will take place in March. A decision is expected by July.

By Charles Lane Washington Post Staff Writer Friday, December 10, 2004; 1:18 PM © 2004 The Washington Post

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