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August 4, 2008

Medellin’s Execution Set to Move Forward

As of this posting, the execution of José Ernesto Medellin, the Mexican national on Texas death row for the rape and murder of two teenage girls in 1993, is scheduled to occur as planned on Tuesday evening. Medellin’s case, which has been covered in-depth on this blog, continues to garner both domestic and international attention. 

The World Court (formally the International Court of Justice at The Hague, Netherlands)  has recognized that under the Vienna Convention, foreign nationals have the right to consult with their respective consulates after being charged with a crime and ordered that Medellin’s conviction be reviewed and reconsidered under the treaty’s provisions.  It has been reported that Medellin never asserted any rights under the Vienna Convention during either the guilt or penalty portions of his trial, however, and raised the issue for the first time in a state trial court seeking post-conviction relief. 

Medellin’s case has a complex history.  As discussed at SCOTUSblog here, the Supreme Court decided this past spring that although the United States is bound by the Vienna Convention, Congress did not provide for its actual enforcement.  The Court further ruled that the President did not have the authority to order Texas to comply with the World Court’s decision and to grant new hearings for the foreign nationals. 

Texas has continued to resist pressure in Medellin's case from President Bush and other U.S. officials urging it to comply with the World Court’s order. As also posted by SCOTUSblog here, Texas today filed papers with the Supreme Court urging the Court to allow tomorrow’s execution to proceed.

Previous posts on Medellin’s case on this blog include:

  ·  Texas shrugs in response to World Court call for execution stays

  ·  A lengthy argument in Medellin

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August 4, 2008 at 06:33 PM | Permalink


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I wonder if the hurricane that is supposed to this Texas tomorrow will delay the execution by a day. Where and when exactly is the execution supposed to take place?

Posted by: Not the same | Aug 4, 2008 7:15:32 PM

If the hurricane doesn't work, maybe the defense can try this (from the AP):

Ohio inmate says he's too fat for execution

ANDREW WELSH-HUGGINS (AP) - Associated Press Writer COLUMBUS, Ohio

A death row inmate scheduled for execution says he's too fat to be put to death, claiming executioners would have trouble finding his veins and that his weight could diminish the effectiveness of one of the lethal injection drugs.

Lawyers for Richard Cooey argue in a federal lawsuit that Cooey—5-feet-7 and 267 pounds—had poor veins when he faced execution five years ago and the problem has been worsened by weight gain.

The lawsuit, filed Friday in federal court, also says prison officials have had difficulty drawing blood from Cooey for medical procedures.

Cooey, 41, is sentenced to die for raping and murdering two young women in 1986. His execution is scheduled for Oct. 14. ###

Of course, since the execution isn't for two and a-half months, maybe prison officials could put Mr. Cooey on a strict diet, peel off a few dozen pounds, and have him ready for the moment he has spent 20 years avoiding while literally growing fat at taxpayer expense.

Posted by: Bill Otis | Aug 4, 2008 10:11:37 PM

The State of Texas continues to embarrass itself by making ridiculous and baseless assertions. Witness this one from yesterday, as reported by the AP yesterday: "'Concluding that the World Court cannot force Texas to release convicted murderers, last March the U.S. Supreme Court rejected Medellin's claims and found that he would have received the same sentence with or without consular notification,' said Jerry Strickland, a spokesman for the Texas Attorney General's Office."

It must be nothing short of unethical for a state Attorney General's spokesman to so blatantly misrepresent what the Supreme Court held in Medellin. But he wasn't even finished: "'The law is clear: Texas is bound not by the World Court, but by the U.S. Supreme Court, which reviewed this matter and determined that this convicted murderer's execution shall proceed,' Strickland said of Medellin's case." The Supreme Court "determined that the execution shall proceed" in Medellin? That's news to me. If Texas weren't lawless, there would be consequences for an attorney general engaging in legal deceit of this magnitude.

Posted by: DK | Aug 5, 2008 2:48:11 AM

How is it unethical?

cite to the particular Texas Rule of Professional conduct (or whatever those people call it.)

Granted, I have argued this in the past, but I don't seem to be getting anywhere on it.

Posted by: S.cute.us | Aug 5, 2008 6:49:09 AM

On the theory that a legal system ought primarily to be evaluated by how it treats the litigants, not how it treats the lawyers, other passages in the AP story are worth repeating -- passages about Mr. Medellin's behavior:

"Medellin was one of six teenagers arrested and charged with the gang rape and murders of Elizabeth Pena, 16, and Jennifer Ertman, 14. The two Houston girls, returning from a friend's house, took a shortcut home along some railroad tracks and stumbled on a group of teenagers drinking beer after initiating a new gang member.

"Evidence showed the girls were gang raped for more than an hour, then were kicked and beaten before being strangled. A red nylon belt was pulled so tight around Ertman's neck that the belt snapped.

"Four days later, the girls' bodies were found, decomposing and mummifying in 100-degree heat, culminating a frantic search by families and police under the glare of intense media coverage. A tip from the brother of one of the gang members led police to arrest Medellin and the others.

"One of the gang members convicted for the slayings, Derrick O'Brien, was executed last year. O'Brien said Medellin was at one end of a belt being pulled around Ertman's neck as he yanked on the other." ###

To focus solely on procedural aspects of the case while whistling past what Medellin and his gang cohorts actually did is, shall we say, to give an incomplete accounting.

If telling the whole story is important when it aids the defendant (as we are told was very much the case in the recent Sixth Circuit opinion about counsel's lapses in presenting mitigation evidence), it is no less important when it casts an unflattering light on the killer's "I'm-a-victim" theory that is the motif of Medellin's current batch of motions.

Posted by: Bill Otis | Aug 5, 2008 8:22:06 AM

Although it is sometimes referred to as the "World Court," the International Court of Justice has not had a name change.


Posted by: | Aug 5, 2008 9:47:42 AM

Although it is sometimes referred to as the "World Court," the International Court of Justice has not had a name change.


Posted by: | Aug 5, 2008 9:48:49 AM


So the criminal offense is relevant to whether the government should follow the law? That's spoken like a true prosecutor. No, for the rule of law to mean anything--which it does less and less in the U.S. as conservative ideologues have secured bench seats--procedure is entirely separate from substance. Telling the whole story (e.g., the importance of mitigation) is not a procedural matter but in the capital context is relevant to deathworthiness, which is a substantive matter.

Whether Texas should follow the law and whether Texas's attorney general should lie to the public about what the law is do not require an inquiry into which party is before the court. Indeed, that who the party is (rather than what the law is) is controlling this affair is evident from Texas's pleadings to the Supreme Court, described in the ScotusBlog post, in which they are asking to be allowed to proceed with illegally executing Medellin by stating they will agree to follow the law in future cases. This is how governments that have no respect for the rule of law behave. The U.S. is not supposed to be one of those governments, no?

Posted by: DK | Aug 5, 2008 10:55:05 AM

If we want to talk about following the law, the only lawless party here is Medellin, who participated in the rape and murder of 2 girls. In this case, the Supreme Court ruled that the ICJ has no jurisdiction on this issue. The TCCA just rejected Medellin's last appeal, as did the state parole board. Who's not following the law here?

Posted by: realist | Aug 5, 2008 11:14:32 AM

DK, “Rule of Law” is one of those stupid prosecutor weasel-words. It means nothing. Don’t bother with it. It is more important to concentrate on having a serious conversation about what *is* the law. Usually prosecutors when they are talking to the “Goddamn Lay People” (as a few prosecutors call them) will do their best to make it seem simple. They know it is not, but the Lay people deserve no better.

Realist, While I am sure that Mr. Medellin did some bad stuff, the issue here isn’t his guilt but whether he received effective assistance under the Sixth Amendment. The fact that he might have done something bad had nothing to do with the degree of assistance he is entitled to.

Mr. Otis, In the US we care a lot more about procedure then we do about “objectivity.” Why? It is impossible to come to some form of “objective” understanding about anything. Instead, the best we can do is ensure that states comply with various procedures before they get to kill people. Even states that are filled with criminals, and consider a criminal lifestyle to be healthy, need to comply with procedural requirements before they get to kill someone and say “whoop whoop whoop.” (This is Texas culture. They like committing crimes and saying “Whoop.”)

I am sure that Mr. Medellin was a bad person. After all, 1) he is in Texas; and 2) someone wanted to charge him with a crime. But, that doesn’t matter. What matters is whether the state goes through the right rituals before they get to kill him. This way, we can be sure that society really wants to kill him. Otherwise, it is just a couple of government attorneys and a few silly jurors that really want to kill him.

Now, Mr. Otis, sometimes the “whole” story can be told, and sometimes it can’t. For example, many forms of evidence are inadmissible. Most of the time, defendants can’t introduce evidence that doesn’t seem relevant, but might reveal that one of the cops involved once smoked marijuana and was an underage drinker. Although these are unpardonable crimes and completely eliminate someone’s credibility, most of the time they are not admissible unless there was a conviction. (There is no lower form of scum on earth than an illegal underage drinker. These people should be in jail.)

At sentencing, more is admissible by both sides. You know that. However, the Sixth Amendment does guarantee that the defendant get to put in his share of mitigation evidence. But, you knew that.

Posted by: S.cotus | Aug 5, 2008 11:26:37 AM

I fail to see the relevance of the 6th Amendment as that certainly was not the basis of Medellin's claims either during Medellin v. Texas or for his most recent appeal.

Due process has been scrupulously followed, as I just pointed out in my prior post. Unless you categorize the majority of judges who have reviewed this case as "government attorneys." It was not the state attorney general that ruled that the ICJ has no jurisdiction. It was the Supreme Court.

Posted by: realist | Aug 5, 2008 11:34:45 AM


The Supreme Court did not rule that "the ICJ has no jurisdiction." You just may be qualified to be Texas's attorney general, though.

(For the record, the Supreme Court ruled that the ICJ Avena judgment did constitute a binding legal obligation on the U.S. for which it was in breach but that Congress must act to implement it. Texas is trying to frustrate that implementation and is trying to create yet another breach of the American people's word.)

Posted by: DK | Aug 5, 2008 12:21:08 PM

Sorry, you are correct. That was w/ reference to another case on here.

Posted by: S.cotus | Aug 5, 2008 12:35:32 PM


"So the criminal offense is relevant to whether the government should follow the law?"

The "criminal offense" -- a wonderfully antiseptic phrase for Medellin's gruesome multiple rape/murder -- is relevant to whether executing Medellin is just. Legality is important, obviously. Justice is also important, and cannot be evaluated intelligently when the facts of the offense are censored. So I un-censored them.

"That's spoken like a true prosecutor."

I appreciate the compliment.

"No, for the rule of law to mean anything--which it does less and less in the U.S. as conservative ideologues have secured bench seats--procedure is entirely separate from substance."

You seem to have a selective attitude toward the rule of law. When I pointed out that the Supreme Court, by a 7-2 vote, approved the use of acquitted conduct, that aspect of the rule of law turned out to deserve no respect (indeed I believe your previously expressed view was that it deserved contempt). But when, in your view, Texas declines to adhere to the "rule of law" as expressed by a court whose jurisdiction is dubious at best, this is an outrage.

It's not really the rule of law if you follow it when you agree with it and trash it when you don't. Respect for the rule of law means PRECISELY obedience to law even when you don't agree with it. This applies to the death penalty, acquitted conduct and all the rest of it.

"Telling the whole story (e.g., the importance of mitigation) is not a procedural matter but in the capital context is relevant to deathworthiness, which is a substantive matter."

Whether the defendant in the Sixth Circuit case to which you're referring got effective assistance of counsel -- which was the actual issue before the Court -- is very much a procedural matter.

"[T]hat who the party is (rather than what the law is) is controlling this affair is evident from Texas's pleadings to the Supreme Court, described in the ScotusBlog post, in which they are asking to be allowed to proceed with illegally executing Medellin by stating they will agree to follow the law in future cases. This is how governments that have no respect for the rule of law behave."

Governments that have no respect for the rule of law do not go to the Supreme Court to "ask" (as you correctly put it) to be "allowed to proceed" (as you also correctly put it) with an execution already ordered (more than once) by yet MORE courts in the State seeking to carry out the judgment and order of ITS ORIGINAL TRIAL COURT.

Vigilanties -- which is what you imply the Texas authorities are -- would have strung up Medellin in ten minutes. Instead, this matter has been a case study in the rule of law: Back and forth in the state and federal courts (with the World Court thrown in) for years and years. If the outcome is adverse to Medellin, it will not be because Texas turned its back on the courts. It will be because Medellin lost his case, having been given multiple chances over many years to win it.

The notion that a party gets to litigate his case for eternity is not part of the rule of law; instead it mocks the rule of law.

With any luck, the mockery in this case ends tonight.

Posted by: Bill Otis | Aug 5, 2008 1:16:13 PM

I was annoyed by the spokesperson’s words, too. They are oversimplifications. But there is absolutely no legal or ethical obligation to provide an objective overview of the law to the lay people. I have been told this time and time again by lawyers in all fields of practice. The lay people are simply not American enough.

Since “rule of law” means whatever we want it to, anyone can claim that they are following the “rule of law.” Indeed, all parties to this case will swear up and down that their position follows the “rule of law.” Whatever that is.

But, to some extent, Mr. Otis is right: Texas is properly playing the game. It knows that the world is watching its death ritual. It is going to dot every I and cross every T, knowing that eventually, they will get to kill someone.

But, in my view, they are not doing it because they like rules. They are doing it because it legitimates their position and practice of killing. Since Texans, as a people, love to kill (as opposed to Alaskans are Puerto Ricans), every time the AG asks “permission” to kill they show that the death penalty is inherently workable, and the only thing that remains to decide is a few outlying cases. Federalist has suggested that AGs deliberately avoid (i.e. ignore) court orders staying executions, but even a Texas isn’t that stupid.

Posted by: S.cotus | Aug 5, 2008 1:26:09 PM


There is nothing "dubious" about the jurisdiction of the ICJ. The United States signed a treaty in which it promised to give the ICJ limited jurisdiction over certain cases. Everyone on the Supreme Court agreed with this. Texas agrees with this. The problem, as a majority of the court found, is that US law does not provide an enforcment mechanism for the treaty.

Second, your point about the brutality of Medellin's crimes is irrevelant to the discussion at this point. The issue is whether his exectution should be stayed pending efforts to provide defendants with the enforcment mechanism that is currently lacking in the law. This request may have merit or it may not, but the brutality of the crime he was convicted of should have nothing to do with the discussion.

What I find perverse about Texas's position is that, in its opposition to the certiorari brief, Texas promises (for the first time) to do for future capital defendants what it will not do for Medellin - allow for a review of the merits of the treaty violation claim. If this is important enough to do for future defendants, why not Medellin?

Posted by: rn | Aug 5, 2008 2:18:21 PM

Bill, you don't get it. I mean that literally, not pejoratively. In Medellin, every member of the Supreme Court agreed that there is an outstanding legal obligation. This is not a case of what the particular rule of law to be applied is or should be (over which people--and jurists--can quibble), but whether a rule of law that everybody agrees to be applicable will be faithfully executed (pardon the pun). This is not a question of whether or not I--or any party--agrees with the reasoning of some judicial decision like Watts. Those cases come and go and the losing party rarely believes the court got it right. This is a question of whether the U.S. will adhere to what every official to have spoken on the matter publicly has acknowledged to be its legal obligations.

You're on the wrong side, especially as a prosecutor who for so long had taken an oath to uphold the law. And for what? The pleasure of a State-sponsored execution today that you can in all likelihood have tomorrow? It's downright macabre.

Posted by: DK | Aug 5, 2008 3:13:54 PM


The United States did not sentence Medellin to death and is not going to carry out the sentence. The Supreme Court held in March that under current law, the federal executive branch has no authority to stop Texas (This was widely reported as another "rebuke" to the arrogant and over-stepping George Bush). The federal legislative branch has had five months to act and has done nothing (except adjourn for a five week vacation). Whether the federal judicial branch will stop the execution is something we'll all find out in a few hours. As things stand, the Bush Administration has done everything that, under the law as handed down by the Supreme Court (not to mention longstanding principles of federalism), it is entitled to do. When you've done what you legally can, you cannot be accused of having acted dishonorably.

You're right that as a prosecutor, and in other jobs I had in the federal government, I took an oath to uphold the law. The oath did not extend to my MAKING the law, which, as Senator Biden might say, was above my pay grade.

The legal effect of this treaty is up to Congress. Your problem is not with me; it's with them. I'm sure Nancy Pelosi, John Conyers, Harry Reid and Pat Leahy all have cell phones. If you can roust them from the beach at this late hour, more power to you.

Posted by: Bill Otis | Aug 5, 2008 4:06:01 PM

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