Harris County, Texas, Judge Caprice Cosper has set Aug. 5 as the date for execution of José Ernesto Medellín, whose bid for relief the U.S. Supreme Court rejected in a 6-3 decision issued at the end of March.
At issue in Medellín v. Texas was Article 36(b) of the 1963 Vienna Convention on Consular Relations , which requires law-enforcement agents to advise noncitizen suspects of their right to contact their consulate (prior posts here ). The enforceability vel non of that article had been the subject of considerable litigation in the United States and in the International Court of Justice. In Medellín —involving a death-row petitioner who, like many persons arrested in the United States for decades after America joined the treaty regime, never was advised of his consular-access rights—the Supreme Court was called upon to consider:
- Did President George W. Bush overstep his constitutional authority by instructing state courts to give to defendants like Medellín "review and reconsider[ation]" of their cases, as mandated by the International Court of Justice in Mexico v. Unit ed States (Avena) (2004)?
- Must a court in the United States honor the United States' treaty obligation by itself enforcing the ICJ's decision?
Both issues having been pressed, the court decided both. Treating the latter question first, Chief Justice John G. Roberts Jr. answered "No," in an opinion that interpreted precedents on whether a treaty provision is self-executing more narrowly than they were treated in, for example, the Restatement (Third) of the Foreign Relations of the United States (1987). The answer to the former question was "Yes"—in telling a constituent state what to do, the president had violated the Constitution. The dissent of Justice Stephen G. Breyer relied on the earlier view of nonself-execution doctrine. But to no avail; Breyer was joined by only Justices David H. Souter and Ruth Bader Ginsburg. ( Margaret E. McGuinness ' ASIL Insight here ; prior Convictions posts on the decision here and here .)
And thus did Medellín this week return to a Texas courtroom.
At this Houston hearing, Medellín's attorneys— Sandra Babcock , clinical associate professor of law and clinical director, Center for International Human Rights, Northwestern University School of Law, Donald Donovan of New York's Debevoise & Plimpton—sought to delay execution. "This is a case whose effects go far beyond this courtroom," Babcock said. Donovan added, "This country is committed to the rule of law. We have a legal obligation. We should comply with it."
Their arguments did not sway Judge Cosper, who reportedly "kept a hangman's noose over her office door" when she was a "death penalty prosecutor" in the Office of the Harris County District Attorney. At this week's hearing, Cosper, elected to the bench in 1992, denied defendant's request to let the legal adviser to the Mexico's foreign minister speak with these words:
"I did not intend to hold a hearing. I did intend to set an execution date."
One suspects that this was not the "further appropriate action by the State of Texas" that Justice John Paul Stevens had in mind when, agreeing with Breyer's view of the nonself-execution doctrine but disagreeing that its threshold had been met, he concurred in the court's judgment in Medellín .