Nov. 22 USA: The World According to the Supreme Court The already-intense debate over the role of international law in Supreme Court decision making shifts into high gear this week when the justices consider the case of Jose Medellin, a Mexican citizen on death row in Texas. The justices are scheduled to discuss Medellin v. Dretke at their private conference Wednesday to decide whether to hear the case later in the term. The Court's action on Medellin , along with dozens of other cases on the Nov. 24 agenda, may be announced when the Court convenes again in open session Nov. 29. The issue before the Court in Medellin is the enforceability of a dramatic March 31 ruling by the International Court of Justice in The Hague, which ordered U.S. courts to re-examine the death sentences of Medellin and 50 other Mexican nationals on American death rows. Review was necessary, the international court ruled, because at the time of their arrest, the 51 were not given their right under an international treaty to seek help from their consulates in defending themselves. That international court decision prompted the Oklahoma Court of Criminal Appeals on May 13 to halt the execution of Osbaldo Torres, one of the Mexicans. Gov. Brad Henry commuted Torres' sentence later the same day, citing the international court's ruling. But acting separately six days later, the 5th U.S. Circuit Court of Appeals ruled that Medellin was procedurally barred from raising the treaty claim, in spite of the international court's decision. Even before the high court acts, Medellin's appeal of the 5th Circuit ruling has drawn extraordinary interest, including amicus curiae briefs to the Court from 13 Central and South American nations, the European Union and several former diplomats. Among them is L. Bruce Laingen, charge d'affaire of the U.S. Embassy in Iran during the 1979-81 hostage crisis, when the U.S. government invoked the consular rights treaty. Failure by U.S. courts to respect the consular treaty, the diplomats assert, will lead other nations to reciprocate, which "will ultimately and inevitably endanger the welfare of United States citizens abroad." A brief by the Mexican government insists that the international court's decision "constitutes a binding adjudication of Mr. Medellin's rights that the United States must fully implement," adding, "The Court of Appeals has violated its own obligation to do so." Complex procedural issues could still derail Medellin, but if the Court grants review, it will represent a new front in the debate over the growing influence of international law in high court jurisprudence. Justice Stephen Breyer in a recent talk before the Paris Bar Association meeting in Washington, D.C., said his job has "changed tremendously" in 10 years because an increasing portion of the Court's docket involves international law. But whereas justices have cited foreign law in recent years to give a global context to their decisions, Medellin poses a direct conflict between a ruling by a U.S.-endorsed international court and a lower federal appeals court, with Oklahoma's contrary state court decision thrown in for good measure. All the rulings interpret a treaty, the Vienna Convention on Consular Relations, that was actively embraced and advocated by the United States in the early 1960s. At a University of Tulsa College of Law conference on the Supreme Court and international law last month, Yale Law School Dean Harold Koh highlighted Medellin as a potentially landmark examination of the relationship between international and domestic courts. "Foreigners arrested in the United States have a constitutional right to a lawyer," said Koh, a leading advocate for a "transnational" approach to law by the Supreme Court. "Does an individual whose treaty rights have been violated have a domestic judicial remedy? Must federal courts comply with binding treaty obligations? My prediction is the Supreme Court will grant certiorari." "This case will tell us a lot about where the Court is going on international law," says Kevin Sullivan of King & Spalding's D.C. office, who authored a brief on Medellin's behalf for Amnesty International and other legal and human rights groups. "It is a perfect example of how a U.S. court ruling can have significant foreign relations implications," adds Sarah Cleveland, a former Harry Blackmun law clerk who teaches international law at the University of Texas School of Law. She also spoke at the Tulsa conference. Under the Vienna Convention, ratified by the U.S. Senate in 1969, law enforcement officials are required "without delay" to tell foreign nationals of their right to contact their consulates after being arrested, and also to tell consulates that one of their nationals has been detained. The treaty also gives the United Nations-affiliated International Court of Justice -- often referred to as the World Court -- "compulsory jurisdiction" over disputes involving rights under the treaty. Medellin, 18 at the time, was arrested in Houston in 1993 for his role in a brutal gang-related rape and murder of two girls. After his arrest, Medellin told police and other officials that he was a Mexican citizen, but the Mexican consulate was not informed of his arrest. The following year Medellin and two other gang members, represented by court-appointed counsel, were found guilty of capital murder. The Texas Court of Criminal Appeals affirmed his conviction and sentence in 1997. Mexican consular authorities first learned about Medellin later that year when he wrote them from death row. Mexico immediately began helping Medellin with successive appeals. "Since well before the trial of Mr. Medellin, Mexico has provided critical resources to aid in the defense of its nationals facing the death penalty," wrote Minneapolis human rights lawyer Sandra Babcock in the Mexican government's brief. Mexico went to the international court to protest the violation of Medellin's consular rights, along with those of 50 other Mexicans imprisoned in the United States. Meanwhile, both state and federal courts rejected Medellin's appeals as procedurally defaulted because he had not raised the Vienna Convention claim at the trial stage. The 5th Circuit took note of the international court's ruling, but it said that under the 1998 Supreme Court precedent Breard v. Greene , ordinary procedural default rules take precedence over Vienna Convention claims. "Only the Supreme Court may overrule a Supreme Court decision," the 5th Circuit decision stated. "We are bound to follow the precedent until taught otherwise by the Supreme Court." Breard v. Greene was an unsigned opinion issued just hours before the execution of a Paraguayan national in Virginia. In the ruling, the Supreme Court said procedural default rules trump the consular treaty -- even though under the Constitution, ratified treaties are the "supreme law of the land." Texas professor Cleveland describes the Breard ruling as "the watershed, the high water mark of Supreme Court hostility toward international law." She adds that "given the growing interest of the Court in international law issues," the time may be right for the Court to revisit Breard -- especially in light of the international court's forceful ruling on the consular issue in March. The Mexican brief underlines that point, noting that Medellin , unlike Breard , comes to the Supreme Court after a final and binding judgment of the international court. Tulsa law school professor Janet Levit, an organizer of the recent conference on the high court and international law, thinks the Oklahoma Court of Criminal Appeals ruling that enforced the international court ruling in the Torres case adds an intriguing element to the debate. "State courts are transnational actors, too," she says. But University of San Diego School of Law professor Michael Ramsey thinks the Supreme Court may well be content to leave the issue untouched. "This looks like the Breard case all over again, and I see no reason to think the Court is in a mood to overturn it," says Ramsey, a former clerk to Antonin Scalia. Texas also urges the high court to deny review in Medellin . In a brief by Assistant Texas Attorney General Gena Bunn, Texas argues that the 5th Circuit in essence complied with the international court ruling by giving adequate consideration of the consular treaty issue before ruling against Medellin. "Medellin has already been afforded the full merits review mandated by the [international court]," the brief asserts. But Ramsey acknowledges that the Court is more interested in international issues now, and may feel compelled to grant review in Medellin for the benefit of the international community. "The Court's certiorari process may not be totally understood outside this country, so denying review might be seen as giving short shrift to the issue." Even Scalia, who is critical of the use of foreign law sources in Supreme Court jurisprudence, might give Medellin careful consideration. In a speech before the American Society of International Law in March, Scalia said foreign law "can never be relevant" to the interpretation of the U.S. Constitution. But in other contexts, he said, "it is impossible to say never." One example he mentioned where foreign sources might be appropriate to consider: treaty interpretation by foreign courts. The Bush administration has not weighed in on Medellin , though before the international court it opposed Mexico's arguments, asserting what Mexico was seeking would be an "unwarranted intrusion" on state sovereignty. One short-term possibility in the Medellin case is that the Supreme Court will ask the solicitor general for his views before deciding whether or not to grant review. Interestingly Alberto Gonzales, nominated by President George W. Bush to be the next attorney general, opined about the consular treaty issue seven years ago when he was legal counsel to then-Texas Gov. Bush. The Mexican government in 1997 made a Vienna Convention claim on behalf of Irineo Tristan Montoya, a Mexican national on death row in Texas. But Gonzales, who advised Bush on death penalty matters, wrote, "Since the State of Texas is not a signatory to the Vienna Convention on Consular Relations, we believe it is inappropriate to ask Texas to determine whether a breach ... occurred in connection with the arrest and conviction." Two days later, Montoya was executed. (source: Tony Mauro, Column, Lelgal Times----This column seeks to identify cases on the Supreme Court's conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.'s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column) ARIZONA----female faces death sentence Death penalty debate rare for state women Jurors return today to begin the task of deciding whether Wendi Andriano deserves the death penalty for the murder of her husband. If they condemn her, then the Ahwatukee Foothills mother of 2 will join the women who make up less than 2 % of all death row inmates nationwide. Arizona has put just 1 woman to death in its 94-year history of executions. Only 1 woman currently resides on the states death row, Debra Jean Milke, 40, who was sentenced in 1991 for having her 4-year-old son murdered. 2 death penalty experts interviewed by the Tribune believe the rarity of females on death row is a combination of the reluctance of juries and judges to impose death on women and the less violent nature of women. "Sometimes, jurors identify a female defendant with other women such as their mothers, sisters or wives, none of whom they feel is a terribly dangerous person," said Dale Baich, who supervises the Capital Habeas Unit of the Federal Public Defender for Arizona. "They probably then decide that prison seems like an adequate way to deal with such tragedies rather than the death penalty." The Arizona Supreme Court has repeatedly held that the death penalty should be given in 1st-degree murder cases only when the manner of the crime or the background of the defendant puts it "above the norm of 1st-degree murders." In Andrianos case, prosecutor Juan Martinez is going to argue today in Maricopa County Superior Court that she should be executed because the crime was committed for financial gain and in an "especially cruel, heinous and depraved manner," 2 of several aggravating factors the state can allege in the sentencing phase of capital cases. Andriano was convicted Thursday after an 11-week trial in which Martinez accused her of smashing Joe Andrianos skull with 23 blows of a bar stool and then stabbing him in the neck, the violence coming only after she failed in poisoning him with an insecticide. Kent Cattani, who oversees the Capital Case Appeals Section of the Arizona Attorney Generals Office, said his office typically doesnt see such highly violent cases involving women. "For whatever reason, women just dont tend to do that," Cattani said. "I suspect women are just not as violent as men." In the cases of Milke and Doris Carlson, 42, who was on death row for 3 years before the Arizona Supreme Court lessened her sentence to life in prison in June 2002, they werent even the killers. "In both of those cases, the women directed someone else to carry out the murder," Cattani said. Milkes attorney, Lori Voepel, said one of the issues on appeal is Milkes "alleged confession," which was done behind closed doors, without witnesses, to a single detective. Milke contends she never confessed. Cattani might be seeing more violent appeals soon, however. Court records show that a majority of the 6 Maricopa County death penalty cases that involve women and are pending trial have high levels of violence. One woman is accused of beating her child to death and two are accused of helping in extended beatings of their victims before they were shot and knifed to death. One woman is accused of firing a shotgun at a man as he sat at a stoplight, and a Buckeye woman is accused of shooting her husband to gain his insurance. But once women are sentenced to death, it is even rarer that they are executed, according to the Death Penalty Information Center, a Washington, D.C., nonprofit organization that provides information and analysis on the death penalty to the public and media. 49 women have been executed nationally since 1903. By comparison, 59 men have been executed this year alone. The most recent woman to be executed, in October 2002, was Aileen Wuornos, a hitchhiking prostitute who killed 6 men along Floridas highways. Her story was made into the movie "Monster." (source: East Valley Tribune) NEW YORK----federal death penalty possible Federal charges for alleged cop-killer -- Ronell Wilson could face death penalty on murder, robbery charges in 2003 slaying of 2 officers in Tompkinsville A 30-count indictment was due to be unsealed in Brooklyn federal court today against accused cop-killer Ronell Wilson and 4 others, according to sources closed to the case. They said Wilson is to face federal charges of murder and robbery in the March 10, 2003, slaying in Tompkinsville of 2 undercover detectives in a failed gun buy-and-bust sting. The Staten Island district attorney's office was expected to seek today to have the case in state Supreme Court, St. George, adjourned in deference to the federal charges. However, the case could still proceed here at a later date. Daniel Donovan, the Staten Island district attorney, and Roslynn Mauskopf, the U.S. attorney for the Eastern District of New York, were to hold a press conference this morning at Borough Hall to detail the federal indictment, sources said. A spokesman for Donovan's office declined to comment, however. Under the Racketeer Influenced and Corrupt Organizations (RICO) Act, the federal indictment was also to include Michael Whitten, 21, of Stapleton, Paris Bullock, 22, of St. George and two other unnamed suspects, sources said. They were to be charged with operating a criminal enterprise in Stapleton. The list of charges was said to include murder, murder conspiracy, racketeering, narcotics trafficking, obstruction of justice, carjacking, robbery and various firearms offenses. Sources said the indictment was handed down last week by a federal grand jury. Under the indictment, Wilson, who allegedly fired the fatal shots, would be eligible for the death penalty. But no decision has yet been made by the Justice Department on whether capital punishment will be sought in the case. Donovan and U.S. prosecutors had been discussing the Wilson case for months. The talks started after the state Court of Appeals in June found part of New York's death penalty law unconstitutional. Under the ruling, state cases -- such as Wilson's -- in which death penalty notices had been filed may go forward as non-capital first-degree murder prosecutions. In those cases, prosecutors may seek a maximum penalty of life without parole, the high court said. Wilson, who has been in custody at Rikers Island, was to appear in Supreme Court, St. George, this morning in connection with the state case before being taken to Brooklyn to be arraigned in federal court. With 5 others, Wilson was indicted last year on Staten Island in the murders of Detectives Rodney J. Andrews and James V. Nemorin. The others were accused of helping set up the gun deal with the 2 cops, or arranging for Wilson to get the murder weapon, a .44-caliber revolver. Also charged in the Staten Island case were Bullock and Whitten; Stapleton residents Omar Green, 20, and Jessie Jacobus, 18, along with Mitchell Diaz, 20, of Lancaster, Pa. Those five were accused of 2nd-degree murder. Green, Jacobus and Diaz reportedly cut plea deals with Staten Island prosecutors in exchange for their cooperation. (source: Staten Island Advance) WASHINGTON: Death penalty sought again in execution-style killing in Tacoma Another jury will be asked to convict and sentence Covell Paul Thomas to death for the execution-style killing of of his boss more than 6 1/2 years ago, Pierce County prosecutors said. Thomas' conviction in the death of Richard Geist was upheld in January by the state Supreme Court, but his death sentence was overturned because the trial jury was given faulty instructions. The death penalty "was on the table already," Prosecutor Gerald A. Horne said Friday, "and a jury saw fit to give him the death penalty, and I'm not going to take it off the table unless there's a compelling reason. I saw no compelling reason. "We didn't see any contrition on his part or wanting to step forward and take responsibility." Under the high court's ruling, Horne could have opted to have Thomas, 27, resentenced for the lesser charge of first-degree murder, in which case he would face about 32 years in prison under state guidelines. Geist, 26, Thomas' boss at a janitorial service company, was robbed of about $5,000 and shot 4 times in the head on March 27, 1998, and his body was left beside a road. The high court ruled unanimously that the jury had not been told to determine, and thus did not decide, whether Thomas was the prime instigator of the killing - a finding required for a verdict of aggravated 1st-degree murder. Three others also were involved in the killing. Edward Rembert was convicted of second-degree murder as an accomplice, Lynette Renee Thomas pleaded guilty to 1st-degree robbery and Desiree Azevedo pleaded guilty to 1st-degree rendering criminal assistance. The 2nd trial for Thomas is scheduled for April. (source: Associated Press)
