Court to Hear International Death Penalty Case

WASHINGTON —  Taking up a conflict between the International Court of Justice in the Hague and U.S. courts over America’s use of the death penalty, the Supreme Court agreed Friday to decide whether foreigners who were charged with serious crimes in the United States had a right to legal help from their native country.

If the answer is yes, the outcome could upset the convictions of 118 murderers who are now on death rows, 43 of them in California.

Friday’s brief announcement could signal a shift within the high court on the issue of whether state officials must abide by international treaties that were agreed to by the United States.

Until now, the justices have steered clear of that question and regularly turned away death row inmates who raised it. But a recent ruling by the world court apparently has persuaded the Supreme Court to take another look at the matter.

The case also may put the Bush administration and the man he has nominated as his next attorney general, Alberto R. Gonzales, in an awkward spot.

As the legal counsel to then-Texas Gov. Bush, Gonzales brushed aside objections that Texas prosecutors had failed to inform Mexican nationals of their rights under international law. In one legal memo issued just before the 1997 execution of Irineo Montoya, Gonzales said that “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” of that treaty required action by state officials.

Next year, if he is confirmed by the Senate, Gonzales will be the nation’s top law enforcement official, and his Justice Department must advise the Supreme Court on whether U.S. authorities believe a violation of the international treaty by Texas officials calls into doubt the legality of a death sentence meted out to a Mexican national.

Amnesty International USA applauded the court’s decision to hear the case. “The entire world is watching, and it is time for the United States to abide by its binding international obligations,” said Sue Gunawardena-Vaughn, director of the group’s program to abolish the death penalty.

The treaty at issue is not controversial.

In 1963, the United States played the leading role in the creation of the Vienna Convention on Consular Relations. It said consular officials must be notified “without delay” when one of their nationals was arrested by a foreign government. The convention also stated the embassy had a right to offer legal assistance to its citizens under arrest.

This treaty gave Americans protection when they traveled abroad. However, it also protected foreigners -- including longtime immigrants -- who were living in the United States. The U.S. Senate ratified the treaty in 1969.

Those treaty obligations have been widely ignored in the United States, one of the few industrialized nations that has a death penalty. Murder suspects in states such as California, Texas or Arizona might not be citizens of the United States, but local officials have not assumed that fact alone triggered a duty to notify a foreign government of their arrests.

Lawyers for several inmates who faced execution raised this issue in their last appeals, but the federal courts said there was no remedy for this oversight.

In 1998, for example, the justices cleared the way for Virginia officials to execute a native of Paraguay, even though Paraguayan officials said they were never notified that one of their nationals was being held for murder. In a brief, unsigned opinion, the high court said the procedural rules in U.S. law trumped the rules and procedures set by international law.

Justices John Paul Stevens and Stephen G. Breyer dissented. They pointed out that the U.S. Constitution says “all Treaties made under the Authority of the United States ... shall be the supreme Law of the Land” and must be followed by the states.

Early last year, the government of Mexico took the issue to the International Court of Justice in the Hague, which is commonly referred to as the world court. It has jurisdiction to decide disputes under international law, as well as the treaties that were entered into by the member states.

Mexico brought a claim on behalf of 53 Mexican natives being held on U.S. death rows. It contended American authorities had violated the Vienna Convention by not informing the Mexican nationals of their rights and by failing to notifying the Mexican consulate that these persons were being held.

On March 31, the world court ruled for Mexico. It held that the Vienna Convention gave “individual rights” to foreign nationals. Although it refused to nullify the inmates’ convictions, it ruled that domestic courts must “allow the review and reconsideration of the conviction and sentence by taking into account the violation of rights set forth in the Convention.”

That ruling put the matter back before state officials and federal courts across America. On May 13, the Oklahoma Court of Criminal Appeals halted the execution of one of the Mexicans, Osbaldo Torres. Later that day, Gov. Brad Henry commuted his sentence to life in prison.

But a week later, the U.S. 5th Circuit Court of Appeals refused to even consider the issue when it was raised by Texas inmate Jose Medellin. He was convicted and sentenced to die for the 1993 gang rape and murder of two teenage girls in Houston.

Local officials admitted they had not notified the Mexican consulate when he was being tried, nor did they inform Medellin that he had a right to legal help from Mexican authorities.

After his conviction was final, Medellin filed a writ of habeas corpus in federal court. This writ allows persons to allege they are being held in violation of the laws of the United States, including the Constitution and treaties.

But a federal judge and the U.S. appeals court said the failure to inform him of his rights was not a true violation that required a remedy.

In August, his lawyers appealed to the Supreme Court, arguing that federal judges had at least a duty to take seriously the claim that the rights of a foreign national had been violated. They urged the Supreme Court to resolve the conflict between the world court’s ruling, which affirmed the “individual rights” of the foreign nationals, and the 5th Circuit, which dismissed them without a hearing.

In a one-line order, the court said Friday it had voted to hear the case of Medellin vs. Dretke.

Besides the foreign nationals on California’s death row, Texas has 27 foreign nationals on its death row; Florida, 22; Arizona, five; Nevada, four; Ohio, four; Louisiana, three; Pennsylvania, two, and Georgia, Mississippi, Montana, Oklahoma, Oregon and Virginia, one each. Two foreign nationals sentenced to death are being held by federal authorities.

The case will be heard in the spring and decided by late June.