News and Developments 2005: Foreign Nationals

The latest edition of the Consular Rights in America newsletter is now available.  The newsletter discusses legal and political developments concerning citizens of other countries who are in prison or on death row in the U.S.  Issue 29 contains excerpts from the Texas Lawyer of recent arguments before the Texas Court of Criminal Appeals in the case of Jose Medellin, a Mexican citizen on death row in Texas.  This case has already been the subject of arguments before the U.S. Supreme Court, the International Court of Justice, and of a presidential decision.  The newsletter also discusses the decision of the Oklahoma Court of Criminal Appeals regarding Osbaldo Torres, a former death row inmate also from Mexico.  The newsletter is published by Mark Warren of Human Rights Research. 

The Supreme Court today dismissed as “improvidently granted” the case of Jose Medellin, a Mexican national on death row in Texas primarily because President Bush has interevened and ordered state courts to abide by a ruling from the International Court of Justice (ICJ). In an unsigned decision, the Justices decided not to review this case as a matter of federal habeas corpus law. They did note, however, that once this matter is reviewed in Texas state courts, the U.S. Supreme Court "would in all likelihood have an opportunity to review the Texas courts’ treatment of the President’s memorandum and [the] Case Concerning Avena and other Mexican Nationals...." (footnote 1).

The World Court had determined that the U.S. government had failed to comply with the Vienna Convention on Consular Relations' requirement of consular access for foreigners arrested in the United States, and it directed that U.S. courts consider the claims of almost all of the Mexican nationals on U.S. death rows who had not been afforded this protection. The United States Court of Appeals for the Fifth Circuit held that it was precluded from giving effect to the ICJ judgment by prior U.S. Supreme Court precedent. After the Supreme Court agreed to hear the case but before oral arguments, President Bush issued an Executive Order directing the state courts to give effect to the ICJ ruling and consider the complaints of Medellin. Attorneys for Medellin had asked the Court to stay the case until after Medellin had his hearing in state court. Attorneys for Texas argued that Medellin's federal claim was barred on procedural grounds and that President Bush does not have the constitutional authority to order Texas courts to comply with the international court's judgment. In today’s dismissal, the Court cited the President’s Executive Order as a chief reason for not reviewing the case, and reserved the right to hear a future appeal once the case had run its course in state court.

An Oklahoma County District Judge has determined that Osbaldo Torres, a Mexican foreign national who was once on Oklahoma's death row, should have been told before his trial that he had a right to contact his home country's consulate. Judge Twyla Mason Gray also found that Torres had ineffective counsel at his trial. Her findings stem from a December hearing held at the request of the State Court of Criminal Appeals. The appeals court wanted Judge Gray to hear evidence about Torres' representation and to determine if American officials had violated protections guaranteed by the Vienna Convention on Consular Relations. The findings have been sent to a higher appeals court for review. Though it is uncertain when they will rule in the case, those judges could decide to order a new trial for Torres or affirm his conviction. After Torres had spent more than a decade on death row, Oklahoma Governor Brad Henry commuted Torres' death sentence to life in prison without parole in May 2004.