quote:

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Therefore, it is perfectly appropriate for Oklahoma's Governor to see a violation of a defendant's consular rights as reversible error. Likewise it would be appropriate for Rick Perry to reach the opposite conclusion. It's up to their constituency to tell them whether or not they made the right decision.

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To my way of thinking the Governors may have an opinion as to what is and is not reversible error but the Court is the place for the legal determination as to error and its reversibility. I would not like it one bit if a court found no reversible error in one of my cases only to have an executive extend clemency because he or she disagreed. Executive clemency is a determination based in politics; findings of error should be based in law.

The founders certainly had a regard for the opinion of nations; they addressed the Declaration of Independence to the world community. Nevertheless, had some World Court ruled they had no right to rebel or referred them to mediation, I seriously doubt the founders would have acquiesced.

Seeking guidance from the jurisprudence of foreign states is wise; relinquishing the smallest fraction of our sovreignty is folly.

Mexico appeals to World Court to stay U.S.executions

By ARTHUR MAX
Associated Press

THE HAGUE, Netherlands - Mexico made an emergency appeal to the U.N.'s highest court today to block the execution of its citizens on death row in the U.S.


Details.

The ICJ On Wednesday ordered the U.S. to makes sure that Texas doesn't execute five Mexican nationals. Mexico wants the U.S. to be ordered to enact federal legislation enforcing the ICJ ruling.

Interesting comments in NYT

The ruling went further than a 2004 decision by the international court, which again sided with Mexico, ordering a review of all 51 cases to determine if a consul's intervention might have changed the outcome.

"Everyone agrees that the U.S. made a deal here," Mr. Donovan said, "and for Texas to breach that deal when it was made by the people of the United States as a whole would not be right."

Various headlines:

U. S. Troops enter Texas prison to prevent execution; Perry unsure of next step

U. S. enters into treaty with Mexico to abolish death penalty for any Mexican citizen in all 50 states

World Court mulls sanctions against U. S. for failure to abide by order

Supreme Court revisits meaning of due process in light of worldwide furor over execution in Texas


Bill calls for freeze on federal payments to Texas until claims of foreign nationals are reviewed

Don't Mess With Texas.

quote:

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Originally posted by BLeonard:

The founders certainly had a regard for the opinion of nations; they addressed the Declaration of Independence to the world community. Nevertheless, had some World Court ruled they had no right to rebel or referred them to mediation, I seriously doubt the founders would have acquiesced.

Seeking guidance from the jurisprudence of foreign states is wise; relinquishing the smallest fraction of our sovreignty is folly.

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Almost four years ago and these words from Ben still ring true. Is there anyone who could not have predicted this edict from the World Court? I have a pretty good idea of what TJ, George and some of the other founding fathers would have told the World Court...

Federal officials try to block Texas execution to allow review of case
01:26 AM CDT on Monday, July 28, 2008

By DIANE JENNINGS / The Dallas Morning News

Fourteen years and numerous judicial reviews have passed since Jose Medellin was sentenced to die after confessing to the brutal gang rape and murder of two teenage girls in Houston.

That's long enough, state officials say. It's time to carry out the sentence.


Details.

Too bad the World Court and the defendant's attorneys don't care as much about the parents, friends and families of these two murdered children as they do about the "rights" of a killer.

You know, that same world community has largely decided that exclusion of evidence is not a proper reply to a mistake made during an investigation. And, the treaty does not in any way suggest that the proper form of relief for a treaty violation is reversal of a criminal conviction.

So, why is the World Court so insistent on pursuing such a remedy in the Medellin case? After all, there must be literally thousands of noncapital cases in which some treaty violation has occurred. Amazingly, not a single one of those cases has made its way to the World Court.

Could it possibly be true that the international community is using the treaty as an excuse to express a political opinion about the death penalty? Surely a Court that professes to be impartial would not indulge in such a blatant bit of impartiality.

Forget I said anything.

The Inter American Commission on Human Rights (IACHR) just chimed in on Medellin on July 24th. Some interesting if weird and scary stuff:

131. The potential significance of the additional evidence in Mr. Leal Garcia's case is enhanced by the fact that apart from the circumstances of his crime, the only aggravating factors against him consisted of evidence of an unadjudicated crime. Moreover, the Petitioner made additional submissions based on evidence gathered before and after his conviction and sentencing, which raises serious doubts regarding the criminal conduct attributed to him. These elements confirm that the evidence gathered through the assistance of the consular officials may have had a particularly significant impact upon the jury's determination of responsibility or at the very least the appropriate punishment for Mr. Leal Garcia.

132. Based upon the foregoing, the Commission concludes that the State's obligation under Article 36.1 of the Vienna Convention on Consular Relations to inform Messrs Medellin,Ramirez Cardenas and Leal Garcia of their right to consular notification and assistance constituted a fundamental component of the due process standards to which they were entitled under Articles XVIII and XXVI of the American Declaration, and that the State's failure to respect and ensure this obligation deprived them of a criminal process that satisfied the minimum standards of due process and a fair trial required under Articles XVIII and XXVI of the Declaration.

Id. at pdf pg. 69.

The IACHR also seems to believe that the use of unadjudicated offenses at punishment is always a violation of due process, id. at 71, and that the Texas clemency process violates due process. Id. at 73.

nevermind

The ABA's House of Delegates will consider a resolution at its annual meeting on August 11-12 that "urges the Unites States Government to expand and broaden United States interaction with the International Criminal Court (ICC), including cooperation with the Court's investigations and proceedings" (Recommendation 108A, sponsored by the Section on International Law).

The ABA report supporting the resolution goes on to assert that criticisms of the ICC are outdated, stating that "after six years of operation the ICC has proven itself to be a responsible judicial institution."

Well, I'm glad that's been settled. Where do I sign?

Can you go to the ICJ to complain about the ICC?

"We are not final because we are infallible; we are infallible because we are final."

Can the President, with the sanction of the requisite number of US Senators, tinker with or otherwise direct the course of a criminal prosecution in a constituent state by making a treaty with a foreign government?

No. While such a treaty might bind the federal authorities and Congress, the States did not cede any such ability to the federal government (executive) in art. II, sec. 2 of the Constitution. Such a treaty would be contrary to Amendment X and thus cannot become the supreme Law of the Land despite art. VI of the Constitution. The power to make treaties refers to relationships and understandings between sovereign nations concerning matters international in character and was never intended to alter the powers of the states to adopt and enforce laws applicable only within their boundaries. That our national government approved the United Nations Charter did not change this.

This should be the position of the Solicitor General, if his thoughts were really needed for the 9 to decide how to handle their new role in preserving world peace.

I am all for getting consular advice when needed. But, if I go into a foreign land I might expect the applicable local laws to apply, without regard to my personal interests or even the interests of my home government.

I remember this case from Law School:

No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. * * * Valid treaties of course 'are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States.' Baldwin v. Franks, 120 U.S. 678, 683, 7 S.Ct. 656, 657, 32 L.Ed. 766. No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power.

Missouri v. Holland, 40 S.Ct. 382, 384 (1920)

Medellin was far different from a migratory bird (which could not really be controlled by any state) that needs "national action in concert with another nation" to receive any effective protection. Texas provided Medellin the protection of the 14th amendment, the only federal law on the subject. Justice Holmes acknowledged that the court did not mean to imply that a treaty might not contravene the Tenth Amendment, only that a treaty involving a problem having multinational, indeed worldwide implications, was not forbidden by the amendment. But, local crimes and the penalties therefor are not a matter to be established by "treaty." That is why domestic laws generally govern the implementation of a treaty.

While the federative importance of the states is vastly diminished these days, so called "domestic law" remains distinct (I hope) from international politics. States still have "internal affairs" and use of the death penalty for those exhibiting a future dangerousness (regardless of nationality or place of birth) is what needs protection in this type of case. What is cited from Missouri v. Holland was adequately explained in Reid v. Covert, 354 U.S. at 17-18: "It would not be contended that [the treaty power] extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."

That makes sense, Martin. It would be odd if a treaty could be the equivalent of an amendment to the Constitution.

Similar thoughts to yours were expressed in comments on this page.. Another interesting discussion is here.

It seems far from clear to me that the Federal government couldn't order Texas around -- if nothing else I would think they could attach the requirement to some kind of important federal grant. I know, for example, that there are lots of federal requirements in the termination/foster care area that the Feds impose on the states.

Texas didn't argue the 10th Amend. in opposing Bush's order. And the March Medellin opinion never suggests that Bush couldn't order Texas around even if he had a statute to back him up.

Also, what about Hopkirk v. Bell, 3 Cranch 454, 1806 WL 1200 (1806) (state statutes creating bars to recovery of debt were trumped by treaty: "The act of limitations, therefore, must yield to the treaty"). If a treaty can trump a Virginia statute of limitations then maybe it can trump TRAP 33.1.

What if instead of going after Texas' preservation requirement, Congress passed a statute that required states (1) to inform a suspect of his Vienna Convention rights and (2) to determine whether there was prejudice if the warning was not timely made.

The proposed legislation (at pdf pg 8) just creates a federal cause of action to vacate a criminal conviction.

It does seem like the World Court would have been wise to stay out of Texas procedural rules and focus instead on insisting that the Federal Government enforce the treaty.

So, could a treaty abolish the death penalty?