Bush Orders State Courts

Wed Mar 9 08:51:19 PST 2005

It's not a hoax.  See the attached account from the L.A. Times.  - Dan
Conkle

http://www.latimes.com/news/nationworld/nation/la-na-death9mar09,1,61458
15.story?coll=la-headlines-nation&ctrack=1&cset=true

THE NATION

Bush Orders Hearings for Mexicans on Death Row

The action, triggered by a World Court ruling, may pit the president
against state officials.

By David G. Savage
Times Staff Writer

March 9, 2005

WASHINGTON - President Bush, in a bow to international law, has decided
that the 49 Mexican nationals who are on death row in California, Texas
and other states are entitled to new hearings to see if they were harmed
by the failure of authorities to tell them of their right to seek the
aid of Mexican officials.

The presidential order - if it stands - could eventually lead to the
release from death row of as many as 28 Mexican inmates in California
and 15 in Texas, as well as others in Arizona, Arkansas, Florida,
Nevada, Ohio and Oregon.

It may also affect dozens of other foreign nationals who have been
condemned to death across the country.

The president's order was issued last week without fanfare. It puts the
former Texas governor in the unusual spot of challenging Texas officials
on the validity of death sentences in the Lone Star State. 

Texas Atty. Gen. Greg Abbott questioned Tuesday whether the president
had the authority to tell the state courts to reopen these old cases.

"We respectfully believe the executive determination [issued by Bush]
exceeds the constitutional bounds for federal authority," Abbott's
office said in a statement. California officials had no comment.

Bush's action was triggered by a recent ruling by the International
Court of Justice, known as the World Court, that the U.S. had violated
the Vienna Convention by failing to notify Mexican officials when
Mexican nationals were arrested and charged with serious crimes.

In the Vienna Convention of 1963, the U.S. and most other nations agreed
to protect their citizens by requiring that they be informed whenever
one of their nationals was "arrested or committed to prison." Local
authorities must also tell the arrested person of his rights.

This treaty protects Americans when they live or travel abroad. 

However, its requirements have been widely ignored by U.S. police and
prosecutors when foreign nationals are taken into custody.

The Supreme Court is scheduled to hear a case this month that tests
whether Jose Medellin, a Mexican national who is on death row in Texas,
has a right to a new hearing in federal court after the World Court
ruling.

. . . .

The justices are scheduled to hear arguments in the case March 28.

Last week, in a friend-of-the-court brief, the Bush administration
agreed with Texas lawyers in saying the Mexicans had "no judicially
enforceable right" to seek help in the federal courts. The brief urged
the Supreme Court to dismiss Medellin's legal appeal.

But having rejected Medellin's legal claim, the administration then
declared that the president had the authority to order new hearings in
state courts for Medellin and the other Mexicans. Lawyers attached an
order signed by Bush on Feb. 28.

"I have determined, pursuant to the authority vested in me as
president.... that the United States discharge its international
obligations under the decision of the International Court of Justice ...
in the case concerning Avena and other Mexican nationals by having state
courts give effect to the decision," the order said.

Bush's lawyers said the "foreign policy interests" of the U.S.
outweighed the laws of the states. Texas, for example, has a law that
forbids its courts from reopening cases that have been thoroughly
litigated.

Paul Clement, acting U.S. solicitor general, said state courts must
"review and reconsider the conviction and sentence" of each Mexican to
see whether the failure to warn him of his rights "caused actual
prejudice to the defense at trial or at sentencing." If so, "a new trial
or a new sentencing would be ordered," Clement said.

To their surprise, defense lawyers and international law experts found
themselves cheering a move by Bush. The president has been a critic of
international courts and a strong supporter of the death penalty.

"This is an amazing concession," said Mike Charlton, a defense lawyer
for several Texas inmates. "The president is saying the Texas courts
have to reopen and relitigate these cases."

"This is a complete victory for the Mexican nationals," said Sandra
Babcock, a Minneapolis lawyer who worked for the Mexican government in
the case. "It is not the way we anticipated winning, but we won."

. . . .

It is not clear what the Supreme Court will do now. 

Bush's order "raises more questions than it answers," Charlton said. He
and other defense lawyers would like the high court to say the inmates
have a legal right to a new hearing. Texas state lawyers, by contrast,
are likely to argue that neither Bush nor the Supreme Court can reopen
an old case such as Medellin's.

"The state of Texas believes no international court supersedes the laws
of Texas and the laws of the United States," Abbott said. 

	-----Original Message-----
	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Matthew J.
Franck
	Sent: Wednesday, March 09, 2005 11:36 AM
	To: Conlawprof at lists.ucla.edu
	Subject: Re: Bush Orders State Courts

	Sorry, but is this a hoax?  I can't find this under executive
orders or proclamations at the White House website, nor in the Federal
Register, nor at the NARA's website for presidential executive orders or
the weekly compilation of presidential documents.

	Matt
	***************************
	Matthew J. Franck
	Professor and Chairman
	Department of Political Science
	Radford University
	P.O. Box 6945
	Radford, VA 24142-6945
	phone 540-831-5854
	fax 540-831-6075
	e-mail mfranck at radford.edu
	<http://www.radford.edu/~mfranck> www.radford.edu/~mfranck
	***************************
	At 11:12 AM 3/9/2005, you wrote:

		Jack Chin's and Mark Godsey's Crim Prof Law Blog reports
today that the President, in response to a World Court ruling, has
"ordered" state courts to review the convictions of foreign nationals.
Here's the key language, according to the Death Penalty Information
Center:

		"I have determined, pursuant to the authority vested in
me as President 
		by the Constitution and laws of the United States, that
the United 
		States will discharge its international obligations
under the decision 
		of the International Court of Justice in the Case
Concerning Avena and 
		Other Mexican Nationals (Mexico v. United States of
American (Avena), 
		2004 I.C.J. 128 (Mar. 31), by having state courts give
effect to the 
		decision in accordance with general principles of comity
in cases filed 
		by the 51 Mexican nationals addressed in that decision."

		Does this raise any federalism/separation of powers
eyebrows for anyone?

		Jeff
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