- The Washington Times - Tuesday, March 29, 2005

Texas Solicitor General R. Ted Cruz yesterday told the Supreme Court that it “need not and should not address the issues of international law that surround the case” of a Mexican national on death row.

Justice Antonin Scalia said, “But they are interesting.”

The case stems from an appeal by convicted rapist-murderer Jose Medellin, one of 51 Mexican nationals whose cases were ordered re-examined last year by the U.N. International Court of Justice (ICJ). The inmates were never told of their rights to promptly consult the Mexican Consulate upon their arrests.

The ICJ, the United Nations’ highest judicial body, said the Mexican nationals were denied the rights guaranteed under the Vienna Convention on Consular Relations, a 1963 treaty ratified by about 160 countries, including the United States.

President Bush bowed to the ruling last month and ordered new state court hearings for the 51 Mexicans, although it remains to be seen whether the Supreme Court, which is expected to rule this summer, will agree to do the same.

The justices yesterday appeared to be deeply interested in debating international law and the extent to which treaties such as the one at issue apply to the U.S. Constitution and to the power of the Supreme Court and lower courts.

There are 119 foreign nationals on death row in the United States, according to the Death Penalty Information Center. Although the president’s order applies to 51 Mexicans, about a week after making it, he then withdrew the United States from the portion of the Vienna Convention on Consular Relations that gives the ICJ power to decide such cases.

Medellin was one of five Houston gang members sentenced to death for repeatedly raping, then murdering two teenage girls, Jennifer Ertman, 14, and Elizabeth Pena, 16, in a city park in 1993. During the initial trial, Medellin’s defense lawyer was appointed despite being suspended from practicing law for ethical violations in another case, according to court papers.

Texas courts denied multiple appeals by Medellin, but the case received new life in 2003, when the Mexican government filed the lawsuit at the ICJ, after learning of Medellin through letters he wrote from death row.

At the opening of yesterday’s arguments, Medellin’s lawyer, Donald F. Donovan, surprised the justices by requesting that they delay ruling on the case because Mr. Bush had ordered it back to Texas courts for reconsideration.

The justices appeared skeptical.

“I think granting a stay could be seen as validating the position of the government,” Chief Justice William H. Rehnquist said.

“Why can’t we just decide the case?” Justice Sandra Day O’Connor asked.

Justice Scalia, meanwhile, asked whether an international treaty could “give away” the power of the Supreme Court to rule on such matters.

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