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MEXICO:  RIDING ROUGHSHOD OVER AMERICA'S COURTS

Mountain States Legal Foundation

On March 28, the U.S. Supreme Court heard Medellin v. 

Dretke, where the "questions presented" boil down to whether 

international law provides foreign citizens greater access 

to U.S. courts than that granted U.S. citizens under the 

Constitution.  New York City lawyer Donald Francis Donovan 

argued for Jose Ernesto Medellin, a Mexican citizen; Texas' 

Solicitor General, R. Ted Cruz, appeared for Doug Dretke of 

Texas' Department of Criminal Justice; and U.S. Solicitor 

General, Paul D. Clement, represented his client.  Amidst 

the Court Chamber's marble columns, the argument proceeded 

in gracious and genteel tones.  It was a far cry from what 

brought these nattily attired lawyers before the nation's 

nine robed Justices.

The night of June 24, 1993, in Houston, Texas, Elizabeth 

Pena, 16, and Jennifer Ertman, 14, took a shortcut home from 

visiting a friend.  Passing through a wooded area, they came 

upon Jose Medellin, 18, and his "Black and White" gang, 

which was involved in an evening of drinking and the ritual 

beating of an initiate.  Jose Medellin and the others 

attacked the girls, raped them, and then strangled (using a 

shoelace), beat, and kicked them to death.  Medellin and 

four others were charged with capital murder; all were 

convicted and sentenced to death.

In April 1997, after the Texas Court of Criminal Appeals 

rejected Medellin's appeal, Mexico learned that Medellin was 

a Mexican citizen.  Mexico immediately provided him legal 

assistance contending that, under the Vienna Convention on 

Consular Relations, his rights had been violated.  With New 

York City's Donovan as its lawyer, in January 2003, Mexico 

sued the U.S. in the International Court of Justice (ICJ) on 

behalf of Medellin and 53 other Mexican nationals on Texas' 

death row.  On March 31, 2004, by a vote of 14-1, the ICJ 

ruled that the U.S. had violated the Vienna Convention as to 

Medellin and 50 other Mexican nationals.

Meanwhile, Medellin appealed in federal court; however, in 

May 2004, the U.S. Court of Appeals for the Fifth Circuit 

ruled, pursuant to Supreme Court precedent, that Medellin 

had waived his Vienna Convention rights, just as a U.S. 

citizen might waive his constitutional rights.  Medellin 

sought Supreme Court review, which was granted on December 

10, 2004.

On February 28, 2005, the Bush Administration filed a friend 

of the court brief noting that President Bush had asked 

Texas to conduct new hearings for Medellin and the 50 other 

Mexican nationals in the ICJ ruling, which, "the president 

has determined is an appropriate means to fulfill this 

nation's [Vienna Convention] treaty obligations."  A week 

later, Secretary of State Rice advised the U.N. 

Secretary-General, the U.S. "hereby withdraws" from the 

Vienna Convention.  The same day the Supreme Court 

authorized the Solicitor General to participate in the March 

28 oral arguments.

Maybe the Bush Administration embraced the ICJ ruling in 

Medellin v. Dretke to prevent the Court--after its shocking 

juvenile death penalty ruling, which saved two of Medellin's 

co-defendants from execution--from ruling that foreign 

nationals facing criminal prosecution have more rights than 

do U.S. citizens.  Meanwhile, Secretary Rice emasculated the 

ICJ for all future criminal proceedings by withdrawing from 

the Vienna Convention.

Regardless, the U.S. must soon deal again with Mexico and 

international law on an even more controversial issue. 

Arizona, frustrated with Congress' failure to prevent 

illegal immigration--the media just reported there are 11 

million illegal aliens now in the U.S.--and the $1 billion a 

year Arizona spends annually on their "benefits," adopted 

remedial legislation.  Immediately the ACLU and the Mexican 

American Legal Defense and Education Fund (MALDEF) sued to 

bar enforcement of the statute, Proposition 200.  Days ago, 

Mexico's top diplomat, proclaiming that Mexico is assisting 

the law's opponents, vowed that if the ACLU and MALDEF lose 

in court, Mexico would again haul the U.S. before the ICJ. 

After losing 14-1 in Medellin's case, the result in such a 

"trial" is predictable.

Should Secretary Rice send another letter to the U.N.?

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