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.
Two years ago, Mexico took the issue to the World Court on behalf of 51 Mexicans who were held on death rows across the U.S.
The lead plaintiff, Carlos Avena Guillen, was charged with murder in Los Angeles in 1980 and sentenced to death in 1981. Mexican officials say they did not learn of the Avena case until the mid-1990s.
Last year, the international tribunal ruled for Mexico and said the U.S. must provide “review and reconsideration of the convictions and sentences of the Mexican nationals.” Despite the ruling, it was unclear how the World Court’s order could be enforced.
Lawyers for Mexico raised the issue in the federal courts in Texas on behalf of Medellin, but got nowhere. The U.S. Court of Appeals said the World Court’s decision did not give him a right to a new hearing under U.S. law.
However, the Supreme Court agreed to hear Medellin’s appeal. 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
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.”
Many police and prosecutors are not aware of the Vienna Convention and its duties, Babcock said. “I have talked to police officers in San Diego and in the Central Valley of California, and they say they never heard of this. But the old maxim -- ignorance of the law is no excuse -- applies here as well,” she said.
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.