Should Jose Medellin Be Executed?

Jose Medellin is a convicted rapist. Jose Medellin is a convicted murderer. Fourteen years ago he was sentenced to death for participating in the gang rape and murder of Elizabeth Pena, 16 and Jennifer Ertman who was 14. The girls had tragically wandered upon a gang initiation. This would seem to be just one more routine execution of which Texas leads the nation. It would also seem that if anyone deserved to be executed, Mr. Medellin should certainly have that place in death penalty lore. There is one minor twist. Mr. Medellin is a Mexican citizen. He was allegedly denied access to the Mexican consulate after his arrest which is a violation of the Vienna Convention. Mr. Medellin was allegedly never told he had the right to see a Mexican consular officer as required by the Convention. The Vienna Convention is an international treaty governing in part the treatment of citizens of different nations outside of their home countries. The United States is a signatory to this treaty.

In a ironic diplomatic and political twist, the normally pro-capital punishment Bush administration is fighting tooth and nail to save the life of Mr. Medellin. The administration claims there a bigger picture at stake. The picture frame encompasses the rights of United States citizens who may find themselves in similar situations in Mexico and other foreign nations. It is the position of the United States that this matter is governed by the Vienna Convention and that an international court should review Mr. Medellin's situation before any further action is taken. President Bush tried to resolve the issue three years ago by ordering all states to review the cases of 51 Mexican nationals on death row, including Mr. Medellin, as directed by the International Court pursuant to the Vienna Convention. The U.S. Supreme Court ruled earlier this year that Mr. Bush overstepped his authority and that individual states are not bound by international law on this issue. They held that this particular treaty is not "self-executing". It also found that in the alternative Congress had not enacted any legislation enacting it. The state of Texas is therefore free to proceed with the execution.

The state of Texas could care less about what the International Court has to say about Mr. Medellin's rights. Texas has taken the position that Mr. Medellin received fair trial in accordance with state law and any international issues are not its concern. Should the state of Texas care about the bigger picture of international politics, diplomacy and the fair treatment of American's abroad? There is nothing in the United States Constitution requiring the states of Texas to stand down to the Vienna Convention or practice international diplomacy. This is a states rights issue. Mr. Medellin received the full spectrum of Constitutional rights he was entitled to under state law and Supreme Court rulings extending federal law to his situation. Even assuming he had some state right to consular access, how would this have affected his trial? There was no prejudice.

The Bush administration which is always death penalty friendly has to be choking on its position. It wants Texas to put aside sovereign state rights and consider the bigger picture of international diplomacy. This is a very strange bedfellow with a state's right to impose and carry out the death penalty. A penalty that is not in conflict with either state or federal law. Does the state of Texas have any obligation to look beyond this? Should not the obligation to enforce its own laws and protect its citizenry take precedence? In the absence of any federal statute conferring jurisdiction over this matter, it would appear that the federal government should butt out and Mr Medellin be executed as scheduled.

The death penalty must also not be inflicted in an arbitrary manner. The Supreme Court said so in Furman v. Georgia. Does the fact that Texas can choose to execute Mr. Medina and then choose to honor international law sparing the next killer's life make this an arbitrary imposition of death?

When should a state practice international diplomacy and respect the rule of international law? The answer appears to be one of self serving agendas and political pressure. State diplomacy wins the day here. There is no upside to any upcoming election from the Governor on down if Texas sides with the federal government. The overwhelming majority of Texans want Mr. Medellin executed as quickly as possible. If the state of Texas was concerned about its international reputation would it still be executing Mr. Medellian? What if Mexico was concurrently holding a Texas citizen under sentence of death? What if that citizen has been denied international treaty rights? Would Texas then be eager to execute Mr. Medellin? If Texas has no legal obligation to stop the execution, politics and public perception agendas are all that remain. At this time, Mexico appears to have nothing that Texas wants that would justify "mercy by agenda" Let us hope we have something that Mexico wants when the roles are reversed.

I am a Dallas Attorney working for Mark Cuban Companies doing whatever that happens to entail at any given moment. I am also the Executive Director of the Mark Cuban Foundation currently administering The Fallen Patriot Fund.I was born and raised in Pittsburgh, Pa. I attended Mt. Lebanon High School. I received my undergraduate degree from The Pennsylvania State University. I received my law degree from The University of Pittsburgh School of Law. My web site is: http://www.briancuban.com

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