updated 10/11/2007 8:31:49 AM ET 2007-10-11T12:31:49

President Bush and Texas, the state he once led, were on opposite sides of a Supreme Court dispute Wednesday over the role of international law and claims of executive power in the case of a Mexican on death row for rape and murder.

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The justices engaged in a spirited discussion of who gets the final say in whether Texas courts must give Jose Ernesto Medellin a new hearing because local police never notified Mexican diplomats that he had been arrested, in violation of an international treaty.

An international court ruled in 2004 that the convictions of Medellin and 50 other Mexicans on death row around the United States violated the 1963 Vienna Convention, which provides that people arrested abroad should have access to their home country's consular officials. The International Court of Justice, also known as the world court, said the Mexican prisoners should have new court hearings to determine whether the violation affected their cases.

Presidential or international determination
Bush, who oversaw 152 executions as Texas governor, disagreed with the decision. But he said it must be carried out by state courts because the United States had agreed to abide by the world court's rulings in such cases. The administration argued that the president's declaration is reason enough for Texas to grant Medellin a new hearing.

"Obviously, we feel the president's determination here is a critical element," Solicitor General Paul Clement said during a court session, for which an hour was allotted, that stretched to nearly 90 minutes.

Medellin's lawyer, Donald Donovan of New York, said the court could rely either on the international court ruling or the president's determination.

Texas argued that the international court ruling has no weight in Texas and that Bush has no power to order its enforcement.

Several justices suggested that U.S. ratification of an agreement promising to abide by the international court's decisions is a sufficient basis for ruling in Medellin's favor. "The United States gave its promise. It voluntarily complied," Justice Ruth Bader Ginsburg said.

But that proposition troubled Justice Antonin Scalia, who wondered whether American courts could hand the ultimate decision to a foreign court. "I'm rather jealous of that power," Scalia said. "I don't know on what basis we can allow some international court to decide what is the responsibility of this court, which is the meaning of the United States law."

Swing vote
The outcome could depend on the views of Justice Anthony Kennedy, which is what frequently happened last term. His outlook on the law often has a strong internationalist flavor, but he also vigorously resists arguments that would reduce the court's ultimate decision-making power.

Kennedy at one point suggested that Texas courts already have done what the world court had ordered. "I think Medellin did receive all the hearing that he's entitled to under the judgment anyway," Kennedy said.

Texas Solicitor General R. Ted Cruz did not dispute that Texas violated the Vienna Convention, but said: "Both the federal and state courts that looked at this concluded that there was no even arguable prejudice from the violation."

Medellin was arrested a few days after the killings of Jennifer Ertman, 14, and Elizabeth Pena, 16, in June 1993. He was told he had a right to remain silent and have a lawyer present, but the police did not tell him that he could request assistance from the Mexican consulate.

Medellin, who speaks, reads and writes English, gave a written confession. He was convicted of murder in the course of a sexual assault, a capital offense in Texas. A judge sentenced him to death in October 1994.

Foreigners facing execution
Texas acknowledges that Medellin was not told he could ask for help from Mexican diplomats, but argues that he forfeited the right because he never raised the issue at trial or sentencing. In any case, the state argues, the diplomats' intercession would not have made any difference in the outcome of the case.

State and federal courts rejected Medellin's claim when he raised it on appeal.

Then, in 2003, Mexico sued the United States in the International Court of Justice in The Hague on behalf of Medellin and 50 other Mexicans on death row in the U.S. who also had been denied access to their country's diplomats following their arrests.

Mexico has no death penalty. Mexico and other opponents of capital punishment have sought to use the court, also known as the World Court, to fight for foreigners facing execution in the U.S.

Forty-four Mexican prisoners affected by the decision remain on death row around the country, including 14 in Texas. One Mexican inmate formerly facing execution now is imprisoned for life because of the Supreme Court decision outlawing capital punishment for anyone under 18 at the time the crime was committed.

Bush has since said the United States will no longer allow the world court to judge the consular access cases because of how death penalty opponents have tried to use the international tribunal.

The case is Medellin v. Texas, 06-984.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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