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be told “without delay” that they have a right to let their consulate know they have been arrested. Medellin did not know of this right, and Houston authorities were either also unaware or unwilling to clue him in. Medellin contacted Mexican officials in April 1997, and they began providing him with legal assistance. Medellin began raising violations of the Vienna Convention to challenge his conviction and sentence, but the Texas Court of Criminal Appeals ruled against him. In 2001, he appealed in federal court, and once again lost. While Medellin’s case was working its way up the federal court food chain, Mexican officials were becoming exasperated that many states were ignoring the Vienna Convention. Mexican citizens were being jailed across the country with no opportunity to contact a consulate. On behalf of Medellin and 53 other Mexicans on U.S. death rows, the Mexican government filed a complaint in the International Court of Justice the United Nations’ primary judicial body. Both Mexico and the United States were parties to the Vienna Convention’s Optional Protocol, which granted the ICJ authority to settle disputes between nations over application of the treaty. On March 31, 2004, the ICJ issued its opinion in the Case Concerning Avena and Other Mexican Nationals, holding that U.S. courts must review and reconsider the convictions of 52 Mexican nationals \(two had already been removed from prejudice and its causes, taking account of the violation of the rights set forth in the [Vienna] Convention:’ The ICJ wasn’t saying the sentences of Medellin and others should be thrown out. Rather, it was asking U.S. courts to reopen the cases to allow a good-faith examination of whether complying with the treaty might have changed the outcome. Although it wasn’t the first time the international court had heard challenges to U.S. death sentences for foreign nationals, it was the first time the ICJ managed to issue its final judgment before the individuals in question were executed. Despite the Avena ruling, the U.S. Court of Appeals for the Fifth Circuit upheld Medellin’s conviction. The U.S. Supreme Court agreed to hear the appeal. Before oral arguments took place, however, Bush issued a memorandum to then Attorney General Alberto Gonzales stating that “the United States will discharge its international obligations under the decision of the International Court of Justice … by having State courts give effect to the decision in accordance with general principles of comity ….” In light of the president’s order, the Supreme Court kicked Medellin’s case back to the Texas Court of Criminal Appeals for further consideration based on Avena and the president’s memorandum. \(The following year, the high court ruled in a case from Oregon that incriminating statements made prior to consular notification were admissible in court and that the Avena decision was not binding on U.S. courts, but it did not address the status of the 52 Mexicans directly involved in the Back in the hands of Texas’s highest criminal court, the case could have gone quietly away. The Texas judges could have agreed to reconsider the case. They could have concluded that Avena or the presidential memorandum constituted new information that allowed them, under Texas law, to review Medellin’s conviction and sentence. In Oklahoma, where two of the affected Mexicans were imprisoned, that’s exactly what happened: The state courts reviewed the cases, and the governor commuted the death sentences. After taking another look, the Texas court could even have ruled that the Vienna Convention violations did not prejudice the verdict and sentence, and let Medellin proceed on his way to lethal injection. “I think it would have been far easier and a better result had they ordered a reconsideration pursuant to the presidential order, because that really doesn’t require a change in result,” said Ed Swaine, an associate law professor at George Washington University and a former legal advisor to the State Department. “That’s what the Supreme Court thought might happen when they remanded previously. I think that would have been easier on everyone concerned.” Instead, in an opinion issued on November 16, 2006, the Texas court unanimously told the ICJ exactly where it could The Texas court unanimously told the International Court of justice exactly where it could stick its decision. stick its Avena decision. The Texas court would not reconsider anything. Although a majority of the judges couldn’t agree on the exact legal reasoning, they also unanimously held that the president should keep his memorandums to himself. Medellin v. Texas was back on the fast track to the U.S. Supreme Court, which accepted the case again on April 30, 2007, and heard oral arguments on October 10. Donald Donovan, Medellin’s attorney, was first to appear before the nine Supreme Court justices, and he plunged straight into international waters. Through the Optional Protocol, Donovan argued, the president and the Senate had committed the United States to heed the ICJ in disputes arising from the Vienna Convention. It was the responsibility of state courts to honor this obligation by reviewing the trial records of the 52 Mexicans named in the Avena decision to determine whether lack of notification harmed their defense. Medellin’s case deserved another look, he said, and the Supreme Court should order the Texas Court of Criminal Appeals to give it one. U.S. Solicitor General Paul Clement followed Donovan to the podium, and he had Donovan’s back albeit conditionally. Clement argued that it was up to the president, and the president alone, to determine whether the United States should heed the ICJ judgment. If the president had decided to buck the international court, Clement said, he’d be standing over on the Texas side. NOVEMBER 2, 2007 THE TEXAS OBSERVER 15