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High Court: Not This Year

Despite the concerns of two justices, the Supreme Court refused Monday to be drawn into an international death penalty debate over the legal rights of a Mexican on Oklahoma's death row, or to get involved in an affirmative action case that involved government contractors.

The court was asked to consider whether American prosecutors are violating a 1963 international treaty when they do not notify foreign governments about death penalty cases involving people from their countries. That issue is being debated internationally.

Fresh off a divisive case involving affirmative action in college admissions, a divided Supreme Court also refused to consider the constitutionality of a Denver law that gives minority- and female-owned contractors a better chance at winning some contracts.

The court ruled in June that universities may select students based in part on race, acknowledging a social value from affirmative action.

In other action Monday, the justices:

  • ruled Ohio legislative districts redrawn before the 2002 election did not discriminate against minorities.

    Legislative Democrats claim the board that drew the lines created districts that suppressed the election of blacks in Ohio, especially in four big-city counties of Franklin, Hamilton, Mahoning and Montgomery.

    A federal appeals court in Ohio voted unanimously earlier this year to uphold the plan approved in 2001 by the State Apportionment Board, dominated 4-1 by Republicans. The Supreme Court refused to hear an appeal of that case and issued a separate affirmation of the appeals court ruling.

  • refused to consider reinstating a man's conviction for killing two people and wounding two others at a Michigan car plant.

    The 6th U.S. Circuit Court of Appeals had ruled that Oliver French received inadequate counsel in his trial, because a Los Angeles screenwriter was introduced as his attorney and was the only person representing the defense team during a part of the trial.

    French claimed he was temporarily insane in 1994 when he shot four fellow union officials at a Ford Motor Co. plant in Dearborn, Mich.

    The jury found him guilty but mentally ill in 1995, and he was sentenced to life in prison.

Justices had been urged to take that up in the appeal of Mexican national Osbaldo Torres, also known as Osbaldo Torres Aguilera, who argued that Oklahoma should not be allowed to put him to death.

The court refused without comment to hear his appeal. Justices John Paul Stevens and Stephen Breyer wrote their own opinions expressing concerns.

"It surely is reasonable to presume that most foreign nationals are unaware of the provisions of the Vienna Convention (as are, it seems, many local prosecutors)," Stevens wrote.

The treaty says consular officers have the right to be notified and visit any national in prison, custody or detention, to arrange for legal representation.

The World Court at The Hague ruled earlier this year that the United States should delay the executions of several men, including Torres, while the court investigates whether the more than 50 Mexican nationals on U.S. death rows were given their right to legal help from the Mexican government.
Breyer said the Supreme Court should not have disposed of the Torres case until the World Court has finished its deliberations.

Torres asked justices to consider whether his sentence should be thrown out because he never was told he could talk to Mexican consular officials.

Torres was 18 when he was arrested in Oklahoma City not far from where a couple was shot to death in their bed in 1993. He had blood on his shirt and was with another man identified by witnesses as the shooter.

Sandra Babcock of Minneapolis, the lawyer for the Mexican government, told justices in a filing that when Torres was arrested he had not finished high school and had no lawyer. She said Mexican officials would have liked to help him with his legal defense, but they never were contacted at any point in the proceedings, even after his first trial ended in 1995 with a deadlocked jury.

He was convicted of first-degree murder at a second trial in 1996, and Mexican officials were told of his death sentence by his family. Torres also is challenging his conviction.

Mexico does not use the death penalty. In August 2002, Mexican President Vicente Fox canceled a visit to President Bush's ranch in Texas to protest the state's execution of convicted police killer Javier Suarez Medina.

In addition to Oklahoma, Mexicans are on death rows in other states, including Arizona, Arkansas, California, Florida, Nevada, Ohio and Oregon.

On affirmative action, Chief Justice William H. Rehnquist and Justice Antonin Scalia said the court should turn its focus now on preferences in government contracting, and make clear that programs must be narrowly tailored to address specific past discrimination. Very few laws or government programs have been upheld under that standard.

The court on Monday let stand a ruling that upheld Denver's program. The city had been sued a decade ago by a company that alleged the law discriminated against white male contractors.

Scalia, writing for himself and Rehnquist, said the Denver policy clearly violates the standard set by the Supreme Court and invites speculation that an earlier case limiting affirmative action had been overruled.

Scalia said there must be some evidence that discrimination was so pervasive that any minority business would have suffered.

"Absent such evidence of pervasive discrimination, Denver's seeming limitation of the set-asides to victims of racial discrimination is a sham, and the only function of the preferences is to channel a fixed percentage of city contracting dollars to firms identified by race," he wrote, in dissenting from the court's refusal to hear the case.

The death penalty case is Torres v. Mullin, 03-5781. The affirmative action case is Concrete Works of Colorado Inc. v. Denver, 02-1673.

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