Made in Mexico: A New Death Penalty Debate

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Attorney Andrew Cohen analyzes legal issues for CBS News and

You can argue that , argued over for nearly 90 minutes this week at the Supreme Court, is an extraordinarily complex capital case loaded with tense interactions between state, federal, and international authorities. You could say it's a case about the eternal struggle between the various branches of government about which gets the final call about the timing of an execution. You could say it's a contest between two nations, Mexico and America, struggling to abide by long-held rules and principles of fairness.

Or, if you want to get positively baseline about it, you could say that Medellin v. Texas is an ironic case which has seen George W. Bush go out of his way to provide due process protections to a Mexican national - a convicted killer, no less - after failing or refusing for years to show any concern at all for the rights of homegrown prisoners. There are no doubt hundreds of men on death row in America right now who are saying to themselves: Why Medellin and not me? Why can't I get the president to intercede on my behalf?

Why, indeed. The justices Wednesday went way beyond their self-imposed one-hour time limit for oral argument trying to figure out whether the president has the authority to order the state courts of Texas to provide a new round of appellate review to a man named Jose E. Medellin, a Mexican national who was charged with murder in 1993 and then convicted and sentenced to death a year later. For nearly 90 minutes, the curious justices peppered lawyers for both sides with questions in what Supreme Court diva Linda Greenhouse called "an intense and lively seminar."

The White House says that the state courts must respect a ruling by the International Court of Justice that declared in 2004 that Medellin upon his arrest was deprived of his right to confer with consular officials. Texas says that both the president and the international court ought to butt out of what has traditionally been the province of the states - capital cases, remember, almost always are brought by state prosecutors before state juries and judges.

The World Court did not seek to have Medellin retried; it was satisfied with requesting a new hearing for Medellin which it said was required by the Vienna Convention on Consular Relations. The White House agreed, perhaps for political purposes more so than for legal ones, but now has its collective back up because Texas is refusing to enforce a presidential order. But the president doesn't get to boss around the states, Texas' solicitor general told the justices on Wednesday. It's not hard to see how and why the battle lines have hardened the way that they have. It's a combustible mix.

No matter what happens to Medellin, however, it's clear that he is getting more attention and help from the White House than Michael Richard did. Richard was executed by lethal injection in Texas last month on the very day that the Supreme Court declared it would accept two Kentucky cases that had raised the issue of poor injection procedures. The Justices turned down Richard's request for a stay of execution and the state appellate court offices closed at 5 p.m. that day despite knowing that Richard's attorneys would be seeking emergency relief that night. President Bush did not give any orders to stay an execution in Texas on that occasion. He did not issue an Executive Order requiring a hearing or have his lawyers file a brief.

In fact, the Justice Department was supporting lethal injection procedures around the country - and asking the Supreme Court not to get involved in a review of those procedures - long after Florida Gov. Jeb Bush declared a moratorium on lethal injections. Gov. Bush acted after a horribly botched execution in the Sunshine State in December 2006. Meanwhile, the president's attorney general was defending injection protocols long after one federal judge after another began to question them. Believe me, state officials in Texas aren't complaining about President Bush's power grab on states' rights when it comes to this area of capital punishment law.

Nor for that matter does Texas have cause to complain about the president's role in the case of a capital convict named Calvin Burdine. The White House did not rush in 2001 to give direction to the Texas courts to intercede on behalf of Burdine even though the fellow's lawyer slept through significant portions of his murder trial. It took years and years and intervention by the federal courts to ensure that this travesty upon justice - the Constitution is deemed to require the "effective assistance of counsel" - to be corrected. There were no presidential directives then.

Indeed, before President Bush came to the White House his main legacy in the area of capital punishment was an astonishingly glib and shoddy piece of governance now known to the world as the Texas Clemency memos. In his famous expose, Atlantic Monthly reporter Alan Berlow revealed in 2003 the callous, reckless way in which then-Gov. Bush and his then-counsel, Alberto Gonzales, reviewed clemency memos from capital prisoners of their state. One by one the men's clemency requests were denied, often when the facts and analyses in the memos were faulty or downright lies.

Unwilling as governor to muster up concern for the legal claims of the death row inmates of his own state, the president since coming to Washington has done little to change anyone's mind about how he truly feels about capital punishment protocol. He was still insisting Texas' procedures were fair during the Burdine case. Yet this is the same man who this week sent the nation's Solicitor General up to the Supreme Court to argue that a foreign-born killer deserved one more hearing. Go figure.

I know. The principles at stake here - state sovereignty, federal authority, international law - go beyond the death penalty debate and the president's role in it. There is a good chance that the president would have intervened on behalf of his close allies in Mexico even if Medellin were accused and convicted of a less heinous crime. And there is no comparison, really, between the legal doctrines involved in this case as opposed to the ones which emerged in the Burdine or Richard cases.

That's what all the president's men and women will say when they are asked why they are taking Mexico's side against Texas in a tiny recreation of the War of Independence fought along the Rio Grande in 1836. What these tribunes will mean is that their intercession on behalf of Medellin is strictly business, and nothing personal, and that no Americans who happen to be on death row today ought to get excited about the prospect of it getting help from the feds any time soon - whether they deserve it or not.

By Andrew Cohen