On the execution of José Medellín, lots of readers take issue with my argumentative reader:
[Reader A] Your reader assumes that the United States federal government can make treaties that violate the U.S. Constitution, and that the states are obligated to enforce these constitutional absurdities. … Congress and the President have no more power to enforce the protection of the rapist-murderer than they have to enforce a treaty banning private ownership of handguns or criticism of foreign governments …[Reader B, a defense attorney] I think that the short answer to your reader’s objection is this: even if the treaty is violated with respect to a murderer, what remedy should there be for the murderer? Other countries might — might — send a memo reminding their cops of the rules, but which ones suppress otherwise valid confessions? The violation was that the guy wasn’t notified of his right to contact the consulate. A) who cares? Stopping him from doing so is one thing, not bringing it to his attention is de minimis. B) anyone who says that Mexico’s cops had been giving that notification to Americans arrested for murdering Mexicans is just crazy. Latin America is not the home of dainty police work. It wasn’t that long ago that Sao Paolo’s police killed over 1000 people in the line of duty in a single year. Most people think that suppressing evidence is the natural order of things, a practice followed round the world. It’s not. Does the treaty require us to suppress confessions obtained in the absence of notification of the right to contact the consulate? I have not read the treaty, but I’m to go out on a limb and guess not. You don’t have to favor breaking the treaty to favor executing the murderer.[Reader C] He says the treaty is a good thing because it will help American tourists traveling abroad. Sure it will; but the murderer in question had been living here illegally since he was 3 years old. Would an American living in a foreign country illegally for his whole life need help from the consul, or would that just be a loophole? … This Medelin character never asked to see the Mexican Consul. He was an adult, not a child. If he knew he was in trouble and knew he was a foreigner, why wouldn’t he ask to see the Mexican Consul? … It sounds like your correspondent wants the police to check with a foreign consulate in every arrest. Seriously? …[Reader D, another attorney] José Medellín was not denied the right to contact Mexican Consular Officials. He simply was not told that he had the right to ask to that Mexican Consular Officials be notified of his arrest. The text of that part of the treaty is as follows:
Article 36 Communication and contact with nationals of the sending State 1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended. (emphasis added) … So who are these “competent authorities” that Art 36 (1)(b) require to contact the Mexican Consul? Is it the local Sheriff? The US State Department? It looks to me that Congress has the right, under the provisions of the US Constitution dealing with treaties, and Art. 36(2), to pass a law and settle that question.
What happens if the “competent authorities” who ever the hell they are, do no notify the Mexican Consul? The Treaty does not say. Again, it looks to me that Congress could pass a law saying just what happens. They could make the non-notification a Federal crime, they could give the perp a get out of jail free card, or even just say, whatever else happens, you can’t execute the guy. But Congress has done no such thing. Unless and until Congress passes (and the President signs) such a law, the courts have zero business legislating an enforcement mechanism, or non-compliance penalty scheme.
For what it is worth. I am an elected (misdemeanor) prosecutor in [name of state], and rarely have a docket without a Mexican National on it. If the Judge who magistrates the the defendant knows they are a Mexican National, he will ask if they want the Mexican Consul notified. A few do, and the Mexican Consul in [name of city] is duly notified.
What about the vast majority who do not want the Mexican Consul notified, are their rights being violated? The Treaty says that the Mexican Consul will be notified if he, not the arrested person requests it, and does not give the arrested person any power to waive the Consul’s right to be notified of an arrest.
So how often has the Mexican Consul contacted my office complaining about lack of notification? Never. The fact is, the Mexican Consul doesn’t give a damn, and, whatever nominal request for notification he may have made, he certainly doesn’t want his staff tied up fielding thousands of calls a year from all over [southern border states] every time a Mexican National gets arrested.
If Mexico, or some other nation, decides to retaliate against US Citizens because of Medellín, that is unfortunate, but it is not the job of either local officials in Texas, or Federal Courts, to unilaterally exempt foreigners from the death penalty, in anticipation of such retaliation.[Reader E, from Houston, where the crime was committed] It has escaped the nattering nabobs of the east coast that José Medellín was not denied access to a consul, at the time of his arrest. He did not know that he was a Mexican Citizen! Brought to the US at the age of three, he believed that he was a US citizen. His parents were illegal, he just did not know that he himself was illegal. Only after the conviction, after the 1st round of appeals, did his new attorneys discover that he was not a US citizen. Thus the lateness of the consular claim.
BTW, when police arrested him and interviewed all of his family, because of Houston’s sanctuary policy, they could not check the family or his immigration status. … Bottom line: The Medellín case is a really poor example to argue about consular notification. Especially when the criminal does not know what country he was born in.
[Me] That’s a mere selection. Many thanks to all, especially the Houstonians who are still, after 15 years, outraged by this monstrous crime.






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