News articles about these murders
(if you want to read them in chronological order,
start at the bottom of the page)

Wed 07/12/2006
O'Brien executed for rape-murders / Killer apologizes to the families of Peña and Ertman

HUNTSVILLE - As the parents of his victims wordlessly watched, their faces just inches away from the glass that separated them from the execution chamber, killer-rapist Derrick O'Brien went to his death Tuesday, expressing deep sorrow for his crimes. One of six men convicted of the 1993 rape-murders of Jennifer Ertman, 14, and Elizabeth Peña, 16 - teens who stumbled into a drunken midnight gang initiation rite - O'Brien, 31, was the first to die. Two others await execution, and three more, juveniles at the time of the crime, are serving prison terms for the attacks.

"I am sorry. I have always been sorry," O'Brien said as he lay on the gurney, awaiting for the lethal flow of drugs to begin. "It is the worst mistake that I ever made in my whole life. Not because I am here, but because of what I did. I hurt a lot of people - you and my family." Adolfo Peña, Elizabeth Peña's father, later said the apology "doesn't mean anything to me. Maybe he is sorry. God only knows that," Peña said as his wife, Melissa, sat silently at his side. "He's probably up there talking to him right now. So it really didn't mean much to me what he said. ... It doesn't make me feel any better. Maybe he was sorry, but it's just a little late for that, right?"

Peña, who wore a T-shirt bearing photographs of the dead girls, said only the execution of all six killers - an event he recognized is not possible - might bring him closure. "These kids deserve to die," Peña said. "There's no excuse for what they did. I don't want to use the a-word, but they're animals. I wouldn't do this to my worst enemy. ... I want to thank you from the bottom of my heart that we finally got justice for my daughter. I just wish I had her for 13 more years."

Randy and Sandra Ertman, parents of the second victim, did not talk with reporters. But Andy Kahan, Mayor Bill White's crime victims advocate, spoke on their behalf, saying they expressed satisfaction with O'Brien's execution. "They were really glad after 13 years that they finally got the execution," Kahan said. "They can close that chapter."

The lethal drugs, which O'Brien's lawyer unsuccessfully argued constituted cruel and unusual punishment, were administered at 6:12 p.m. - shortly after the U.S. Supreme Court turned down his final appeal. He was declared dead seven minutes later. "He just closed his eyes," Peña said, "and went to sleep."

As the execution began, three women witnessing the procedure at O'Brien's request crowded near the window of a second witness room. "I love you," one cried as a second tried to comfort her. "I'll always love you." As O'Brien lapsed into unconsciousness, the woman cried inconsolably, repeating again and again that she loved him. rison officials could not identify the woman.

2 others face execution

O'Brien was the 14th killer executed in Texas this year.

Also facing execution in the rape-murders are gang leader Peter Anthony Cantu, 30, and Jose Medellin, 31. Death sentences for Raul Villarreal and Efrain Perez, both 30, were commuted to life in prison because they were juveniles at the time of the killings. Venacio Medellin, 14 at the time of the attacks, is serving a 40-year sentence.

The rape-murders led to changes in Texas law that now allow relatives of victims to make statements at a trial's conclusion and witness the execution of killers. "That's a positive that's come out of a negative," Kahan said. "Seventy-five percent of families elect to witness executions, and that would not have been possible except for them (the Peña and Ertman families)."

Ertman and Peña, students at Waltrip High School, spent the hours leading to the attack with friends poolside at a northwest Houston apartment complex. As their midnight curfew approached, they debated the fastest route to Peña's residence. The chosen path - a shortcut via the railroad tracks through T.C. Jester Park - brought them into the midst of a drunken gang initiation. The girls were dragged into a nearby wooded area where, during the course of an hour, they were repeatedly raped, and then, as they pleaded for their lives, strangled. Police, acting on a phone tip from one of the killers' brothers, found the badly decomposed bodies four days later.

History of violence

During ensuing trials, witnesses testified that O'Brien had a reputation for drunkenness and violence. On one occasion, a former teacher told jurors, O'Brien broke another student's jaw. The future killer openly boasted of his exploits as a car thief. Court records indicate that O'Brien's mother and grandfather described him as "cruel" and "intentionally harsh." Defense counsel did not call O'Brien's relatives to testify. But O'Brien's final attorney, Catherine Burnett, an associate dean at the South Texas College of Law, found her client surprisingly meek. "The portrait the jury saw was that of a terrifying monster," she said as his execution approached. "The man I know does not seem to be the defendant in this case."

O'Brien turned down repeated requests for interviews. But on a Web site provided by death penalty opponents, O'Brien wrote that "Life is a miracle and therefore precious. Each time one is taken ... the world loses something special." His observation was in reference to his own life, not that of his victims.

One day before O'Brien's scheduled May 16 execution, the Texas Court of Criminal Appeals granted a stay in order to consider the condemned prisoner's claim that death by injection constituted cruel and unusual punishment. The court lifted the stay two days later.

Mon 07/10/2006
Killer's death date up again / Execution set for Tuesday in '93 rape, slaying of 2 teens at park

It wasn't news to anyone that Derrick Sean O'Brien was bad news. He fought often at school, once breaking a kid's jaw. Lots of times he was drunk. Sometimes he carried a knife. He was full of bluster about his prowess as a car thief. But it was in 1993 that O'Brien hit rock bottom. In January of that year, O'Brien later admitted, he murdered and tried to rape Patricia Lopez, a 27-year-old mother of two young children, in Melrose Park. And on June 24, 1993, he took part in the brutal gang rapes and murders of Jennifer Ertman, 14, and Elizabeth Peña, 16, after the girls stumbled into a drunken midnight gang initiation rite in T.C. Jester Park. Tuesday, O'Brien, 31, is scheduled to be executed for his role in that crime.

The death date is the killer's second this year. In May, O'Brien received a brief stay as judges considered his claim that death by injection is cruel and unusual punishment. O'Brien's attorney, Catherine Burnett, an associate dean at the South Texas College of Law, filed a new appeal on his behalf with the U.S. Supreme Court. "I hope the son of a bitch rots in hell," Ertman's father, Randy, said last week. "He deserves it."

"It doesn't make me happy," Peña's father, Adolfo, said in a recent interview. "But this is the punishment he was given, and it's justifiable. ... I kind of feel numb in a way, knowing that I've been waiting so long for this day to come. ... I've been looking forward to this for a long time."

The murders of Ertman and Peña rocked the city in a way that few deaths could. The Waltrip High School students, balanced at that awkward point between childhood and young womanhood, spent the hours before their deaths at a poolside party at a northwest Houston apartment complex. As their midnight curfew approached, they debated the best way to Peña's home. Their normal route would have taken half an hour, but they chose a well-known shortcut down the railroad tracks through the park. Minutes after the girls left the party, they were intercepted by O'Brien and five other members of the loose-knit gang, who had just concluded a track-side initiation rite. The girls were pulled from the tracks, raped and strangled. Court testimony revealed that O'Brien grunted with exertion as he tightened a belt around Ertman's neck. Then, after stomping on the girls' throats, the killers divided the victims' belongings.

O'Brien was at the crime scene four days later when police, alerted to the bodies' location by the brother of a gang member, began their investigation. Unobtrusively, the killer stood among spectators who gathered in the park. Ertman's father also was in the crowd. Days later, O'Brien was arrested. He will be the first of the convicted gang members to be put to death. Others facing execution are Peter Anthony Cantu, described as the gang's leader, and Jose Ernesto Medellin, both 31. Death sentences for two others - Efrain Perez and Raul Omar Villarreal - were commuted to life in prison when the U.S. Supreme Court ruled that those who were minors when they committed murders could not be executed. The sixth gang member, Venacio Medellin, who was 14 at the time of the murders and testified against the others, received a 40-year sentence.

"Don't say time makes things better," Peña's father said. "It never goes away. It's never going to go away. The hurt is still the same. I still find myself crying just out of the blue."

Thu 06/29/2006
High court axes foreigners' plea / Denial of suspects' claims of consular rights violations could affect Texas case

In a ruling that could have implications for a Houston death row case, the U.S. Supreme Court on Wednesday ruled against foreign suspects who want to suppress statements they gave to police during interrogations when they were not informed of their right to contact consulate officials from their home countries. The court ruled 6-3 that Mexican Moises Sanchez-Llamas' and Honduran Mario Bustillo's rights under the Vienna Convention were not violated because the treaty's consulate-notification provision does not apply to searches or interrogations.

Those cases originated in Oregon and Virginia, respectively. But the court's ruling could affect a Texas death-penalty case as well. Mexican national Jose Ernesto Medellin raised the same issue of Vienna Convention violations in his appeals. Medellin was one of six defendants convicted in the 1993 rape and murder of Jennifer Ertman, 14, and Elizabeth Peña, 16, in a northwest Houston park. "The court could have used Jose's case a long time ago to hand down the same ruling they handed down today," Medellin's attorney, Michael B. Charlton, said from his office in El Prado, N.M. "That pretty much ends Vienna Convention claims on confession claims but not on the other issues," he added. Medellin's case is under review by the Texas Court of Criminal Appeals after President Bush's edict last year for courts in Texas and other states to review his and 50 others involving foreign nationals who raised consular violation claims. But the court's decision does not relate to Bush's order.

In the majority opinion, Chief Justice John Roberts specified that Article 36 of the Vienna Convention "secures only a right of foreign nationals to have their consulate "informed" of their arrest or detention - not to have their consulate intervene, or to have law enforcement authorities cease their investigation pending any such notice or intervention." Under the convention, ratified by the United States in 1969, when a national of one country is detained by authorities in another country, authorities must notify the consular offices of the foreigner's home country when requested. Roberts also wrote that a detained foreign national, "like everyone else in our country, enjoys under our system the protections of the Due Process Clause." He set aside, however, the matter of whether police must advise defendants of their legal options. Roberts was careful to stipulate that the ruling "in no way disparages the importance of the Vienna Convention."

In a dissenting opinion, Justice Stephen Breyer wrote that the decision runs afoul of the treaty's interpretation "not only with the treaty's language and history, but also with the (International Court of Justice's) interpretation of the same treaty provision." Justices John Paul Stevens and David Souter joined in the dissent. Breyer wrote that the ruling may weaken respect abroad for the rights of foreign nationals and diminishes the treaty's proviso that foreign nationals are deserving of fair treatment throughout the world. A spokesman for the Texas Attorney General's Office, which is handling the Court of Criminal Appeals case involving Medellin, declined to comment about the potential impact of the court's ruling.

Thu 05/25/2006
Ertman, Peña murderer set to die on July 11 / Appeals court had granted, then reversed, a stay for teens' killer

A man whose execution for the murders of two teenage girls was blocked recently has been rescheduled for the death chamber on July 11. State District Judge Jan Krocker set the new execution date for Derrick Sean O'Brien, one of six gang members convicted in the 1993 slayings of Waltrip High School sophomores Jennifer Ertman and Elizabeth Peña. O'Brien, 31, originally was set to die on May 16, but the Texas Court of Criminal Appeals granted a stay of execution. The appeals court reversed course the next day, voting 5-4 to lift the stay and dismiss O'Brien's claim that Texas' lethal-injection procedure would violate his Eighth Amendment protection against cruel and unusual punishment. O'Brien would be the first of Ertman's and Peña's killers to die. Four others also were condemned, but two later saw their sentences commuted to life in prison after the U.S. Supreme Court banned the execution of those who were juveniles when they committed murder. Another gang member, who was 14 at the time of the attack, received a 40-year sentence. Ertman, 14, and Peña, 16, were walking home through a wooded area in northwest Houston on the night of June 24, 1993, when they were gang-raped and tortured, then strangled and stomped. Their bodies were found four days later.

Thu 05/18/2006
Ertman, Peña killer again faces execution / Case reversed; another inmate who challenged lethal injection is put to death

In a reversal with life-or-death consequences, the Texas Court of Criminal Appeals on Wednesday lifted the stay of execution it granted earlier this week for Derrick Sean O'Brien of Houston, who likely will be rescheduled for lethal injection for his role in the notorious slaying of two teenage girls in 1993. "See, we're back on the ride again, riding up and down," said Melissa Peña, mother of one of the girls who was gang-raped, tortured and strangled. "At least this is some good news. Maybe things will swing back our way."

The appeals court also denied a claim by another death row inmate, Jermaine Herron, who was then put to death in Huntsville for killing a South Texas mother and son nine years ago. Both men had argued that the state's use of a three-drug cocktail would cause pain and therefore violate their constitutional protection against cruel and unusual punishment. After the court issued its stay for O'Brien on Monday, his attorney and legal experts wondered whether the move signaled the court's willingness to wait for the U.S. Supreme Court to decide the issue over lethal injections raised in a Florida case now before it. Herron's attorneys filed a similar claim late Tuesday. In a 5-4 ruling Wednesday, the Texas court rescinded the stay it had issued for O'Brien and dismissed his claim that the state's lethal injection procedure would violate his Eighth Amendment rights. At issue, in this and a growing number of claims around the country, is whether an anesthetic administered as part of the lethal-injection cocktail can fail, and whether the dying inmate's agony is masked by a second drug that paralyzes the muscles. The U.S. Supreme Court has so far declined to address the constitutional question directly. But in a Florida case argued last month, Hill v. McDonough, the justices pondered a related procedural issue.

In an opinion issued Wednesday concurring with the majority vote, Texas Court of Criminal Appeals Judge Cathy Cochran explained that the court postponed O'Brien's execution to look more closely at the procedural issues as well as the merits of O'Brien's claim. She wrote that O'Brien failed to do more than speculate about the "problems or mistakes that "might" occur." She wrote further that he has not provided evidence that the three-drug protocol used during executions "is subject to any realistic risk of unnecessary pain or suffering." On Monday, Cochran had voted with five other judges to grant O'Brien a postponement. In a dissenting opinion Wednesday, Judge Tom Price wrote that the question before the court was not whether O'Brien's appeal proved an Eighth Amendment violation. It was the court's job, he wrote, to determine whether the appeal was appropriately filed as a state habeas corpus petition. "It is manifestly unfair, in my estimation, to fault the applicant for a failure of proof without first affording him an opportunity to present evidence at a hearing or through one of the other mechanisms that the statute allows for presentation of evidence," Price wrote. Rob Owen, a University of Texas law school adjunct professor and death penalty expert, agreed with Price, saying that the court skirted the procedural question. "It sounds like Price is criticizing the court saying it has gone around that question and gone straight to the underlying constitutional question," Owen said. "He's saying they're putting the cart before the horse."

Roe Wilson, a Harris County prosecutor, said she will file a request for a state district court to reschedule O'Brien's execution. She said she had not received the order Wednesday afternoon and would not comment further. A new execution date could be set within 30 days.

The reversal was the latest twist in a case that has already seen two death sentences commuted to life. O'Brien and four other gang members were sentenced to death for the June 24, 1993, deaths of Waltrip High School sophomores Jennifer Ertman, 14, and Elizabeth Peña, 16. Another gang member, a juvenile, received a 40-year sentence. Last year, two gang members were spared from the death chamber after the Supreme Court ruled those who kill when they are younger than 18 should not be put to death.

Randy Ertman, father of Jennifer Ertman, said he is frustrated that the waiting process now starts anew. "It's just nerve-racking," he said. "I don't know what the hell to think anymore." Andy Kahan, Mayor Bill White's crime victims advocate, said the court relented because the judges concluded "it would be foolhardy to put a halt to justice." "It's a bleeping roller coaster ride," Kahan said. "Everything that can possibly happen on these cases has. ... The (families) have been belted around so much this week by the system."

Tue 05/16/2006
Murderer of Ertman, Peña given a stay of execution / Families irate that his claim of lethal injection's cruelty has put his death on hold

An appeals court on Monday postponed the execution of Derrick Sean O'Brien for the vicious gang rape and murder of two teenage girls in Houston in 1993, enraging the victims' parents and extending the debate over how condemned inmates are put to death. The Texas Court of Criminal Appeals issued the order Monday afternoon, in response to an appeal filed last week challenging the injection process as unconstitutionally cruel. The ruling marked the third time that an execution has been scheduled - then postponed - in connection with the June 24, 1993, slayings of Jennifer Ertman, 14, and Elizabeth Peña, 16, as the girls took a shortcut home through T.C. Jester Park. "We were all ready for this to happen," fumed Adolph Peña, who had planned to witness the execution tonight in Huntsville with his wife, Melissa. "You talk about cruel? ... We've been waiting 13 years for this son of a bitch to be executed. It's time for him to be executed."

O'Brien was "emotional" when he heard about the court's ruling, said his attorney, Catherine Burnett, who spoke to him by telephone at death row in Livingston. Monday's stay comes at a time when condemned inmates around the country increasingly are challenging the injection method as unconstitutionally "cruel and unusual punishment." Lethal injection has long been used in 37 of the 38 states that have the death penalty because it is considered more humane than shooting, hanging or electrocution. But defense attorneys have recently cited new medical information that they say shows the inmates may suffer excruciating pain because they are sometimes conscious when the lethal drug takes effect. The inmates are unable to indicate they are in pain because of a paralyzing agent that is part of the three-drug combination used in such executions, the attorneys say.

O'Brien's scheduled execution is the ninth this year to be postponed to consider such claims. The U.S. Supreme Court has so far declined to address the constitutional question directly. But in a Florida case argued last month, Hill v. McDonough, the justices pondered a related procedural issue. By July, the high court will decide whether Clarence Hill, who was convicted in the 1982 murder of a police officer, can get a last-minute hearing to challenge the execution method. That likely influenced the state court, O'Brien's attorney said. "I think the Court of Criminal Appeals is taking the prudential view not to rush this issue when it's pending before the Supreme Court," said Burnett, who also is an associate dean of the South Texas College of Law. O'Brien - who admitted to but was never tried for killing a 27-year-old woman months before the Ertman and Peña slayings - also has a separate appeal pending before the Supreme Court.

Despite the court's ruling Monday, a spokesman for the Attorney General's office denied there is a de facto moratorium on executions in Texas. Another execution is scheduled for Wednesday; 14 more are set through October. Harris County Assistant District Attorney Roe Wilson said she was surprised by the stay for O'Brien and suggested the Texas court may be awaiting movement from the high court on the issue. "We have had some (death penalty cases) where that has been a claim, and those executions have gone through," Wilson said. "So it's very surprising."

It also dealt another frustrating blow to the families of the victims. Last year, two other men convicted in the Ertman-Peña case had their death sentences commuted to life in prison after the Supreme Court determined that people could not be executed for crimes committed when they were minors. O'Brien, who was 18 at the time of the crime, would have been the first of the killers to die; two others remain on death row, while a sixth man, who was 14 at the time, is serving a 40-year sentence.

Ertman's father, Randy Ertman, on Monday called the Texas appellate judges "spineless" and thanked "the people of Houston for their thoughts, concerns, overwhelming support and prayers over the past week, actually over the last 13 years." "And that's about it," he added. "There's nothing else I can say that's printable. ... We'll get over it, like everything else. It's just another bump in the road of the justice system." Ertman, who also had planned to view the execution, said he no longer intends to. "I'm not going to view any executions now. I'm not going to allow them to beat me again," he said. "I feel like I've gone a round with Muhammad Ali. I'm not going to view it. There's no sense to it."

Sun 05/14/2006
ERTMAN-PE-A CASE / As the first execution nears, the effects of two girls' slayings linger in both court procedures and their survivors' lives / Murders still felt across city

Catching up with friends after a family vacation in Florida, Elizabeth Peña beamed as she showed off the stuff she'd bought with her 16th birthday money: a new pager, some new underclothes. As the summer evening waned, Jennifer Ertman, another Waltrip High School sophomore, checked her Goofy wristwatch and saw that it was pushing midnight. She and Peña would break their curfews if they didn't get home in a hurry. The girls debated how to get to Peña's Oak Forest home in northwest Houston. One route would take half an hour; a well-known shortcut along the railroad tracks through T.C. Jester Park would save about 10 minutes. The shorter route instead led the girls into the hands of six teenage gang members who had just finished an initiation ritual. For an hour, the six raped and tortured the girls before strangling them - stomping on their necks for good measure. Their bodies were discovered four days later, horrifying a city that shrugs off hundreds of homicides each year. The Ertman-Peña case captivated a generation of Houstonians the way the Dean Corll-Elmer Wayne Henley multiple murders had an earlier one.

On Tuesday, the first of Ertman and Peña's killers is set to die by injection.
"I've waited 13 years to view an execution," said Ertman's father, Randy Ertman, who will witness the act thanks to a policy change prompted by the case. "In the grand scheme, it may not mean a whole hell of a lot. But Derrick Sean O'Brien will never kill again." Barring court intervention or a last-minute reprieve, O'Brien, a ninth-grade dropout who last month turned 31, will be the ninth killer to die in Texas' death chamber this year. He turned down requests to be interviewed for this article. But in affidavits that appellate attorneys have filed in an effort to save O'Brien's life, relatives said his behavioral problems began in school, after he claimed a teacher made sexual advances toward him. Administrators sided with the teacher, and O'Brien was transferred to an alternative school. During his trial, other evidence was presented about O'Brien's violent past, which included another murder months before the girls' slayings. The five other gang members involved, most of whom are in their early 30s, remain in state prisons. The former gang leader, Peter Anthony Cantu, 30, and Jose Medellin, 31, are on death row, but their execution dates have not been set. Two others who were sentenced to death had their sentences commuted to life in prison last year after the U.S. Supreme Court determined that it was cruel to execute those who were juveniles when they killed. Raul Villarreal and Efrain Perez, now both 30, were months away from turning 18 when they participated in the gang rapes and murders. Venacio Medellin, 14 at the time of the crime, testified against the others and is serving a 40-year sentence.

In the years since, as the killers became adults behind bars, Adolph and Melissa Peña became grandparents. They said they were "saved" by their two other children, who gave them a reason to wake each morning, though their son, Michael, remains bitter. The Peñas, like Randy Ertman, plan to witness O'Brien's execution. For years, Randy Ertman sought escape through alcohol, but he now remains sober for the sake of his wife, Sandy. The couple, who have no other children, now live a quiet life tending to their garden at their small, two-story lakefront home in Somerville. By the time Villarreal and Perez were scheduled to die - on the 11-year anniversary of the crime - the Supreme Court already had begun considering the juvenile-killer issue and the executions were postponed. The ruling that followed was hard on the girls' parents. But they cling to the expectation that, at least, the state will dispatch three of the killers.

On the moonless night of June 24, 1993, members of a little-known gang had gathered near a patch of woods along White Oak Bayou near West 34th. Villarreal, who was 17, had trash-talked his way into being "jumped into" the gang. It was time to prove himself. The gang members - Cantu, O'Brien, Perez, brothers Roman and Frank Sandoval, Medellin and his brother Venacio - took turns pummeling the inductee. Then, they all downed beer and talked about what it meant to be in a gang. The Sandovals, heading home, passed two girls along the railroad tracks. A moment later they heard: "What's y'all's name?" The brothers watched as Jose Medellin grabbed Elizabeth and threw her to the ground. She screamed for help. Jennifer broke away but returned and was grabbed by Cantu and O'Brien. The girls cried and struggled while the gang members repeatedly sexually assaulted them. At times, two would assault one girl. Afterward, according to court records, Cantu flatly told Jose Medellin, "We're going to have to kill them."

The girls pleaded for their lives, but the gang members took them into a clearing beneath a canopy of trees. O'Brien and Villarreal forced Jennifer to her knees and looped O'Brien's belt around her neck. Jennifer clawed at the belt and struggled to breathe. O'Brien grunted as both pulled on the belt so hard it snapped. Jose Medellin, Perez and Cantu killed Elizabeth in a similar manner. They then stomped on the girls' throats to make sure both were dead. Later that night, the gang members divided up money and Jennifer's jewelry. Cantu handed Venacio Medellin her Goofy watch. The girls' clothes, including Elizabeth's new undergarments, were strewn among empty beer cans. When Jennifer did not return home that night, her parents began to frantically page her. After the Peñas returned from work the next day, they realized that their daughter, too, was missing. They figured that if she and Jennifer had simply fallen asleep at their friend's apartment on West 34th, she would have called. The parents called police and began papering the neighborhood with fliers. An anonymous tipster, later revealed as Cantu's brother, led police to the site where the bodies had been left. Ramon Zaragoza, a Houston police homicide investigator, was struck by the grotesque condition of the girls' bodies. Decomposition had claimed their facial features. Jennifer had three fractured ribs, and Elizabeth had several missing teeth. Zaragoza encountered Jennifer's father at the park. "Does she have blond hair?" Randy Ertman screamed as he was being restrained by police. Zaragoza, now retired, told Ertman that investigators would need dental records to identify the bodies. "I think that gave him an idea of what the situation was," he said. When O'Brien was arrested a day later, he told officers he had been expecting them. The other killers also were arrested.

Randy Ertman will be inside the death house in Huntsville on Tuesday because of a simple request he made during the trials. His inquiry ultimately led to policy changes granting victims' relatives the chance to witness executions. The case also established what has become accepted court procedure that allows victims to address defendants. "This case set a lot of precedents," said Andy Kahan, the mayor's victims rights advocate. " ... and it has enhanced victims' rights in the state." Catherine G. Burnett, O'Brien's appellate attorney, said it did something more. "This case has become part of the collective consciousness of the city of Houston," she said. "It's definitely part of that ethos."

The Ertmans and Peñas all will be in Huntsville on Tuesday, though Sandy Ertman has decided not to watch the execution. None plans to celebrate. "I kind of feel numb in a way knowing that I've been waiting so long for this day to come," said Peña, who lives in Hockley with his wife. His wife added, "I don't want anyone to think we are happy. This will not be a happy day for us. It's going to be a difficult day for us." The Peñas' other children, Michael and Rachel, were 12 and 5, respectively, when their sister was murdered. "I don't think it affected Rachel like it did her brother," Adolph Peña said. "Michael is still really, really angry about the deaths." Peña often wonders what he could have done differently that day, whether he failed to keep his daughter safe. He warned her that her beauty might attract unsavory characters. "You have to be careful. You can't trust just anybody," he told her. "At your age, as pretty as you are, you can't trust anyone you don't know." The girls knew, their parents said, they could always call home, and they always had money for cab fare. Why they chose to walk home is a mystery. Jennifer, who had played on a basketball team but decided it wasn't for her, had just started dabbling with makeup, her mother said. Elizabeth was known to wear distinctive red lipstick that contrasted with her fair skin. Both girls were well-liked at Waltrip. Anne-Marie Franz, a former physical education teacher, said she was close to both. After their deaths, she organized the planting of a crape myrtle and the erection of a memorial plaque on campus. Jennifer was a girl "who walked the line without getting in trouble, but knew where the magic line was," said Franz, now a teacher in Austin. "She didn't want to cross it or get in trouble at home." Elizabeth, she said, was a social butterfly who loved to talk to her friends. After their murders, many of the girls' friends found it difficult to even walk the same halls as they had, Franz said. Some transferred or dropped out. "The events that took place that day changed our lives," former student Carrie McCleary wrote in an e-mail to the Chronicle. "Tears come to my eyes as I sit here and remember all of the details. I remember that day as the day that ended our innocence." Mike Maddux, another student, wrote that Waltrip became "a very large family after that."

Before his trial, O'Brien's mother, Ella Jones, and his stepgrandfather described O'Brien as "cruel and intentionally harsh," according to court records. Neither testified because his defense attorneys concluded both would be more helpful to the prosecution. "What the hell went wrong with this guy?" asked Harris County Assistant District Attorney Steve Baldassano, who prosecuted O'Brien. "How bad could it be in his head that he could walk around and do this stuff? I'm not a huge fan of the death penalty, but this is the kind of guy I think it's for. It fits the crime." During his trial, one of his teachers testified that a "very aggressive" O'Brien fought with other students and often had to be restrained. She witnessed him break another student's jaw. A school bus driver said O'Brien was often drunk, sometimes carried a knife and often spoke of stealing cars. Testimony of an assault at a fast-food restaurant was presented. Jurors also were told during the punishment phase of his trial that he was a model inmate while at the Harris County Jail. But appellate attorney Burnett said that wasn't enough. "The question at punishment is whether there is anything in this person's life that warrants a finding of life rather than death," said Burnett, also an associate dean of the South Texas College of Law. "I don't think the jury got to make that decision fairly because they didn't get anything else." Acknowledging that the crime was "devastating," Burnett said O'Brien was not what she expected. "The portrait the jury saw was that of a terrifying monster," she said. "The man I know does not seem to be the defendant in this case."

From his prison cell four years ago, O'Brien posted a lengthy Internet essay about the costliness of capital punishment and reflected on the value of life. "Life is a miracle and therefore precious. Each time one is taken before its time the world loses something special," O'Brien wrote. "All of this may sound strange coming from me, a death row inmate, but if I never strove to change even knowing my wrongs, I couldn't call myself human."

Baldassano noted that after O'Brien's arrest, he confessed that he was behind another slaying months before the Ertman and Peña murders. On Jan. 4, 1993, police found the partially nude body of Patricia Lopez, a 27-year-old mother of two, in Melrose Park. Empty beer cans, cigarettes and a broken belt were found nearby. O'Brien attempted to rape Lopez, then he killed her. She was stabbed in the abdomen, neck and back. Now, life for Jennifer and Elizabeth's parents revolves around simple pleasures: fishing and gardening for the Ertmans; caring for grandchildren for the Peñas. The grief remains. "It's never going to go away. The hurt is still the same," Peña said. "I still find myself crying just out of the blue." Today, Elizabeth would likely revel in her role as an aunt. She probably would be married herself with children, her parents muse. Jennifer's parents simply say that if she were alive today, their only daughter would be happy.

And, if O'Brien had chosen a different path, his attorney asks, where would he be today? "I wonder when I'm meeting and talking with him how his life could've been different," Burnett said, "how all of our lives could've been different."
 
GANG VICTIMS
Lives cut short: Jennifer Ertman and Elizabeth Peña, both Waltrip High School sophomores, were raped and murdered in the summer of 1993 by members of the Black and White Gang. One member, Derrick Sean O'Brien, will be executed Tuesday.
 
THE AFTERMATH
Jennifer Ertman and Elizabeth Peña were attacked, gang-raped and strangled as they walked through T.C. Jester Park on June 24, 1993. Six gang members were convicted and punished for the murders:

• Derrick Sean O'Brien is set to be the first person executed in the case. O'Brien, now 31, also admitted to the Jan. 4, 1993, strangulation murder of Patricia Lopez, a mother of two.
   

• Jose Ernesto Medellin, a Mexican native who was raised in Houston, is also on death row. He is appealing on the grounds that he was denied access to a Mexican consulate official during his arrest.
   

• Efrain Perez, 17 at the time of the crime, also had his death sentence commuted by the Supreme Court ruling.
   

• Venacio Medellin, who was 14 at the time of the rapes and murders, received a 40-year sentence and testified against the others. A parole hearing will be conducted in the coming weeks.
   

• Raul Omar Villarreal was 17 when he was inducted into the Black and White Gang. His death sentence was commuted to life in prison when the Supreme Court ruled last year that juvenile killers could not be executed.
   

• Peter Anthony Cantu was considered the ringleader of the gang. He was also condemned, but no execution date is set.

Thu 03/30/2006
Justices skeptical consul calls would change verdicts / Foreigners want new trials because they were never told they could contact consulates

WASHINGTON - Lawyers for two foreign nationals found guilty of violent crimes tried to convince the Supreme Court on Wednesday that those convictions should be thrown out, because the men were not told they could contact their consulates before talking to police. But the justices appeared skeptical that the oversight would justify suppressing the evidence that led to the guilty verdicts. The two cases, which are being considered together by the high court, were brought by Mario Bustillo, a Honduran convicted of killing a Virginia teenager with a baseball bat in 1999, and Moises Sanchez-Llamas, a Mexican found guilty of attempted murder in the shooting of an Oregon police officer in 1997.

Lawyers for both men said the Vienna Convention, a treaty signed by the United States in 1969, required American officials to contact the embassies of foreign nationals "without delay." It is not enough for arrested foreigners to be told they can remain silent, hire a lawyer or have a lawyer appointed, the Miranda rights extended to Sanchez-Llamas, said his attorney, Peter Gartlan. "Foreign nationals have a fourth option" - to immediately contact their consulate, Gartlan said. Failure to observe that right, he said, should compel prosecutors to throw out all evidence obtained by police from interrogations.

The high court justices on Wednesday did not appear to buy the argument of the convicted men's attorneys. Justice Antonin Scalia said the Vienna Convention set up a mechanism for one country to protest the actions of another country toward its citizens, not establish a set of individual rights for foreign nationals. He also noted that no other country has interpreted the treaty as requiring evidence obtained before consular notification to be suppressed. "It is implausible that we signed a treaty that requires us to suppress (evidence from interrogations), but it lets other countries do what they like," Scalia said. Justice Stephen Breyer said he was inclined to accept that the men's rights under the treaty had been violated. But he said he doubted that suppressing evidence obtained by police was the proper remedy.

The court is expected to rule on the cases before July. The decision could have an impact on thousands of foreigners in U.S. jails and prisons. In Texas, 10,205 inmates claimed to be citizens of a foreign country at the end of 2005, according to the state's Department of Corrections. Medellin is one of 17 Mexicans on Texas' death row.

The Vienna Convention, signed by 168 countries, established the ground rules under which countries must treat the citizens of other nations that signed it. But Gregory Garre, U.S. deputy solicitor general who argued Wednesday in support of the states of Virginia and Oregon, said the treaty set up ways for governments to address violations through diplomatic channels. It did not give Americans overseas or foreigners in the United States individual rights not granted the citizens of those countries, he said. Several justices suggested that police need to make a better effort to let foreigners know they have the right to contact their country's officials. "It's not like rocket science. Give the advice. End of case," said Justice Anthony Kennedy.

BACKGROUND

In Texas: The cases before the Supreme Court echoed the claim last year by Texas death row inmate Jose Medellin, who sought to have his conviction in the 1993 murders of two Houston teenagers - Jennifer Ertman, 14, and Elizabeth Peña, 16 - overturned because Mexican authorities were not contacted. The high court appeal was dismissed after President Bush told Texas to give Medellin another hearing to comply with international law. The hearing has not yet been held.

Thu 12/29/2005
Killer in Ertman-Peña case loses appeal

Convicted killer Derrick Sean O'Brien, one of five gang members condemned for the savage rape-slayings of two teenage Houston girls more than a dozen years ago, has lost an appeal before the 5th U.S. Circuit Court of Appeals. O'Brien, now 30, was 18 in June 1993 when he and five companions attacked Jennifer Ertman, 14, and Elizabeth Peña, 16, both high school sophomores who were walking home at night after visiting a friend. In the ruling released Tuesday, a three-member panel of the New Orleans-based court denied O'Brien's request for a certificate of appealability, which is needed before he can appeal a federal district court's January denial of his case.

TUE 05/24/2005
Death row case returns to Texas / Supreme Court says state must review conviction of Mexican killer

WASHINGTON - The fate of a Mexican on Texas' death row for killing two Houston teenagers more than a decade ago is back in the hands of state courts following the U.S. Supreme Court's denial of his appeal Monday. The conviction of Jose Medellin, one of five gang members sentenced to die for raping and killing Jennifer Ertman and Elizabeth Peña in 1993, remains in question because Medellin was not advised of his right to get help from Mexican consular officials before his trial.

In a 5-4 decision, the court ruled that Texas must reconsider the case as directed by President Bush in February. Bush instructed Texas and other states where similar appeals are pending to give Mexican defendants new hearings to comply with international law. Medellin already has filed an appeal with state district court in Houston based on Bush's order.

In its unsigned opinion, the high court reserved the right to reconsider Medellin's case based on the state's decision. Justice Sandra Day O'Connor said in a dissenting opinion that the court was avoiding a central issue. "It seems to me unsound to avoid questions of national importance when they are bound to recur," she wrote. "Noncompliance with our treaty obligations is especially worrisome in capital cases."

The decision puts the merits of the appeal on hold, "but it does it in a way that certainly leaves open the opportunity for a change in sentence perhaps, or better compliance with the Vienna conventions," said Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which opposes capital punishment. Under international law, Medellin and 50 other Mexicans on death row in the United States, 16 of them in Texas, should have been able to seek help from their consulates when preparing their defense, Mexican officials argued. They said they learned of Medellin's sentence when he wrote to them from death row.

The International Court of Justice in The Hague agreed with Mexico last year, ruling that the United States violated the 1963 Vienna Convention by failing to inform Mexican nationals of their right to confer with their consulates. That's when Bush stepped in and ordered states to reconsider the cases. The administration maintained that the Vienna accord and international law had no legal binding in U.S. courts but said the president had the right to decide whether to comply with international conventions in the interests of American foreign policy. His intervention in the death row cases was widely viewed as designed to improve strained relations with Mexico. Days after issuing his memorandum, Bush withdrew the United States from the part of the treaty that gives the World Court the final say in international disputes. Bush can give executive orders to states, but it's unclear whether he can do the same with courts. That's a question the Texas court will address in the Medellin case, Dieter said.

When Ted Cruz, solicitor general for the Texas Attorney General's office, argued the case before the Supreme Court in March, he said Medellin failed to show that the outcome of his case would have been different had the Mexican consulate been notified of his arrest. In earlier appeals, attorneys for the state said his conviction should be upheld because he did not ask for consular help during his initial trials. Donald Donovan, Medellin's attorney, said Monday's Supreme Court ruling clears the way for his client to exercise his rights in Texas.
"We are confident that the Texas courts will agree with the president that the United States must comply with the treaty commitments made by its elected representatives, especially when the United States itself depends on that treaty for the safety of Americans working and traveling abroad," he said.

Medellin admitted that he and several other gang members abducted the two girls when they were walking home in the dark, then raped and strangled them.

TUE 03/29/2005
Reviews give hope to Mexicans on death row / Possible violation of right to local consular notification may lighten sentences

On a sultry summer night in 1993, Jose Medellin and a loose band of friends entered the ranks of local infamy by committing one of the worst crimes in the city's collective memory. Half-drunk, stoked by an evening of fighting and trash talking, the group abducted two girls walking home in the dark and raped them repeatedly before finally strangling and stomping them to death. "This crime was every parent's nightmare," Medellin's prosecutor, Terry Wilson, said at the trial during closing arguments. "That nightmare has a face, and there he is." The jury wasted little time in sentencing Medellin to die, one of five death sentences handed down for the brutality visited upon Jennifer Ertman and Elizabeth Peña.

Eleven years later, Medellin's attorneys are hoping to convince a judge that if he had the benefit of a better trial counsel and more money for an investigation, the jury might have settled on a different punishment. It may be a hard sell, but at least they are going to get a hearing, something that did not look likely until earlier this month when President Bush ordered that the convictions of Medellin and 50 other Mexican nationals on American death rows be reviewed by a court because their rights to have local Mexican consuls notified after arrest - a right guaranteed by an international treaty - were violated.

Bush said he felt that the United States' full participation in the Vienna Convention on Consular Rights required him to uphold a ruling by the International Court of Justice that the 51 Mexicans are entitled to individual judicial review. Ten days later, in a move to prevent the issue from coming up again, the administration decided to withdraw from the optional provision of the convention that allowed the world court to have a final say on cases brought to it.

Though it may be a moot point now, the state of Texas on Monday challenged Medellin's right to have additional access to federal courts because of the international court. In U.S. Supreme Court arguments scheduled before Bush agreed to comply with the ruling, the state contended there is no valid constitutional claim for federal courts to consider. It also disputed the authority of President Bush to order state courts to do anything. For Mexico, just getting Bush to order the hearings was a long-anticipated victory. A staunch opponent of the death penalty, the Mexican government now helps pay for the legal defense of its citizens charged with capital murder in the United States. That can make a difference in result, especially in Texas, where the quality of capital defense has been inconsistent.

"The government of Mexico would be finding first-class lawyers," said Mike Charlton, one of Medellin's appellate lawyers. "That's a huge advantage over your average court-appointed lawyer." Whether the unusual hearing will prove of real benefit to Medellin is questionable, at best.Barring surprising revelations, it might be an uphill battle to convince a judge that a better lawyer would have led a Houston jury to a different conclusion - assuming that is the standard that will be applied. If his attorneys are required to prove only that the performance of Medellin's trial counsel was poor enough to harm his case, that might be another matter. "Nobody knows what the standards are going to be, or much anything else yet, because there are still so many questions," Charlton said. "But the sad fact is that the guy who tried the case didn't do jack. He didn't do anything to help his client. He called one witness. He did not talk to any members of his family."

In at least a few cases, the chance to be heard anew offers real hope. Attorneys for Cesar Fierro, for instance, relish the opportunity to get back into court to challenge a conviction that has been troubled almost from the beginning. Fierro, 49, was convicted in the February 1979 shooting death of an El Paso taxi driver. He insists officers coerced him into a confession by telling him his parents were in jail and they would remain there until he admitted to the crime.

A district judge in 1994 recommended a new trial for Fierro. The prosecutor in the case later said he would have moved to dismiss the indictment had he known of the circumstances of the confession and if he could not have uncovered significant evidence to corroborate it. Appellate courts, however, have so far provided no relief. "He has a very compelling consular assistance claim - his parents were in essence abducted and held and threatened with torture," said Mark Warren, a legal analyst who specializes in consular rights. "Had he been advised of his consular rights, one thing that would have happened was Mexican officials would've secured his parents' release from custody." Francisco Molina Ruiz, former attorney general of the state of Chihuahua, has submitted a sworn statement that his office would have intervened with police had it been notified and ordered the release of Fierro's parents.

The international court stopped short, however, of suggesting there should be a new outcome in Fierro's case or any other, said Richard Dieter, executive director of the Death Penalty Information Center. "It may be the minority of cases where there is even an argument to be made," Dieter said. "It may be in some cases there would be a little more mitigating evidence to be presented. Each case will have to make it on its merits that (consular assistance) would have made a difference. In some cases there could be an entirely new sentencing trial, or perhaps a new guilt trial, though the prosecutors are already required to prove guilt beyond a reasonable doubt." At the moment, no one knows the precise procedure to be followed in the hearings. Some might occur in state courts, some in federal. The issues that these judges may take into account will not be as limited as in a normal appeal, in part because the rules that prohibit consideration of an issue not raised at the original trial - the rules of so-called procedural default - will not be enforced. The only real issue to be resolved is whether the lack of consular assistance, and whatever that implies, likely affected the outcome of the trial.

THE ECHOES OF A MURDER CASE

The 1993 murders of Jennifer Ertman and Elizabeth Peña shocked the city of Houston as no other crime has in recent memory. The criminal proceedings against their six assailants have made legal headlines as well. Five of the defendants were certified as adults and each received a death sentence - at the time the most for a single crime in the modern era. Other legal issues in which they have been involved include:

Victim impact: Texas law was changed during the 1980s to give crime victims or their families the right to make a statement at the end of a trial. The Ertman/Peña prosecutions, however, marked the first time a judge permitted it in a high-profile case.

Juvenile killers: The U.S. Supreme Court's decision earlier this year to ban the death penalty for juvenile offenders took two of the Ertman/Peña killers off death row. Efrain Perez and Raul Villarreal were 17 at the time of the slayings. Their capital murder convictions stand, and they will serve life sentences.

Consular access: President Bush's decision to order the judicial review of the cases of 51 Mexican citizens on death row in the United States was brought about in part through the efforts of attorneys for Jose Medellin, one of the Ertman/Peña killers. Bush's order enforces the ruling of the International Court of Justice, which said the lack of consular notification could have compromised the defense of the 51 defendants.

TUE 03/29/2005
Houston killer `had his day,' U.S. Supreme Court told / Lawyers argue Mexican's guilt in 2 girls' murders should be upheld

WASHINGTON - The conviction of a Mexican national for the infamous killing of two Houston girls should be upheld even though he was not advised of his right to help from his country's consulate, a lawyer for the state of Texas told the U.S. Supreme Court Monday. In the dispute over the domestic application of international law, Texas contends the case of Jose Medellin, who was sentenced to death in 1994, should not be reconsidered because he failed to raise the consular advice issue during his state court trials. "It is time for the Supreme Court to rule that Mr. Medellin has had his day in court," said R. Ted Cruz, solicitor general for the Texas Attorney General's office. Medellin "had no constitutional claims," he added.

Medellin's attorneys have seized on the International Court of Justice's ruling that U.S. courts must review Medellin's sentence and that of 50 other foreign nationals in nine states on death row. The ruling was based on the 1963 Vienna Convention, signed by the United States, which requires consular access for people detained in a foreign country. Donald Donovan, Medellin's attorney, told the justices that an international treaty signed by the president and ratified by Congress is legally binding on the courts.

Medellin's case was bolstered by a directive from President Bush, who has asked that state courts review the 51 death penalty cases, he said. After agreeing to comply with the international body's decision, the White House notified the United Nations that it was dropping out of the provision of the treaty that allows the court to referee disputes. The Bush administration also weighed in separately in the Medellin case, with the Justice Department asking the Supreme Court to let the Texas courts decide how to handle the matter. Michael Dreeben, U.S. deputy solicitor general, told the court that a ruling favoring Medellin could hamstring the president if he wanted to reject a finding by the international court. Medellin was one of five boys and men involved in the 1993 rape and murder of Jennifer Ertman, 14, and Elizabeth Peña, 16, who were attacked while on their way home.

The justices appeared divided Monday on whether they should rule now or wait until the state courts to decide. Chief Justice William Rehnquist said that it seemed "topsy-turvy" that the legitimacy of an international treaty should be decided in a state court rather than the Supreme Court. But Justice John Paul Stevens said that by deferring to the state courts, the high court could sidestep some thorny issues. "Isn't it true that the Texas proceedings could make this moot?" Stevens asked. Donovan argued that if the Supreme Court dismisses the case, state courts might take that as a sign that they do not need to act. Sandra Babcock, counsel for Mexico, said the case's outcome is important for Americans who may find themselves unfairly arrested by local authorities in foreign countries and need the help of U.S. officials.

Medellin's attorneys have also filed a challenge with the state district court in Houston. Cruz said the state will fight Bush's order to reconsider the case of Medellin and 14 other foreign nationals on death row in Texas. The president overstepped his authority by ordering the courts to automatically review all of the sentences without considering the merits of each case, he said.

Peña's father, Adolph, who traveled from Houston, was present for Monday's Supreme Court proceedings with his wife, Melissa, and 17-year-old daughter, Rachel. With all the legal wrangling, the crime against his daughter was being overlooked, Adolph Peña said. "Those scumbags have been in there (prison) long enough," he said. "It is time for them to be executed." Peña also expressed anger at Bush for intervening in the case, saying the president was acting for political reasons.

The issue of Mexican nationals on death row in the United States has been a source of friction between the White House and the Mexican government. The high court agreed to take up the case after the 5th U.S. Circuit Court of Appeals in New Orleans ruled Medellin was not entitled to federal court relief because he had not objected during his trial to the fact that the Mexican consulate was not notified.

WED 03/09/2005
BUSH ORDERS HEARINGS FOR MEXICAN NATIONALS / The directive in death row cases sparks challenge from Texas officials

In a move that could spawn a fight over presidential powers, the Bush administration has ordered Texas and other states to conduct hearings for 51 Mexican nationals on death row who claim their rights were violated when local consulates were not notified of their arrests. The directive came after years of criticism from foreign governments and an adverse decision last year by the International Court of Justice, which decreed that U.S. courts should provide "effective review" of each case to determine whether the lack of consular assistance could have affected the outcome. "It's historic. It's a first," said Mark Warren, an international legal analyst who specializes in consular rights. "Whether it will end up providing the rule of decision, as judges like to say, remains to be seen. It is a remarkable development and a very important step toward satisfactory resolution to this issue. But the final chapter has yet to be written."

The Vienna Convention on Consular Relations, ratified by the U.S. Senate in 1969, provides that "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." The Mexican government has complained loudly for years that these rights are often ignored by U.S. authorities. Legal experts were uncertain precisely how the courts in eight states holding the 51 inmates would comply with the executive order, or whether all would even try. Texas Attorney General Greg Abbott immediately challenged the right of President Bush to tell Texas courts what to do. "We respectfully believe the executive determination exceeds the constitutional bounds for federal authority," Abbott said in a prepared statement. His comment echoed Gov. Rick Perry's rejection last year of the international court's opinion. Perry said the court had no jurisdiction over the state's criminal justice system.

Bush's order covers 15 of the 16 Mexican nationals on death row in Texas. Only admitted serial killer Angel Resendiz, convicted of one murder in Houston and implicated in a dozen others in five states, failed to join the case. Houston lawyer Danalynn Recer, who represents Mexican nationals in capital murder cases on behalf of the Mexican government, said Bush's order was significant because it recognizes the importance of U.S. courts complying with established international rights. "When any foreign national is not notified of their right to contact their consulate, they're being denied their government's assistance," Recer said.

Bush's order comes weeks before the U.S. Supreme Court is scheduled to hear arguments in the case of Jose Medellin, who was sentenced to death along with four others for the 1993 murders of Houston teenagers Jennifer Ertman and Elizabeth Peña. Medellin, who was born in Mexico but lived most of his life in Houston, has asked the high court to order a new hearing based the violation of his consular rights under the Vienna Convention. "Medellin has the best chance for a new trial he has ever had," said Mike Charlton, one of his attorneys, who claims that better legal representation paid for by the Mexican government could have made a difference during the sentencing portion of his trial. Abbott said Medellin's conviction has been given ample review and he is not entitled to another one based on the decision of the international court. "Medellin voluntarily confessed to the brutal gang rape and murder of two teenage girls," Abbott said. "He was convicted after a fair trial, applying U.S. and Texas law. The state of Texas believes no international court supersedes the laws of Texas or the laws of the United States."

As a matter of law, the Bush administration agreed with Abbott's assertion. In a brief filed in connection with Medellin's case by the U.S. solicitor general, the administration said neither the Vienna accord nor the international court ruling was legally binding on U.S. courts. However, it also claimed the president had an absolute right to decide, on the basis of foreign policy interests, if and how the U.S. would comply with its international obligations. "The president, the nation's representative in foreign affairs, has determined that the United States will comply with the ICJ decision," the brief states. "Compliance serves to protect the interests of U.S. citizens abroad, promote the effective conduct of foreign relations, and underscores the United States' commitment in the international community to the rule of law. That presidential determination, like an executive agreement, has independent legal force and effect, and contrary state rules must give way under the Supremacy Clause."

Death penalty expert Dudley Sharp said that, barring a similar directive by the U.S. Supreme Court, the state courts likely will decide that their previous reviews have been adequate. "The states are already handling it the way the solicitor general put it in his brief," Sharp said.

WED 03/09/2005
Mexico cheers U.S. decision on Texas inmates

WASHINGTON - Mexico welcomed the Bush administration's decision to allow Mexican citizens on Texas' death row to have their sentences reviewed. The reception in the president's home state, in contrast, was varied. The development came in the Supreme Court case of Jose Medellin, one of five alleged gang members sentenced to die for the Houston killing of Jennifer Ertman and Elizabeth Peña in 1993. Texas Attorney General Greg Abbott said the Bush administration's decision intruded on the state's legal authority. But he did not immediately decide whether to appeal.

U.S. Sen. John Cornyn, a Republican and frequent Bush backer, said last week that "Texas is simply trying to enforce its laws; Medellin has been given access to an attorney, a right to a fair trial, and all of the appeals and habeas corpus rights our system affords." But on Tuesday the senator had no quarrel with the Bush decision, because the American president, not the international court, was passing judgment, Cornyn spokesman Don Stewart said Tuesday. The administration's call for new hearings in state or federal courts, depending on where the cases were originally tried, goes forward unless Texas decides to contest the order in court.

Richard Stoll, a Rice University political science professor, said Bush's decision showed a proper willingness to buck Texas Republicans now that he has broader responsibilities. "There is a certain amount of irony in the president siding against Texas in this case, but when he changed jobs he changed his perspective." he said.

Mexican officials cheered.

"It is very important that the Mexican government express its satisfaction and its recognition of this determination by the United States' executive power, which without a doubt will have an important effect on the cases of our compatriots," said Arturo Dager, legal representative to Mexico's foreign ministry.

THU 03/03/2005
Ruling is a `relief,' but inmates not celebrating / Harris County killers spared by Supreme Court action ponder new sentences

LIVINGSTON - Locked away on Texas' death row for more than a decade, Raul Villarreal knew the meaning of good days and bad. The good days came when appeals were filed to free him from the death sentence he received for the 1993 rape and murder of two teenage Houston girls; the bad, when those appeals met rejection. The worst day came not long ago when the U.S. Supreme Court turned down his most recent appeal, thereby clearing the way for him to be put to death. The best came Tuesday when the same court ruled the execution of murderers who were minors when they committed their crimes is unconstitutional.

On Wednesday, Villarreal, 29, still was struggling to digest the meaning of the ruling, which has spared him and 27 other Texas death row inmates from the executioner's needle. Eleven of those inmates are from Harris County. "In a way," he said after a thoughtful sigh, "it's a big relief. But I didn't act like I was celebrating. It's bittersweet. There are still a lot of guys left behind facing execution."

Villarreal, who was 17 when he and a group of other youths fatally attacked Jennifer Ertman, 14, and Elizabeth Peña, 16, said he has spent recent days coming to grips with the probability that he would be executed. The high court had stayed his scheduled June 24 execution pending a decision in the case resolved Tuesday. "My main worries concerned my family," he said of his mother, Louisa Villarreal, and his four siblings. "They're the ones who would be left behind. I tried to take things one day at a time. I've worked at accepting my responsibilities for the actions that brought me here. It's helped me accept my fate."

Similar thoughts of life, death and the long prison sentences they now likely will have to serve have occupied other Harris County killers spared by the ruling. Johnnie Bernal, 28, who claims he is innocent of the August 1994 killing of Lee Dilley at a Houston ice house, has been on death row since July 1995. He thinks Tuesday's ruling is "a step in the right direction." Villarreal and Bernal were caught up in a spike in juvenile crime in the late 1980s and early 1990s that resulted in an unprecedented number of young offenders on death row. And because those crimes were concentrated in gang-heavy urban centers, the bulk of those offenders were minorities. Of the 28 "juvenile" offenders on Texas' death row, 21 were black, Hispanic or Asian; nine of 13 such offenders executed since 1982 were minorities.

Perry wants cases reviewed

In the wake of Tuesday's ruling, Gov. Rick Perry has directed the Texas Board of Pardons and Paroles to review the 28 cases and recommend appropriate action. It is likely that many will receive life sentences, requiring that they serve 40 years in prison before becoming eligible for consideration for parole. Bernal has appeals pending and is optimistic he ultimately will be cleared of the crime and freed from prison. But he acknowledged that a long sentence would be daunting. "Watching your loved ones passing away and not being able to be there would be heartbreaking," he said. A long prison sentence would also be a continuation of a near-decade behind bars that he said has been filled with remorse. "Every time I pray, I include the Dilley family," he said. "A life's been lost, lives have been destroyed and crushed. Every year I've been in here the depth of my feeling for his family has grown." Life on death row, he said, has not been easy. "I've seen friends almost every other day going to their last Mass," Bernal said. "I've been around. All you could do is prepare yourself mentally and spiritually. ... The more I've thought of the thing, the more at peace with God I've become. I'm not afraid, but I feel sorrow."

"They treat you like you are already dead," added Robert Acuna, 19, who has been on death row about six months for the 2003 killing of his Baytown neighbors, James Carroll, 75, and his wife, Joyce, 74. "They are as life-draining as they legally can be. They keep you out of society. There is no contact visitation, no watching the news on TV, no contact with other inmates. They don't go by names, you have a number. They make you feel unimportant." Acuna said his trial and incarceration often have seemed unreal. "I've seen all this stuff on TV," he said. "But then I realize there's no TV screen." Only when Tyler murderer Donald Aldrich was executed shortly after Acuna's arrival last fall did the young killer recognize the seriousness of his situation. "They took him away and I knew I wasn't going to see him again," Acuna said. Acuna, too, insisted he is innocent, and expressed confidence he will be cleared. "Forty years in prison is a long time," he said. "But if I'm alive, I can't complain."

Hoping to help others

Acuna and Bernal said they would like to work to end the death penalty. "I can't see myself in prison just wasting time," Villarreal said of his expected future. "I would like to use my experience to help others. Maybe in a youth program or something." Villarreal said he is deeply remorseful for his crime, and he is aware that the Supreme Court ruling sparing his life angers his victims' families. "If the shoe were on the other foot," he said. "If my children were dead ... I would feel the same way."

WED 03/02/2005

THE SUPREME COURT RULING / Families of victims attempt to come to grips with ruling. They voice their concern that the killers someday may be set free

Janet Green was teaching her sixth-grade class in Conroe when her husband called with news about Tuesday's high court decision.

A hush came over the classroom as her expression darkened.

Green said she remained composed and only began to cry hours later when she spoke publicly about the court's decision that spares the life of her son's killer, Michael Lopez.

"I've been a teacher for 30 years and I've never had a kid that did not know right from wrong," Green said.

Lopez was convicted of capital murder in the Sept. 29, 1998, slaying of 25-year-old Michael Eakin, a Harris County deputy constable who had pulled him over for speeding. Lopez, who was just 7 months shy of his 18th birthday, jumped out of his car and ran into a field, followed by Eakin. The pair struggled before Eakin was shot twice at close range.

Another family outraged

During a news conference with other crime victims' relatives, Janet and Bill Green said they are concerned Lopez may be released one day.

"We don't want these guys on our streets to kill other sons and daughters," Bill Green said.

The Supreme Court decision outraged Adolph and Melissa Peña.

The couple's daughter Elizabeth Peña, 16, and her friend Jennifer Ertman, 14, took a shortcut home June 24, 1993, and unwittingly walked into a drunken gang initiation in northwest Houston. The Waltrip High School sophomores' badly mauled bodies were found four days later.

"We're shocked and appalled our judicial system can let this happen," Melissa Peña said Tuesday.

Her husband added, "They will be able to get out in 40 years - it's just not right. Where would the justice be for the girls?"

The couple, like the Greens, had intended to witness the executions of their daughters' killers.

"Hell yeah, I was gonna be there," Adolph Peña said.

Now the couple said they will have to make sure that Efrain Perez and Raul Villarreal, who were both 17 at the time of the murders, get life without parole. In all, six young men were convicted in the crime.

Others praise decision

Perez and Villarreal, both now 29, were convicted for the abduction, rape and murder of the girls. Three other defendants received the death penalty. The sixth, who was 14 at the time, was sentenced to prison.

While those families struggled with Tuesday's decision, Villarreal's mother, Louisa, said she considers the high court's decision a "miracle."

"I'm so happy that the Supreme Court has removed the death penalty," the mother of five said, choking back tears. "This is a miracle. I'm happy like never before. This is the best good news in all my life."

Villarreal said she last visited her son in prison Saturday, and "he and me and a lot of other people" prayed for a favorable ruling from the high court.

She said she has no illusions about her son's guilt in the crime.

"I will tell you," she said, "I think he was in the wrong place with the wrong boys at the wrong hour. He was very nice, and he still is very nice. I don't know what happened on that horrible day."

WED 03/02/2005
THE SUPREME COURT RULING / JUVENILES SPARED FROM DEATH ROW / IN TEXAS / A `vicious generation' spawned push to condemn

Juvenile offenders were infrequent arrivals to Texas' death row until the 1990s, when escalating juvenile violence and a new breed of young killer prompted a severe reaction from the criminal justice system.

Only four Texas juvenile offenders were executed for crimes committed in the 1970s. Ditto for the 1980s, though one inmate from that decade remains on death row.

The turbulent 1990s saw a different story.

An explosion of juvenile crime, including a huge increase in juvenile homicides, brought the gloves off. Most juvenile offenders currently on Texas' death row - 25 of 28 - committed their crimes in that decade. Half of the total occurred from 1994-99.

In this case, Texas mirrored a national trend. Across the country, 76 juveniles were given death sentences during the last half of the 1990s. That's almost as many as the previous 12 years.

Typically, getting a death sentence for a juvenile offender has been harder than for an adult, not only because of age but because of a more limited criminal record. That changed in the last decade.

Experts think the impact of publicity about juvenile crime made its way to the courthouse. Not only were there more cases to consider, but people had been shocked by news reports of gang violence, crack wars, drive-bys, school shootings and youths everywhere with guns.

"You had local news pounding on the issue, so presumably the jury came in sort of primed to accept the message that the juvenile crime rate is a problem," said Victor Streib, a law professor at Ohio Northern University and an expert on the juvenile death penalty. "The arguments in court were no different than they ever were, but the public awareness of juvenile violence was."

Robert Blecker, a New York law professor who researched the wave of juvenile killers firsthand, thinks they were a frightening aberration that had never been seen in society or the criminal justice system.

Blecker spent more than 2,000 hours interviewing young offenders in a Virginia prison that served Washington, D.C., one of the early venues in the outbreak of juvenile violence. He said the death sentences that ensued from their murders were understandable when details of the crimes are explored.

"It was an incomparably vicious generation, so it doesn't surprise me there were these death penalties," said Blecker, who teaches at New York Law School. "There was a depraved indifference to human life that I think has peaked. There reached a point where it got so out of control that even the older street criminals recognized themselves that they wanted something better for their younger brothers. The older kids were now reining in the younger kids."

Dianne Clements, head of the Houston-based victims rights group Justice for All, said she was disappointed that the court would treat juvenile offenders with a broad brush instead of letting their crimes be considered individually.

"I was hoping the majority of justices would give credence to the types of murders that these 16- and 17-year-olds commit," she said, "and understand how important it is to impose the type of penalties states permit and (let) juries decide, instead of turning their backs on innocent victims and families."

No state will be more affected by Tuesday's ruling than Texas, which leads the nation by far in sentencing juvenile offenders to death, even though state law permits only 17-year-olds to be considered.

Texas' 28 juvenile offenders on death row is double that of Alabama, the only other state in double digits. Alabama, which allows 16-year-olds to receive death sentences, has never executed any of its juvenile offenders. Texas has executed 13. No other state has more than five juveniles on death row.

For those familiar with Texas' willingness to use capital punishment, such numbers are hardly surprising. Its 338 executions since the resumption of capital punishment in 1977 - more than a third of all those carried out in the United States - have earned it worldwide distinction.

Many are not sad to see that distinction end, at least with respect to juveniles.

"Up until today, I think there were six nations in the world that executed people for crimes they committed as children - including China, Saudi Arabia, Republic of Congo and Iran," said Jim Marcus, director of the Texas Defender Service, which handles the appeals of a number of Texas death row inmates. "So it's about time that the United States conformed to the criminal justice standards of the Western Hemisphere."

For the families of victims, however, the argument for standards pales beside their pain and outrage.

"They were certified as adults, they should be executed like adults," said Adolph Peña, whose daughter Elizabeth and her friend Jennifer Ertman were murdered in 1993 by a gang of teenagers that included three juveniles. "Let those guys up in D.C. worry about whether they knew what they were doing. I know my 16-year-old knew what they were doing."

The reasons behind the rise in juvenile homicides in the early '90s - the reaction to which may be indirectly responsible for Tuesday's court ruling - will be debated by social scientists for years.

Blecker said several factors played a role. The first was a widely observed phenomenon: the flight of the minority middle class from communities that had previously been segregated. When the merchants and dentists and postal workers left, the only people with money were those involved in crime.

Of greater influence, he said, was an epidemic of abuse of crack and marijuana soaked in PCP. The drug culture seized control of a sizable segment of youth.

Its assumptions - kill or be killed, no one makes it past 21, live entirely for the moment - went hand in hand with violence. The drugs themselves left the teens feeling both invulnerable and paranoid, a lethal combination.

As the epidemic waned, the killings dropped. And so did death sentences. There have been only 22 in the last five years and only two in Texas.

Streib, however, said only some of that decrease should be attributed to fewer killings. In recent years, he said, the practice of executing juvenile offenders has become less palatable for society. Death penalty opponents have campaigned steadily against it, increasing their effort after the Supreme Court banned execution of the mentally retarded in 2002.

"The (death) sentencing rate is much, much lower than the (juvenile) homicide rate," Streib said. "There has been a lot of campaigning against the juvenile death penalty. It's sort of out of favor politically now. And whether they face the death penalty depends on what the local prosecutor wants to do."

WED 03/02/2005
THE SUPREME COURT RULING / Juvenile offenders on death row from Harris County


Efrain Perez

Born: Nov. 19, 1975

Raul Villarreal

Born: Sept. 25, 1975

Their offense: June 24, 1993

Of all the juvenile offenders on Texas' death row, two who will never provoke sympathy are Perez and Villarreal, who were involved in the abduction, rape and murder of Jennifer Ertman and Elizabeth Peña in Houston's most notorious crime of the 1990s. The two girls were taking a shortcut home along some railroad tracks near T.C. Jester late at night when they were set upon by a group of young men who had been drinking and fighting as part of a gang initiation. The violence that ensued shocked a city normally numb to crime news.

Unwittingly, Villarreal set the chain of events in motion when he ran into Perez, an old friend whose car had broken down outside the convenience store where Villarreal was playing a video game. The two began to chat and eventually went together to the house of one of Perez's friends, Joe Medellin. An afternoon of loose banter and trash talking among those three and others led to Villarreal's initiation into a loose gang. The initiation session, which mostly involved beer drinking and Villarreal's fighting the gang members, was about to break up when the girls, who had been enjoying a pool party at a nearby apartment complex, crossed their path near a train trestle.

For logistical reasons, the five adults charged with the crime were tried simultaneously. All received the death penalty. Villarreal had no criminal record. Perez did. Neither was the instigator of the assault, but both participated fully, both in the rapes and murders. Each had received an execution date in 2004 (on the anniversary of the murders), set aside when the Supreme Court said it would consider the issue of juvenile offenders. A juvenile who was involved in the assault received a 40-year sentence.

SAT 12/11/04
High court considers rights of convicted foreigners
Killer on Texas death row says his case violated international agreements

WASHINGTON - The U.S. Supreme Court stepped into an international controversy over the legal rights of foreigners Friday, agreeing to hear the appeal of a Mexican national sent to Texas' death row for the gang rape and murder of two Houston teenagers. The high court will hear arguments next spring in the case of Jose Medellin, one of five gang members condemned in the deaths of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena. The girls were raped, sodomized and strangled with a belt and their shoelaces on their way home one night in 1993. At issue is whether lower federal courts should have allowed Medellin to appeal his conviction and sentence on the grounds that his rights under international treaties were violated. Under the treaties, his lawyers argue, the Mexican government should have been told of Medellin's arrest and given a chance to help defend their countryman. In reviewing the case, the Supreme Court will enter a larger debate that strained relations between the United States and Mexico and could affect the treatment of U.S. citizens accused of crimes while traveling or living abroad. A decision, expected by July, could determine the fate of more than 50 Mexicans on death row in the United States, including 16 in Texas. Friday's announcement comes eight months after the International Court of Justice at The Hague, the United Nations' highest court to resolve disputes, ruled that U.S. officials should review the convictions and sentences of 51 Mexicans on death row. It said the United States had violated the Mexicans' rights under the 1963 Vienna Convention by failing to inform their government of their arrests and trials. Attorneys for the state of Texas had argued in lower courts that it was too late for Medellin to appeal because he did not object at his trial. But Sandra Babcock, who represents Mexico, said in court papers that if Mexico had been told about Medellin's trial, the country would have made sure he had a good lawyer and enough money to hire investigators and expert witnesses. Medellin's case has widespread support outside the United States. Dozens of countries, the European Union, former diplomats, international law experts and legal and human rights groups have weighed in on Medellin's side. "The Hague said the United Stat