Sun 8/3/2008
Texas to World Court: Murderer should die

HOUSTON - The likely prospect of Texas carrying out the death penalty in one of Houston's most brutal murder cases in a generation is making the planned execution among the most contentious in the nation's busiest capital punishment state.

The scheduled execution of convicted killer Jose Medellin in Huntsville Tuesday evening has attracted international attention. The International Court of Justice, also known as the World Court, said the Mexican-born Medellin and some 50 other Mexicans on death rows around the nation should have new hearings in U.S. courts to determine whether a 1963 treaty was violated during their arrests. Medellin, now 33, is the first among them set to die.

His attorneys contend Medellin was denied the protections of the Vienna Convention, which calls for people arrested to have access to their home country's consular officials. "The United States's word should not be so carelessly broken, nor its standing in the international community so needlessly compromised," Medellin's attorneys said, seeking a reprieve in a filing late last week with the U.S. Supreme Court. President Bush has asked states to review the cases. Texas has refused to budge.

Medellin's lawyers went to the Supreme Court after the Texas Court of Criminal Appeals, the state's highest criminal court, refused to stop the lethal injection. The justices in March ruled that neither President Bush nor the international court can force Texas' hand. Medellin's supporters says either Congress or the Texas legislature should be given a chance to pass a law ordering a new hearing before he can be executed. "There is no dispute that if Texas executes Mr. Medellin in these circumstances, Texas would cause the United States irreparably to breach treaty commitments made on behalf of the United States as a whole and thereby compromise U.S. interests that both this Court and the President have described as compelling," Medellin's attorneys said in their filing.

If executed, Medellin would become the 410th condemned prisoner to die, far more than any other state since Texas resumed carrying out capital punishment in 1982. At least six other Mexican nationals are in that total. Medellin was sentenced to die in October 1994. "Medellin and five others brutally and viciously gang raped, stomped, kicked, slashed, strangled and murdered two teenage girls," Allison Castle, a spokeswoman for Gov. Rick Perry, said. "The governor's not feeling any pressure on this. He's considering the facts of the crime."

The facts are horrific. Medellin was one of six teenagers arrested and charged with the gang rape and murders of Elizabeth Pena, 16, and Jennifer Ertman, 14. The two Houston girls, returning from a friend's house, took a shortcut home along some railroad tracks and stumbled on a group of teenagers drinking beer after initiating a new gang member. Evidence showed the girls were gang raped for more than an hour, then were kicked and beaten before being strangled. A red nylon belt was pulled so tight around Ertman's neck that the belt snapped. Four days later, the girls' bodies were found, decomposing and mummifying in 100-degree heat, culminating a frantic search by families and police under the glare of intense media coverage. A tip from the brother of one of the gang members led police to arrest Medellin and the others.

One of the gang members convicted for the slayings, Derrick O'Brien, was executed last year. O'Brien said Medellin was at one end of a belt being pulled around Ertman's neck as he yanked on the other. Two others, Efrain Perez and Raul Villarreal, had their death sentences commuted to life in prison when the Supreme Court barred executions for those who were 17 at the time of their crimes. Peter Cantu, described by authorities as ringleader, remains on death row. He does not have an execution date. The sixth person convicted, Medellin's brother, Vernancio, was 14 at the time and is serving a 40-year prison term.

In the legal frenzy to save Medellin, the fact that two girls were killed is being lost, said Randy Ertman, whose daughter was one of the victims and who looked forward to attending Medellin's execution. "They've forgotten Jennifer and Elizabeth," he said. "They care only about saving Jose Medellin. This is not about vengeance. This is not about a deterrent or about closure. It's about the punishment. Everybody wants me to say closure or vengeance. I'm never going to have closure. It's just a miracle word that's going to make us feel good, but it ain't going to happen."

Texas officials acknowledged Medellin was not told he could ask for help from Mexican diplomats but argued he forfeited the right because he never raised the issue until four years after his conviction. In any case, the diplomats' intercession wouldn't have made any difference in the outcome of the case, they said.

State and federal courts rejected Medellin's claim when he raised it on appeal. "Concluding that the World Court cannot force Texas to release convicted murderers, last March the U.S. Supreme Court rejected Medellin's claims and found that he would have received the same sentence with or without consular notification," said Jerry Strickland, a spokesman for the Texas Attorney General's Office.

Medellin, who came to the United States at age 3, speaks, reads and writes English. He gave a written confession. "I am a Mexican through and through," Medellin said on an anti-death penalty Web site where inmates seek pen pals. "I don't want sympathy or pity, I'd rather have your anger. Don't feel sorry for me. I'm where I'm at because I made an adolescent choice."

Mexico, which has no death penalty, initially sued the United States in the World Court in 2003. Mexico and other opponents of capital punishment have sought to use the court to fight for foreigners facing execution in the U.S. Medellin would not be the first foreign national executed in Texas. Two years ago, infamous train-hopping serial killer Angel Maturino Resendiz, who became known as "The Railroad Killer," became at least the sixth Mexican executed in Texas.

"The law is clear: Texas is bound not by the World Court, but by the U.S. Supreme Court, which reviewed this matter and determined that this convicted murderer's execution shall proceed," Strickland said of Medellin's case.

Fri 8/1/2008
Mexican citizen asks high court to block execution

HOUSTON - Texas officials remained adamant that a convicted killer in a gruesome gang rape-slaying in Houston should be executed next week despite an international court's ruling he should be entitled to additional legal reviews because he's a Mexican citizen. Lawyers for Jose Medellin, four months after losing his case at the U.S. Supreme Court, returned to the high court Friday seeking a last-minute reprieve. Medellin is set to die Tuesday in Huntsville for his participation in the 1993 gang rape and beating deaths of two Houston girls, Jennifer Ertman, 14, and Elizabeth Pena, 16. Medellin's lawyers want the justices to block his lethal injection until Texas grants him a new hearing to comply with a ruling from the International Court of Justice, also known as the World Court.

The state has so far refused. "We don't care where you're from," Allison Castle, a spokeswoman for Gov. Rick Perry, said Friday. "If you commit a despicable crime like this in Texas, you'll face the ultimate penalty under our laws." The Supreme Court ruled in March that neither President Bush nor the international court can force Texas' hand. "The truth is, Texas is not bound by a foreign court's ruling," Castle said.

Medellin says Congress or the Texas Legislature, which doesn't meet again until January, should be given a chance to pass a law ordering a new hearing before he can be executed. Four Democratic lawmakers have introduced such a bill in Congress, but it probably won't be acted upon this year. Medellin is one of roughly 50 Mexicans on death rows around the nation, including about a dozen in Texas, who contend they were denied prompt access to their country's consular officials after being arrested in the United States. The access is guaranteed by international treaty.

On Thursday, the Texas Court of Criminal Appeals, the state's highest criminal court, rejected similar arguments from Medellin, who was 18 when the two girls were killed. In a concurring opinion to the court's ruling, Judge Cathy Cochran said Medellin, who was brought to the United States when he was 3, indeed was a Mexican citizen. But she said he had lived in the U.S. for 15 of his 18 years and spoke fluent English while he never obtained or sought American citizenship. "His claim is that no one informed him of his right to contact the Mexican consulate," she wrote. "This is true. It also is true that he was never denied access to the Mexican consulate. "The problem is that he apparently never told any law enforcement or judicial official that he was a Mexican citizen until some four years after his conviction." Cochran said while Texas authorities "clearly failed in their duty" to inform Medellin of his rights under the Vienna Convention, "this foreign national equally failed in his duty to inform those authorities that he was a Mexican citizen."

In 2004, the World Court said the prisoners should have new court hearings to determine whether the absence of contact with consular officials affected the cases. Bush, while saying he disagreed with the ruling, nevertheless said the United States was obligated by treaty to comply with it and ordered the states to follow suit. Texas refused, which is how Medellin's case initially ended up before the Supreme Court. Bush was in the unusual position of siding with the death row inmate against the state he served as governor, and after having overseen 152 executions in Texas.

The World Court last month ordered U.S. authorities to do everything possible to halt executions scheduled in Texas of Medellin and four other Mexicans until their cases are reviewed. The Bush administration has said it expected the World Court's order to have little impact.

Evidence showed the girls were gang raped for more than an hour, then were kicked and beaten before being strangled. Four days later, the girls' bodies were found, decomposing and mummifying in 100-degree heat. A tip from the brother of one of the gang members led police to arrest Medellin and his companions. Two of the gang members, Efrain Perez and Raul Villarreal, had their death sentences commuted to life in prison when the Supreme Court barred executions for those who were 17 at the time of their crimes. One of the gang, Derrick O'Brien, was executed last year. O'Brien said Medellin was at one end of a belt being pulled around Ertman's neck as he yanked on the other. Peter Cantu, described by authorities as ringleader of the gang, remains on death row without an execution date. A sixth person convicted, Medellin's brother, Vernancio, was 14 at the time and received a 40-year prison term.

Fri 8/1/2008
Court's rejection brings Medellin closer to execution / Despite calls for delay, Mexican citizen set for execution

The Texas Court of Criminal Appeals has dealt capital killer Jose Medellin a major setback in his bid to escape the executioner's needle, throwing out his bid for a post-conviction writ of habeas corpus and his motion for a stay. Medellin, 33, convicted in the 1993 rape-murder of Jennifer Ertman, 14, and Elizabeth Pena, 16, still has motions for stays pending with the U.S. Supreme Court and the Texas Board of Pardons and Paroles. He is scheduled to be put to death Tuesday. Medellin's attorneys could not be reached for comment Friday.

Medellin, a Mexican national, had filed his appeal based on arguments that Houston police deprived him of his right to contact the Mexican consulate after his arrest. The right is guaranteed by the United Nation's Vienna Convention of Consular Relations, to which the United States is a party. Last month, the UN's world court ordered Medellin be granted a stay so that a hearing could be held on whether that violation damaged his defense. Texas authorities responded that Medellin was not informed of his UN rights because he did not identify himself as a Mexican citizen. Thus far, they have resisted pressure from President Bush and other U.S. officials to comply with the world court order.

The Texas appeals court, in a ruling posted today, held that the latest petition, supposedly containing late-developing arguments and facts that could not have been presented earlier, was not filed in a timely manner. Medellin was one of six gang members arrested in the dual killings in TC Jester Park. Gang member Derrick O'Brien was executed in July 2006. Peter Cantu also has been condemned. Two other gang members, minors at the time of the crime, have had their death sentences commuted to life. Medellin's brother, only 14 at the time of the killings, is serving a 40-year sentence.

Judge Cathy Cochran, in concurring with the appeals court's majority opinion, wrote that there is "no likelihood at all" that the inadvertent violation of the Vienna Convention harmed Medellin's defense. "This was a truly despicable crime committed by ...deadly brutal young men who were deadly dangerous to anyone who might find themselves near them. All five were sentenced to death by separate juries after hearing all of the evidence in each of their individual trials. "No matter how long the courts of this state, this nation, or any other nation review, re-review and re-review once again the disgusting facts of this crime and these perpetrators, the result should be the same: These juries reached a reasonable verdict, beyond a reasonable doubt, that a sentence of death was the only appropriate punishment under Texas law."

Thu 7/17/2008
TEXAS TO WORLD COURT: EXECUTIONS ARE STILL ON / Gov. Perry's office rebuffs call to let Medellin's case be reviewed

Texas will go ahead with the scheduled Aug. 5 execution of Houston rapist-killer Jose Medellin despite Wednesday's United Nations world court order for a stay, a spokesman for Gov. Rick Perry said. The U.N.'s International Court of Justice's call for stays in the cases of Medellin and four other Mexican nationals awaiting execution in Texas came in response to a petition filed last month by the Mexican government. The petition sought to halt executions to allow for review of the killers' cases to determine whether denying them access to the Mexican Consulate after arrest impaired their trial defenses. The Vienna Convention on Consular Relations stipulates that, upon request, an alien offender's national consulate must be notified of his arrest.

In its order, the world court quotes the Mexican government's argument that "Texas has made clear that unless restrained, it will go forward with the execution without providing Mr. Medellin the mandated review and reconsideration," which will "irreparably" breach the U.S. government's obligations to the court's 2004 order. The Mexican government reasons that "the paramount interest in human life is at stake," according to the court's order. If Medellin and the other nationals are executed without additional court reviews, "Mexico would forever be deprived of the opportunity to vindicate its rights and those of the nationals concerned."

Perry's office dismissed the argument. "The world court has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court," Perry spokesman Robert Black said. "It is easy to get caught up in discussions of international law and justice and treaties. It's very important to remember that these individuals are on death row for killing our citizens."

But international law expert Sarah Cleveland, a professor of human and constitutional rights at New York City's Columbia Law School, said if the U.S. fails to act on the world court order, other countries may follow suit. "This can only come back to hurt U.S. citizens when they are detained abroad," she wrote in an e-mail. " ... When a global leader like the U.S. refuses to comply with its clear international legal obligations (and everyone agrees that this is a clear legal obligation), it undermines the willingness of other states to comply with their own obligations and it inspires them not to trust us to obey ours."

Deadly gang initiation Medellin, 33, was condemned for the 1993 killings of Jennifer Ertman, 14, and Elizabeth Peña, 16, who stumbled into a drunken midnight gang initiation rite at T.C. Jester Park in north Houston. Medellin's accomplice, Derrick O'Brien, was executed in July 2006. Also sentenced to die is gang leader Peter Anthony Cantu. Three other accomplices are serving prison sentences. Medellin was the only non-American involved in the murders.

Wednesday's U.N. court decision in The Hague, Netherlands, was the latest development in an an ongoing legal wrangle that has involved President Bush, the U.S. Supreme Court and the Mexican government. In 2004, the U.N. court ordered a review of the cases of 51 Mexican nationals facing execution in the United States because they had not been allowed to speak with their nation's consular officials. In February 2005, Bush directed state courts to abide by the U.N. court decision, specifically asking Texas to review Medellin's case. In March, the U.S. Supreme Court ruled that Bush had overstepped his authority. Chief Justice John Roberts said the president cannot mandate such court reviews without congressional concurrence. On Monday, U.S. Rep. Howard Berman, D-Calif., filed a bill providing for such reviews. As of Wednesday, it was in committee. Weeks after the Supreme Court's ruling, Secretary of State Condoleezza Rice and U.S. Attorney General Michael Mukasey jointly wrote Perry asking for his help in obtaining the reviews. The United States, they wrote, continues to be bound by the world court's decision under international law.

Girls' fathers adamant
Meanwhile, Randy Ertman, father of Jennifer Ertman, hotly denounced the world court's order for stays. "The world court don't mean diddly," he said. "This business belongs in the state of Texas. The people of the state of Texas support the execution. We thank them. The rest of them can go to hell." Adolfo Peña, father of Elizabeth Peña, agreed. "I believe we've been through all the red tape we can go through," he said. "It's time to rock and roll."

EYE OF THE STORM: These five Texas inmates are among the 51 Mexican nationals at the center of the world court ruling:

• JOSE ERNESTO MEDELLIN, 33, was convicted in the 1993 strangulation, rape and kidnapping of Houston teenagers Elizabeth Pena, Jennifer Ertman.

• CESAR ROBERTO FIERRO, 51, has served on death row since 1980 for shooting El Paso taxi driver, Nicolas Castanon.

• RUBEN CARDENAS, 38, and another man in 1997 took their victim to a remote area, where Cardenas raped, beat and strangled her.

• HECTOR GARCIA, 47, was convicted for the 1989 killing of 14- year-old Eduardo Rios during a robbery of a Rio Grande Valley convenience store.

• ROBERT RAMOS, 54, was convicted for the 1992 slayings of his wife Leticia Ramos, 42, and their two children, Abigail Ramos, 7, and Jonathan Ramos, 3.

CHRONOLOGY

March 31, 2004: The United Nation's International Court of Justice issued an order that U.S. courts must review the cases of 51 condemned Mexican prisoners. The court ruled the prisoners' rights to speak with Mexican consular officials after their arrests had been violated.

Feb. 28, 2005: President Bush directed state courts to abide by the world court's decision. He also asked Texas specifically to review the case of Jose Medellin, now scheduled to die by lethal injection Aug. 5.

March 25, 2008: The U.S. Supreme Court ruled that Bush could not compel Texas to review Medellin's case. Chief Justice John Roberts said the president cannot unilaterally carry out an international treaty without concurrence of the legislative branch.

June 20: The Mexican government made an emergency appeal to the U.N.'s highest court to block the executions of its citizens on death row in the U.S.

July 16: The world court ordered the U.S. to halt the five pending executions of Mexican nationals on Texas' death row.

WORLD COURT

Some facts about the International Court of Justice, also known as the World Court:

Established: 1945

Location: The Hague, Netherlands

Role: Judicial arm of the United Nations.

Decisions: Binding on member countries. No appeal, the court cannot enforce judgments.

Justices: 15 justices, each elected to nine-year terms by the U.N. General Assembly or the U.N. Security Council.

Lawsuits: Court acts on matters brought by member states; individuals cannot bring suits.
 

Tue 5/6/2008
Execution date for teens' killer set for Aug. 5 / The lawyer for Medellin hopes to stop it, saying client didn't get to talk to consulate

A Houston man who was convicted of capital murder 14 years ago for the gang rapes and slayings of two teenage girls received a death date Monday after the U.S. Supreme Court cleared the way for his and other killers' executions. Jose Medellin, 33, is set to die by injection on Aug. 5 for the 1993 murders of Jennifer Ertman, 14, and Elizabeth Peña, 16. The girls were beaten, raped and killed after they happened upon a drunken midnight gang initiation rite in T.C. Jester Park in northwest Houston.

State District Judge Caprice Cosper set the date in a hearing Monday. Medellin was convicted and sentenced in 1994. "I'm ready for this to be over," said Adolph Peña, Elizabeth's father."I know it takes a long time, but how much time do you need?"

However, Medellin's attorney, Sandra Babcock, said she expected to stop the execution, based on concerns about international justice agreements between the United States and other nations. She said she will ask congressional leaders to put pressure on the government to adhere to the agreements, which include notifying the consulates of foreign nationals who are arrested. She said Medellin, who was born in Mexico but lived most of his life in Houston, was not given the opportunity to notify his consulate.

Mexico sued U.S.
A legal struggle over international law had kept Medellin's case on appeal to the Supreme Court. Mexico, which opposes the death penalty, sued the United States in 2003 in the International Court of Justice in The Hague on behalf of about 50 Mexican citizens, including Medellin, on death rows in the United States. The Mexican government said U.S. officials violated the 1963 Vienna Convention when they failed to allow the citizens of another country access to its representatives after arrest. The World Court agreed and said the inmates deserved new hearings.

President Bush had said Texas should reconsider the Medellin case and others based on the Vienna Convention. But the U.S. Supreme Court ruled in March that a memo by Bush instructing states to comply with the international court was not sufficient to require states to act. A few days after he wrote the memo, Bush withdrew the United States from the part of an international treaty that gives the International Court of Justice final say in international disputes.

Supreme Court ruling
The Supreme Court removed another impediment to the execution of Medellin and others when it ruled in April on a Kentucky case that lethal injection is not cruel and unusual punishment. Kentucky uses the same lethal three-drug cocktail that is used in 35 other states, including Texas. Defense attorneys argued that it violated inmates' constitutional rights. Executions were halted in September when the high court agreed to hear the Kentucky case.

Five other reputed gang members were convicted in connection with the Ertman and Peña slayings. Derrick Sean O'Brien was executed in 2006. Peter Anthony Cantu is on death row for the killings, but his execution date has not been set. Raul Villarreal and Efrain Perez were sentenced to death but had their sentences commuted to life in prison in 2005 after the U.S. Supreme Court determined that it was cruel to execute those who were juveniles. They were months away from turning 18 when the killings occurred. Venacio Medellin, Jose Medellin's brother who was 14 at the time of the crime, testified against the others and is serving a 40-year sentence.

Tue 4/1/2008
Court won't hear 7 killers' appeals / Execution dates for Mexicans pending ruling on lethal injection

WASHINGTON - The Supreme Court on Monday declined to hear the appeals of seven Mexican-born prisoners condemned to die in Texas, including two who had committed murders in Houston in the 1990s. The action followed a high court ruling last week in which the justices rebuffed President Bush for directing the state of Texas to abide by a world court ruling and rehear the case of another Mexican on death row. The prisoner, Jose Medellin, had been convicted of the 1993 rape-murders of two Houston teenagers - Jennifer Ertman, 14, and Elizabeth Pena, 16 - who had stumbled upon a gang initiation.

Mexico, which opposes the death penalty, sued the United States in the International Court of Justice in the Hague on behalf of some 50 Mexican citizens, including Medellin, on death rows in the United States. The Mexicans said American officials violated the 1963 Vienna Convention when they failed to allow the citizens of another country access to its representatives after arrest. The world court agreed. But in a 6-3 ruling on March 25, the Supreme Court said the president overstepped his bounds when he ordered states in a memo to abide by the world court's ruling. The U.S. court said a president must consult Congress before issuing an order based on a treaty.

The court did not comment Monday when it declined to hear the appeals by the seven men. But their execution dates were not expected to be set until the court rules on another death penalty issue, whether lethal injections are constitutional. Jordan Steiker, who co-directs the Capital Punishment Center at the University of Texas Law School, said it was not unusual for the justices to resolve the overarching legal issues based on one case and then apply it to others in similar situations. "These cases were already in the pipeline," he said. Steiker and others, including state Sen. Rodney Ellis, D-Houston, warned that the court's decisions regarding the Mexican inmates could undermine the rights of American citizens traveling abroad. "Showing regard for the foreign nationals in the United States under our treaty obligations serves to protect American citizens by ensuring that any detention is followed by contact with a local United States consulate so that legal assistance and other moral support can be provided," said Ellis, who sits on the state Senate criminal justice committee. "The Supreme Court's decision makes those kinds of assurances harder to establish."

A spokesman for Texas Gov. Rick Perry praised Monday's action by the high court. "Foreign courts have no jurisdiction in Texas," said Krista Piferrer. "The governor believes that justice has been and will be served for these individuals who committed atrocious crimes."

Among the seven Mexican-born inmates who lost appeals Monday are 31-year-old Felix Rocha, who was convicted of shooting a security guard in a Houston apartment complex in 1994, and 42-year-old Virgilio Maldonado, who was convicted of shooting a man three times in the back of the head during a 1995 Houston drug robbery.

Others whose appeals were denied included:

• Ignacio Gomez, 38, convicted of shooting three teenage boys and burying them in desert sand dunes outside El Paso in 1996;

• Humberto Leal, 35, convicted of abducting a San Antonio woman, raping her and crushing her head with a 35-pound chunk of asphalt in 1994;

• Ruben Cardenas, 37, convicted of raping and strangling a teenager in Hidalgo County in 1997.

• Robert Ramos, 53, convicted of killing of his wife and two children at their home in Progreso in 1992, then burying them beneath the bathroom floor.

• Cesar Fierro, 51, who was convicted of robbing and killing an El Paso taxi driver in 1979.

Fourteen Mexican citizens are awaiting execution in Texas, the Texas Department of Criminal Justice reported.

As of late February, 122 foreign nationals were on death row throughout the United States, according to the Washington-based Death Penalty Information Center, a nonprofit organization that monitors capital punishment issues.

Wed 3/26/2008
HIGH COURT RULES BUSH ERRED IN HOUSTON CASE / President can't force a new trial for Mexican in 1993 murders, the justices find

WASHINGTON - The Supreme Court ruled Tuesday that Texas cannot be forced by President Bush to reopen the case of Jose Medellin, a Mexican citizen sentenced to death for raping and murdering two teenage girls in Houston. By a 6-3 vote, the court said that a memo by Bush instructing the state to comply with a world court decision for a new hearing in the 1993 case was not sufficient to require the state to act. The dissenters, however, expressed concerns that the ruling would harm the United States' relationship with Mexico and make it more difficult to enforce international treaties.

Tuesday's decision will not immediately lead to an execution date for Medellin, who has exhausted all appeals and confessed to the killings of Jennifer Ertman, 14, and Elizabeth Pena, 16, after they happened upon a gang initiation. Harris County Assistant District Attorney Roe Wilson said the next step must wait until the justices resolve another case regarding the legality of lethal injections. All executions are on hold until that ruling is handed down. Mark Vinson, a former Harris County assistant district attorney who prosecuted Medellin, said, "I've been waiting for this decision for a long time. It looks like the court saw through this masquerade and rendered the proper ruling."

Donald Donovan, Medellin's attorney, said he was disappointed in the decision, which he called "a departure from the original intent of the framers of the Constitution and over 200 years of enforcement of U.S. treaties by U.S. courts." At issue was a 2004 ruling by the world court - formally known as the International Court of Justice - that the United States violated the rights of Medellin and 50 other citizens of Mexico as spelled out in the 1963 Vienna Convention. Mexico, which opposes the death penalty, brought suit in the court at The Hague, arguing that the U.S. violated the treaty by not allowing the defendants to notify a Mexican Consulate of their arrests.

The Mexican foreign ministry criticized the Supreme Court's ruling, complaining that the world court's decision "should be respected by those governments that have accepted its jurisdiction." Mexico "will continue making use of each and every one of the resources at its disposal to achieve the full respect for the rights" of its citizens, the foreign ministry said.

Presidential powers
Even though Bush presided over 152 executions as governor of Texas, he sided with the world court and issued a memo in 2005 without consulting Congress. The memo directed state courts to comply with the decision to rehear the cases. But the Supreme Court on Tuesday agreed with Texas that Bush had overstepped his bounds. Writing for the majority, Chief Justice John Roberts said the president cannot unilaterally carry out an international treaty without concurrence of the Legislative Branch. "The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress," Roberts wrote. In a dissent, Justice Stephen Breyer wrote that it would be impractical to involve Congress in carrying out numerous international agreements. He added that the ruling could lead to "worsening relations with our neighbor Mexico, of precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our nation's reputation abroad as a result of our failure to follow the rule of law principles we preach." Breyer was joined by Justices Ruth Bader Ginsberg and David Souter in the dissent. Justice John Paul Stevens wrote a separate opinion concurring with Roberts' but nevertheless urged Texas to hold another hearing. An unusual coalition of liberal academics and conservative politicians had opposed the Bush administration's effort to force states to abide by the world court decision.

A spokeswoman for Texas Republican Gov. Rick Perry, who has been a close ally of Bush, welcomed the decision. "What the Supreme Court's decision did was affirm what the governor has always believed," said spokeswoman Krista Piferrer, "that the state has rights and that a court based in some foreign country has no jurisdiction in Texas."

Oval Office 'disappointed'
Ernest Young, a former University of Texas law professor, had filed a friend-of-the-court brief along with other professors, a number of them liberal, on behalf of the state of Texas. "This was a very broad claim to executive power," Young said of the administration's arguments. Young, now at Duke University, said he was surprised that the majority decision was written by Roberts, who in his confirmation hearing had expressed an expansive view of the powers of the president. White House spokeswoman Dana Perino dismissed suggestion that the decision was a blow to the president's powers, saying it applied only to this one issue. "But of course, since we urged a different result, we're disappointed with the decision," she said. "But we're going to accept it, and we're going to be reviewing it in regards to the impacts that it may have."

Thu 10/11/2007
Texas fights at high court for turf / Official argues World Court and president don't trump state law in death row case

WASHINGTON - In spirited arguments before the U.S. Supreme Court, a lawyer for Texas said Wednesday that neither a presidential order nor a ruling by the International Court of Justice should be allowed to trump state law and interfere with the cases of Mexican inmates on U.S. death row. Texas Solicitor General Ted Cruz conceded that police violated the 1963 Vienna Convention in denying Jose Medellin, a Mexican citizen, the chance to contact the Mexican consulate for legal help after his 1993 arrest in the gang rape and murder of two Houston teenagers. But he said President Bush's remedy for the treaty violation - making state courts review the convictions and death sentences of Medellin and 50 other Mexican inmates - would give the president unprecedented power over the judiciary and give the "World Court" authority over U.S. law.

The treaty dispute, which the World Court decided in Mexico's favor after that country sued the U.S., should be resolved through political and diplomatic channels, Cruz told the justices. No other nation, including Mexico, would allow U.S. inmates in their countries to use their court systems to enforce the World Court's ruling, he said. He said that long before the World Court's involvement, state and federal courts had rejected Medellin's consular claim and decided that since he failed to raise it at his original trial, he had waived it. Even if Medellin had been represented by his countrymen, he still would have been convicted and sentenced to death, Cruz said.

Mexican officials, whose country has no death penalty, had argued that if they had been informed of Medellin's arrest, they would have advised him not to speak to police without a lawyer present. Within hours of his arrest, Medellin confessed to a role in the killing of Jennifer Ertman and Elizabeth Peña.

Medellin's attorney, Donald Donovan, and U.S. Solicitor General Paul Clement, who sided with Medellin on behalf of the Bush administration, countered Wednesday that the U.S. voluntarily entered into the treaty more than four decades ago and agreed to resolve international disputes at the World Court and to abide by its decisions. Therefore the U.S. must comply, even though it disagrees with the outcome, they said.

Chief Justice John Roberts said he was concerned about the position on Medellin that the Supreme Court's role is only to force compliance with the World Court's ruling. "We have no authority to review the judgment itself?" he asked. Justice Anthony Kennedy asked if the court could "interpret the meaning of the (World Court) ruling, if it's ambiguous,"saying that it was.

Justice Antonin Scalia balked at Clement's assertion that the president's order for state courts to review the Mexican cases was a critical part of the case. Clement had argued that the president alone has the power to conduct foreign policy and that his order trumps everything. "You're telling us we don't need Congress? The president can make law by writing a memo to his attorney general?" Scalia asked. And Scalia said he had a problem with giving the World Court any say in U.S. domestic law. "I am rather jealous of that power," he said.

But Justices Stephen Breyer and Ruth Bader Ginsburg indicated they were leaning toward cooperation. "The United States gave its promise," Ginsburg said. Outside on the courthouse steps, Donovan agreed. "The United States did not have to go to this court, but once we agree to go, we abide by its decision because we are a country of laws," he said. "A deal is a deal."

A decision is expected by summer.

Mon 10/8/2007
MURDER CASE PITS TEXAS AGAINST BUSH / As U.S. justices consider local killer's consular issue, control of courts is at stake

WASHINGTON - When Jose Medellin was arrested in 1993, he signed a confession detailing how he and five fellow gang members had raped and sodomized two Houston teenagers before strangling them with their shoe laces. He bragged that he had pocketed one girl's Mickey Mouse watch as a souvenir. Medellin and four others eventually were convicted of capital murder and sent to Texas' death row. A juvenile court sentenced Medellin's younger brother, who was 14 at the time, to 40 years in prison. This week, Medellin's case makes its second trip to the Supreme Court. The issue now is not his confession to the murders of Jennifer Ertman and Elizabeth Peña, but something else he said during his arrest: He informed the police that he is a Mexican citizen. But officers didn't inform him of his right to contact the Mexican Consulate for legal assistance.

That mistake, a violation of a 1963 treaty known as the Vienna Convention, has since sparked an international court battle, bruised relations between the United States and its southern neighbor and ultimately will force the high court to answer a rather large constitutional question: What authority, if any, does President Bush have to order courts in the state of Texas to do anything about it? "We find ourselves in an unusual position. Texas is not regularly litigating against the United States," said Texas Solicitor General Ted Cruz. "But sadly enough, the United States will appear alongside Medellin at the argument."

Medellin v. Texas, which will be argued on Wednesday and decided by next summer, could determine the fate of Medellin and 50 other Mexican killers on death rows in the United States, including more than a dozen in Texas. They were not informed of their right under the treaty to contact their countrymen when they were arrested. The case also could affect the treatment of an estimated 6,000 U.S. citizens accused of crimes each year while traveling or living abroad. They, too, are protected by the treaty. More significantly to most Americans, though, the justices are expected to produce a major ruling clarifying what powers reside with the president, Congress and courts, what powers belong to the federal government versus the states, and what the relationship is between international and domestic law.

A presidential order
The Bush administration became involved in the Medellin case in 2003 when Mexico sued the U.S. over the consular issue in the International Court of Justice at The Hague. The so-called "World Court" is the United Nations' top court for resolving international disputes. The court ruled in Mexico's favor in late 2004 and ordered the United States to reconsider the Mexican inmates' murder convictions and death sentences. In February 2005, Bush announced that while he disagreed with the World Court's decision, the U.S. would comply, and he declared how: He would order courts in Texas and elsewhere to review the cases. A few days later, however, the president withdrew the United States from the part of the Vienna Convention that gives the World Court final say in international disputes.

The Supreme Court, which had agreed to hear Medellin's case, dismissed it later in 2005 to allow the case to play out in Texas. Last November, the all-Republican Texas Court of Criminal Appeals balked at the Republican president's order, saying Bush had overstepped his authority.

The Texas court said the judicial branch, not the White House, should decide how to resolve the Mexican cases. It also said Medellin wasn't entitled to a new hearing because he failed to complain at his original trial about any violation of his consular rights and had therefore waived them. Medellin appealed again to the U.S. Supreme Court, which announced last May that it would hear his case. His lawyer, Donald Donovan of New York, will argue this week that Bush was correct when he took action to comply with the World Court's decision. In addition, Donovan said that, independent of Bush's order, the Texas court has its own obligation under the U.S. Constitution to do its part to abide by international treaties. The Bush administration, now siding with Medellin and Mexico, will try to help Donovan's team convince the justices that the Texas court is undermining the president's efforts to conduct foreign policy.

Setting a precedent?
Cruz, who will argue the case for Texas, called Bush's unprecedented attempt to issue orders to the judicial branch - and the state courts in particular - "breathtaking. It is emphatically not the province of the president to say what the law is," he said. "If this president's assertion of authority is upheld in this case, it opens the door for enormous mischief from presidents of either party. What might these presidents be inclined to do if they had the power to flick state laws off the books?"

Meanwhile, Randy and Sandra Ertman, the parents of one of Medellin's victims, also have weighed in. In a court brief filed on their behalf by the California-based Criminal Justice Legal Foundation, the Ertmans argue that their 14-year-old daughter's rights, and the rights of other victims, will be given short shrift if the justices further delay the "already long-overdue execution of this well-deserved sentence." "This case has produced much lofty discussion about international law and the separation of powers. We must not forget, though, that this case is about a real crime against real people," they wrote. "Enough is enough."

OTHER DEFENDANTS

Besides Jose Medellin, the five others involved in the 1993 rape-murder of Houston teenagers Jennifer Ertman and Elizabeth Peña were:

Derrick Sean O'Brien: Executed in 2006

Peter Cantu: Awaiting execution, no date set

Efrain Perez, Raul Villarreal: Sentences commuted to life in 2005 after Supreme Court outlawed executions for those under 18 at the time of their crimes

Venancio Medellin: The younger brother of Jose Medellin, who was 14 at the time and pleaded guilty in juvenile court, is serving a 40-year sentence
 

Tue 5/1/2007
U.S. SUPREME COURT / Ertman-Peña killer will get case heard / Mexican citizen on death row for '93 rape-murders

WASHINGTON - The U.S. Supreme Court agreed Monday to consider whether one of the six killers of Houston teenagers Jennifer Ertman and Elizabeth Peña should escape execution because he was denied a chance to get legal assistance from the Mexican Consulate. As requested by the Bush administration, the high court will hear arguments in the fall on the case of Jose Medellin, a Mexican citizen sent to Texas' death row in the notorious 1993 rape-murder case. A decision, expected by summer 2008, may resolve a long-running debate over the protection offered to accused foreigners by a treaty known as the 1963 Vienna Convention. The debate has strained relations between the United States and Mexico and could determine the fate of more than 50 Mexicans on death row in the United States, including more than a dozen in Texas. It also could affect the treatment of about 6,000 U.S. citizens accused of crimes each year while traveling or living abroad, who also are protected by the treaty.

Siding with the killer are the Mexican government, a group of international law experts and the pro-death penalty White House, which considers a Texas court's decision in Medellin's case an affront to the president's sole authority to conduct foreign policy. Harris County Assistant District Attorney Roe Wilson said Medellin is not a great example of the foreigners that the Vienna Convention was meant to protect because he spent the bulk of his life in Houston from about age 6. "When you talk about the Vienna Convention, you envision someone visiting another country and not knowing anything about the country's legal system," Wilson said Monday. "And that's not true in his case. He grew up in Houston and was not by any stretch of the imagination a foreigner in a foreign land." Wilson said Medellin's experience in the criminal justice system, which began when he was in middle school, should have given him a clear understanding of the law and of his rights.

Mexico sued the U.S. over the consular issue in the International Court of Justice, or World Court, at The Hague, the United Nations' top court for international disputes. In February 2005, after the World Court ruled that the convictions of Medellin and 50 other Mexican prisoners violated the treaty, President Bush ordered new state court hearings for the defendants. A few days later, he also withdrew the U.S. from the part of the treaty that gives the World Court final say in international disputes.

In November, a unanimous, all-Republican Texas Court of Criminal Appeals said the Republican president had overstepped his authority in ordering the state court reviews. The Texas court said the judicial branch, not the White House, should decide how to resolve the cases. It also said Medellin wasn't entitled to a new hearing because he failed to complain at trial about any violation of his consular rights. Medellin then appealed to the Supreme Court. The Bush administration has said in court papers that while it disagrees with the World Court's decision in the matter, it intends to keep its promise to abide by it. The Texas court, the administration now argues in its "friend-of-the-court" brief supporting Medellin, is undermining Bush's determination of how the United States will comply with its treaty obligations. "The authority to decide whether this nation will comply with a (World Court) decision, and if so, how compliance should be achieved, falls on the president," the administration told the justices.

Texas Solicitor General Ted Cruz, who represents the state in the case, disagreed. He said in writing Monday that Medellin "voluntarily confessed to the brutal gang rape and murder of two teenage girls and his conviction has been upheld at every stage of the legal process." The president's intervention in the case, Cruz said, "exceeds the constitutional bounds of presidential authority."

The high court agreed to take Medellin's case once before, but dismissed it in 2005 after Bush ordered the state court reviews.

Ertman and Peña were sexually assaulted, strangled and beaten to death in a northwest Houston park on June 23, 1993, by members of a youth gang known as the "Black and Whites" who were initiating a new member. The girls' bodies were found four days later. Medellin and four other gang members were convicted of capital murder in the case and sentenced to death.

Ertman's father, Randy Ertman, said he no longer invests much energy or emotion into his daughter's killers' court cases. "No matter what he does in his life," he said, "he will always be responsible for the deaths of Elizabeth Peña and my daughter." Randy Ertman witnessed O'Brien's execution last year and intends to attend the execution of Peter Cantu.

THE OTHER CASES

Besides Jose Medellin, whose appeal was accepted by the U.S. Supreme Court on Monday, the five other men involved in the notorious 1993 rape-murders of Houston teenagers Jennifer Ertman and Elizabeth Peña were:

Derrick Sean O'Brien: Executed in 2006.

Peter Cantu: Awaiting execution; no date set.

Efrain Perez and Raul Villarreal: Sentences commuted to life in prison in 2005 after the Supreme Court outlawed executions for those who were under 18 at the time of their crimes.

Venancio Medellin: Younger brother of Jose who was 14 at the time of the killings; pleaded guilty in juvenile court and is serving a 40-year sentence.

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 coaste