Today's Orders

.

Generally, the CCA posts new orders at about 9:00 a.m., but there's nothing up yet. I'll update if something comes up. For right now, nothing.

Updated at 8:04 p.m.: Still nothing. Looks like the Court has taken the week off before Labor Day.

.

Et tu . . . SCOTUS?

.

My first thought on scanning the holding of Giles v. California was Judge Cochran's going to be pissed. To understand why I thought this, my pet boy Sherman will set the way back machine to 1999. In Volume 29, Number 5 of the TDCAA Texas Prosecutor, Cathy Herasimchuk (the once and future Judge Cochran) published an article entitled "Hearsay, Confrontation Clause, & The Trial of Sir Walter Raleigh." It was an entertaining and informative paper setting out the differences between hearsay objections and Confrontation Clause objections. (I would hyperlink to it, but it's no longer on TDCAA's website.) I believe it was also presented at either the TDCAA Annual Update or the State Bar Advanced Criminal Law Course. I can't remember it word for word, but one of the main thrusts of the paper was "Remember Walter Raleigh" as his story, according to Judge Cochran demonstrated the purpose behind the Confrontation Clause.

Admittedly, I was more naive and less educated at the time, so perhaps it wasn't such an incredibly novel insight to relate the Confrontation Clause to the Trial of Sir Walter Raleigh, though it seemed like it to me. And hey, those were the heady days of Ohio v. Roberts and the sufficient indicia of reliability when most of the important hearsay exceptions were firmly-rooted and the predicate for the exception overcame a Confrontation Clause objection. Then, SCOTUS decided Crawford v. Washington, and the focus changed from indicia of reliability and firmly-rooted exceptions to testimonial or non-testimonial. Of course, the thing that floored me, was the emphasis that Justice Scalia placed upon one of the most notorious instances of civil law examination . . . The Trial of Sir Walter Raliegh.

By now Judge Cochran was Judge Cochran. Again, perhaps my inexperience with the law gave Judge Cochran too much credit for clairvoyance, but it certainly seemed to me that when Crawford was decided, Judge Cochran had already called it. She didn't write the book on evidence for nothing, after all.

Which is why I thought she'd be pissed when I glanced over Giles. [I don't, of course, know her. She may not be the type of person to get pissed.] See, two years before, Judge Cochran authored the opinion in Gonzales v. State that recognized in Texas the doctrine of forfeiture by wrongdoing as an exception to a defendant's Sixth Amendment right to confront the witnesses against him. Filled with her breezy confidence, Judge Cochran returned to the historic English cases she appears to love so much and wrote an opinion explaining the common law doctrine of forfeiture by wrongdoing. [Sometimes I wonder if the other members of the Court treat evidence questions like their all in a big bowl of Life cereal that they pass over to her . . . "I'm not gonna' try it. Hey, let's get Cathy!" Probably not.] For those unfamiliar with it, basically the doctrine holds that a defendant can't complain about his inability to cross-examine an unavailable witness that he made unavailable through his own wrongdoing.

At first glance, I thought Giles held that forfeiture by wrongdoing wasn't a recognized exception to the Confrontation Clause. In fact, that's kind of what the headnotes and syllabus seem to suggest. However, it doesn't quite hold that. Instead, it recognizes that forfeiture by wrongdoing can be an exception to the Confrontation Clause, but only when the evidence suggests that the defendant engages in the wrongdoing for the specific purpose of making the witness absent.

So, upon reading more closely, Judge Cochran pulled out another save. See, the CCA in Gonzales carefully sidestepped the question of whether a defendant must engage in the wrongdoing in order to absent the witness. There, the Court held that even assuming forfeiture by wrongdoing only applies in situations where the purpose of the wrongdoing is to prevent the witness from testifying, the evidence demonstrated that Gonzales killed the victims specifically to prevent them from testifying. Gonzales dealt with a murder during a robbery while Giles dealt with a murder arising from a domestic dispute. So, Giles may have made it harder to apply this doctrine to domestic violence cases, but it ultimately shouldn't call Gonzales into question.

In the end, I got to figure Judge Cochran read the opinion and reacted the same way I do when I have a case that's a near-miss (or near-hit at George Carlin would say). Still, this whole history lesson has me anxious about another paper Judge Cochran presented where she talked about effective brief writing and used as an example the application of the Confrontation Clause to the use of closed-circuit TV during a child crimes case. The pull quote I got from that was from John Wayne, "Look me in the eye when you say that, Pilgrim." I have to wonder what, if anything, that suggests about how the CCA and/or SCOTUS will apply the Confrontation Clause to videotaped forensic interviews of children in child rape cases. See e.g. Rangel v. State, 250 S.W.3d 96 (2008)(Cochran, J. dissenting) If history is any guide, it may not be pleasant for the State.

.

I'm So Disappointed Wood Went Out Like That

.

Well, a federal district judge granted a stay for Jeffery Wood, the "wheel man" instead of the "trigger man" if we're using caper lingo. You can read the AP story on it here. [I picked them because the AFP has a picture of . . . the death chamber . . . dun, dun, dun. Funny, how did they stand Sean Penn up for his Jesus Christ pose on that thing? It looks pretty bolted down to me. And the AP picture makes Wood look like something out of The Doors, so it's much more sedate and nutmeggy.]

Basically, instead of challenging his execution becuase he's merely an accomplice, he's going the Panetti route. I was kind of looking forward to seeing if he'd try and stretch Kennedy the way Botsford suggested (see previous post) in order to crank the one-way-ratchet of evolving standards of decency down another notch to exclude accomplices from the death penalty. (Perhaps I should start keeping a tally.) But instead he got a stay so an expert could determine if he's mentally competent to be executed. Of course, Panetti v. Quarterman has made this easier by announcing a new rule without any contours.

To be serious for a moment, I recently had the opportunity to speak with a psychiatrist who was actually involved in the Panetti hearing. Smart guy. Even he expressed an understanding of and empathy for the difficulty that courts face when dealing with the issue of mental illness and the death penalty. Unlike mental retardation, it simply does not lend itself to an easy classification that you just can point to and say, "that dude's crazy," particularly in light of the fluid and flexible nature of the disorders and their definitions. From speaking with this careful and thoughtful man, I could almost understand why Justice Kennedy kind of punted on that one.

That did not, however, stop me from doing a spit-take when I saw the majority in Baze v. Rees reject the challenges to the lethal injection protocols because the defendant's proposed standard would threaten to "embroil the courts in ongoing scientific controversies beyond their expertise." Um, isn't that the result of Atkins? Isn't Panetti even more of a "threat"? We don't want judges to be scientists, but psychiatrist is okay? Conversely, what does that say about psychology . . . it's so easy, anyone can use it, even judges?

Still, it does make me laugh that so much emphasis was placed upon the accomplice angle by the news (see every article as an example of THIS), and yet the defendant didn't think enough of the argument to use it himself. Well, apparently there's still time.

And hey, this post is already longer than David Jenson's penis. If attorneys will come up with arguments like those used in Jenson v. State, just imagine what they are capable of when the ultimate penalty is on the line. But perhaps I should stop now and quit while I'm ahead.

.

Today's Orders (and Yesterday's Which Weren't Posted Until the Wee Small Hours)

Updated at 6:45 p.m.:

Yesterday, the Court denied a motion to stay the execution and dismissed a motion for prepayment of funds for a mental health expert in the Jeffrey Wood case. You can see the unpublished order here. Basically, Wood claimed he was incompetent and the trial court determined he hadn't shown he was incompetent so he wasn't entitled to expert assistance to demonstrate he was incompetent. The Court indicated that there was no appellate vehicle to consider such a claim as it goes beyond the scope of Article 46.05.

Interestingly, this case raises the specter of executing an accomplice to capital murder. Wood was the getaway driver and didn't actually murder the victim. The Board of Pardons and paroles rejected a clemency request, and you can read a full story on it here. SCOTUSblog isn't covering it. I say it's interesting because I would expect the defense to drawn on the "intentional" murder aspect to the Kennedy v. Louisiana opinion. David Botsford wrote an editorial about this type of expansion of the Kennedy opinion in an editorial in Texas Lawyer. You can read it here. Of course, that case may be in a state of flux, what with the motion for rehearing and all. I'm not saying the argument will work, but I am interested to see how if it's made and how it plays out.

And as for today's orders, the Court granted a number of habeas corpus claims for relief, also not published. You can pull them up for yourself here.

The Court also granted discretionary review in the following cases:

Defendants'

PD-0385-08, Uranga v. State. Wichita County. You can read the underlying opinion here. Oral argument will not be permitted.

Issue: DOES THE IMPLIED BIAS DOCTRINE APPLY IN A CASE, LIKE MR. URANGA'S, WHERE IT IS REVEALED DURING PUNISHMENT THAT ONE OF THE JURORS WAS THE VICTIM OF THE DEFENDANT'S ALLEGED EXTRANEOUS CONDUCT?

[The Court of Criminal Appeals seemed to come close to recognizing the doctrine of implied bias with regard to a prosecutor from the prosecuting office sitting on a jury in State v. Morales. Here, the lower court noted that neither the CCA or SCOTUS has recognized this doctrine when the implied bias of a juror is discoverd during punishment (the extraneous conduct was put on at punishment).]

PD-0912-08, State v. Rhine. Denton County. You can read the underlying opinion here. Oral argument will be permitted.

Issue: 1. WHETHER THE PENAL OFFENSE WITH WHICH PETITIONER IS CHARGED RESTS UPON AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY IN VIOLATION OF THE SEPARATION OF POWERS PRINCIPLE GUARANTEED BY ARTICLE II, SECTION 1 OF THE TEXAS CONSTITUTION.

[The trial court in this case quashed an information charging the defendant with a violation of The Clean Air Act. The defendant claimed that statute unconstitutionally delegated authority to an exectutive branch, namely the Texas Commission on Environmental Quality. If you're handling the appeal in this case, I feel your pain.]

The States'

PD-0821-08, State v. Moreno. Nueces County. You can read the underlying opinion here. Oral argument will be permitted.

Issues: 1. WHETHER THE TRIAL COURT'S ACTION IN PURPORTING TO GRANT A DIRECTED VERDICT, BEFORE THE STATE RESTED ITS CASE WHILE ITS KEY WITNESS WAS WAITING TO TESTIFY JUST OUTSIDE THE COURTROOM, AMOUNTED INSTEAD TO AN IMPROPER DISMISSAL OF THE INDICTMENT, WHICH IS PROPERLY APPEALABLE BY THE STATE?

2. WHETHER THE TRIAL COURT EVEN HAS THE UNDERLYING AUTHORITY TO GRANT A DIRECTED VERDICT?

[Tanya Dohoney (I may have misspelled her name) of the Tarrant County District Attorney's Office will be so psyched about the granting of the second issue. It's a deceptive little issue because if you start to really look into it you see that it's not entirely clear where a trial court gets the authority to grant a directed verdict. You find yourself saying, "No, that' can't be right" alot, and it'll be interesting to see how it turns out. As for the first question, it's pretty self-explanatory. I'm fairly confident that there is at least one District Court judge who will be paying close attention to the decision on this case. Note that the court of appeals distinguishes State v. Stanley with a mere cf and no discussion. Stanley may be distinguishable on the ground that the State in that case appealed the granting of a pretrial motion to quash based upon constitutionality grounds, but the trial court granted the motion in the middle of trial. There doesn't appear to be a similar motion in Moreno.]

PD-0822-08, State v. Karenev. Denton County. You can read the underlying opinion here. Oral argument will be permitted.

Issues: 1. CAN AN APPELLANT RAISE A CONSTITUTIONAL CHALLENGE TO THE FACIAL VALIDITY OF A PENAL STATUTE FOR THE FIRST TIME ON APPEAL WITHOUT HAVING PRESERVED THE ISSUE BY OBJECTION IN THE TRIAL COURT?

2. DOES THE NEXUS BETWEEN THE RELEVANT CONDUCT, THE MENTAL STATE, AND THE DESCRIPTIVE MANNERS IN V.T.C.A. PENAL CODE § 42.07(A)(7) PROVIDE SUFFICIENT NOTICE TO PREVENT THE STATUTE FROM BEING UNCONSTITUTIONAL FOR VAGUENESS?

3. DOES THE UTILIZATION OF A REASONABLE PERSON STANDARD IN V.T.C.A. PENAL CODE § 42.07(A)(7) PROVIDE SUFFICIENT NOTICE TO PREVENT THE STATUTE FROM BEING UNCONSTITUTIONAL FOR VAGUENESS?

[The State Prosecuting Attorney's Office took up the PDR on this one. The underlying court held the harrassment statute unconstitutionally vague as it applies to repeated, harrassing e-mails because it does not establish whose sensibilities must be offended, it employs in the disjunctive a series of vague terms (such as annoy or embarrass) susceptible to multiple different meanings, and it doesn't define "repeated" or establish what frequency of communication establishes when something is "repeated". The underlying concern is that this statute could apply to both targetted, threatening conduct and average spam. Perhaps the scienter requirement could save it like it saved the child pornography statute in United States v. Williams. However, the statute in Williams attacked communications designed to facilitiate transactions that both parties believed were illegal and had no right to engage in. Do we have a constitutional right to be annoying? If we don't, I'm in big trouble in little china.]

.

The Three-Drug Monte

.

Today's Orders

.

The Court issued orders today and you can find them here.

No published opinions or granted issues,of course. There was one unpublished one holding a writ of mandamus in abeyance to give more time to the District Court to explain why it hasn't done anything on the defendant's writ of habeas corpus. Again, these aren't the droids we want. Move along.

.

What Qualifies As Dangerous?

.

This term, the Court held that evidence sufficiently established Barney Fuller is a future danger. And with good reason. Fuller got into a dispute with his neighbors, Nathan and Annette Copeland, because Fuller was firing weapons on his own property and had apparently hit the Copeland's electrical transformer while doing so. Because of this "dispute", Fuller threatened to kill his neigbors, and at around 1:30 a.m. one morning he carried out the threat.

As the Court wrote, "[Fuller] fired approximately sixty rounds from an AR-15 rifle into the Copeland home from outside, changing the magazine on his rifle three times. He then broke down the back door and made his way to the master bedroom where he fired several more shots with a pistol, reloading twice. He shot Nathan four times. The first shot was a fatal head wound from a rifle. The other three wounds, which were also classified as fatal, were from a pistol that was fired at Nathan's back from a distance of only one to three feet. Annette managed to call 9-1-1 from the master bath. The operator heard a man say, "Party's over, bitch," before hearing "a popping sound" and the line went dead. Annette was shot three times in the head with a pistol, once directly through her brain and twice through her facial bones."

Then, he went after their children. Fortunately, they survived. [It was really nothing short of a miracle as Fuller tried to shoot the fifteen-year-old boy in the head as the boy lay in his bed, but Fuller only managed to hit the boy's shoulder. Through the heroic efforts of the eleven-year-old daughter, the police were called to the scene.]

The Court started by noting that the circumstances of the offense itself, if severe enough, could be sufficient to support a finding of future dangerousness. And this was such a brutal crime, it's easy to see why the Court would want to make that the holding of the case. But they didn't. At least not totally. Instead, the Court went on to note a psychologist's opinion that Fuller would be a future danger because he is “capable of an intense level of very hostile, rage-filled violence” and “maintains a belief system that generates and sustains” violence, which “hasn't really diminished” since the offense.

So the Court upholds the finding of the future dangerousness. And it's not really a shock. Fuller clearly doesn't care about humanity, he committed an act of unspeakable barbarity, and a doctor says he's bad.

So what's up with Berry v. State, then? The Court decided Berry last year, and the defendant murdered her small child by suffocating him (duct tape over his mouth, arms secured across his chest and wrapped up in a plastic bag) and throwing him out with the trash. Later, Berry abandoned her daughter in a ditch near a bed of fire ants fifteen feet from a road. Fortunately a passerby heard the baby cry and saved the child's life. (The child's eyes were swollen shut, she experienced seizures and needed a blood transfusion, and she still has scars from the bites on her face, hands, and stomach.)

Now, the majority in Berry focused a lot of attention on the evidence presented from the defense that portrayed Berry as shy and respectful and very loving to her children sired by her most-favored mate. (What is this The Last Emperor?) Also, the defense called two experts to testify that Berry was depressed, one of whom noted that Berry “was under an extreme amount of pressure,” and her “sociocultural background [did] not promote reaching out to others for assistance.” The State also misstated the special issue to the jury by putting it in terms of whether Berry was out of prison and having another child rather than focusing on possible futures in both the "free world" and "the penitentiary". (Who knew that the death penalty involved temporal mechanics?) Ultimately, the majority in Berry held that the State failed to demonstrate that Berry would be a future danger in prison because she'd only ever been dangerous to the kids she had by her less-favored mate and she wasn't likely to be able to create any similiarly-situated victims in prison.

Obviously, there are diffrences between the two cases. [And yes, there's a difference between morality and law.] However, if the language in Fuller (based on Connor v. State, 67 S.W.3d 192, 199 (Tex. Crim. App. 2001) by the way) is to mean anything, why isn't the crime and conduct in Berry severe enough to establish future dangerousness by itself? Both the crimes in Fuller and Berry demonstrate a complete and callous disregard for human life. Arguably, if you can do this to your own child (I'm looking at you, Berry), a rational juror could come to the conclusion that you could be capable of anything against someone you have no relation with. Conversely, just because you don't have a hair-trigger like Fuller, doesn't mean you aren't just as dangerous. Put in a more pop-cultury way, is the death penalty only for folks like The Tremor Brothers in Smokin' Aces, or does it apply equally to someone like John Doe from Seven?

The significant difference can't be that Berry didn't use a gun. Sure, Fuller's offense was marked by his violent rage, but doesn't the speed with which the offense was carried out seem, dare I say, merciful when compared to the casual brutality and prolonged agony of using duct tape and a trash bag to suffocate a two-to-five-day-old infant. (How cold-blooded is it to duct tape the child's arms when the child doesn't even have enough muscles to hold its own head up for any prolonged period of time?)

And please don't tell me that it was the psychologist that turned the tide. No, I'm serious. Don't tell me that. I know it's a big distinguishing factor, I just don't want to hear it. I'm not listening to you. I'm not listening to you Jefferey. The reason I don't want to hear it is because it would ultimately seem to undermine the need for juries. If all you need is the psychologist to waive his cigar and annoint one person a future danger and another docile, what are juries for, anyway? While most people think of judges as "decisive" by definition, I tend to regard them oppositely. (Did I just made a new adverb? Yay for me.) I think judges are human and when faced with a tough decision, they'll try to duck them just like most people do. Given the sheer volume of difficult decisions that courts have to render, imagine the relief they must feel being able to point to a psychologist's opinion that nudges their decision one way or another. It's almost like the judicial equivalent of "feel-good-legislation", you can almost ignore the substance because the title of the legislation sets out your position on a controversial issue. Perhaps I'm too cynical. I'm sure there are many psychologists out there who are very integrous, but there are also some who are not. And the fact that defensive evidence can be so easily manufactured would seem to make this a King's X for the death penalty.

Perhaps Berry shows Cochran's talent for practicality taken to an extreme. [Why else would she sign off on it? Or is she trying to form alliances with the author, Judge Johnson? And why am I picking on Cochran when the other swing vote, Womack, also went for it?] A capital murder of a child by the child's own mother is a very diffuclt case to try. And, if the news is any indicator, securing a death sentence for such conduct is even harder to do. (Seriously, if Susan Smith can drown her children and then lie about it on national TV and still get a life sentence, what mother is ever going to get a death sentence for killing her own child.) Even in cases like Berry where there's no indication of post-partum psychosis, there's still that "Yellow-Wallpaper" narrative that people are all subconsciously aware of. Thus, it's not surprising to me that the majority would craft a rule to reflect that reality. Sort of a "these cases are tough and we don't want to consider them" kind of message. I don't agree with it, I'm just not surprised.

And I think my view that Berry was an attempt to get to that particular result is kind of validated by the dissent, which notes that the majority gets the legal sufficiency review completely backwards, crediting evidence and inferences that the jury could have rejected and discrediting evidence a rational jury could have relied upon. I've said numerous times before, I'm a fan, but this case clearly came on an off day.

So, in the end, I guess I don't think the violence in either case is qualitatively different, but I also don't think that Fuller signals a retreat from Berry. Instead, I think it just exposes Berry's imperfect legal sufficiency analysis. What can I say? Even Homer nods.

.

Miscellaneous Rule 08-101

.

Oh, by the way, Heriberto Chi was executed tonight. Here's the story. Isn't that a big deal? Well, sure. But the Supreme Court put in all the start-up costs on Medellin, so this execution didn't get nearly the attention. Indeed, the Supreme Court had issued its denial of cert. and the motion to stay by 4:30 p.m., an hour-and-a-half before the scheduled execution. [SCOTUSblog has some coverage on it, too.] No dissents, just a simple, two-sentence order after referral to the entire court.

Which is what brings me to Miscellaneous Rule 08-101. The Court of Criminal Appeals adopted this rule, adapted from a similar rule for the Fifth Circuit Court of Appeals. (That's federal court for all you dumb state law folks like me.) In a nutshell, this rule says a motion for stay must be filed no less than 48 hours before 6:00 p.m. on the execution day, or the attorney will be sanctioned. (Of course it gives special conditions for filing something less than 48 hours before that time, but it requires a sworn oath and could subject the attorney to sanctions for filing something untimely.) I know it's only two cases, but I'd submit we've already seen it work in both Chi and Medellin. Both cases had their motions filed an decided by the CCA before the actual date of the execution. (And Medellin was decided by the CCA on Friday, historically the least watched news day of the week.)

Why am I even talking about this? It's not like this is the Magna Carta or something. But it is a good rule for a number of reasons.

First, this is a brilliant PR move for this Court. Maybe we'll see some fights about this later on. I'll admit I could be overstating this, but look at how these last two cases went. All the media focus was on the United States Supreme Court, where it should be. Texas has a reputation as a "rogue" state and the CCA has been trying to dig itself out of a hole ever since the documentary, The Thin Blue Line. (Never mind that that was an entirely different court makeup.) Now, it looks less like the CCA is the one standing in the way and more like the CCA is just a stop on the way to the final arbiter.

Second, this takes a whole raft of whining away from the anti-death penalty opponents. The whole "We close at 5:00" controversy was sad not just because Judge Keller chose her words poorly but also because she finally fell into the trap. It gave the anti-death penalty advocates the perfect sound-byte, never mind that Keller was acting reasonably in response not just to the information available to her but also to years of brinksmanship on the part of lawyers representing death-row inmates. There has always been this undercurrent of "Texas is bloodthirsty and rushes to execution". With the Michael Richards execution, the anti-death penalty advocates had something they could point to and say "See! We've been saying this all along! They rush to execution!"

And removing these arguments is not necessarily a bad thing. This whole thing has gotten way too meta. Now its not just an argument on the merits. It's not just an argument about the procedure that "prevents" the argument on the merits. It's an argument about the people deciding the procedure that prevents the argument on the merits. (And, as evidenced by this post, the pushback is about the people whining about the people deciding the procdure that prevents the argument on the mertis.) Hopefully this new rule will help make these cases less about personalities and more about the legal arguments both substantive and procedural. (Well, I can dream, can't I?)

But back to the Richard-thing, in hindsight Judge Keller may have been too callous in her response. But if we're looking in hindsight, let's not forget that Baze v. Rees ultimately rejected the claim that Richard lodged about the three-drug monte. Let's also not forget that for all the airing of dirty laundry that went on after the Richard execution, the signing of this rule by every member of the Court does seem to somewhat legitimize Keller's position that attorneys have been trying to play gotcha games with this Court. Take, for example, the case that seems to have been the last straw.

Charles Hood waited until the last minute, too. What was his claim based upon? Rumors that the district attorney prosecting his case had been having an affair with the judge in the case. I can't say whether or not the claims are legitimate, but a claim based upon what appeard to be courthouse gossip was exactly the type of claim that could've been raised well before six o'clock on the date of execution. I would submit that any non-lawyer could see that. Call it the inverse of "we close at 5"; the anti-death penalty crowd showed their collective asses. It was that simple. It looked like a blatant attempt to put salacious information in the press at a time when all eyes were on the advocates and the Court. (Except of course to the true believers who doubtlessly saw it as more than justified.)

Thus, miscellaneous Rule 08-101 was born. I'm sure that it had been in the works for awhile (though it does seem like slight work for such a prolific court), but the timing of its adoption (effective June 23, 2008 - six days after Hood's motion for a stay was denied by the Court) does seem coincidental, at least. If Chi and Medellin are any indication, it may prove very difficult to recreate the same type of media spectacle from now on. (But I've learned never to underestimate the crafty-creativity of anti-death penalty lawyers.) I guess we'll see in September when Hood comes up again.

And from a practical standpoint, Rule 08-101 also make sense for the defense. Prior to this Rule everyone had to get their filings into so many different courts within such a short period of time. Now, it looks like the CCA has found a way to take themselves out of the mix, at least partially. Even if defense attorneys can't meet the deadline, they would still have 48 hours to try to file something prior to the execution. (I will be interested to see if someone actually works a legal challenge to this rule into a last-minute motion.) Granted, they may open themselves up to sanctions or possible criminal prosecution, but I have no doubt that they'd regard it as a small price to pay to see that justice is done for their client.

So that's why I've been thinking about this rule for awhile now. It was a very shrewd move on the part of the Court for multiple reasons. I know it's too soon to tell if the rule is really effective, but I've noticed a change in the news coverage, and I just thought I'd comment on it.

.

Glad To Be Wrong

.

One of the arguments lodged against the execution of Medellin was the potential to weaken relations between the U.S. and Mexico. Well, I know it's only anecdotal, and street-level perspective at that, but it is nice to see that Mexico's general populace seemed to be on Texas's side. At least, that's according to the Houston Chronicle.

"Medellin's death gets little notice in crime-weary Mexico

Some are even calling for the death penalty, saying capital punishment could stop the violence and bloodshed plaguing the nation

By MARK STEVENSON Associated Press
Aug. 7, 2008, 1:29AM

MEXICO CITY — Mexicans struggling with increasingly gruesome crimes at home devoted the least attention in recent memory to the execution of one of their citizens in Texas.

With Mexico riveted on its own kidnap and killing of a 14-year-old boy, the normally anti-death penalty country expressed far less outrage at the Tuesday execution of Jose Medellin, a Mexican national convicted in the 1993 rape and murder of two Houston girls.

Some Mexicans on Wednesday even called for the death penalty at home.

"There is no reason for outrage. The man was a rapist," said lawyer Gustavo Sanchez, 40, as he got his shoes shined on a Mexico City street.

"If we had the death penalty here, there wouldn't be so many crimes." "

Read the rest of the story here.

.

Today's Orders

.

No published opinions today. No issues granted. The hand down list is here.

The Court did issue a per curiam, unpublished opinion in Ex parte Chi dismissing Chi's subsequent petition and denying his request for a stay of execution. Chi had previously filed a writ of prohibition challenging the lethal injection protocol that the CCA denied on June 9, 2008.

This time, Chi argued that he deserved a hearing to determine whether his rights under the Vienna Convention were violated. Chi, a Honduran citizen, had been questioned by the police without being told of his consular rights. He also argued that review was mandated by Avena. Unfortunately for him, he was not one of the 50 defendants specifically included in the Avena order. As he argued in he Medellin case, Judge Price concurred opining that the Court's hands were tied by the statutory abuse-of-writ doctrine.

Though not necessarily as brutal as the rape and murders committed by Joe Medellin, Heriberto Chi's capital murder was equally senseless, callous, and deserving of the death penalty. He robbed a men's clothing store that he had previously worked at and shot his former boss, Armand Paliotta during the robbery. An assistant manager there at the time witnessed the crime and managed to call 911 to leave the line open while Chi tried to coax her to come to the front of the store. Chi and his girlfriend fled and had planned to return to Honduras when she reported him for assault while they were staying in California. Clearly the case against him was very strong.

He is scheduled to be executed tomorrow evening.

.

Court Denies Stay

.

Read the story here and here.

Of course, it was 5-4. Is it really a per curiam opinion if the four dissenters identify themselves? Come on guys, claim it! It was a tough call, but it wasn't the wrong one.

[Another interesting note: The dissenters all basically ask for input from the United States Soliciter General to weigh in on this case and argue that Congress hasn't acted to apply Avena because they were under the mistaken impresson that Avena applied to the States. They didn't exactly buy those same basic arguments in Kennedy v. Louisiana.]

Update: Joe Medellin was executed (pronounced dead at 9:57 p.m.). You can read the story here and here, and here.

2nd Update (8/6/08): SCOTUSblog has picked up on at least one aspect of the same observation I made above regarding the silence of the Soliciter General. Read the analysis here.

.

Why Not Just Grant Review?

.

In the Medellin case, this is clearly the question of the hour. I posted earlier in response to this question that I felt like the ICJ had entered an order that was designed so that the review itself would determine the outcome. Now, having read some of the most recent filings in the case, I'm more convinced that that is the case. SCOTUSblog has posted copies of the various filings in the Supreme Court. I urge anyone to go check it out at their site as they always do an excellent job. I'll also provide the relevant links here:

1. The opening shots: The stay application is here. The petition for certiorari is here. The writ of habeas corpus is here. The motion to recall and stay the Court's mandate in Medellin v. Texas is here. The appendix is here. (Beware, SCOTUSblog says it's very large.)

2. Texas fights back: Greg Abbott filed two responses here and here. They look to be the same.

3. The Return of Medellin: Medellin filed a reply brief here and another appendix here. (Who says they are vestigial?)

So, why not grant the "hearing" as has been argued? The problem looks like it can be boiled down to different views of what amounts to prejudice. Under Texas's view, the prejudice here would either be a discrete inquiry into whether Medellin's statement should've been excluded because he wasn't informed of his consular rights or it would be an analysis for ineffective assistance of counsel under the Sixth Amendment. If you frame the issue this way, Medellin loses because these arguments have been litigated. REALLY litigated. He can't win on the exclusionary rule argument because he was informed of his right to counsel and voluntarily waived it. Logically this would seem to undercut any claim that he would've exercised his Mexican consular rights had he been informed of them, but more importantly, the failure to inform him of those rights wouldn't invoke the protections of the exclusionary rule anyway.

But Medellin, and his attorneys, don't want to argue that. They want to argue that had he been informed of his consular rights, he would've gotten better assistance through the entire trial. Medellin has litigated his Sixth Amendment ineffective assistance claims. He lost. But now he's arguing through this ICJ opinion that Avena requires an independent examination of a violation of the treaty divorced from violations of American Constitutional law. With this argument, Medellin seeks to re-examine his representation at trial in a very expansive way and without the onerous burden of the Strickland v. Washington standard for ineffective assistance.

And that's why I don't think granting review is as simple as granting a hearing. I think granting a hearing means Medellin probably won't be executed. One of the reasons the Strickland standard of review for ineffective assistance claims is so high of a burden is because it recognizes that hindsight is 20/20. Getting rid of that standard allows Medellin the freedom to basically argue that ANY deficiency would have been magically corrected by assistance from an attorney hired by the Mexican consulate (assuming, of course, he would've exercised those rights). Thus the focus would shift away from the question of whether he got a fair trial (our courts have already determined repeatedly that he has) to whether or not he got an ideal trial. There is no way to overcome that standard. [By way of comparison, anti-death penalty advocates tried the same maneuver with the lethal injection protocols by arguing that a licensed doctor or nurse must perform the execution even though doctor and nurse organizations filed amicus briefs saying that they would be ethically prohibited from assisting in an execution. Basically, you criticize the current standard, and propose an alternative standard that can never be met.]

But the real shortcomings become obvious when you consider what Medellin's response will be after the hearing. Say Medellin loses at this hearing, what then? Is he just going to go, alright, you got me. I have no excuses left. FRAK NO HE WON'T! He'll first complain in American courts that the legislation giving effect to the Avena decision wasn't applied correctly and that if it was, it did not adequately give effect to the ICJ decision. He will take it all the way to the Supreme Court (which may even have a different, and more favorable line-up by then). And the kicker? If he loses there, he will head off to the ICJ again, but this time he'll complain, as he did in the American courts, that the U.S. did not give adequate effect to the ICJ decision. (Just look at how they tried to rush me to execution, he might even say, you know they weren't serious about following your orders.)

And if he wins? Texas tries the whole case over. I cannot begin to understand, let alone describe, how devestating such an outcome would probably feel to the families of those two girls. Neither avenue would be palatable, to be sure, but I would imagine that having to go through the trial again would be an unimaginably worse outcome.

So yes, I think the State of Texas has some interest in proceeding with the execution.

.

Delay of Game

.

It looks like Medellin's execution is on hold while the Supreme Court considers the recent filings by Medellin and his attorneys.

You can read the full story here and/or here.

SCOTUSblog also has their coverage here.

Frankly, I wouldn't be surprised if the Supreme Court grants Medellin the time needed for Congress to pass the legislation. Stripped to its bare bones, Medellin's main argument (he does put a lot of other stuff in there) has nice, idiot-simple lawyer appeal. (No pun intended.) It's built like this: 1) Congress didn't know it had to pass legislation to make the Vienna Convention and the Avena decision applicable to the States until the United States Supreme Court said so in the most recent Medellin decision; 2) Congress has sought to comply with the SCOTUS plan for implementing the protections in the Vienna Convention so that the nation can comply with its obligation under the treaty; and 3) executing Medellin frustrates Congress at the very moment they try to comply with the Medellin opinion. It's basically a straight-up notice argument. All lawyers get that.

However, I would also not be surprised if the Supreme Court rejects the claim. What's the point of recognizing Texas's sovereignty in the Medellin decision if the Supreme Court is going to come back and give Congress enough time to come back and step on it. If they're going to render the decision that they did in Medellin, why come back a few months later and take the ball back? Why point out (albeit in a footnote) that you don't think Medellin's been prejudiced (and therefore he wouldn't get relief even if additional review were granted) only to turn around and allow the creation of a vehicle to find prejudice?

All I know is that SCOTUS should turn their attention to the Green Bay Packers and Brett Favre after they render a decision in this case. Obviously, there will be more to come.

.

Kennedy vs. Intoxication Manslaughter

.

No, it's not a new case. I was thinking about Kennedy v. Louisiana, you know, the way most people do when they have a spare moment, and I was awed by Justice Kennedy's power, as exemplified in this case. What else could he take on, I wondered. (This could become a running series depending upon other opinions he issues, Kennedy v. Teenagers, Kennedy v. Mental Retardation, Kennedy v. Jessica Alba's No-Nudity Clause, etc.) And I, going off my limited memory of the Kennedy opinion, began to wonder at one aspect of the opinion that many folks aren't really focusing on.

Crimes against the State.

Remember, Justice Kennedy had to justify capital murder for treason, a punishment well-established in America's history for a crime where either a victim wasn't killed or where there is no victim at all. However, at the same time, he had to strike down the death penalty as it applied to cases where a victim is not killed. Justice Kennedy wriggled out of this by holding that his opinion only applies to crimes against individuals and not crimes against the State. He wrote: "Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drugkingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken."

Okay, so does that mean we could apply the death penalty to say, DWI? Even intoxication manslaughter? Take, for example, this case I just read out of the Fourteenth Court of Appeals out of Houston, Wooten v. State. There, a drunk driver killed two pedestrians by severing their legs with his bumper and cut another woman in half who was standing next to her car. If he had a culpable mental state, that could've been capital murder. Instead he got forty-years. And hey, Kennedy should be placed at ease, the victi's actually died.

There's been a national trend lowering breath alcohol levels, demonstrating a greater understanding of how dangerous this crime truly is. The testimony establishing the offense isn't necessarily subject to the same uncertainties as child-witness testimony (according to Kennedy). It's generally police officer testimony and medical expert testimony. Calling that type of testimony uncertain would bring the entire criminal justice system to a complete halt.

And Kennedy should love this: not applying the death penalty to intoxication manslaughter actually creates a perverse incentive that places society at greater risk. Remember, Kennedy was very concerned that making violent child rape punishable by death would give the family members of the defendant and victim a perverse incentive to prevent the reporting of the crime and maybe even encourage the perpetrator to kill the child to avoid facing the ultimate punishment. Well, in intoxication manslaughter cases, not applying the death penalty to intoxication manslaughter actually encourages defendants to get more drunk, because killing more than one person while sober could subject the defendant to a charge of capital murder. How's that for some Kennedy judo?

I know, I know. There are a bunch of distinctions you can draw. Intoxication manslaughter often doesn't carry even a life sentence, except through enhancement. Morally, the Supreme Court would probably will feel just like many juries, such cases are more like an accident, or they're based upon an illness that the defendant can't contol. Therefore the defendants who commit such offenses aren't as morally culpable as those who intentially murder someone. (Despite the casual disregard for life so commonly displayed in intoxication manslaughter cases.)

I guess I just thought I'd write about this because I don't find the crimes against the State distinction that persuasive. In the case of Kennedy v. Louisiana, why doesn't such a violent crime against a child count as a crime against the State. Look at the large amount of governmental resources that are going to be expended to try and bring that child closer to normal. Look at the human cost this will have on everyone that victim will interact with in his or her life. It damages that child during the point in his or her life when socialization training is starting. It strikes at the very foundation of civilized society by warping the way people learn to relate to each other. Doesn't this type of wound scar not only the victim, but the society he or she interacts with? Don't the aftershocks of this crime in the aggregate also seek to undo the fabric of a free society at least as much as drug kingpin activity?

And what about the distribution of child porn, for that matter? Doesn't that affect society as a whole similar to the way drug dealing does? Distribution of child porn, a victimless crime like dealing drugs, still has many collateral victims whose lives are destroyed by the manufacture and distribution of the product. Could you punish by death the distribution of a videotape of a defendant violently sodomizing his own daughter, but at the same time spare the life of the guy who actually committing the child rape?

Ultimately, I think arguments could be made that intoxication manslaughter should get the death penalty just like arguments can be made that aggravated child rape deserves the death penalty. I wasn't necessarily a supporter of the latter when legislatures started cranking out those laws, and I don't know if I'd be a supporter of the former if legislatures started crafting those laws. But still, for all Kennedy's awesome power, Kennedy v. Louisiana seemed like a poor use of it to me.

So I have to give the round to Kennedy. I was just thinking off the top of my head, and maybe my analogies can be too much of a stretch at times. But before I call the fight, I will say that it's hard not to read a case like Wooten and marvel at how the same conduct would be a capital murder if alcohol wasn't involved. And I'll bet the families of the victims in Wooten probably thought he was plenty morally culpable.

.

What If We Do It?

.

In light of the flurry of activity on Medellin, I couldn't help but think about what it would mean if Texas does carry out the execution. I have to say the thought scares me a little. I'm not saying that he did not receive a fair trial, or that the Governor needs to grant him a reprieve.

Make no mistake, if anyone needs to go, this guy does. Judge Cochran's statement concurring in the denial of Medellin's third writ of habeas corpus provides the latest summary of what he did:

"Applicant was arrested for, charged with, and convicted of an extraordinarily gruesome rape and murder of two teen-aged girls in Houston, Texas, in 1993. The two girls,14-year-old Jennifer Lee Ertman and 16-year-old Elizabeth Pena, were friends and classmates at Waltrip High School. They were simply walking home one June evening when they were attacked by applicant and several of his gang-members who repeatedly raped both girls, then dragged them into the woods to kill them and hide their bodies. Applicant helped to strangle at least one of the girls with her own shoelace. He later complained to a friend that he had a hard time getting Jennifer Ertman to die and had to step on her throat to finish her off. The girls' decomposed bodies were discovered four days later.

Applicant bragged to his buddies that both of the girls were virgins until he and his cohorts raped them. He confessed to police officers after being properly advised of his rights to counsel under Miranda. He explained, in great detail, how his group was involved in a gang-initiation rite until the two girls innocently wandered past them on their way home. His written confession displayed a callous, cruel, and cavalier attitude toward the two girls that he had raped and helped to murder. Surely no juror or judge will ever forget his words or his sordid deeds."

And that's a summary.

But the government of Mexico, for whatever reason, has chosen this . . . person, as their poster child. He's a Mexican national after all having been born and lived there until he was three. Mexico does not have a death penalty and has repeatedly criticized American (and Texas) for the imposition of that punishment. One can also reasonably speculate that the ICJ (consisting of European judges) in their 7 to 5 vote also see this as an opportunity to not only demonstrate their disdain for America's criminal justice system but also an opportunity to shape it into a more European image.

So here we are with the federal government, including the President of the United States, telling the State of Texas not to carry out this punishment without considering Medellin's claims for relief, namely whether Medellin's procedurally-defaulted claim that he should have been informed of his consular rights under the Vienna Convention prejudiced his case.

Please see the above description of his crime.

It is time for this guy to go. Having worked in the criminal appellate field I feel confident that Medellin has had more than enough due process. (It always amazes me how people unfamiliar with this process come to the conclusion that death row defendants are railroaded when, as Scalia noted in Clark v. Arizona, their cases get the greatest scrutiny of all.) I'm not suggesting that the CCA or the Supreme Court reached the wrong conclusion. If Medellin is executed it will be after a more thorough consideration of his claims than he would've received anywhere else in the world. Just a thumbnail sketch of his protections: Miranda and statutory warnings before giving a statement, the ability to exclude evidence from jury consideration based upon police misconduct, jury consideration of guilt proven beyond a reasonable doubt, jury consideration of whether he would be a future danger beyond a reasonable doubt, meaningful consideration of any possible mitigation evidence, automatic direct appeal to the CCA, an initial writ of habeas corpus to challenge everything else, potential discretionary review from the United States Supreme Court, federal habeas review in federal district court, review of federal habeas claims by the 5th Circuit Court of Appeals, discretionary review by the United States Supreme Court based upon habeas corpus claims, a subsequent state writ of habeas corpus to consider any possible, previously unraiseable claims, a subsequent federal writ of habeas corpus, potential review by the Supreme Court of either the state or federal subsequent writ, and potential clemency from the Governor of Texas. And that doesn't consider the newest and latest, suggestion of re-examination of the initial writ upon the CCA's own motion or an original writ under the Texas Constitution or a writ of prohibition.

And oh yeah, we also have a little thing known as the presumption of innocence that Mexico didn't get until June of this year. While Mexico has made historic efforts to adopt a more U.S.-style trial (after a long history of private trials that could be based upon statements obtained through torture), those changes aren't required to be implemented until 2016.

But even though I think Medellin should be executed that doesn't mean I'm not scared about what it will mean if Texas does execute him. The United States touts its society as enlightened. The United States signed off on the Vienna Convention and helped create the International Court of Justice, the closest thing to a world court. The rest of the world is practically salivating to see the U.S. turn its back on that commitment. We've since pulled out of the ICJ, but open defiance of the ICJ will certainly feed into the perception by Europeans that we expect others to play by our rules, but we don't follow them when they apply to us. How ironic that this perception will be born out of a foreign country and a foreign court forcing foreign procedures on the U.S. despite our sovreignty. Indeed, if I were a conspiracy theorist, I might speculate about what advantages Europeans or Mexico gets by seeking to shame the U.S. in this case. But I don't think it's an unrealistic or paranoid statement that this case is about more than just an attempt to keep one (or however many joined defendants there are) alive.

And aside from a continued decline in favorable perception of the U.S. by the rest of the world (because, of course, Americans deseperately need to be loved), what does this mean for the ICJ? Where else do we go to hold people like Slobodan Milosevic or the folks who assasinated Lebanese Prime Minister Rafik Hariri responsible? What do we do with the next Pol Pot? The next Hitler? That said, they didn't do a whole lot to bring Saddam Hussein to justice, and Milosovic died four years into his trial. I'm aware of the the shortcomings of this tribunal, and don't really look at it as particularly effective. Hell, they dismissed almost all of a civil suit filed by Bosnia against Serbia claiming that Serbia had committed genocide in the Bosnian conflict. (See an article on the subject here.) They haven't demonstrated a tremedous track record at standing up to anyone (except of course the United States, probably because they know we'll at least think about the ramifications of ignoring them).

But it's the damage to the idea that bothers me. Will the failure of this Court to assert its will give other countries the excuse they probably desperately want to scrap the whole thing? Will it make it fix the ICJ in its current form? In theory this Court could've helped establish the rule of law in countries that don't currently enjoy it. And really, how else are we supposed to force our Western values on unwilling countries if we can't even get the ICJ to apply to ourselves? ;) (This raises the zen-like question, is it really the rule of law when there are no binding precedents and the court decides what rules and laws apply to fit the situation?)

Also, what about all the legislation that's going to be passed. Kind of a bizarre analog to the Terry Schiavo/Elian Gonzales situations. Except here, we're trying to pass laws to basically keep Medellin alive. I don't know what shape the laws will take, but if they're crafted in a rush with an eye to making the death penalty more difficult to apply to this one person, the fallout in the form of unanticipated consequences could be significant.

I also keep thinking about the often-felt-but-rarely-stated argument that Americans travelling abroad will become less safe. But upon consideration, this seems like it will be more of a specter than a real problem. Medellin committed the worst crime imaginable. If you're an American abroad, you may already be a target, but if you commit this type of crime, you probably aren't going to get the same level of procedural protections elsewhere that you would in America. As Sam Kinison might say, "YOU'RE IN BURMA! WHY DON'T YOU GO WHERE THE LAW IS?" And look at Daniel Pearl. He didn't exactly get to make a call to his consulate. But maybe extradition will get harder. Maybe more countries will insist on prosecuting Americans there instead of turning them over to us. Not necessarily a palatable thought, just ask the kid that got caned in the Phillipines.

What about our soldiers who may be captured by the enemy? If anything, I think that cuts against additional review for Medellin. I don't think anyone has any confidence that any captured American soldiers will be treated with the same respect as we'll give our enemies. (Abu Grab, or to a lesser extend Guantanamo Bay, are not even on the same level as what happened to these two American soliders captured in Iraq.) If our enemies think they can score some PR points by torturing, murdering, and mutilating American soliders they won't hesitate to do so. Based on past demonstrations of loyalty, it seems unlikely to me that anyone in the international community will do anything except cluck their tongues or shake their fists or maybe blame Americans for going abroad in the first place.

So why not just grant additional reivew so we can "honor our part of the treaty"? First, I don't think he deserves additional review, and I'm a little pissed off that the ICJ pays such short shrift to the extensive review he got. And maybe if the call for review didn't look so weighted in favor of relief for Medellin, I might be more amenable to the idea. But here the dice seem pretty loaded. Second, I can't help but feel that this is about more than merely honoring our part of the treaty. See, we actully do honor our part of the treaty with regard to folks who commit crimes here in Texas. When this issue first came up, Texas police officers and prosecutors scrambled to try and protect their cases, but they also started training to make sure that going forward Mexican nationals are told about their consular rights when it becomes apparent such action is necessary. But you still get people like Medellin who've been here most of their entire lives and don't even think about themselves as Mexican citizens until it suits them. So now, in this case, the international community complains because this guy who's been here since he was three, forgot to tell anyone he was a Mexican citizen? This argument has been around since before 2000. Only now are we passing legislation to "implement" the Vienna Convention. I know, I know, it took this long to know it was an issue. But that's my point! If this were really such a widespread concern, if America wasn't making the effort to live up to its obligations under the Vienna Convetion there would've been greater mobilization. This eleventh hour tactic smacks of anti-death penalty maneuvering, and as such, I tend to regard it with skepticism. (For example, Mexico isn't asking to get their beloved citizen back, we're still the ones who will shoulder responsibility for him.)

There may be some things to be scared of if we carry out the execution. Some of those things may be more than mere ghosts. I don't know what will happen. I don't have a Magic Eight Ball. I don't offer this as an excuse or a rationale to stop or postpone the execution. No, I'm just trying to figure out the consequences that may flow from it.

Which leads me back to Medellin. The fact that it's all because of this one guy just makes me ill. He doesn't deserve to have such a part in the progress of civilized society. He didn't run for office. He didn't speak out against a great injustice. He committed a horrible, despicable act, and he deserves much worse than he'll ever get. But, it's kind of a perfect storm. We cannot help focusing upon these grand, external factors rather than this defendant's individual moral culpability. That's the way this game is always played. And the game has apparently gone global.

And maybe its this feeling that we're outnumbered that scares me the most.

.

The Medellin Saga Continues

.

Today, the CCA rejected Jose Medellin's subsequent writ of habeas corpus. You can see the order here. It was a per curiam opinion that basically denied the subsequent application despite the fact that legislation is pending in the United States House of Representatives to apply the Vienna Convention to the states in response to the Supreme Court's opinion in Medellin v. Texas and similar state legislation looks to be in the offing this next legislative session.

Judge Price authored a concurring statment which Holcomb and Cocrhan joined except as to Point V. There, Price indicated his opinion that the CCA's hands are tied, but that the Executive Branch could act, urging, you guessed it, clemency in the form of a reprieve to allow the implimentation of legislation that would allow a vehicle for States to carry out obligations under the Vienna Convention. [That's the part that Cochran and Holcomb don't agree with.]

Judge Cochran also authored a concurring statement, which Judge Holcomb joined. She details exhaustively why Medellin is not entitled to relief because he procedurally defaulted, having waited until four years after his conviction to tell people that he was a Mexican citizen. She also throws in a quote from A Man For All Seasons for good Cochran-y measure. "Although we accord the greatest respect to, and admiration for, the International Court of Justice (ICJ) and its judgments, we, like the Supreme Court, cannot trample on our own fundamental laws in deference to its judgment. We would give even the Devil the benefit of our American law, but if we cut down our laws to suit another sovereign that operates under a different system of justice, we could not stand upright in the lawless winds that would then blow." [She also throws in some West Side Story (including lyrics), which I appreciate on a pop culture level. However, as an attorney, I worry that this may imply a cavalier attitude that I'm sure the Court does not have when considering these issues.]

Judge Cochran also undertook her own analysis of Medellin's claims in accord with the ICJ's Avena judgment. It's good reading, but she sums it up well here. "In sum, I wholeheartedly agree with Justice Stevens's conclusion that "[t]he cost to Texas of complying with Avena would be minimal, particularly given the remote likelihood that the violation of the Vienna Convention actually prejudiced José Ernesto Medellin." I would go further: there is no likelihood at all that the unknowing and inadvertent violation of the Vienna Convention actually prejudiced Medellin. This was a truly despicable crime committed by five truly brutal young men who were deadly dangerous to anyone who might find themselves near them."

Judge Meyers filed a dissenting statement. But he would simply set and file Medellin's original writ.

Of course, Medellin has also sought relief from SCOTUS itself, which SCOTUSblog was all on top of, as per usual. You can see their post and commentary here.

Who, if anyone, will blink?

.