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Jose Medellin


  • July 29, 2005 - Attorneys for Jose Medellin filed at the Texas Court of Criminal Appeals. The State of Texas responded. The Attorney General of the United States is also invited to present the views of the United States. The case is set for submission to the Court on September 14, 2005.
  • May 23, 2005 - U.S. Supreme Court dismisses Medellin appeal as improvidently granted
  • Oral argument in Medellin v. Dretke has been scheduled for March 28, 2005
  • January 24, 2005 - The European Union and Members of the International Community re-file an amicus curiae brief in support of Medellin.
  • December 10, 2004 - The United States' Supreme Court granted cert in Medellin v. Dretke
  • October 20, 2004 - The European Union and Members of the International Community file an amicus curiae brief in support of Medellin.
  • October 20, 2004 - State of Texas response filed.
  • August 18, 2004 - Medellin applied for a writ of certiorari to the United States’ Supreme Court.

Case Overview

Jose Medellin, a Mexican national, was 18 years of age when he participated in the gang rape and murder of Jennifer Ertman, 14, (white) and Elizabeth Pena, 16, (Latina) in Harris County, Texas on June 24, 1993. He was subsequently found guilty and sentenced to death.

Facts of the Case

On the evening of June 24, 1993, Jennifer Ertman, 14, and Elizabeth Pena, 16, left a social gathering at a friend’s apartment in Houston. They were taking a shortcut home through the woods, when they encountered Jose Medellin and other members of the so-called “Black and White” gang. All six gang members were engaged in a gang initiation rite for Raul Villareal. The gang had spent the evening drinking and “jumping in” Villareal, requiring him to fight all the other members until he lost consciousness.

After stumbling across the Black and White gang, each girl was repeatedly raped by the gang for the next hour. The girls were then strangled, beaten, and kicked to death.

Following a tip-off by the brother of one of the gang members, the bodies of the girls were found four days later in dense brush along a railroad track in northeast Houston, close to where they had been raped and killed. Medellin was one of the five gang members charged with capital murder. Medellin was found to have raped both girls, and to have helped to murder at least one by holding one end of the shoelace used to strangle her. Medellin, along with codefendants Peter Cantu, Raul Villareal, Sean O’Brien, and Efrain Perez, were all sentenced to death for the murders of Ertman and Pena. Medellin’s brother, Venancio, who was 14 at the time, was also prosecuted. He received a 40-year sentence. The execution dates of Villereal and Perez have been stayed pending Simmons v. Roper. Medellin was 18 at the time of the crime.

Arrest and Trial

Upon his arrest on June 29, 1993, Medellin informed the arresting officers he was born in Laredo, Mexico. He also notified Pre-trial Services for Harris County that he was not a United States citizen. Despite this, Medellin was never advised of his right to contact and seek the assistance of Mexican consular officials. As a result, Mexican consular officials were deprived of any opportunity to assist him before and during his trial.

After the completion of the first two trials, (Peter Cantu in January and Sean O’Brien in March 1994), the decision was made to try the remaining three defendants concurrently to save time and money. According to Assistant District Attorney Don Smyth, this was the first time Harris County had conducted simultaneous trials of three defendants. The three trials, held in separate courtrooms before separate judges and juries, all started at various times on Monday, September 12, 1994. Separate juries found Perez, Villareal, and Medellin guilty of capital murder and sentenced them to death for the girls’ rapes and murders. There was intense media coverage surrounding all three trials. Sean O’Brien’s lawyer stated that there was “just a little too much publicity for him to get a fair trial,” and that during jury selection more than 150 of about 180 potential jurors who were questioned had heard of the case.


On April 29, 1997, more than a month after the Texas Court of Criminal Appeals denied his direct appeal of his conviction and sentence, Mexican consular authorities learned of Medellin for the first time through his correspondence to them from death row. Upon learning of his situation, Mexico began assisting Medellin through its consulate.

Medellin subsequently filed appeals arguing that his conviction and sentence should be vacated as a remedy for the authorities’ violation of his rights under Article 36 of the Vienna Convention on Consular Relations (“VCCR”). In support of this claim, Medellin submitted an affidavit from Manuel Perez Cardenas, the Consul General of Mexico in Houston, explaining that Mexico would have provided immediate assistance if consular officers had been informed of his detention in time. Each appeal was ultimately unsuccessful.

Current Status

On January 9, 2003, the Government of Mexico initiated proceedings against the United States in the International Court of Justice (“ICJ”), alleging violations of the VCCR in the cases of Medellin and 53 other Mexican nationals facing the death penalty in the United States (Avena and other Mexican Nationals (Mexico v. United States of America)). On March 31, 2004, the ICJ held, by a vote of fourteen to one, that the United States had breached Article 36(1) in the cases of 51 of the Mexican nationals, including Medellin.

In particular, the ICJ held that in all 51 cases, the United States had breached its obligations under Article 36(1)(b) to inform detained Mexican nationals of their rights, and to notify the Mexican consular post of their detention. In 49 of these cases, including Medellin’s, the ICJ found that the United States had violated its obligations under Article 36(1)(a) to allow free communication and access between Mexican consular officers and Mexican detainees, as well as its obligation under Article 36(1)(c) concerning the right of consular officers to visit their detained nationals. In 34 cases, including Medellin’s, the ICJ held that the breaches of Article 36(1)(b) also violated the United States’ obligation under Article 36(1)(c) to enable Mexican consular officers to arrange for the legal representation of their nationals. On the question of remedies, the ICJ affirmed its earlier ruling in the LaGrand Case holding that where there has been a breach of Article 36 rights, the United States must allow the review and reconsideration of the conviction and sentence. The Court considered “that it is the judicial process that is suited to this task”. Contrary to the argument of the United States, the Court stated that consideration by way of executive clemency does not suffice in view of the fact that the clemency process, as currently practiced in the US does not appear to meet the requirements and it is therefore, not sufficient in itself to serve as an appropriate means of “review and reconsideration”.

Following the Avena decision, Medellin again appealed. In essence, he contended ineffective assistance of counsel; that his lawyer had been substandard; that the state had failed to disclose exculpatory information to his lawyer; and his rights under the VCCR had been violated. The Court of Appeals denied his application. The Court disposed of his VCCR claim on the grounds that: (1) it was procedurally defaulted; and (2) even if it were not procedurally defaulted, the VCCR, as interpreted by the Court in the past, did not confer an individually enforceable right.

The Court noted that Medellin had virtually conceded that he had procedurally defaulted on his VCCR claim by not raising the issue at the trial stage. Medellin’s argument was that the state’s application of the procedural default rule in this case violated the VCCR itself. In support of this argument, Medellin cited the LaGrand Case, where the ICJ held that procedural default rules cannot bar review of a petitioner’s claim. The ICJ reiterated this position in Avena.

However, the United States Supreme Court had previously ruled otherwise in Breard v. Greene. In Breard, the Court held that rules of procedural default apply to VCCR claims, just as they do to constitutional claims. Since Breard had failed to raise his VCCR claim in state court, he was unable to raise the claim on federal habeas review. Despite Breard predating both LaGrand and Avena, its holding appears to cover Medellin’s situation. Since Supreme Court decisions are binding upon the Circuit Courts, the Fifth Circuit predictably rejected Medellin’s claim on the basis that, because he had not raised the VCCR claim at trial, he was procedurally barred from raising the claim later.

On August 18, 2004 Medellin applied for a writ of certiorari to the United States’ Supreme Court. The State’s response was filed on October 20, 2004. Of note, the European Union and Members of the International Community also filed an amicus curiae brief. On December 10, 2004 the United States' Supreme Court granted cert.

Oral arguments were heard on March 28, 2005. On May 23, 2005 the U.S. Supreme Court dismissed Medellin's appeal as improvidently granted. Click here for the decision.

Following this, on July 29, 2005 attorneys for Jose Medellin filed at the Texas Court of Criminal Appeals. The State of Texas responded. The Attorney General of the United States is also invited to present the views of the United States. The case is set for submission to the Court on September 14, 2005. The EU and Members of the International Community filed an amicus curiae brief in support of Medellin.

Briefs, Petitions etc.