Javier Suarez Medina

The issues surrounding the execution of foreign nationals (those persons who carry a non-American passport) attract many concerns. As of May 29, 2002, approximately 121 foreign nationals sit on death row around the US. Javier Suarez Medina, who is a Mexican national, may soon face execution in Texas. Medina's case raises questions about the fairness of his trial, which was conducted contrary to the Vienna Convention on Consular Relations, a treaty ratified by the US government on November 24, 1969, and thus about the ongoing refusal of Texas authorities to respect their binding international treaty obligations. Furthermore, the execution of Medina would be contrary to the American Bar Association policy on unadjudicated offenses.

Case Summary:

Circumstances of the Trial

Medina was sentenced to death when he was 19 years old. Medina has been on death row 13 years; he has now exhausted all normal avenues of legal appeal. Unless the courts or the Governor of Texas intervene, he faces death by lethal injection - despite mounting concerns over the reliability of his sentence.

Medina was convicted of capital murder for the 1988 shooting death of Larry Cadena, an undercover Dallas police officer. At the time of the crime, Medina was not aware that Cadena was a police officer. According to the trial evidence, the plain-clothes officer was shot while on an undercover "buy-bust" operation. After Medina threw a bag of white powder into Cadena's car, he shot at the officer and killed him. A police officer who had observed the drug transaction from his undercover vehicle fired back at Medina, hitting him twice. Medina admitted to the shooting, but insisted he fired only because he feared for his own life, after hearing gunshots. On May 24, 1989, following a highly publicized trial, the jury found him guilty of capital murder.

Although there was strong evidence that Medina had shot and killed Officer Cadena, he could not be sentenced to death unless the jury unanimously concluded that he would be a "future danger" to society, a legal requirement in the state of Texas. Indeed, the jury usually must find at least one "aggravating circumstance" before imposing a death sentence, in order to differentiate the defendant's crime from crimes which are not punishable by death. Aggravating circumstances increase the crime's seriousness, thus singling it out for harsher treatment. Future dangerousness is one such aggravating circumstance. In this case, however, the prosecution's case for Medina's "future dangerousness" was weak, consisting mostly of evidence that he had twice been arrested (but never convicted) for minor property crimes. Medina had never been charged or convicted of a crime of violence.

The defense produced fifteen witnesses who vouched for Medina's positive qualities, stating that they were shocked by his involvement in the crime because it was so out of character. The circumstances seemed to point in favor of mitigation, which would reduce the death sentence to life imprisonment.

After both sides had concluded their sentencing phase presentations, however, the prosecution produced a surprise witness, Michael Mesley. Mesley came forward after he saw television coverage of the trial and was allowed to testify that Medina had shot him and his wife in 1987. He swore that he positively identified Medina from a televised photo as the same man who fired a shotgun in his face during a robbery, also injuring his wife in the head and leaving her with permanent disfiguring injuries. Mesley did so even though he also testified the man he saw had no glasses and that Medina had "shaved" since the incident. Defense counsel was held in contempt by the trial court when objecting to the introduction of the Mesley testimony. Thereafter, the trial court ruled that the prosecution would be allowed to present Mesley's testimony to the jury.

Given little time to confront this crucial testimony, the defense produced Medina's employment records from Burger King, proving that he was working on the night of the Mesley shooting and did not "punch out" until nearly two hours after the shooting. However, the prosecution implied that another employee could have punched out for Medina, even though there was absolutely no evidence to support this assumption. Despite Medina's alibi, the jury returned a death sentence based on Mesley's testimony.

Investigations conducted after the trial further cast considerable doubt on whether Medina had shot Mr. Mesley. Interviews with several Burger King employees at the time of the shooting, including an assistant manager, have revealed that the practice of "punching out" for another employee was strictly forbidden and closely monitored.

Furthermore, the night of the Mesley shooting was an extremely busy one at the Burger King as it was the night of the annual Texas-Oklahoma football game at the nearby Cotton Bowl, and Medina's absence would surely have been noticed. Furthermore, fingerprints taken from the Mesley's vehicle shortly after the shooting did not match Medina's; no physical evidence links him to that crime. Medina has never even been charged with the Mesley shooting.

Finally, scientists who study memory have proven that eyewitness testimonies can sometimes be unreliable. Geoffrey Loftus, for instance, outlines many important misconceptions relative to eyewitness testimonies and memory. His studies lend credence to the idea that Medina was possibly misidentified by Mesley; Mesley did indeed make his identification nearly two years after having seen his attacker.

Unadjudicated Crimes

Courts nationwide which apply the death penalty have consistently refused to allow the use of unadjudicated offenses in capital sentencing, that is, offenses which amount to unproven allegations. Indeed, many courts across the United States have concluded that such evidence is inherently unfair and unreliable; in any case, the prosecution may never rely upon such offenses to justify a death sentence. Still other courts have held that if an unadjudicated offense is introduced, the prosecution must prove the defendant actually committed the alleged offense. Texas, however, is one of the few states that allows the prosecution to introduce such unreliable evidence to obtain a death sentence. This goes against American Bar Association policy, as outlined in the ABA president's letter asking for clemency for Medina.

The US is a full member of the Organization of American States (The OAS), a coalition of 35 nations throughout the Western Hemisphere dedicated, among other things, to the protection of human rights. The US has thus pledged to respect the fundamental rights standards enshrined in the OAS agreements, notably the American Declaration on the Rights and Duties of Man.

The Inter-American Commission on Human Rights was created by the OAS to monitor and enforce human rights standards throughout the Western Hemisphere. The Inter-American Commission has unequivocally held that international law prohibits states from imposing the death penalty based upon unreliable and/or unproven allegations. In Garza v. United States, the Commission held that the consideration of unadjudicated offenses at the penalty phase of a capital murder trial violated the right to trial by an impartial tribunal. The Commission also determined that admission of such evidence was contrary to normal rules of evidence and therefore violated the defendant's fundamental right to a fair trial, as guaranteed under the American Declaration on the Rights and Duties of Man.

These international law considerations mentioned by the Inter-American Commission are mirrored by article 14 (1) and (3) of the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified.

Vienna Convention Violation

Although Medina is a Mexican national, the Texas authorities never informed him of his right to consular notification and assistance pursuant to article 36 of the Vienna Convention on Consular Relations. The authorities likewise failed to notify Mexican consular officials of Medina´s detention. Texas authorities thus prevented Mexican consular authorities from providing effective and far-reaching legal assistance when it was most urgently required. As a consequence, the defense was denied access to its only available source for the help it desperately needed to challenge the credibility of the Mesley testimony and to present compelling testimony in support of a life sentence. In other cases, timely assistance from the Mexican authorities has meant the difference between life imprisonment and death penalty sentences.

In May of this year, the Oklahoma Court of Criminal Appeals ordered a new sentencing hearing for Gerardo Valdez, a Mexican national who, like Javier Medina, was deprived of consular assistance and sentenced to death in 1989. Mexican President Vicente Fox personally intervened on Valdez's behalf, seeking clemency from Oklahoma Gov. Frank Keating. The Oklahoma Court emphasized the crucial importance of timely consular assistance in that case.

The Oklahoma court's ruling came on the heels of a decision by the International Court of Justice in the cases of two German nationals who had been sentenced to death in Arizona. Like Javier Medina, the LaGrand brothers were not informed of their consular rights and German authorities were thus unable to provide vital assistance in developing mitigating evidence. The International Court of Justice held that the United States had violated its international obligations by failing to provide "review and reconsideration" of the Vienna Convention violation in the case of the LaGrande.

Concerns over these serious rights violations have prompted the National Human Rights Commission of Mexico to present pleas on Medina's behalf, by urging the Texas Board of Pardons and Paroles to commute his death sentence to life in prison.

Timeline

Medina and his lawyer are currently filing a petition with the Texas Board of Pardons and Paroles for clemency, with the US Supreme Court for a legal appeal concerning the violation of US international obligations raised by the International Court of Justice in the LaGrand case, and with the Inter-American Commission on Human Rights asking for precautionary measures.

European Union Intervention

http://www.eurunion.org/legislat/Deathpenalty/SuarezMedinaVTexGovPerry.htm

Fox Asks Texas to Delay Execution of Mexican

Case Update:

Court of Criminal Appeal and Texas Board of Pardon and Parole deny.
13 August 2002

Despite unprecedented and urgent interventions by many of the United States’ closest allies, Mexican national Javier Suárez Medina was executed in Huntsville, Texas. The execution was allowed to proceed after the United States Supreme Court denied the final appeal and after the Governor of Texas refused to grant a reprieve.

Execution Pits Mexico Against U.S.

Fox echoes world on the death penalty

WASHINGTON The unexpected cancellation by the president of Mexico of his visit to President George W. Bush's Texas ranch - in a blunt objection to the execution of a Mexican national - has given Bush his highest-level indication yet of the breadth and depth of near-global opposition to the death penalty in America.

Over strenuous objections from Mexico and the European Union, Javier Suarez Medina was put to death Wednesday in Texas for the murder of an undercover policeman in Dallas in 1988. A few hours after the execution, a spokesman for President Vicente Fox of Mexico said, "It would be inappropriate, in these lamentable circumstances, to go ahead with the visit to Texas." The cancellation "is an unequivocal signal of rejection of the execution," said the spokesman, Rodolfo Elizondo.

U.S. officials sought to minimize the cancellation, which may in part have reflected an effort by Fox, who faces political challenges at home, to demonstrate greater independence from Bush. But analysts said the signal was clear.

On Thursday, Richard Wilson, professor of international human rights law at American University in Washington, called the cancellation "a fairly blunt message to our president about the feelings of the Mexican people, and one with important foreign policy ramifications."

"The U.S. finds itself increasingly isolated on this issue," he said.

The visit had been planned for Aug. 26-28.

Mexico does not have the death penalty and refuses to extradite people to countries that do if they face capital punishment there.

The White House emphasized Thursday that the strong bilateral ties and close friendship between the men would not suffer. A White House spokesman, Jimmy Orr, said Bush "respects President Fox, and the two have an excellent professional relationship and a strong friendship that reflects the deep bonds between their two countries."

But the meaning of Fox's gesture was clear, particularly coming from a close friend, analysts said. Bush made relations with Fox and Mexico a centerpiece of his early foreign policy, and for foreign leaders an invitation to Bush's ranch is considered a diplomatic prize.

Fox had spoken to Governor Rick Perry of Texas and directed his foreign secretary to contact the U.S. secretary of state, Colin Powell. But the State Department did not intervene in the case.

Mexico objected strongly and repeatedly that when Suarez was arrested, he was not notified immediately of his right to consular access. This would have been a violation of the 1963 Vienna Convention on Consular Relations. That treaty requires that arresting authorities immediately tell foreigners whom they have arrested of the right to receive assistance from their consulates.

At his trial in 1989, Suarez never denied that he had killed the undercover policeman. He said in court, "I thought he was just a regular drug dealer."

The Mexican consul in Dallas, despite three earlier attempts to make contact, was not able to reach Suarez until the day after he was sentenced to death, his lawyers say.

The execution late Wednesday dominated headlines across Mexico; national radio carried reports direct from Texas.

The United States is one of only a handful of countries that retain the death penalty. To many people abroad the death penalty has come to symbolize a rough-edged American justice out of step with the modern world.

The issue has taken on salience in recent months because of the possibility that the United States might seek the death penalty against foreign nationals, some with European passports, accused of complicity in the Sept. 11 attacks.

When Bush has traveled abroad, anti-death-penalty protests have regularly greet him. They did in Germany in May, for instance. When the United States lost its seat on the United Nations Human Rights Commission last year, the death penalty was cited as one reason.

Other countries, including Britain, Thailand and Canada, have lodged sharp protests when their own nationals, or dual nationals, faced being put to death in the United States.

Bush had no direct involvement in the Texas decision. But as Texas governor and since then, he has consistently defended capital punishment as a necessary tool against crime. More than 130 convicted killers were put to death in Texas while he was governor.

American public sentiment, though still strongly in favor of the death penalty, has softened amid dramatic evidence that some death-row inmates have been wrongly convicted. The national numbers of executions have leveled off, to below 100 a year, even as death sentences have risen sharply, analysts say.

Fox's decision, announced at a hastily called news conference in Mexico City late Wednesday, caught White House officials off guard. Claire Buchan, a White House spokeswoman, said the incident, an issue for state and not federal authorities, would not damage U.S.-$ Mexican relations.

Texas is a leader among the states, along with Florida, Virginia and California, in carrying out executions. Since 1976, it is believed to have executed seven foreigners, according to the Dallas News: a Canadian, four Mexican citizens, a citizen of the Dominican Republic and a Vietnamese citizen.

Fourteen countries, most of them Latin American but including Spain and Poland, had petitioned the U.S. Supreme Court on Suarez's behalf.

In some cases, noted Wilson of American University, such foreign attempts at intercession have backfired, angering parole board members. Two similar appeals in Texas, both citing the Vienna Convention, failed to save the lives of two condemned inmates, Stanley Faulder, a Canadian, and Miguel Flores, a Mexican.

But Wilson says that the widespread foreign opposition to capital punishment is being felt in the American system - notably on the Supreme Court. Referring to a Supreme Court finding June 20 that the execution of mentally retarded inmates was "cruel and unusual punishment" in the meaning of the Constitution, Wilson said, "I think the voice of Europe on this issue really affected the court."

A six-justice majority found that "in assessing what is cruel and unusual, we should look to world opinion" and not just to U.S. opinion, and they cited the brief of the European Union in concluding that it was unusual, Wilson said. The Suarez case, by focusing attention on the Vienna Convention, also pointed to the particular conflicts that arise, or gaps that exist, between federal authorities, responsible for carrying out such international obligations, and local and state officials, who are often less aware of or concerned about those obligations.

Mark Warren, a specialist in the death penalty who was retained by Suarez's legal team, said that the failure of timely notification of consular rights was common. Sometimes that occurs because the arrested, who may not be in the country legally, do not want to call attention to that fact. But often local officials are unaware, unconcerned, or overworked and fail to make the effort, he said.

California is one of the few states, if not the only one, to have included a requirement of timely notification in state law. And New York City is one of the few cities to include that requirement in its police manuals, said Warren, who heads a group called Human Rights Research in Ottawa. But to the extent awareness of that commitment has spread, Warren added, it is because of a massive effort by the U.S. State Department to contact local and state authorities and explain the dictates of the Vienna Convention to them.

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