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The first death-row inmate who could benefit from last week’s ruling by the International Court of Justice-that 51 Mexican nationals facing death sentences were deprived of fundamental rights-is scheduled to be executed in Oklahoma on May 18. His lawyers will have to hurry if they’re going to save his life. But how best to do that is a matter of intense debate. The international court found that 51 Mexican nationals who have been sentenced to death were denied their rights under the Vienna Convention on Consular Relations, which both Mexico and the U.S. signed. While legal scholars argue over which venue would be appropriate, U.S. officials are not acknowledging-at least not yet-that the U.S. has any obligation to honor the convention. The 51 defendants weren’t promptly notified, or notified at all, of their right to see a Mexican consular official. The consulate was not promptly notified of the detention of 49 of them, and so could not communicate with them in a timely fashion, or arrange legal counsel for 34 of them, the court said. Case Concerning Avena (Mexico v. U.S.), No. 128 (I.C.J.). The remedy that the court fashioned was that the U.S. should provide “by means of its own choosing, review and reconsideration of the convictions and sentences of all of them, taking account of the Convention violations.” The court was adamant that it be a judicial process, as opposed to merely a clemency review, and said that the courts could not invoke the procedural default rule and dismiss the issue for having failed to raise their claims earlier. It will be up to each defendant to show prejudice from the treaty violations. “That’s a tough row to hoe,” said Oklahoma Attorney General Drew Edmondson, referring to Osbaldo Torres, the prisoner with the May 18 date, whose first trial ended in a hung jury. Torres’ lawyer, Mark Henricksen of Oklahoma City’s Henricksen & Henricksen, is still not sure where he’ll start hoeing. His choices are whether to ask for permission from the 10th U.S. Circuit Court of Appeals in Denver to file a subsequent habeas corpus petition, or to go to the Oklahoma Court of Criminal Appeals, the state’s highest criminal court, to file a successor petition. “I believe that the substantive result is that Mr. Torres will be entitled to a new trial,” said Henricksen, who said Torres’ appointed trial counsel failed to raise issues that would have cast doubt on his guilt and mitigated his sentence. “The Mexican government has demonstrated that it would have provided significant help to Mr. Torres had they known of his plight,” Henricksen said. The question of the best venue in which to raise the treaty violations is a vexing one, according to two Hofstra University international law scholars. “Historically what happens is that the State Department goes to the governor or the state attorney general and asks them to comply . . . but they wouldn’t order them,” said Professor Julian Ku. “The problem with going to federal court is the procedural default doctrine, which won’t allow you to raise it for the first time now.” The fact that the international court said that the doctrine cannot be invoked won’t deter the federal courts, said Professor Peter Spiro. “I think it’s unlikely that we’re going to see federal courts taking a cue from [the International Court of Justice],” Spiro said. “I think it’s unlikely that the State Department or the solicitor general is going to intervene, to go into court and say we have to change our ways now.” The concept is federalism and “not wanting to be seen as bowing to an international institution, particularly in this administration,” Spiro added. That’s not the way it should work, said one of Mexico’s lawyers in the international court, Donald Francis Donovan of New York’s Debevoise & Plimpton. The International Court of Justice was established under the U.N. Charter as the principal judicial authority. There was no mandate that any nation become a signatory to the Vienna Convention or its optional protocol in which signatories agreed that disputes arising from the convention would be resolved by the World Court, but Mexico and the U.S. signed both. “It’s not as though the World Court just assumed jurisdiction in this case,” Donovan said. “It’s part of the agreement that these countries signed. The U.S. went to The Hague and fully litigated the case and now is bound by the ruling. Both the state and the federal courts have an obligation to hear these claims on their own terms and give them full weight.” Robert Black, a spokesman for Texas Governor Rick Perry, said that the international court does not have jurisdiction in his state, where 16 Mexico nationals are on death row. “The World Court will have no role in our due process in Texas,” Black said. It has “no standing and no jurisdiction. Governor Perry will continue to follow Texas and U.S. law.” Donovan disagreed. “Of course it’s binding on the states. The U.S. should enforce it and state and federal officials and justices should abide by it. That what it says in Article 6 of the U.S. Constitution.” That article states in part that the U.S. Constitution, U.S laws and all treaties made, “or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” “The United States raised the Vienna Convention when it brought Iran to the World Court over the hostage situation,” Donovan said. “U.S. citizens benefit from the Convention as much as anybody.” But this is the third case raising similar claims that a country has brought against the United States in the past five years, although the rulings have become progressively more precise. U.S. obligations studied Lou Fintor, a spokesman for the State Department, said the “U.S. government respects our obligations,” but what our obligations are “vis-�-vis this treaty is under study and remains to be seen.” The State Department’s legal bureau, in consultation with various other agencies that would be affected, is studying the complex judgment, he added. Edmondson, the Oklahoma attorney general, pointed out that he had asked the court not to set an execution date while the international court case was pending, but the court went ahead and did so on its own motion on March 18. “On Torres’ side of the ledger is that he was not the shooter and I think that will weigh heavily on the pardon and parole board,” Edmondson said. He added: “I’d be curious if Mexico could say with a straight face that they would have provided counsel in [1994 through 1996].” Had Mexico known, it would have offered Torres assistance, said Sandra Babcock, who heads a program that provides legal assistance to Mexicans charged with capital crimes in the U.S. Post’s e-mail address is [email protected].

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