Two Days After Medellin Execution, Similar Issues Back at High Court

[WSJ_law_blog]

This photo released by the Texas Department of Criminal Justice shows death row inmate Heliberto Chi who is scheduled for execution at the Texas prison in Huntsville, Thursday, Aug. 7, 2008. Chi, 29, was set for execution for the 2001 murder of his former boss at an Arlington, Texas, clothing store. (AP Photo/Texas Department of Criminal Justice)


UPDATE: Thursday afternoon, the Supreme Court denied Chi’s motion for a stay in his execution and denied his appeal. (Hat tip: Scotusblog)

All those who found the case of Jose Medellin compelling might want to pay attention for the next several hours to the latest death-penalty showdown that’s landed on the U.S. Supreme Court’s doorstep. It involves a Honduran national named Heliberto Chi, who was sentenced to death in Texas for a 2001 killing.

As was the case with Medellin, who was executed by lethal injection on Tuesday, Chi was not notified of his right to seek assistance from his consulate after he was arrested, a violation of the Vienna Convention on Consular Rights.

But there exist two main differences between the cases, one which would seem to weigh in Chi’s favor, one against. (Click here, here and here for background on the Medellin case.) On the one hand, Medellin was one of 51 Mexican nationals subject to a ruling made by the International Court of Justice in 2004. In the so-called Avena case, the ICJ ordered the U.S. to hold hearings for each to determine whether their trials were prejudiced by the lack of consular notification. Because he’s Honduran, Chi’s not covered by that ruling.

On the other hand, Chi’s lawyers don’t have to rely on the Vienna Convention. Rather, they’re relying on a 1927 treaty made between the U.S. and Honduras that governs consular relations. The difference between the two treaties? The Vienna Convention, the Supreme Court ruled in March, is not self-executing. Therefore, it requires an act of Congress to become effective on the states.

But Chi’s lawyers argue that the Honduran treaty is, in fact, self-executing, and therefore no other action needs be taken to make the treaty apply to the states. (Click here to read Chi’s cert petition, filed earlier today; click here for a recent post on the case from Scotusblog.)

There’s some intuitive appeal to Chi’s argument, at least assuming that the Honduran treaty is, in fact, self-executing. But a stay of his execution is still likely a longshot. Yesterday, in a concurring opinion addressing the argument, a justice on the Texas Court of Criminal Appeals said Chi “faces an insurmountable burden” in raising his challenge at this stage. Writes Scotusblog: “The burden [Justice Tom] Price cited included the Supreme Court’s ruling in 2006 in Sanchez-Llamas v. Oregon (another Vienna Convention case) saying that a treaty could override state procedural rules only if the agreement contained a clear statement doing so. Price found no such statement.”

Still, Wes Ball, Chi’s attorney, is hopeful, citing the Court’s 5-4 ruling allowing Medellin’s execution to go forward. “All we need is to persuade one of those five justices,” he told the Law Blog. “I think the argument we have is a good one.”