Texas rejects International Court of Justice rulling

NY Times:

Texas can proceed with the execution of a death row inmate notwithstanding a ruling by an international tribunal and a memorandum from President Bush directing state courts to comply with the tribunal’s decision, Texas’ highest court for criminal matters ruled yesterday.

“We hold that the president has exceeded his constitutional authority by intruding into the independent powers of the judiciary,” Judge Michael Keasler wrote for the court, the Texas Court of Criminal Appeals.

The case, which has been considered by the United States Supreme Court, appears quite likely to return there.

In 2004, the International Court of Justice in The Hague ruled that 51 Mexicans on death row in the United States were entitled to “review and reconsideration” of their claims that their rights under the Vienna Convention on Consular Relations had been violated.

The convention requires that arrested foreigners be told of their right to speak with consular officials. If asked, local officials must contact the appropriate consulate. Both actions, the convention says, must be taken “without delay.”

The international court added that American courts performing the required review and reconsideration could not rely on a doctrine known as procedural default to decline to hear arguments not raised at trial. That is at odds with recent death penalty jurisprudence in the United States and with state and federal laws that limit what kinds of arguments may be made if they are not raised early on.

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What they are calling procedural default is actually the doctrine of waiver. If a matter is not raised at the appropriate time it is waived and cannot be the basis of an appeal The article does not way why the International Court thought it had jurisdiction over state procedural law. The US Supreme Court gets jurisdiction under the due process clause of the US Constitution. This cases looks like one of those gotcha cases by opponents of the death penalty who think they have found a hoop that they believe they can turn into a shield.