July 17
TEXAS:
Attorney files to submit more evidence in death row case—-Rodney Reed's
attorney says new information should prove convicted man's innocence.
The attorney for death row inmate Rodney Reed filed a motion Wednesday
asking an appeals court for a new trial because of what he cited as new
evidence against a former suspect in the murder of Stacey Stites.
Bryce Benjet, Reed's attorney, said the new evidence about Jimmy Fennell
Jr., Stites' fianc at the time, includes what Benjet said was Fennell's
personal Web site that contains sexual content and violent images.
Reed is on death row for the 1996 strangling of 19-year-old Stites in
Bastrop County, but Reed's attorney says Fennell, then a Giddings police
officer, should have been investigated more thoroughly as a suspect.
Benjet said other recent evidence includes a woman's allegations that
Fennell acted improperly as a Georgetown police officer when he pulled her
over and Fennell's admitting in May to kidnapping and having sex with a
woman in custody in October.
Fennell resigned from the department in January and is awaiting trial in
the kidnapping incident.
"I think it confirms everything about Jimmy Fennell's character that we've
said from the beginning," Benjet said. "If the jury knew everything that
we know now, I'm confident that a jury would never have convicted Reed."
Fennell's attorney, Bob Phillips, said Benjet is becoming desperate and
that the conviction won't be overturned because Reed's DNA was found on
Stites' body.
"Every time there is another news story, it has the potential to taint any
jury pool for my case, whether the allegations are true, false, reckless
or utterly unfounded," Phillips said.
Fennell pleaded guilty in May to kidnapping and improper sexual activity
with a person in custody and would have received two years in prison and
10 years probation under the plea deal, but District Judge Burt Carnes
denied the agreement and set a September trial date.
Fennell is accused of driving an intoxicated woman to a secluded area,
asking her to dance for him and then raping her as she leaned on his
police cruiser, according to court documents.
Benjet said an image of a woman leaning over the back of a car in
revealing clothing on what he says is Fennell's MySpace page is relevant
because of the allegations of raping the woman against his car.
The Web site does not contain Fennell's name, and the owner of the site is
only pictured in full police SWAT gear, including a face mask, but Benjet
said an acquaintance of Fennell came forward with the site and said
Fennell used it to solicit women for sex.
Phillips said there is no way to positively identify whose page it is and
that the images Benjet cites were not posted by the site's owner.
"I have no idea if this is Jimmy Fennell's Web site, but a lawyer can
allege anything he wants in a writ of habeas corpus," Phillips said.
"Proving it is quite another matter."
(source: Austin American-Statesman)
************************
Convicted cop-killer loses appeal —- 30 years after he shot and killed
an Austin cop, David Lee Powell is still on death row
He's been through numerous trials and appeals, but will not be getting a
4th trial.
Calling this a good day for the family, Irene Ablanedo didn't hold back
her feelings.
"I think it's time for him to be removed from the face of this earth," she
said.
Her brother, Austin police officer Ralph Ablanedo, was shot with a machine
gun after pulling over David Lee Powell and his girlfriend 30 years ago.
Powell was convicted and sentenced to death. But as of today, he is still
in prison fighting for his right to live.
But on Wednesday, the U.S. 5th Circuit Court of Appeals denied his appeal
for a 4th trial.
"We have the Supreme Court, it should go back to state of Texas and set
back to execution day," Powell said.
"When I was notified this morning of the decision, I wasn't surprised but
definitely relieved," said Bruce Mills, Ablanedo's patrol partner.
Mills says the pain never really goes away.
"Not only for me but for any family member or even close friends certainly
it's hard it's always hard and I'm not sure it's going to get easier
because this is going to bring closure to it. This is a friend this is a
loved one," said Mills.
David Lee Powell has been on death row since 1978. Only 5 other inmates
have been there longer. The court's decision now clears the way for Powell
to be executed.
"It's very upsetting. He should have been executed a long time ago. We've
been through 3 capital murder trials; they've all found him guilty and
gave him the death penalty," said Ablanedo.
No execution date has been set for Powell.
(source: KVUE News)
*******************************
Texas still plans to execute killer despite U.N. order
CHRONOLOGY
March 31, 2004: The United Nation's International Court of Justice issued
an order that U.S. courts must review the cases of 51 condemned Mexican
prisoners. The court ruled the prisoners' rights to speak with Mexican
consular officials after their arrests had been violated.
Feb. 28, 2005 : President Bush directed state courts to abide by the
world court's decision. He also asked Texas specifically to review the
case of Jose Medellin, now scheduled to die by lethal injection Aug. 5.
March 25, 2008 : The U.S. Supreme Court ruled that Bush could not compel
Texas to review Medellin's case. Chief Justice John Roberts said the
president cannot unilaterally carry out an international treaty without
concurrence of the legislative branch.
June 20: The Mexican government made an emergency appeal to the U.N.'s
highest court to block the executions of its citizens on death row in the
U.S.
July 16 : The world court ordered the U.S. to halt the 5 pending
executions of Mexican nationals on Texas' death row.
WORLD COURT
Some facts about the International Court of Justice, also known as the
World Court: Established: 1945
Location: The Hague, Netherlands
Role: Judicial arm of the United Nations.
Decisions: Binding on member countries. No appeal, the court cannot
enforce judgments.
Justices: 15 justices, each elected to nine-year terms by the U.N.
General Assembly or the U.N. Security Council.
Lawsuits: Court acts on matters brought by member states; individuals
cannot bring suits.
[source: New York Times Almanac]
Texas will go ahead with the scheduled Aug. 5 execution of Houston
rapist-killer Jose Medellin despite Wednesday's United Nations world court
order for a stay, a spokesman for Gov. Rick Perry said.
The U.N.'s International Court of Justice's call for stays in the cases of
Medellin and four other Mexican nationals awaiting execution in Texas came
in response to a petition filed last month by the Mexican government.
The petition sought to halt executions to allow for review of the killers'
cases to determine whether denying them access to the Mexican Consulate
after arrest impaired their trial defenses.
The Geneva Convention stipulates that, upon request, an alien offender's
national consulate must be notified of his arrest.
In its order, the world court quotes the Mexican government's argument
that "Texas has made clear that unless restrained, it will go forward with
the execution without providing Mr. Medellin the mandated reveiw and
reconsideration," which will "irreparably" breach the U.S. government's
obligations to the court's 2004 order.
The Mexican government reasons that "the paramount interest in human life
is at stake," according to the court's order. If Medellin and the other
nationals are executed without additional court reviews, "Mexico would
forever be deprived of the opportunity to vindicate its rights and those
of the nationals concerned."
Perry's office dismissed the argument.
"The world court has no standing in Texas and Texas is not bound by a
ruling or edict from a foreign court," Perry spokesman Robert Black said.
"It is easy to get caught up in discussions of international law and
justice and treaties. It's very important to remember that these
individuals are on death row for killing our citizens."
But international law expert Sarah Cleveland, a professor of human and
constitutional rights at New York City's Columbia Law School, said if the
U.S. fails to act on the world court order, other countries may follow
suit.
"This can only come back to hurt U.S. citizens when they are detained
abroad," she wrote in an e-mail. " … When a global leader like the U.S.
refuses to comply with its clear international legal obligations (and
everyone agrees that this is a clear legal obligation), it undermines the
willingness of other states to comply with their own obligations and it
inspires them not to trust us to obey ours."
Deadly gang initiation
Medellin, 33, was condemned for the 1993 killings of Jennifer Ertman, 14,
and Elizabeth Pea, 16, who stumbled into a drunken midnight gang
initiation rite at T.C. Jester Park in north Houston.
Medellin's accomplice, Derrick O'Brien, was executed in July 2006. Also
sentenced to die is gang leader Peter Anthony Cantu. Three other
accomplices are serving prison sentences. Medellin was the only
non-American involved in the murders.
Wednesday's U.N. court decision in The Hague, Netherlands, was the latest
development in an an ongoing legal wrangle that has involved President
Bush, the U.S. Supreme Court and the Mexican government.
In 2004, the U.N. court ordered a review of the cases of 51 Mexican
nationals facing execution in the United States because they had not been
allowed to speak with their nation's consular officials.
In February 2005, Bush directed state courts to abide by the U.N. court
decision, specifically asking Texas to review Medellin's case.
In March, the U.S. Supreme Court ruled that Bush had overstepped his
authority. Chief Justice John Roberts said the president cannot mandate
such court reviews without congressional concurrence.
On Monday, U.S. Rep. Howard Berman, D-Calif., filed a bill providing for
such reviews. As of Wednesday, it was in committee.
Weeks after the Supreme Court's ruling, Secretary of State Condoleezza
Rice and U.S. Attorney General Michael Mukasey jointly wrote Perry asking
for his help in obtaining the reviews.
The United States, they wrote, continues to be bound by the world court's
decision under international law.
Girls' fathers adamant
Meanwhile, Randy Ertman, father of Jennifer Ertman, hotly denounced the
world court's order for stays.
"The world court don't mean diddly," he said. "This business belongs in
the state of Texas. The people of the state of Texas support the
execution. We thank them. The rest of them can go to hell."
Adolfo Pea, father of Elizabeth Pea, agreed.
"I believe we've been through all the red tape we can go through," he
said. "It's time to rock and roll."
(source: Houston Chronicle)
**********************
TEXAS:
PUBLIC AI Index: AMR 51/081/2008 17 July 2008
UA 204/08 Death penalty / Legal concern
USA (Texas) Jos Ernesto Medelln Rojas (m), Mexican national, aged 33
Mexican national Jos Medelln is due to be executed in Texas on 5 August
2008. He was sentenced to death in 1994 for his part in the murders of two
girls, 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena, in
Houston in 1993.
Jos Medelln, who has been on death row for 14 years, was barely 18 years
old at the time of the crime (two co-defendants who were 17 subsequently
had their death sentences commuted after the US Supreme Court outlawed the
death penalty for under-18-year-olds in 2005). He was never advised by
Texas authorities of his right as a detained foreign national to seek
consular assistance, as required under article 36 of the Vienna Convention
on Consular Relations (VCCR). Because of this treaty violation, Jos
Medelln was deprived of the extensive assistance that Mexico provides for
the defence of its citizens facing capital charges in the USA. The Mexican
Consulate did not learn about the case until nearly four years after Jos
Medelln's arrest, by which time his trial and the initial appeal affirming
his conviction and death sentence had already concluded.
According to his clemency petition, during the investigation and
prosecution of Jos Medellns case, his court-appointed lead lawyer was
under a six-month suspension from practising law for acting unethically in
another case. He continued to represent Jos Medelln while suspended. Prior
to the trial, the lawyer was held in contempt of court and arrested for
violating his suspension. Time that should have been spent preparing his
clients defence went instead to preparing and filing a habeas corpus
petition to keep himself out of jail. Records indicate that the only
investigator for the defence spent a total of just eight hours on the case
prior to the trial. The defence failed to oppose the selection of jurors
who indicated that they would automatically impose the death penalty. Jos
Medelln's lawyers called no witnesses during the guilt phase of the trial.
At the sentencing phase, their presentation of mitigating evidence lasted
less than two hours.
An investigation funded by the Mexican Consulate has found that Jos
Medelln grew up in an environment of abject poverty in Mexico and was
exposed to gang violence after he came to Houston to join his parents when
he was nine. It has also established that he suffered from depression,
suicidal tendencies and alcohol dependency. If his trial lawyers had
sought consular assistance, experts and investigators could have been
retained by the Mexican Consulate to present the full range of mitigating
evidence to the sentencing jury. In addition, consular monitoring of the
case in the pre-trial stages could have exposed and remedied the
inadequate legal representation that Jos Medelln was receiving.
On 31 March 2004, the International Court of Justice (ICJ) ruled in Avena
and Other Mexican Nationals that the USA had violated its VCCR obligations
in the cases of Jos Medelln and 50 other Mexican nationals on death row in
the USA. As the necessary remedy, the ICJ ordered the USA to provide
judicial "review and reconsideration" of the convictions and sentences, to
determine if the defendants had been prejudiced by the VCCR violations. On
28 February 2005, President George W. Bush responded to the binding ICJ
decision by seeking to have the state courts provide the necessary "review
and reconsideration" in all of the affected cases. The Texas Court of
Criminal Appeals later ruled that the President lacked the constitutional
authority to order state court compliance and that the Avena decision was
not enforceable in the domestic courts.
Jos Medelln's lawyers appealed to the US Supreme Court. Although the State
of Texas argued to the Court that the President had overstepped his
authority, it acknowledged that "Nobody disputes that the United States
has an international law obligation to satisfy Avena." On 25 March 2008,
in Medelln v. Texas, the Supreme Court unanimously found that the ICJs
Avena decision "constitutes an international law obligation on the part of
the United States." The Court also unanimously agreed that the reasons for
complying with the ICJ judgment were "plainly compelling," since its
domestic enforcement would uphold "United States interests in ensuring the
reciprocal observance of the Vienna Convention, protecting relations with
foreign governments, and demonstrating commitment to the role of
international law." However, a 6-3 majority ruled that the ICJ's decision
"is not automatically binding domestic law" and that the authority for
implementing it rested not with the President but with the US Congress. In
a concurring opinion, one of the Justices urged Texas to recognize what
was "at stake" and to do its part to ensure compliance with the USAs
international obligations (see USA: Government must ensure meaningful
judicial review of Mexican death row cases, 27 March 2008,
http://www.amnesty.org/en/library/info/AMR51/025/2008/en). In a joint
letter to the Texas Governor, Rick Perry, on 17 June 2008, US Secretary of
State Condoleezza Rice and US Attorney General Michael Mukasey called on
Texas to take the steps necessary to give effect to the Avena decision".
On 14 July 2008, a bill known as the Avena Case Implementation Act was
introduced in the US House of Representatives. Under its terms, Jos
Medelln and other affected foreign nationals would be granted access to
"appropriate remedies" through the domestic courts for VCCR violations,
including the reversal "of the conviction or sentence, where appropriate."
The bill has been referred to the House Judiciary Committee for review,
but insufficient time remains for it to be passed into law before Medellns
scheduled execution. Similar legislation is expected to be introduced in
the Texas Legislature when it reconvenes in early 2009.
On 16 July 2008, the ICJ issued "provisional measures" in the cases of Jos
Medelln and four other Mexican nationals facing execution in Texas (the
other four do not currently have execution dates). The ICJ ordered the
United States "to take all measures necessary" to ensure that these
individuals are not executed unless and until these five Mexican nationals
receive review and reconsideration." The Inter-American Commission on
Human Rights has also issued precautionary measures" calling on Texas not
to execute Jos Medelln until the Commission has ruled on his petition
asserting that he was deprived of a fair trial.
There have been 1,111 executions in the USA since judicial killing resumed
there in 1977, 407 of them in Texas. There have been 12 executions in the
USA so far in 2008, two of them in Texas.
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible
(please include Jos Medelln's prisoner identification number, TDCJ #
999134):
– expressing sympathy for the relatives of Jennifer Ertman and Elizabeth
Pena, and explaining that you are not seeking to excuse the manner of
their deaths or to downplay the suffering caused;
– expressing concern that the violation by Texas authorities of its duty
to inform Jos Medelln of his right to obtain assistance from the Mexican
Consulate may have severely undermined the fairness of his trial and the
adequacy of his defence;
– pointing out that the US Supreme Court, the State of Texas and the US
Government all agree that there is a binding legal obligation to comply
with the decision of the International Court of Justice ordering "review
and reconsideration" of the consular treaty violation in Jos Medelln's
case;
– noting that the US Congress is currently reviewing legislation that
would implement the ICJ decision;
– calling for clemency for Jos Ernesto Medelln, and that he at least be
granted a reprieve from execution to provide time for federal and state
legislators to comply with the USAs international obligations in his case.
APPEALS TO:
Rissie L. Owens, Presiding Officer, Board of Pardons and Paroles,
Executive Clemency Section 8610 Shoal Creek Boulevard, Austin, TX 78757,
USA
Fax: + 1 512 463 8120
Salutation: Dear Ms Owens
Governor Rick Perry, Office of the Governor, P.O. Box 12428, Austin, Texas
78711-2428, USA
Fax: + 1 512 463 1849
Salutation: Dear Governor
COPIES TO: diplomatic representatives of the USA accredited to your
country.
PLEASE SEND APPEALS IMMEDIATELY.