HUNTSVILLE, Texas – Condemned prisoner Jose Medellin looked to the federal courts to keep him from the death chamber Tuesday for his part in the gang rape, beating and strangling of two teenage girls 15 years ago.
The Mexican-born Medellin, 33, faced lethal injection in a case that has drawn international attention after he raised arguments he wasn't allowed to consult the Mexican consulate for legal help after he was arrested in the girls' murders.
Late Monday, Medellin was moved from death row at a prison outside Livingston to Huntsville, where he would be the fifth Texas inmate executed this year. His transfer came after the Texas Board of Pardons and Paroles rejected requests for clemency and a reprieve.
"The board's action is against the interests of the nation and risks the safety of thousands of American traveling and living abroad," said Donald Donovan, one of Medellin's lawyers, referring to the warning by the U.S. Embassy in Mexico of possible protests there Tuesday. "We must now rely on the U.S. Supreme Court to prevent Texas from breaking a commitment made by the president and Senate on behalf of the country as a whole."
The International Court of Justice, also known as the World Court, has said Medellin and some 50 other Mexicans on death row around the nation should have new hearings in U.S. courts to determine whether a 1963 treaty was violated during their arrests. Medellin is the first among them who is set to die.
His attorneys contend he was denied the protections of the Vienna Convention, which calls for people arrested to have access to their home country's consular officials.
President Bush has asked states to review the cases, but the U.S. Supreme Court ruled earlier this year that neither the president nor the international court can force Texas' hand. Medellin's supporters say Congress or the Texas Legislature should be given a chance to pass a law setting up procedures for new hearings before he is executed.
Gov. Rick Perry, the Texas courts and the state attorney general say the execution should be carried out. The Texas Attorney General's Office urged the Supreme Court to reject the appeals, saying the execution "fully complies with international law" and noting that the justices already have ruled that the International Court of Justice's decisions are not U.S. law and not binding on American courts.
On Monday, Medellin's lawyers asked the 5th U.S. Circuit Court of Appeals for a reprieve and for permission to file new appeals on his behalf. They also awaited word from the Supreme Court, which they asked on Friday to halt the execution until legislation can be passed to formalize the case reviews.
Trial testimony showed Medellin was the first of six members of a street gang to start attacking the girls.
They were drinking after initiating a new member and intercepted 16-year-old Elizabeth Pena and 14-year-old Jennifer Ertman, who were taking a shortcut home across a railroad bridge in Houston. The gang members attacked the girls for an hour before strangling them and letting their bodies decompose in a field. Their remains were found four days later.
Medellin contends he never was advised by prosecutors or police of his right as a detained foreign national to seek consular assistance, depriving him of legal assistance that Mexico could have provided.
"That's a last-stop measure they're trying to use," Mark Vinson, a now-retired former Harris County assistant district attorney who prosecuted Medellin, said Monday. "Mr. Medellin raised that issue before the trial. In pre-trial he didn't raise the issue. And he didn't raise the issue during the trial.
"If he had raised the issue at his probable cause hearing, the court would have complied. And it was never raised."
In the Supreme Court filing, Medellin's lawyers never mention the crime.
"They don't care about Jennifer. They don't care about Elizabeth," said Randy Ertman, father of one of the victims.
Ertman planned to be in the death chamber Tuesday to see Medellin die. He made a similar trip in 2006 when Derrick O'Brien became the first of the gang members to be executed.
The death sentences of two others, Efrain Perez and Raul Villarreal, were commuted to life in prison when the Supreme Court barred executions for those who were 17 at the time of their crimes.
A fourth, Peter Cantu, described by authorities as the ringleader, is on death row but no execution date has been set.
The sixth person convicted, Medellin's brother, Vernancio, was 14 at the time and is serving a 40-year prison term.
Mexico, which has no death penalty, initially sued the United States in the World Court in 2003. It and other opponents of capital punishment have sought to use the court to fight for foreigners facing execution in the U.S.
At least six other Mexican nationals have been executed in Texas since 1982, when the state resumed carrying out capital punishment.