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High Court Won’t Hear Death Penalty Case

November 17, 2003

WASHINGTON (AP) _ The Supreme Court refused Monday to be drawn into an international debate over how the United States treats foreigners on death row.

Despite concerns raised by two justices, the Supreme Court said it will not consider the case of an Oklahoma death row inmate who claims police and other authorities never told him he had the right to meet with Mexican consular officials after his arrest.

The Vienna Convention, a 1963 treaty signed by the United States, requires an ``arresting government″ to notify a foreign national of the right to talk with the detainee’s consulate or embassy, and foreign governments can arrange legal help for their nationals. It applies to Americans abroad and to foreigners arrested in the United States.

Foreign governments and defense lawyers have accused U.S. police departments and prosecutors of failing to follow the treaty uniformly. The criticism mirrors international objections to the U.S. practice of allowing executions of people who committed their crimes when they were juveniles, which the Supreme Court also has refused to take up.

The justices refused without comment to hear the appeal of Osbaldo Torres, known in Mexico as Osbaldo Torres Aguilera. Justices John Paul Stevens and Stephen Breyer went on record noting misgivings with the decision.

``It surely is reasonable to presume that most foreign nationals are unaware of the provisions of the Vienna Convention (as are, it seems, many local prosecutors),″ Stevens wrote.

He complained it was ``manifestly unfair″ for U.S. courts to block claims by foreign nationals of violations of the Vienna Convention.

The World Court at The Hague ruled this year that the United States should delay the executions of several men, including Torres, while the court investigates whether the more than 50 Mexican nationals on U.S. death rows had been given their rights to legal help from the Mexican government.

The World Court, officially known as the International Court of Justice, has scheduled a week of hearings next month to discuss the treatment of Mexican defendants. The Supreme Court was told that the court may have a ruling by spring.

Justice Breyer said the Supreme Court should not have disposed of the Torres case until the World Court has completed its deliberations.

That may be too late for Torres. Oklahoma could set his execution date within two months, Breyer said.

Torres is among 120 foreign nationals from 29 countries on death row in America, according to the Death Penalty Information Center.

Philadelphia criminal defense lawyer Theodore Simon, who has represented Americans detained abroad, said that it is important that America follow the treaty to encourage other countries to follow it.

``If you can put yourself in the shoes of an American arrested abroad, it is a horribly frightening experience. The language difficulty, the cultural difficulty, being in a foreign environment,″ he said. ``You would hope that when the shoe is on the other foot, one would want the same thing.″

Countries that do not have the death penalty have balked at deporting people to America to face execution.

A lawyer for the government of Mexico said it has had no opportunity to help Torres, who was 18 when he was arrested. Mexican leaders found out about his case only after he was on death row.

Torres was convicted of killing an Oklahoma City couple in their bed in 1993 during a burglary.

The World Court had tried to intervene on behalf of Torres and two Texas death row inmates from Mexico. It has no power to enforce its decisions, some of which the United States has disregarded in the past.

Mexico does not use the death penalty. In August 2002, Mexican President Vicente Fox canceled a visit to President Bush’s ranch in Texas to protest the state’s execution of convicted police killer Javier Suarez Medina, a Mexican national.

The case is Torres v. Mullin, 03-5781.

Also Monday:

_Justice Antonin Scalia accused fellow justices of going soft on affirmative action because they refused to revisit the issue of racial preferences in the awarding of government contracts. Scalia, joined by Chief Justice William H. Rehnquist, said a special program for minority businesses in Denver plainly does not meet the test the Supreme Court set out when reviewing a similar program in 1989.

_Justices refused to consider reinstating a man’s conviction for killing two people and wounding two others at a Michigan car plant in 1994. The 6th U.S. Circuit Court of Appeals had ruled that Oliver French received inadequate lawyering in his trial.


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