Traffic Stop: The Supreme Court has issued its conference-day orders list. The only criminal case granted is Brendlin v. California, No. 06-8120. The California Supreme Court held 4-3 that a passenger is not subject to a "seizure" for Fourth Amendment purposes in a routine traffic stop.
Medellin Returns: The notorious José Medellín has filed his new certiorari petition in Medellin v. Texas, No. 06-984, bringing the Vienna Convention and the International Court of Justice's Avena decision once again to the Supreme Court. When Medellin was at the Supreme Court before, in 2005, the Court decided that state habeas, not federal habeas, was the place to resolve these issues. CJLF filed a brief in that case. The key question is whether a state procedural default law can preclude bringing a Vienna Convention claim when the consulate had not been notified at the time of the default.
Last year, in Bustillo v. Johnson, a companion case to Sanchez-Llamas v. Oregon, the Supreme Court said it would give "respectful consideration" to the views of the International Court of Justice regarding the compatibility of American procedural law with the Vienna Convention, and then proceeded to tell the ICJ they were dead wrong. A group of amici who had self-importantly designated themselves the "ICJ Experts" told the Court it had to follow the ICJ, and the Court effectively told the "Experts" they were not as expert as they thought.
The difference between Medellin and Bustillo is that Medellin is one of the 50+ defendants actually involved in the Avena case. The argument that American courts must comply in the actual case adjudicated by the ICJ is considerably stronger. It is further strengthened by the fact that the President has weighed in to that effect, and the Court's deference to the President in foreign policy matters is very strong.
If Medellin does get certiorari (which I consider highly likely) the case will be heard next term unless the Court does some unusual expediting. If Medellin does prevail, the result would likely be a remand to the Texas CCA to determine if he was prejudiced by the Vienna Convention violation. I would bet my last dollar the answer to that question is no. There are a few capital cases where, upon reading the facts, most people say something like, "If we are going to have capital punishment at all, this is the case that calls for it." This is one of those cases.
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