Two months ago, I denounced an NYT hatchet job misrepresenting one of the cases Cruz handled in the Supreme Court when he was Texas Solicitor General. Now we have this article by Jonathan Mahler.
This time the focus is on the case of José Medellín, one of the perpetrators of one of the most horrific gang-rape murders in the history of Houston. I know a lot about this case. I wrote three briefs in it before we finally delivered this scum-of-the-earth his just deserts. Cruz rightly touts his role in this effort as a major accomplishment, but Mahler views it through the Times's partisan, polarized "all the news that fits our agenda" lens.
As with the previous post, let me note that CJLF takes no position in the Republican primary and endorses no candidate. We care about the truth. It is painfully evident that Mahler and the NYT do not.
This time the focus is on the case of José Medellín, one of the perpetrators of one of the most horrific gang-rape murders in the history of Houston. I know a lot about this case. I wrote three briefs in it before we finally delivered this scum-of-the-earth his just deserts. Cruz rightly touts his role in this effort as a major accomplishment, but Mahler views it through the Times's partisan, polarized "all the news that fits our agenda" lens.
As with the previous post, let me note that CJLF takes no position in the Republican primary and endorses no candidate. We care about the truth. It is painfully evident that Mahler and the NYT do not.
At some points, Mahler is merely sloppy and uninformed. He writes that the Texas Solicitor General "handles all appellate litigation on behalf of the Office of the Attorney General." That is laughably wrong. Not even close. Not in the ballpark. That is probably not malicious, though, as I don't see any point in misrepresenting the job as bigger that it actually is.
The Texas Solicitor General handles some, but not all, of the state's cases in the U.S. Supreme Court. Mahler tries to imply that Cruz was unqualified for the job by noting, "He had argued just two cases, neither one at the Supreme Court." That actually matters very little. Justice Breyer testified to Congress that oral argument is a small part of the Supreme Court's work, even quantifying it at 3%. Briefs are where the real action is.
Mahler says some of the lawyers in the office were dismayed by Cruz's filing amicus briefs in cases where Texas was not a party. I don't know who was dismayed or why, but it is perfectly proper to file an amicus brief in a case that will set a precedent affecting the state, even if the case arises from another state. In many Supreme Court cases there is an amicus brief written by one state AG's office and joined by others, and there is nothing untoward about the nation's second-largest state picking up a hefty share of that load.
And now we come to the Medellin case. Mahler skips lightly over the facts of the case, but they are important in understanding why this case deserved to be fought hard. That is likely why he skips lightly over them. Here is the summary from CJLF's brief in the 2008 case:
Mahler tries to use this case to make the claim that Cruz had set out to make himself "a thorn in the side of the Republican establishment." He describes Cruz's action in the case as "suing the George W. Bush administration in the Medellín v. Texas case."
In fact-checker parlance that last statement warrants a Four Pinocchios or Pants On Fire rating. In more common lingo, it's a bald-faced lie.
By no stretch of the imagination did Cruz sue the Bush Administration, or anyone else, in this case. The underlying case began many years earlier when the Harris County (Houston) District Attorney filed criminal charges against Medellín. The judgment was appealed to the Texas Court of Criminal Appeals, as all death sentences are, and that court affirmed. All legal proceedings in the case from that point forward were initiated by Medellín's lawyers. At no time was the United States Government or any federal official a party to any action.
The particular proceeding that came to the Supreme Court as Medellin v. Texas began as an application by Medellín to the Texas Court of Criminal Appeals to file a successive habeas corpus petition. That is, because he had already had his case reviewed on habeas corpus in the state courts once, he needed permission to go for seconds. In Texas, the District Attorney handles habeas corpus matters in the state courts. The Texas Attorney General's Office, of which the Solicitor General's Office is a part, was not in control at this point.
The state's rule against second petitions has exceptions (e.g., actually didn't do it), but Medellín did not qualify for any of them. The next question before the Texas CCA was whether anything in federal law overrode the state law. While the case was pending, the U.S. Supreme Court decided in Sanchez-Llamas v. Oregon that the procedural default rule was, in fact, compatible with the Vienna Convention and that the International Court of Justice decision to the contrary was wrong. The U.S. Supreme Court, not the ICJ, sets the controlling precedent for state courts in this country on matters of federal law, including treaties.
All that was left to decide was the effect of an odd memorandum to the U.S. Attorney General written by President Bush on February 28, 2005:
In the Texas Court of Criminal Appeals, could the Texas prosecutors have waived the procedural default rule and stipulated to a successive habeas corpus proceeding? Probably. I am not an expert on Texas state habeas law, and I have not found authority either way on a quick check. In American law generally, prosecutors can waive procedural bars, so let's assume for the sake of argument they could have.
Who could have? Ted Cruz? Definitely not. The case was not in his jurisdiction at this point.
Mahler says, "It would have been easy enough for Texas to comply with the president's ruling, which merely required that Mr. Medellín be given a hearing to try to prove that his case had been hurt by this omission." True enough, and there is little doubt that the trial judge would have ruled for the state on the merits of this point. [Indeed, my position throughout the case was that he already had as an alternative holding. I got one vote for that in the CCA. See Judge Hervey's concurrence.]
But Mahler follows this "true enough as far as it goes" statement with this: "But for Mr. Cruz, the case provided an opportunity to take the federal government to court on behalf of Texas' sovereignty." For that his gets another four Pinocchios and his pants are still on fire.
With these two sentences in juxtaposition, Mahler is telling the readers that it was Cruz who decided to fight rather than waive by "tak[ing] the federal government to court." That is a patent falsehood. Taking the case to the U.S. Supreme Court was not his decision to make. Only after Medellín's lawyers filed a petition for writ of certiorari in the U.S. Supreme Court did the Texas Solicitor General get jurisdiction of the case. The United States was still not a party to the action, and Ted Cruz did not take anybody to court.
After the case got to the U.S. Supreme Court, could Cruz have then waived the default and asked the high court to vacate and remand? Doubtful. The U.S. Supreme Court's jurisdiction to review state court judgments is considerably more limited than its jurisdiction in federal cases. I doubt it has the authority to vacate a legally correct state court judgment based on an eleventh-hour waiver by the state executive. In any event, on such a high profile case it is extremely doubtful that the Texas Attorney General would not have made the call himself.
I was not directly involved in the internal discussions of Texas prosecutors, and my information is second-hand, so I disclaim any certainty here. However, my understanding is that the situation is very different from the one Mahler portrays. As I understand it, Cruz was reluctant to oppose the Bush Administration (which filed an amicus brief saying the CCA "erred by failing to implement the President's determination") and did so only when it became his duty to do so. [Don't bother asking me to reveal my source. I won't.] Does Mahler have a source who says Cruz was chomping at the bit to oppose the Bush Administration? He does not cite any, even though he cites disgruntled former employees of the office for various other things.
Long overdue justice for Jennifer Ertman and Elizabeth Pena was finally carried out on August 17, 2010. Ted Cruz is quite right to be proud of his contribution to this case. The New York Times has disgraced itself once again with another sleazy hatchet job, misleading and misinforming its readers.
The Texas Solicitor General handles some, but not all, of the state's cases in the U.S. Supreme Court. Mahler tries to imply that Cruz was unqualified for the job by noting, "He had argued just two cases, neither one at the Supreme Court." That actually matters very little. Justice Breyer testified to Congress that oral argument is a small part of the Supreme Court's work, even quantifying it at 3%. Briefs are where the real action is.
Mahler says some of the lawyers in the office were dismayed by Cruz's filing amicus briefs in cases where Texas was not a party. I don't know who was dismayed or why, but it is perfectly proper to file an amicus brief in a case that will set a precedent affecting the state, even if the case arises from another state. In many Supreme Court cases there is an amicus brief written by one state AG's office and joined by others, and there is nothing untoward about the nation's second-largest state picking up a hefty share of that load.
And now we come to the Medellin case. Mahler skips lightly over the facts of the case, but they are important in understanding why this case deserved to be fought hard. That is likely why he skips lightly over them. Here is the summary from CJLF's brief in the 2008 case:
Petitioner's statement of the case barely mentions the facts of the unspeakably brutal crimes committed by José Medellín and his pack of predators. See Brief for Petitioner 6. However, these facts are essential to understanding just how weak his claim of prejudice is. Cf. Strickland v. Washington, 466 U. S. 668, 700 (1984) ("Given the overwhelming aggravating factors . . .").
On the night of June 24, 1993, 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena were taking a shortcut home when they encountered a gang called the Blacks and Whites, including the petitioner, José Medellín. Medellín v. State, No. 71,997 (Tex. Crim. App., May 16, 1997), App. to Pet. for Cert. in Medellín v. Dretke, No. 04-5928, p. 4a (cited below as "Prior Cert. Pet. App."). "When Elizabeth tried to run from appellant, he grabbed her and threw her to the ground. Elizabeth screamed for Jennifer to help her. In response to her friend's cries, Jennifer ran back to help, but [two other gang members] grabbed her and threw her down as well." Ibid. The group then proceeded to have "fun" by brutally gang raping both girls, and they bragged about it afterward. See id., at 5a.
"Appellant related to [the brother and sister-in-law of one of the gang members] that he sexually assaulted one of the girls and bragged about having 'opened' her since she apparently had been a virgin. As if to accentuate his conquest, appellant showed Christina his blood soaked underwear. Appellant related that after another gang member sexually assaulted the second girl, he 'turned her around' and anally raped her." Ibid. The gang murdered the girls to prevent them from identifying their attackers and divided up their possessions. See id., at 5a-6a. Medellín personally "took off one of his shoelaces and strangled at least one of the girls with it." Id., at 6a.
The evidence against Medellín included his written statement after arrest, in which he admitted substantial participation in the crimes, see id., at 6a; J. A. in Medellín v. Dretke, No. 04-5928, pp. 14-18, including his personal participation in strangling Elizabeth. Id., at 17. This statement was made between 5:54 a.m. and 7:23 a.m. on the day of his arrest, June 29, 1993. Id., at 14-15. Medellín informed the authorities that he was born in Mexico in the same statement. See id., at 15. Medellín was not advised that he had a right to have the Mexican Consulate notified, nor was the consulate notified.
Mahler tries to use this case to make the claim that Cruz had set out to make himself "a thorn in the side of the Republican establishment." He describes Cruz's action in the case as "suing the George W. Bush administration in the Medellín v. Texas case."
In fact-checker parlance that last statement warrants a Four Pinocchios or Pants On Fire rating. In more common lingo, it's a bald-faced lie.
By no stretch of the imagination did Cruz sue the Bush Administration, or anyone else, in this case. The underlying case began many years earlier when the Harris County (Houston) District Attorney filed criminal charges against Medellín. The judgment was appealed to the Texas Court of Criminal Appeals, as all death sentences are, and that court affirmed. All legal proceedings in the case from that point forward were initiated by Medellín's lawyers. At no time was the United States Government or any federal official a party to any action.
The particular proceeding that came to the Supreme Court as Medellin v. Texas began as an application by Medellín to the Texas Court of Criminal Appeals to file a successive habeas corpus petition. That is, because he had already had his case reviewed on habeas corpus in the state courts once, he needed permission to go for seconds. In Texas, the District Attorney handles habeas corpus matters in the state courts. The Texas Attorney General's Office, of which the Solicitor General's Office is a part, was not in control at this point.
The state's rule against second petitions has exceptions (e.g., actually didn't do it), but Medellín did not qualify for any of them. The next question before the Texas CCA was whether anything in federal law overrode the state law. While the case was pending, the U.S. Supreme Court decided in Sanchez-Llamas v. Oregon that the procedural default rule was, in fact, compatible with the Vienna Convention and that the International Court of Justice decision to the contrary was wrong. The U.S. Supreme Court, not the ICJ, sets the controlling precedent for state courts in this country on matters of federal law, including treaties.
All that was left to decide was the effect of an odd memorandum to the U.S. Attorney General written by President Bush on February 28, 2005:
I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its inter-national obligations under the decision of the International Court of Justice ... by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.Mahler says, "The suit challenged an order issued to Texas by the president to review the conviction of Mr. Medellín ..." Is this memorandum an "order"? That characterization, merely assumed by Mahler, is highly debatable at least. Was it "issued to Texas"? Definitely not. It is addressed to the U.S. Attorney General. Does the President, by executive action, have the authority to override a state law on a matter of procedure in state courts? That was the main legal issue in the case.
In the Texas Court of Criminal Appeals, could the Texas prosecutors have waived the procedural default rule and stipulated to a successive habeas corpus proceeding? Probably. I am not an expert on Texas state habeas law, and I have not found authority either way on a quick check. In American law generally, prosecutors can waive procedural bars, so let's assume for the sake of argument they could have.
Who could have? Ted Cruz? Definitely not. The case was not in his jurisdiction at this point.
Mahler says, "It would have been easy enough for Texas to comply with the president's ruling, which merely required that Mr. Medellín be given a hearing to try to prove that his case had been hurt by this omission." True enough, and there is little doubt that the trial judge would have ruled for the state on the merits of this point. [Indeed, my position throughout the case was that he already had as an alternative holding. I got one vote for that in the CCA. See Judge Hervey's concurrence.]
But Mahler follows this "true enough as far as it goes" statement with this: "But for Mr. Cruz, the case provided an opportunity to take the federal government to court on behalf of Texas' sovereignty." For that his gets another four Pinocchios and his pants are still on fire.
With these two sentences in juxtaposition, Mahler is telling the readers that it was Cruz who decided to fight rather than waive by "tak[ing] the federal government to court." That is a patent falsehood. Taking the case to the U.S. Supreme Court was not his decision to make. Only after Medellín's lawyers filed a petition for writ of certiorari in the U.S. Supreme Court did the Texas Solicitor General get jurisdiction of the case. The United States was still not a party to the action, and Ted Cruz did not take anybody to court.
After the case got to the U.S. Supreme Court, could Cruz have then waived the default and asked the high court to vacate and remand? Doubtful. The U.S. Supreme Court's jurisdiction to review state court judgments is considerably more limited than its jurisdiction in federal cases. I doubt it has the authority to vacate a legally correct state court judgment based on an eleventh-hour waiver by the state executive. In any event, on such a high profile case it is extremely doubtful that the Texas Attorney General would not have made the call himself.
I was not directly involved in the internal discussions of Texas prosecutors, and my information is second-hand, so I disclaim any certainty here. However, my understanding is that the situation is very different from the one Mahler portrays. As I understand it, Cruz was reluctant to oppose the Bush Administration (which filed an amicus brief saying the CCA "erred by failing to implement the President's determination") and did so only when it became his duty to do so. [Don't bother asking me to reveal my source. I won't.] Does Mahler have a source who says Cruz was chomping at the bit to oppose the Bush Administration? He does not cite any, even though he cites disgruntled former employees of the office for various other things.
Long overdue justice for Jennifer Ertman and Elizabeth Pena was finally carried out on August 17, 2010. Ted Cruz is quite right to be proud of his contribution to this case. The New York Times has disgraced itself once again with another sleazy hatchet job, misleading and misinforming its readers.
Thank you Kent.
Dudley
That the Bush Administration tried to thwart justice in this case, in my view, is a black mark. Bush or the US Ambassador to Mexico should have bluntly told the Mexican government that its meddling in the case was not going to accomplish anything and that it should remember the victims' families. Mexico didn't have to go full on to protect this animal.