Article 36 Update
Consular Rights in
America
Issue #32 November 2006
MEDELLÍN CASE HEADED BACK TO U.S. SUPREME COURT
The Texas Court of Criminal Appeals (CCA) recently issued its
long-awaited decision in
Ex Parte Medellín, the case in which the U.S. Supreme
Court had returned the appeal of a
Mexican national to the state court in order to determine the legal
effects of the International
Court of
Justice (ICJ) ruling on consular rights and remedies.
In a long and complex ruling, the CCA concluded that
Medellín's request
for "review and
reconsideration" of the Vienna Convention violation in his case (as
required by the ICJ and
by
the Presidential memorandum giving effect to it) does not meet the
requirements of Texas law
for
successive habeas corpus applications. The Texas CCA determined
that the President had
exceeded his constitutional
authority by ordering state courts to comply with the ICJ's Avena
judgment. Relying on the recent U.S.
Supreme Court decision in Sanchez-Llamas
v. Oregon
(see newsletter Issue #31 for details), the CCA also concluded that the
ICJ decision is not binding
federal law requiring a state court to set aside its requirements for
successive habeas
petitions.
There were no dissents; four concurring opinions were filed.
Among other considerations, the CCA rejected the federal government's
argument that state court
compliance with Avena was
necessary to protect U.S. citizens abroad:
"We have no doubt that the President and other executive branch
officials play a vital role in protecting
the interests of American
citizens abroad when necessary. However, we do not construe the
constitutional
provisions as expressly or implicitly granting the
President the authority to mandate state court compliance
with the ICJ
Avena decision, and
Medellín cites no precedent that would lead us to
conclude otherwise."
In essence, the CCA saw the Presidential memorandum as raising fundamental constitutional questions:
"Based on the foregoing, we hold that the President's memorandum
ordering us to give effect to the ICJ
Avena decision cannot be
sustained under the express or implied constitutional powers of the
President
relied on by Medellín and the United States or under any
power granted to the President by an act of
Congress cited by Medellín
and the United States. As such, the President has violated the
separation of
powers doctrine by intruding into the domain of the
judiciary, and therefore, Medellín cannot show that
the President's
memorandum preempts Section 5 [of the state habeas statute]."
Because the Texas court based its decision primarily on unresolved
constitutional questions regarding
the scope of the President's foreign relations authority, it is very
likely that the
U.S. Supreme Court will
agree to review the ruling. When the Supreme Court concluded in May of
2005 that its consent to review
Medellín's case had been "improvidently granted", it did so:
"In light of the possibility that the Texas
courts will provide Medellín with the review he seeks pursuant
to the Avena judgment and the
President's memorandum, and the potential for review
in this
Court once the
Texas courts have heard and decided Medellín's pending
action...". Medellín v.
Dretke,
125
S.Ct. 2088,
2090 (U.S. 2005).
Attorneys representing Mr. Medellín will have 90 days in
which to seek
Supreme Court review of the
decision and have already stated that they will appeal the state court
ruling. The full
text of the Texas
CCA decision is available at:
http://www.cca.courts.state.tx.us/opinions/HTMLOpinionInfo.asp?OpinionID=14711
Editor's note: readers may also
wish to review previous issues of
this newsletter highlighting
the Supreme Court decision in
this case and the arguments then presented before the Texas
court,
available below.
As noted by an article in the San
Antonio Express-News, one of
the major grounds on which the
Texas court based its ruling
is particularly novel and could well attract the
attention of the Supreme
Court:
Court in Texas says
Bush wrong on Mexican cases
11/15/2006
by Maro Robbins
Texas' top criminal court rebuffed President Bush on
Wednesday, ruling the commander-in-chief
overstepped his bounds last year when
he told state courts to give new hearings to more than a dozen
death
row
inmates from Mexico.
powers of the judiciary," Judge Michael Keasler wrote
for the nine-member Texas Court of Criminal Appeals.
[...]
without first reaching an agreement with Mexico to resolve
this treaty
dispute.
Julian
Ku, a professor of international law at William & Mary School of
Law in
Williamsburg, Va., said
the ruling surprised him. Primarily, he'd expected
Texas judges to defer to a president with Lone Star roots.
second-guessing because it seemed to break some new ground.
The
judges seemed to suggest that if Bush first had reached a formal
agreement with
his counterpart in
Mexico, he now might have the necessary authority to order
state courts to give the inmates new hearings.
"That argument alone is likely to attract the attention of the Supreme Court," Ku said.
MEDELLÍN RULING PROMPTS
EDITORIAL AND JUDICIAL RESPONSES IN TEXAS
An editorial in the Austin
American-Statesman saw the Medellin decision
and another recent
ruling as illustrative of the
deeply flawed reasoning of the Texas Court of
Criminal Appeals
in death penalty cases:
Texas appeals court does not ensure justice
EDITORIAL BOARD
Monday, November 20, 2006
[...] Medellin's case went all the way to the International Court of
Justice in
the Hague and provoked
a memorandum from President Bush. News reports focused
on the Texas appeals court's admonishing
the president for overstepping his
authority under the Constitution's separation of powers doctrine, but
the heart
of the issue is still ineffective counsel.
Medellin is a Mexican national, one of 51 Mexicans on death row in
the
United States that the international
court said deserved reconsideration and
review because they had not contacted their consuls. Bush last year
directed
state courts to abide by the ruling of the United Nations' court.
The Texas judges didn't like that, and in denying Medellin's appeal,
wrote
that the president had overstepped
his authority. Perhaps, but that ignores the
fact that Medellin's 1994 trial was flawed. His court-appointed
defense
attorney was suspended from practicing law during the trial for ethical
violations, and he failed to call
any witnesses during the punishment phase.
International treaties should ensure fairness for everyone.
Americans
arrested abroad most certainly want to
be able to contact their government
officials and be assured a fair trial. Their rights can only be secured
as
long
as foreign nationals arrested and tried in this country are afforded
those same
considerations.
The Texas Court of Criminal Appeals continues to ignore justice and
common
sense, and it has been admonished
for its untenable rulings by the U.S. Supreme
Court, which is where these two cases are inevitably headed.
Support for capital punishment in Texas wanes a little each year, in
no
small part because cases like Acker's
and Medellin's raise so much doubt in the
public mind about the system's fairness. It is essential that anyone
on
trial
for his life have competent counsel and a fair trial. But that isn't
happening
in Texas because the
Court of Criminal Appeals neglects its duty.
Although agreeing with the
conclusions of the majority, CCA Judge
Tom Price filed a concurring opinion
in order to emphasize compliance with
Article 36 obligations:
separately to advise law enforcement of this State to honor the
provisions of Article 36 of the Vienna
Convention and apprise foreign nationals
of their rights under the treaty
question of whether
Article 36
of the Vienna Convention even confers individual rights upon detained
foreign
nationals. I believe it does.
[…]
Article 36 of the Vienna Convention provides
foreign
nationals the option to invoke their right of access and
communication with the
consular officer. Without being aware of
this option, the vast majority of nationals
arrested will almost
certainly fail to invoke this right and succumb to our procedural
default rules. Since I
agree with the majority's
application of procedural default to
Article 36, I find it all the more imperative for
a foreign national in
the
custody of law enforcement in this State to be informed of his treaty
rights. Unless
he is informed of what
his rights are under the Vienna Convention, those rights will be of no
use to
him.
One must be aware of these rights
before one can properly exercise them.
Not only is it imperative as a
practical matter, Article 36 compels it.
So long as the United States recognizes the Vienna
Convention on Consular Relations, this State and all
law enforcement
that fall
within its boundaries are required to faithfully comply with the
Convention’s
agreed-upon provisions.
The fact that this State borders a foreign
nation only amplifies the need for
authorities to be well-versed in the
language of Article 36. I believe this
does not create an undue burden
on law enforcement, but brings to light an
obligation that must be fulfilled in the same manner we all hope
is
reciprocated by other nations whose detained nationals might be United
States
citizens.”
ANOTHER FEDERAL COURT RECOGNIZES ARTICLE
36 VIOLATION MAY
RESULT IN
LAWSUITS
The U.S. Fourth Circuit Court of Appeals has joined a growing list of
federal courts that have now
recognized (although to varying degrees) that a violation of Article 36
rights may provide grounds
for
a civil suit seeking monetary damages. In two recent decisions, the
Fourth Circuit reversed lower
court rulings that had dismissed law
suits filed by two Colombian nationals under the Alien Tort
Statute.
Both lawsuits sought $2 million in damages on the grounds
that the arresting authorities had failed to
advise them of their right to consular notification and
communication. The court below had
found that
the lawsuits should be dismissed under the Supreme Court decision in Heck v. Humphrey, 512 U.S. 477
(1994)
(forbidding civil suits in cases "where the conviction has not been set
aside" and a finding for the
plaintiff "would necessarily
imply
the invalidity of that conviction"). The Fourth Circuit
disagreed,
relying on the recent Sanchez-Llamas
decision; because the
Supreme Court found no link between the
Article 36 violation and the validity of the convictions in Sanchez-Llamas, a civil suit
raising such a
violation could not be dismissed on Heck
grounds. Both cases were remanded for further proceedings.
However, the Fourth Circuit stopped short of taking any position on
whether Article 36 confers individual
legal rights, noting that "[w]e express no opinion concerning
whether Article 36 creates a private right of
action." Other federal
courts have gone further by finding just such a private right in the
language of the
Vienna
Convention, notably the U.S. Seventh Circuit Court of Appeals (see Jogi v. Voges, 425 F.3d 367
(7th Cir. 2005)).
The Fourth Circuit decisions are: Santos-Mora
v. Bradenham, 2006
U.S. App. LEXIS 20629
(4th Cir., Aug. 10, 2006) (unpublished); and De Los Santos v. Bradenham, No.
06-6625,
2006
U.S. App.
LEXIS 28103 (4th Cir. Nov. 13, 2006) (per curiam).
STATE DEPARTMENT RAISES CONSULAR
NOTIFICATION CONCERNS WITH SUDAN
Responding to the arrest of a U.S.
reporter in Sudan, the State
Department emphasized the significance
of timely consular access and outlined the assistance that U.S.
consulates
provide to Americans
detained abroad:
Press Freedom Group Calls Journalist's Jailing "Disgraceful"
State Department tells Sudan it expects U.S. reporter to receive fair, speedy trial
By Michelle Austein
Washington File Staff Writer
28 August 2006
[Paul] Salopek, a reporter for the Chicago Tribune, was
arrested near the Sudan-Chad border while
working on an assignment for National
Geographic magazine
in North Darfur. He appeared in court
on August 26 and was charged with
spying, using official information, publishing false news and
entering
Sudan without a visa. The judge adjourned the trial until September 10,
at the request of
Salopek's attorneys.
U.S. consular officials
have met with Salopek in prison and are providing assistance. In
addition,
the U.S. Embassy in Khartoum has been in regular contact with
Salopek’s family and his editors.
The State Department has
emphasized
to the government of Sudan that it expects Salopek to receive a
fair
and speedy trial.
In general, when Americans are arrested
overseas, U.S. consular officials work to protect U.S. citizens’
legitimate interests and ensure they are not discriminated
against.
Embassy personnel provide a list of
local attorneys, visit American
prisoners, inform those prisoners about local laws and contact family
and friends. Consular officers can transfer money, food and
clothing to the prison authorities from family
or friends, and can try to get
relief if Americans are being held under inhumane or unhealthful
conditions.
State Department officials expressed concern that
Sudanese authorities failed to notify the U.S. Embassy,
as mandated by
the Vienna Convention on Consular Relations, for nine days after
Salopek was detained.
MORE NEW VCCR SCHOLARSHIP
(Written before the Supreme Court
issued its decision in
Sanchez-Llamas, but contains interesting
ideas on the growing dialogue--and
tensions-- between domestic and
international courts)
"Comment: Rebus Sic Stantibus:
Notification of Consular Rights
AARON A. OSTROVSKY and BRANDON REAVIS
University of Michigan at Ann Arbor
ABSTRACT: This Comment examines, through principles of public
jurisprudence, the relationship
bound by the latter’s decisions, proprio motu, or if
the decisions
for dialogue between the ICJ and U.S.
the inner workings of sovereign states from the scrutiny
the Comment
light
of the Supreme Court’s refusal to
Issue #31
July 2006
UNANSWERED QUESTIONS
REMAIN AFTER U.S. SUPREME COURT RULING
Although the recent decision by the U.S. Supreme
Court in Sanchez-Llamas v. Oregon
answered two important legal questions, the ruling
cannot be
seen as the final word on the
scope of consular rights and remedies in criminal
cases.
Briefly summarized, the Sanchez-Llamas
decision addresses two cases of foreign nationals
who had sought differing legal remedies for the
uncontested
failure of local authorities to inform
them of their right to consular communication and
notification, as required under Article 36 of
the Vienna Convention on Consular Relations.
Mexican
national Moises Sanchez-Llamas
unsuccessfully raised the treaty violation in a
pre-trial
motion to suppress his custodial statements
to the police; the Oregon courts denied relief on
the
grounds that the treaty does not create
individual legal rights and suppression was thus
not an
available remedy. Honduran national
Mario Bustillo did not object to the treaty
violation at
trial or on direct appeal, first raising the
claim in his state habeas corpus petition
challenging the
validity of his conviction; the Virginia
courts found that his treaty claim was
procedurally
defaulted (i.e., could not be considered
because he had failed to raise the issue at an
earlier stage
of the proceedings).
The Supreme Court consolidated the cases and
accepted review
to address three legal questions:
"1) whether Article 36 of the Vienna Convention
grants
rights that may be invoked by individuals
in a judicial proceeding;
(2) whether suppression of evidence is a proper
remedy for a
violation of Article 36; and
(3) whether an Article 36 claim may be deemed
forfeited
under state procedural rules because a
defendant failed to raise the claim at trial"
(contrary
to the decisions of the International Court of
Justice).
On the first question of individual rights, the
Court
declined by a 5-4 vote to provide a definitive
answer. Since the remedies that the two
individuals sought
were found to be unavailable, there was
no need to address their claim of individual legal
rights.
Instead, the majority "assumed without
deciding" that the treaty conferred such rights,
but
only for the purposes of rejecting the requested
remedies. However, four Justices in dissent held
that
Article 36 does indeed confer judicially-
enforceable rights on individuals. It is an axiom
of U.S.
law nearly as old as the Court that where
there is a legal right, there must be a legal
remedy for its
violation (Marbury v. Madison, 5 U.S.
137 (1803)). By failing to address the question,
the
majority opinion has left the essential issue
of individual rights open for further litigation.
On the second question of suppression of
statements as an
available remedy, the majority answer
was definite but somewhat nuanced.
Suppression of a statement is never an
available remedy for
an Article 36 violation standing alone, the
majority
determined, while at the same time declaring: "A
defendant can raise an
Article 36 claim as part of a broader challenge to the
voluntariness of
his
statements to police." In other words, courts
should
henceforth consider the potential effects of the
violation in the totality of the circumstances
when deciding
if a defendant's statement was made
voluntarily. But the Court provided little
guidance as to
what weight the lower courts should give to
the violation or in what circumstances it might
render a
statement involuntary, issues that will no doubt
be raised and hotly disputed in the years to come.
The majority also added: "If he raises an Article
36
violation at trial, a court can make appropriate
accommodations to ensure
that the defendant secures, to the extent possible, the benefits
of
consular
assistance." That language appears
to confer standing on individual foreign
nationals to raise the treaty
violation in trial proceedings and to seek a range
of
procedural remedies, such as a continuance in
order to permit the consulate to assist the
defense in
gathering mitigating evidence in a death penalty
case. Where a trial court arbitrarily refuses to
grant a
reasonable accommodation or trial counsel fails to
raise a known violation, those issues could likely
now be
considered as grounds for an appeal.
Finally, the answer to the question on procedural
default
was unmistakably clear. Although the Court
should give "respectful consideration" to the
views of the International Court of Justice (which held in
LaGrand and Avena
that procedural default could not
be applied to deny judicial review of Article 36
claims), "nothing in the ICJ’s structure or
purpose suggests that its interpretations were intended to be
binding on U. S. courts" and the ICJ
interpretation
"sweeps too broadly, for it reads the 'full effect'
proviso in a way that leaves little room for the
clear
instruction in Article 36(2) that Article 36 rights
'be exercised in conformity with the laws . . . of
the
receiving State.' " Accordingly,
"a State may apply
its regular procedural default rules to Convention
claims." However, it appears that
the same rare
exceptions which can apply to other defaulted
claims could
still be invoked for late claims of Article 36
violations (such as the discretionary authority of
some
state courts of final appeal to set aside procedural
barriers where the interests of fundamental
justice so
require (see, e.g., Valdez v. State,
46 P.3d 703
(Okla. Crim. App. 2002)).
Unaddressed by the split decision in Sanchez-Llamas
is the eventual disposition of Medellin v. Dretke,
544 U.S. 660 (2005). The Supreme Court returned
that case to
the Texas courts for further review
regarding the application of the Avena Judgment to
the 51
death-sentenced Mexican nationals in which
the ICJ required "review and reconsideration" by
the domestic courts of Article 36 violations, even where
those claims would otherwise be treated as
defaulted.
Medellin's appeal (and the Court's decision to send
the case back to the lower court) rested in large
part on a
memorandum by President Bush requiring state
courts to comply with the ICJ ruling in all of the
named
cases. In its submission to the Texas
Court of
Criminal Appeals, the U.S. Government argued that
"Under the President’s determination, this Court must
authorize review and reconsideration of Medellin’s
convictions and sentences, without regard to state law
doctrines of procedural default" and that
compliance
with the ICJ decision "serves to protect the interests
of United States citizens abroad, promotes the
effective
conduct of foreign relations, and underscores the
United States’ commitment in the international
community to the rule of law." A decision by the Texas
Court of Criminal Appeals is expected after it
reconvenes in
September.
The opinions in Sanchez-Llamas
v. Oregon are available at:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=4-10566
LAW ENFORCEMENT
COMMISSION ADOPTS CONSULAR NOTIFICATION
STANDARD
CALEA, the Commission on Accreditation for Law
Enforcement
Agencies, released the 5th Edition
of its Standards for Law Enforcement Agencies in
May of
2006. For the first time, the CALEA
standards now include a consular notification and
access
requirement.
This new standard is mandatory; it appears fourth
on a list
of several hundred requirements for
accreditation, in the same chapter as the
obligation to
uphold the U.S. Constitution. Any U.S.
law enforcement agency seeking or renewing CALEA
accreditation will now be required to have
a written consular notification and access
directive.
The standard reads:
"1.1.4 A written
directive governs procedures for assuring compliance
with all consular notification and access
requirements in
accordance
with international treaties when dealing with
foreign
nationals.
Commentary: The
cooperation of law enforcement agencies in extending
consular notification and access to foreign
nationals in
accordance with
international law helps the national government
comply with
its
international treaty obligations. It also helps to
ensure
that citizens
of every country are treated with the same respect
and
treaty compliance
when arrested or detained in foreign countries;
and provides
a basis for
national governments to assert their international
rights.
(See 72.7.1)
The complexity of the treaty requirements suggests
that the
agency
arrange for training with all appropriate
personnel.
Law enforcement agencies in the United States can
obtain
relevant
information, and detailed guidance by consulting
the U.S.
State
Department's publication entitled Consular
Notification and
Access.
Agencies outside the United States should contact
the
appropriate
Department of State or equivalent for information
and
reference
materials."
According to the CALEA website, 562 law
enforcement agencies
nationwide are already
accredited, with another 166 agencies pending. A
full
listing is posted at:
http://www.calea.org/agcysearch/searchagcy3.cfm
Accredited agencies include:
--major municipal police departments (e.g.,
Albuquerque,
Atlanta, Austin, Birmingham, Charlotte,
Cincinnati, Columbus, Honolulu, Las Vegas, Miami,
Nashville,
New Orleans, Phoenix, Seattle,
Tampa, Tucson)
--major county sheriff's or police departments
(Alameda,
Baltimore, Broward, DeKalb, Harris,
Jacksonville)
--state police departments (Connecticut, Delaware,
Illinois,
Kentucky, Louisiana, Pennsylvania,
Rhode Island, Virginia)
--state highway patrols (Florida,
Missouri, Nebraska, North Carolina, North
Dakota, Ohio,
Washington )
--state criminal investigation agencies (Florida,
Georgia,
Ohio, Oklahoma, South Carolina,
Tennessee)
--transit authorities and other specialized
agencies (United
States Capitol Police, Amtrak,
Washington Metro Transit)
Police departments seeking accreditation include:
Dallas,
Detroit, D.C., El Paso, Memphis,
Oklahoma City, St. Louis, New Jersey, New Mexico.
NEW RESOURCES
Editor's note: the
ongoing litigation of consular rights claims in U.S. courts
continues to generate
scholarly discussion and analysis; here's a sampling
of the recent
literature.
ASIL Insight
The Supreme Court Decides a Consular Convention
Case
By Frederic L. Kirgis
July 7 , 2006
http://www.asil.org/insights/2006/07/insights060707.html
Harvard Law Review
Case Note: Seventh Circuit Finds Implied Right of
Action in
Vienna Convention
on Consular Relations. — Jogi v. Voges, 425 F.3d
367
(7th Cir. 2005).
www.harvardlawreview.org/issues/
119/june06/recent_cases/jogi_v_voges.pdf
Does the ICJ’s Decision in Avena Really Mean
Anything
to Mexicans on Death
Row?
Kenneth Williams
Catholic University Law Review, Vol. 55, No. 2
(Winter 2006)
This article assesses the legality of President
Bush's order
to state courts that they review the
convictions and sentences of certain Mexican
nationals on
death row in response to the ICJ's
decision that the rights of these inmates had been
violated.
The article also discusses the review
process and makes a proposal to ensure that the
ICJ's
mandate is carried out. Finally, there is a
discussion as to the importance of these cases to
both the
U.S. and Mexico.
http://law.bepress.com/expresso/eps/831
From LaGrand and Avena to Medellin—A Rocky Road
Toward
Implementation
Bruno Simma & Carsten Hoppe
14 Tul. J. Int'l & Comp. L. 7
To obtain electronic versions of the Tulane
Journal of
International and Comparative Law,
you need a subscription to one of the following
online
services:
HeinOnline: http://www.heinonline.org
LexisNexis: http://www.lexisnexis.com
Westlaw: http://www.westlaw.com
Note: The Future of Judicial Internationalism:
Charming
Betsy, Medellin v.Dretke, and the
Consular Rights Dispute
Michael Franck
Boston University Law Review 515-546 (2006)
http://www.bu.edu/law/lawreview/
(article had not yet been posted by the time this
newsletter
was assembled)
INTERNATIONAL NEWS
CONSULATES SCRAMBLE
TO RESCUE FOREIGN NATIONALS IN LEBANON
Facing a mounting humanitarian crisis in Lebanon,
foreign
governments are mobilizing consular
and material resources to organize the evacuation
of tens of
thousands of their endangered citizens.
The numbers are staggering: some 50,000 Canadian
citizens, 30,000
from the Philippines,
25,000 U.S. nationals, 22,000 U.K. citizens,
20,000 French
nationals and smaller but substantial
groups from India, Italy, Russia, Sweden, Denmark
and many
other countries.
It is not yet clear how many foreign nationals
want to leave
or how stranded individuals in more
remote areas of the country will be rescued.
Consular
personnel are working around the clock to
coordinate the rescue missions and set up
reception areas,
but face enormous obstacles. For example,
the Canadian Embassy in Beirut has now registered
nearly
30,000 Canadian nationals for possible
repatriation, of which less that two thousand had
been
evacuated by July 20th.
Compounding the logistical problem is the
devastation of the
infrastructure in much of southern Lebanon,
including the widespread destruction of bridges
and
highways. A Russian woman who escaped by
road
told Russian television: “We went on bombed
roads. The most frightening was not the
shooting but the
total silence. There was no one, not even a dog on
the
roads.” Beirut taxi drivers are
said to be charging
$500 a person to take evacuees to Damascus, 75
miles away.
Efforts are focusing on evacuations by ship via
the port of
Beirut to the island of Cyprus and other
nearby havens. Six British warships are now in the
region
and British Prime Minister Tony Blair said
5,000 Britons would be brought out of Lebanon by
the end of
the week. The British are working
closely
with their European partners, particularly the
French and
the Italians, who have both charted commercial
ferries to evacuate their nationals. “We know from
the
French experience that time is of the essence
during these operations,” said a British High
Commission spokesman in Cyprus. The United States,
which has been slower than other countries to
announce
evacuation plans, ordered five warships and
2,200 marines to waters off Lebanon to assist in
operations. The ships, which were in the
Red Sea on
exercises, were expected to be in position later
this week,
the US Navy said. Canada has chartered
seven vessels to ferry its citizens from Beirut to
Cyprus
and Turkey. Australia and Sweden have also
chartered boats, while India said it had evacuated
49
nationals but up to 12,000 remained.
With more than 300 civilian deaths in Lebanon in
recent days
and amid mounting chaos, the slow
pace of efforts to assist endangered foreigners
have been
sharply criticized in many countries. Governments
have reacted by stressing the magnitude of the
challenges
that they face in coordinating what may well
end up as the largest-ever multinational rescue of
foreigners from a war zone. Canadian Prime Minister
Stephen Harper noted that “There have been
literally
hundreds of federal employees who have been
working day and night for the past several days to
put in
place the largest evacuation of Canadian
citizens from another country in our history,” but
that “Canada doesn't have the capacity to evacuate
thousands of citizens from any country in the
world.” In Paris at the end of a week-long
visit to
Europe,
Harper announced that he was diverting his
official plane to
Cyprus to pick up as many citizens as he
could before returning to Canada.
White House spokesman Tony Snow defended the U.S.
response
to the crisis, pointing out that “You
don't simply say, ‘Everybody show up at a certain
time,’ because you're going to have a flood at the docks
....What you want to be able to do is to move in
an orderly
fashion. Once they get there, you're going to
have to be able to do practical things like
checking IDs,
making sure everybody's secure before they go on,
and so forth.” Meanwhile, several members of
Congress
voiced dismay over Bush administration plans to
charge evacuees for the expense of the operation.
White
House officials said they had no choice, citing a
2003 law requiring that evacuees sign promissory
notes
agreeing to reimburse the government for the costs
of their transportation. The State Department
subsequently
announced that it "won't seek collection" of any
reimbursement costs from individual citizens
repatriated
through the evacuation effort.
(Sources: BBC, New York Times, Miami Herald,
Canadian
Press).
*******************
Issue
#30
April 2006
CONSULAR RIGHTS AND REMEDIES: SUPREME COURT
HEARS ORAL ARGUMENTS
Justices Weigh Foreign Defendants' Rights
By MATTHEW DALY
Associated Press Writer
March 29, 2006
WASHINGTON -- Supreme Court justices appeared skeptical as lawyers for
two foreigners convicted of violent crimes in the United States argued
that police
had violated the men's rights.
Lawyers for the two men -- one from Honduras, the other from Mexico --
told the
court Wednesday that police should have told them they could seek legal
help
from
their countries' governments, as required by a 1969 treaty.
Justice Anthony M. Kennedy asked why police -- and not the men's
attorneys --
should
be required to inform foreign suspects of their treaty rights.
"If a Miranda warning is given, it seems to me that comprehends the
relief
you need,"
Kennedy said, referring to the standard police practice of telling
suspects
they have the
right to remain silent and the right to consult an attorney.
Presumably, a defense attorney knows or should know that foreign
suspects have
the right
to contact their consulate, Kennedy and other justices said.
If a defense lawyer does not inform a client of those rights, that
could be the
basis for a
claim of ineffective representation --not a violation of the treaty,
said
Justice Stephen Breyer.
But Mark Stancil, a lawyer representing Mario Bustillo, a Honduran
convicted of
killing
a Virginia teen with a baseball bat, said a defense lawyer may have a
conflict
of interest.
"The first words out of the mouth of the consulate (official) could be,
'Fire this guy and
get a new lawyer,'" Stancil said.
The 1969 Vienna Convention requires "competent authorities" to tell a
consulate when
a foreign national is arrested and to allow the consulate to
communicate with
the detained
person and advise the suspect "without delay" of his or her rights.
U.S. citizens have the same rights if they are arrested in one of the
168
countries that
signed the treaty.
The court was asked whether failure to advise a foreign suspect of the
Vienna
Convention
rights can be used to overturn a conviction. The court's decision,
expected
before July,
could affect the appeals of thousands of foreign citizens in U.S.
prisons and
jails.
Peter Gartlan, a lawyer representing Moises Sanchez-Llamas, a Mexican
convicted
of
attempted murder for wounding an Oregon police officer in a 1999
gunfight,
asked the
justices to place themselves in the shoes of an American held abroad in
Damascus, Syria.
"If you are given a dime and you can call a local attorney assigned by
the
court, or the
U.S. consulate, you are going to call the consulate," Gartlan said.
"It's more comfortable,
more familiar" to deal with a fellow American.
Similarly, he said, foreigners in this country should be allowed to
seek help
from their
governments.
Justice Antonin Scalia challenged that, saying although talking to a
countryman
may be more
comfortable, the consulate may be less helpful than a local attorney,
who
should be more
familiar with local law.
Police in the United States do not routinely tell arrested foreign
nationals
they can call their
consulate. Some legal experts say requiring them do so could amount to
expansion of
so-called Miranda rights.
Mary Williams, Oregon's solicitor general, said law enforcement
agencies are
"getting better"
at informing foreign suspects of their rights, but she conceded under
questioning that such
information is not routinely given out.
"I don't see why it's so complicated," Kennedy retorted.
Justice David Souter agreed, saying police could ask standard
questions: What's
your name?
And are you a U.S. citizen?
"It seems easy," he said.
But William Thro, Virginia's solicitor general, said police were not
obligated
to help criminal
suspects.
"In America we give all criminal defendants a lawyer to represent them.
Their lawyer should
know their client's rights," including Vienna Convention rights, Thro
said.
Sanchez-Llamas was sentenced to nearly 20 years in prison for wounding
a
Medford, Ore.,
police officer. Although police told Sanchez-Llamas in English and
Spanish he
had a right
to a lawyer, they did not say he had a right to contact the Mexican
consulate
in Portland,
about 270 miles away.
Sanchez-Llamas claims his pretrial statements to police should not have
been
allowed as
evidence. The Oregon Supreme Court disagreed, ruling last year that
treaty
rights under
the Vienna Convention can only be enforced by signatory governments,
not
individual suspects.
Bustillo is serving a 30-year prison sentence in a 1997 slaying outside
a
fast-food restaurant
in Springfield, Va. His new lawyers are trying to win a new trial.
Editor's note: the Court's decision is expected within a few months;
the
full transcript
of the oral argument is posted at:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-10566.pdf
NEW RESOURCES: BRIEFS AND BACKGROUND ON THE MAJOR CASES
1) The law firm of Debevoise & Plimpton has posted a comprehensive
collection of legal briefs
in recent Vienna Convention cases at:
http://www.debevoise.com/vccr
The web page includes:
-The briefs at the merits stage filed by the parties and amici on both
sides in
Sanchez-Llamas
and Bustillo,
-A link to another page with all all the briefs from last term's
Medellín case,
-A link to the ICJ's web page on the Avena case,
-Selected materials from the 2004 Torres case in the Oklahoma Court of
Criminal
Appeals.
2) One of the issues that arose during oral argument in Sanchez-Llamas
was
foreign law and
practice as it relates to individual consular rights. Research
indicates
that some 60 countries
have officially recognized that Article 36 confers legal rights on
individual
detainees, contrary
to the U.S. position. A summary of official statements, implementing
provisions
and foreign court
decisions is now posted at:
http://www3.sympatico.ca/aiwarren/foreignlaw.htm
THE BIGGER PICTURE: INDIVIDUAL TREATY RIGHTS AT STAKE
Convicted Foreigners Press Court for Treaty Rights
By Brent Kendall
L.A. Daily Journal Staff Writer
March 28, 2006
WASHINGTON - Honduran citizen Mario Bustillo was arrested and convicted
in Virginia
of murdering a man outside a fast-food restaurant. Mexican citizen
Moises
Sanchez-Llamas
was convicted of attempted murder in Oregon for shooting at two police
officers.
In both cases, law enforcement officials failed to inform the suspects
that as
foreign nationals,
they had a right under international law to communicate with their
consulate or
have consular
officials notified of their arrests.
Noncitizens have those rights thanks to the 1963 Vienna Convention on
Consular
Relations,
an international treaty ratified by the United States in 1969.
Whether those rights have any real legal effect, however, is an open
question,
one the U.S.
Supreme Court will consider today.
The foreign nationals are seeking to enforce the treaty in court,
arguing that
there must be
legal consequences when law enforcement officials fail to abide by the
consular
notification
provisions.
Bustillo says he should get a new trial. Sanchez-Llamas is seeking the
suppression of
statements he made to police.
But the federal government, along with Oregon, Virginia and 28 other
states,
including
California, say that even though the Vienna Convention provides
benefits to
individuals,
it does not give them judicially enforceable rights to challenge their
convictions.
Enforcement of the treaty, they say, is a matter to be worked out
between
countries through
political and diplomatic channels, not in domestic courts.
The cases could have a significant effect on how noncitizens are
treated by the
police and the
judicial system, a "potentially huge impact, given the demographics of
the
U.S," said Paul
Stephan, a law professor at the University of Virginia who is
supporting the
government's
position.
A ruling for the foreign nationals, Stephan said, could mean that
police will
be reading
suspects their Vienna Convention rights along with their Miranda
rights.
"I think that's what they're looking for," he said.
In California, the right to consular notification for criminal suspects
is
already enshrined in state
law.
On a broader scale, the court could use the cases to send signals about
whether
individuals
will be able to seek judicial remedies for violations of other
treaties,
including ones that govern
the treatment of detainees and ban torture.
"The court is going to think a lot about the status of treaties in the
U.S. system," said Hofstra
University law professor Julian Ku. "These are important cases. The
court
hasn't directly
thought about these issues in a long time."
Bustillo, convicted of first-degree murder for hitting a man in the
head with a
baseball bat,
has maintained all along that another Honduran national committed the
crime and
then fled
the country. Bustillo v. Johnson, 05-51.
The Honduran Consulate said it would have assisted Bustillo had it been
informed of his
arrest. Honduran officials said they would have confirmed that the
other man
arrived in
Honduras days after the crime and would have attempted to interview
him.
Bustillo says the consulate's efforts would have provided evidence of
his
innocence.
The Virginia courts ruled that Bustillo's Vienna Convention claim was
procedurally barred
because he did not raise it at trial. Bustillo counters that he was not
aware
of his convention
rights until long after his trial had concluded.
Sanchez-Llamas is serving 20 years in an Oregon prison stemming from
shooting
at the police.
During an 11-hour police interrogation, Sanchez-Llamas waived his
Miranda
rights and made
incriminating statements about his
actions in the incident. His interrogators never informed him that he
could
communicate with
his consulate. Sanchez-Llamas v.Oregon, 04-10566.
"If he had been properly apprised of his rights, his choices would have
been different," said
Donald F. Donovan of Debevoise & Plimpton in New York, who is part
of the
legal team
representing Sanchez-Llamas.
The Oregon Supreme Court rejected Sanchez-Llamas' argument that his
statements
should
be suppressed because of the treaty violation. The court said the
treaty gave
him no private
rights to assert in a criminal proceeding.
The United States has apologized to Honduras and Mexico for the treaty
violations in the two
cases.
No one has done a full empirical study on how often police fail to
notify
foreign nationals of
their Vienna Convention rights, but anecdotal evidence suggests that
violations
are a frequent
occurrence, said Mark Warren of Human Rights Research, a legal
consulting firm
based in
Ottawa, Canada.
"I continue to receive regular reports of violations of the treaty,
even
in jurisdictions where the
State Department has trained law enforcement," Warren said. "It
certainly appears to be an
extraordinarily widespread problem."
California, Warren said, was one of only a few states that have enacted
separate
laws on
consular notification that implement the Vienna Convention
requirements.
"Despite that, we still get repeated notifications of violations in
California," he said.
The state law, Penal Code Section 834c, does not provide judicial
remedies for
violations.
Warren said the state courts of appeal, in unpublished opinions, have
ruled
that judicial relief,
such as suppression of evidence, is not available under the statute.
According to the latest report from the Bureau of Justice Statistics,
California
holds 18,000
noncitizens in its prisons, 11 percent of the state's inmate
population.
If non-citizens have no legal recourse for treaty violations, "then
that
robs the treaty of any
status of really being law,'' said Duke University law professor Erwin
Chemerinsky, one in a
group of professors who filed an amicus brief in support of the foreign
nationals. "It makes the
treaty largely meaningless."
"If the court buys the government's arguments, it's going to rob
treaties
in most instances from
being judicially enforceable," Chemerinsky said.
Sanchez-Llamas' lawyer Donovan said the plain language of Article 36 of
the
treaty, which
deals with consular notification, expressly refers to "rights" and
clearly creates individual rights
for foreign nationals.
Donovan also said that judicially enforceable treaty rights were what
the
framers of the
Constitution wanted.
The Constitution's Supremacy Clause, he said, is "remarkably clear"
that treaties are the supreme
law of the land.
"That was a deliberate choice by the framers," Donovan said.
"It's crystal clear that the framers
had in mind a scheme where treaty rights could be enforced in U.S.
courts."
The Bush administration takes a different view.
In a brief filed with the court, U.S. Solicitor General Paul Clement
argued
that there is "a long-
established presumption" that treaties and other international
agreements
do not create individual
rights unless "there is a clear indication to the contrary."
The history, structure and language of the Vienna Convention, Clement
said,
make clear that
signatories did not understand Article 36 to create individual rights.
Clement said that when treaty violations occur, the State Department
apologizes
to the countries
at issue and seeks to prevent future violations through educational
efforts
with law enforcement.
In death penalty cases, the department also requests that treaty
violations be
considered in the
clemency process, Clement said.
Even if the treaty conferred individual rights, suppression of evidence
would
not be an appropriate
remedy, Clement argued. He also said the treaty would not prevent
states like
Virginia from
applying procedural default rules that doomed Bustillo's claims.
Stephan, of the University of Virginia, said the executive branch's
interpretation of the treaty
deserved substantial deference from the court.
If the court reads the Vienna Convention broadly and decides that it
confers
individual rights, the
ruling may discourage the United States from making new treaty
commitments, he
said.
"If treaties are Pandora's boxes, then the president and Congress won't
create as many boxes,"
Stephan said.
Ku, of Hofstra University, who joined Stephan in supporting the
government,
said a victory for
the foreign nationals could encourage future litigants who want to
assert
rights under a variety of
human rights treaties, including the Convention against Torture.
Ku said the Senate has declared that the human rights treaties cannot
be
enforced by individuals,
but added that it was debatable whether the Senate had the power to
make that
declaration. The
issue could become a battleground for litigation, he said.
The two Vienna Convention cases intersect somewhat with another closely
watched
Supreme
Court case, Hamdan v. Rumsfeld, 05-184, where the court will be
examining the
legality of
President Bush's military tribunals for terrorism detainees.
One question the court is considering in Hamdan is whether a detainee
can
obtain judicial
enforcement of rights protected by the Geneva Conventions.
The court heard arguments in Hamdan on Tuesday and will hear the Vienna
Convention cases
today.
The International Court of Justice in the Netherlands has twice ruled
that
Article 36 of the Vienna
Convention does create individual rights, though the Supreme Court is
not bound
by those rulings.
In one of the international court's decisions, it ordered the United
States to
review the death
sentences of 51 Mexican nationals on death row in U.S. prisons who had
not been
informed
of their convention rights.
In 2004, the Supreme Court in Medellin v. Dretke, 125 S. Ct. 2088, set
out to
decide whether
the federal courts had to give effect to the international court's
ruling.
The high court, however, dismissed the case after President Bush
announced that
the United
States would comply with the international court decision.
Bush later pulled the United States out of an optional protocol in the
Vienna
Convention that calls
for the international court to make final decisions on treaty claims.
Warren, of Human Rights Research, said that while the State Department
has
opposed judicial
treaty rights for foreign nationals, it has undertaken vigorous
educational
efforts designed to ensure
that police departments comply with the convention.
The department, Warren said, has sent 100,000 copies of a 72-page
instruction
manual to
departments around the country. It also has distributed 600,000
pocket-sized
instruction cards
for individual arresting officers.
Still, Warren said, the department's position was an awkward one.
"They tell police, take this very seriously ... but oh, by the way, the
treaty confers no individual
rights," he said. "No wonder the police are confused."
THE HOME FRONT: MILES TO GO UNTIL FULL COMPLIANCE
Alien arrest issue looms
By Corey G. Johnson,
The Daily Reflector
Greenville, North Carolina
Sunday, March 05, 2006
Criminal convictions of foreigners are in jeopardy in North Carolina
because
law enforcement
agencies are not adhering to a treaty that governs arrest of aliens,
legal
experts, U.S. and
Mexican officials said.
Scores of foreign nationals, including people convicted of rape, murder
and
drug trafficking,
could get new trials or be set free if they can show arresting officers
did not
inform them they
had the right to contact their embassy or consulate for assistance.
Known as an international Miranda right, the notification requirement
is
spelled out in the
42-year-old Vienna Convention on Consular Relations. The growth of
North
Carolina's Hispanic
population, and the increasing number of Hispanics who run afoul of the
law, is
revealing
ignorance about the treaty among law enforcement agencies, officials
said.
"The only agencies that contact us are the Federal Bureau of Prisons,
federal immigration
officials and the sheriff's offices in Mecklenburg, Alamance and Wake
counties," said Esteban
Gonzalez, coordinator of protection and legal affairs at the Mexican
Consulate
in Raleigh.
"That is both very frustrating and frightening. This is international
law.
It's not just for Mexicans.
"For example, I was on the phone with a police station yesterday. I
told
the dispatcher I work
for the consulate. She thought we were a bakery."
Foreign countries such as Mexico and Germany have charged that police
are
consistently failing
to meet the requirement, which must be applied to all suspects who are
arrested, whether they are
here legally or illegally.
In 2004, Mexico sued the U.S. in the International Court of Justice
over the
issue, according to
ICJ documents. The court, which oversees all disputes over the Vienna
agreement, ruled against
the U.S. and mandated that states re-examine all convictions reached
without
consular notification.
President Bush withdrew the U.S. from the protocol, preventing any
further ICJ
oversight after
the decision was issued. Then, in a Feb. 28, 2005, memo sent to
Attorney
General Alberto
Gonzales and to Texas judicial officials, the President instructed
state courts
to comply with
the international ruling, known in legal circles as the Avena case.
More recently, the U.S. Supreme Court decided in November to review the
murder
convictions
of two foreign men who claimed their consular rights were denied –
prompting former prosecutors
and State Department officials to fret over the possible implications.
The
cases haven't been
scheduled yet but could come up later this year, according to the
Supreme Court
clerk's office.
In North Carolina, foreign diplomats said during interviews with The
Daily
Reflector that state
and local agencies need to redouble efforts to educate and train law
officers
to ensure the rights
aren't inadvertently violated.
Of the 1,225 convicted aliens being held in state prisons in January,
892 came
from Mexico,
records from the Department of Correction show.
As of the end of that month, 76 Mexican nationals were in DOC
facilities on
murder charges;
111 on sexual offenses; and 483 on drug trafficking offenses.
More than 70 counties in the state have convicted and sent to state
prison at
least one Mexican
national as of January.
"We're not advocating that everyone charged is innocent. But our job is
to
ensure due process is
followed," Deputy Consul Karla Ornelas of Raleigh said. "We believe
that if someone is better
advised and has access to better information then their trial is more
likely to
be fairer."
Foreigners in America aren't the only ones governed by the treaty.
Under the agreement, U.S. consular officials have the ability to
monitor more
than 2,500
Americans arrested abroad every year, provide them food and medicine
and, most
importantly,
provide access to legal representation.
Local authorities need to abide by the treaty to ensure the courtesies
will
continue to be extended
to Americans, veteran U.S. diplomatic officials said.
"I can remember going to the lockup in Colombia with a list of lawyers
after the local government
notified us that an American was arrested on murder charges," said
Richard
McKee, a U.S. consul
general of Pakistan in the 1980s and the executive director of a
Washington,
D.C.-based, group
called Diplomatic and Consular Officers, Retired. "I tell you our
involvement made a real difference."
The home front
At the Pitt County Detention Center on Feb. 24, 10 confirmed Mexican
nationals
awaited trial.
The consulate in Raleigh knew of none of them.
Consulate officials added that a check of their most recent records
indicated
that of the 555
notifications it did receive during 2005, none came from Pitt County.
Top officials with the Pitt County Sheriff's Office and Greenville
Police
Department said officers are
trained about the notification procedure and routinely inform aliens
they
arrest about consular
notification rights.
In a meeting with command staff Thursday, several section chiefs nodded
their
heads when Sheriff
Mac Manning inquired about the issue, even citing instances where they
called
the Mexican
Consulate themselves, Manning said.
"My chiefs told me that many of the suspects arrested are reluctant to
agree to notification because
they might be penalized back home," Manning said.
"A lot of suspects are carrying fake IDs and trying to pass themselves
off
as Americans simply to
keep from admitting to being a Mexican."
Manning and Major Kevin Smeltzer of the Greenville Police Department
said they
do not keep a
log to establish a paper trail that contacts were made. Such logs are
required
by State Department
guidelines.
To improve foreign nationals' understanding of rights, Manning said he
appointed two deputies to
develop better ways of communicating. One immediate suggestion was
creating
bilingual jail
release forms, complete with notification procedures and bonding
information,
Manning said.
"This is one of those situations that just comes up so infrequently,"
Manning said. "But I think
law enforcement has a general enough understanding to know that if we
arrest a
foreign citizen,
we can check with procedures."
At the Greenville Police Department, multilingual posters of consular
notification statements hang
near detectives' cubicles – to remind and assist officers during the
arrest of foreign citizens, Major
Smeltzer said.
The posters are remnants of a training session held nearly 18 months
ago, at
the behest of police
attorney Bill Little.
"When I first started my career 20 years ago, this was something that,
to
my knowledge, very
rarely came up," Smeltzer said. "But we've been dealing with it more
and more in recent years,
and not just in arresting but with victims, rescue situations and
traffic
accidents."
Interviews with other officers here and in counties such as Alamance,
Carteret,
Cabarrus,
Cumberland and Bertie produced avariety of responses.
Two local officers who regularly assist in the handling of
Spanish-speaking
assailants said they
never heard about the notification procedure. The officers asked not to
be
identified.
In Bertie County, Sheriff Charles "Greg" Atkins said he had never
heard of the notification
procedure.
"It's never come up around here," Atkins said. "We simply don't
have that many Hispanics living
here. And the ones who do, don't really cause any trouble."
Two Mexican citizens, one 24 and another 48, have been convicted in
Bertie of
second-degree
murder, according to January prison data from the Department of
Correction. The
data did not
indicate who arrested the men or when they were arrested .
Interviews with officials with the Fayetteville Police Department also
brought
mixed responses.
One official in the legal department expressed unfamiliarity with the
treaty
early Friday. Later, a
police spokesman, upon consultation with the legal official, said they
were
familiar with the treaty.
They declined to comment further.
Chief M.H. Miller of the Graham Police Department said a 2005
Greensboro
training session
was the first he had heard of the issue. He added he wasn't sure if his
officers were logging in
notifications.
One state police leader said the varied responses are typical. She
attributed
some of it to demographic
changes caused by the large influx of Mexican migrants in recent years.
"There is a lot of confusion about this. We've been so inundated with
the
explosion of the Mexican
population that a lot of smaller counties have been caught without a
lot of
Spanish-speaking officers,"
E. Wrenn Johnson, chief of the Morehead City police department and
current
president of the N.C.
Police Executives, said. "I bet if you asked 10 different police
departments you could get 10 different
answers."
Legal decisions for years, including a North Carolina Supreme Court
ruling in
2002, denied foreigners
legal standing on the issue on the grounds that the treaty didn't give
individuals binding rights in the U.S.,
legal documents show.
But a federal ruling last September in Illinois concluded that
reasoning was in
error.
And more serious repercussions could follow later this year in the U.S.
Supreme
Court, international
law specialists and former federal prosecutors said.
Consequences
When a Virginia judge presiding over a capital case of a foreign
national
became leery of police
violations of the Vienna treaty, James D. Brown knew law enforcement
needed
more education
on consular notifications.
"This was easy as heck to do. All you got to do is make a phone call
(to
the local consulate) and say,
'I got Joe Blow.' Then document that you called," said Brown, the
45-year-old associate director of
the Commission on Accreditation for Law Enforcement Agencies.
He set his agency to working with State Department officials, and over
the last
two years it has
incorporated compliance with the treaty into steps necessary for law
enforcement agencies to meet
its national accreditation standards, he said.
Starting in July, all police agencies desiring CALEA accreditation must
have a
written policy
upholding the practice of consular notification.
"This is a major adoption for CALEA," Brown said. "We're now
just waiting on the printing
of the new manual, which is scheduled to come out in either March of
April."
A State Department official, permitted to speak with The Daily
Reflector but
not to be identified,
said the CALEA accomplishment was wonderful, but more information about
the
treaty must be
shared with the 18,000-plus U.S. law enforcement agencies.
The official pointed to a Sept. 27 ruling in Illinois federal court,
Jogi v.
Voges, which said an
Indian man who pleaded guilty to aggravated battery could sue local
police for
violating his
consular rights.
"It's imperative that we uphold our end of the bargain. I mean this is
not
rocket science.
Notification takes all of five minutes to do it correctly," the
official,
who trains police across the
country on the treaty said.
The U.S. Supreme Court may soon give police even more motivation.
Two legal cases, Sanchez-Llamas v. Oregon and Bustillo v. Johnson, are
slated
to be heard
by the U.S. Supreme Court later this year. The court's rulings will
have
far-reaching implications,
according to experts like Ruth Wedgewood, a former federal prosecutor
who
teaches international
law at John Hopkins University, and Curtis Bradley of Duke University
and John
Norton
Moore of the University of Virginia, both former international law
advisers to
the State Department.
According to a Supreme Court document, the Justices will listen to
presentations in those cases to
decide the following:
Whether the Vienna treaty gives foreign nationals rights that can be
enforced
in U.S. courts
Whether failure to notify a foreign national of his rights under the
treaty can
result in the suppression
of prior statements to police
Whether state courts can refuse to hear violations of the treaty on the
basis
that it does not give the
foreign national rights that can be enforced in U.S. courts, or on
procedural
bars like the lack of
timeliness.
The court could issue a ruling that would keep foreign nationals at
their
current legal status,
Wedgewood, Bradley and Moore said. The justices also could issue a
ruling that
would force
North Carolina and other states to retry thousands of convicted felons.
If old
cases have to be
retried, issues of misplaced evidence and reluctant witnesses could
cause those
cases to be thrown
out.
"It would be mayhem," Wedgewood said. "If thousands of murder,
rape and other violent crime
convictions are overturned because of a five-minute procedure, can you
imagine
what effect will it
have on victims and their families?"
Local civil rights activist Juvencio Rocha Peralta said sanctions for
infringing on rights may be just
the incentive police need to uphold the law.
"There needs to be a penalty because lack of representation has caused
a
lot of innocent people to
be put behind bars," Peralta said. "The police are supposed to know.
The judge is supposed to know.
Yet, no one tells the Mexican national, and he goes to jail. I'm
telling you,
that's leaving a bad taste in
the mouth of the Mexicans everywhere."
Chief Johnson of Morehead City said law enforcement officials are eager
to get
the issue right. She
pointed to training held across the state and the newly conducted
classes at
the N.C. Justice Academy
as proof of their commitment.
"The state of North Carolina is doing training on this topic because
just
recently two of my lieutenants
went to one," Johnson said. "I don't think there is a lack of
interest on the part of law enforcement that
is causing problems. There's just been a lack of knowledge."
Pitt County District Attorney Clark Everett said the possibility of
convictions
being overturned is a
concern.
"At this time, it (notification) has not been a issue that has come
up," Everett said. "We'll
certainly watch those Supreme Court decisions to see if it becomes an
issue."
Efforts to speak with Gov. Mike Easley's office and Attorney General
Roy
Cooper's office
about the issue were unsuccessful.
When raising the possibility of overturned convictions in the state, a
governor's spokeswoman
in December said: "That's a federal issue."
On Friday, a spokeswoman for Cooper provided eight pages of teaching
materials
from a recent
law enforcement trainingsession on interrogation law. One paragraph
covered
consular notification.
"So far, the courts have interpreted the right to belong to nations,
not
individuals," the document stated.
"The issue has not been decided by the United States Supreme Court, but
a
case raising this argument
is now pending. Stay tuned!"
CONSTITUTION PROJECT ENDORSES CONSULAR RIGHTS AND REMEDIES
Constitution Project Issues Updated Capital Punishment Reform
Recommendations
http://www.constitutionproject.org/pdf/MandatoryJusticeRevisited.pdf
The Constitution Project's blue-ribbon Death Penalty Initiative has
released an
updated set
of guiding principles for death penalty reform. "Mandatory Justice: The
Death Penalty Revisited"
identifies specific improvements to address problems such as
arbitrariness,
race, ineffectiveness
of counsel, wrongful convictions, and crime lab mistakes.
Among the group's 32 recommendations are the following:
RECOMMENDATION 32: The Vienna Convention on Consular
Relations Should be Enforced.
• Every capital defendant who is a foreign national should be
ineligible
for the death penalty if not provided with consular rights under the
Vienna
Convention on Consular Relations (VCCR).
• Each entity with authority to impose or carry out the death penalty
should impose on its attorney general (or another central law
enforcement
officer) the
duty of ensuring full compliance with the VCCR.
• This duty should include training law enforcement actors about
consular rights and monitoring adherence to those rights.
• An independent authority, such as an inspector general, should report
regularly about compliance to the entity’s chief executive or
legislative
body.
INTERNATIONAL NEWS BRIEFS
VCCR: NEW RATIFICATIONS, BUT STILL NO LIMITS ON ARTICLE 36 RIGHTS
According to the latest list on the UN Treaty Collection site, Cambodia
became
the 169th
party to the VCCR on 10 March, 2006. Other recent parties include
Monaco
(4 October
2005) and Singapore (1 April 2005). Although all three countries
ratified
following the
ICJ decision in Avena (finding that the treaty confers legal rights on
individual detainees),
none attached any reservations to their acceptance of Article 36. In
fact, no
party to the treaty
has attached any limiting interpretations on the language of Article 36
addressing the consular
information, communication and notification rights of foreign
detainees. Only
one party
(Qatar) has attached any reservations at all to Article 36, and that
declaration merely clarifies
that only accredited consular officers will be granted consular
visitation
privileges.
PHILLIPINES PRESIDENT CELEBRATES EASTER WITH MASS CLEMENCY
At Easter, President Gloria Macapagal Arroyo announced the commutation
to life
imprisonment
of all death sentences in the Philippines (estimated at between 1,237
and
1,280), which would
include the cases of at least 17 foreign nationals. The government of
the
Philippines has been
especially active in seeking consular access and clemency for a number
of
Filipino migrant workers
under sentence of death abroad, particularly in the Middle East.
*******************
Article 36 Update
Consular Rights in America
Issue
#29
September 2005
TEXAS COURT HEARS 3-WAY ARGUMENT IN MEDELLÍN CASE
Subscribers may recall that the U.S. Supreme Court recently returned
the
case of
Mexican national Jose Medellín to the Texas courts, so that his
claims arising
from
the International Court of Justice decision in the Avena case and
President
Bush's
decision that the United States would comply with it could be addressed
initially at the state court level.
The Texas Court of Criminal Appeals heard oral argument in the
Medellín case
on
September 14; these excerpts from a longer article in "Texas Lawyer"
magazine
provide some of the exchanges from this historic hearing.
Texas Lawyer
September 19, 2005
Medellin Returns; CCA Considers Bush's Memo To Override Its Own
Procedural Rules
By Mark Donald
Those who feel that the Texas Court of Criminal Appeals has its
collective
mind
closed to the claims of capital habeas defendants might have been
stunned by
the
level of intellectual curiosity the court displayed when it entertained
oral
arguments
on Sept. 14 in Ex Parte Jose Ernesto Medellin.
Perhaps the court's attentiveness was pricked by the unprecedented
nature of
the
proceedings: Never before has a U.S. president directed a state court
to
implement
a decision of an international tribunal and disregard its own
procedural rules.
Perhaps
the copies of the many briefs (12) stacked high before each judge
helped them
appreciate the complex nature of the issues: the limits of executive
power,
federal
pre-emption, separation of powers and U.S. treaty obligations, just to
mention
a few.
Or perhaps the overflow courtroom of lawyers, law professors and
journalists
gave
the court the sense that the whole world was watching, and the judges
had
better be
prepared.
Ordinarily, the CCA grants each side 20 minutes to argue its case;
Sandra
Babcock
and co-counsel Donald Donovan, a partner in New York's Debevoise &
Plimpton,
had asked for expanded time, and Medellin and the state each received
30
minutes.
The CCA also invited the Office of the U.S. Attorney General to argue;
Deputy
Solicitor General Michael R. Dreeben was given 15 minutes to state the
position
of
the United States. But as the arguments unfolded and the judges' brows
grew
more
furrowed, Presiding Judge Sharon Keller told at least one of the
parties:
"Take as
much time as you like."
Babcock was up first, standing behind a podium placed so close to
the judges
that
eye contact was virtually unavoidable. She argued that there was no
need to
delve
into the more esoteric matters of federal pre-emption and separation of
powers
raised
by Avena and the president's determination, because "Texas law has a
built-in
mechanism to accommodate the application."
Article 11.071, 5(a) of the Texas Code of Criminal Procedure permits
the
filing of a
successive state writ if the current claim has not been previously
presented
because the
factual or legal basis for the claim was unavailable.
"Are you saying that you have new law or new facts?" interrupted
Judge Cathy
Cochran.
"It's both," Babcock answered. The Avena judgment and the
president's determination
each constitute a new "binding federal rule of decision" argued
Babcock, that gave rise
to a "right to a forum . . . a right to a review and reconsideration"
of Medellin's capital
conviction. And since you can't waive what you don't have, there was no
procedural
default -- even in the absence of Avena's holding that state default
rules
don't apply.
"We have already ruled on this," said Judge Cheryl Johnson.
"I am having trouble with
why we should have to do this again. . . . It's a futile act."
Said Babcock, "He is entitled to full review of his Vienna
Convention
violations,
independent of any other due process violations." Prior rulings had
found
against
Medellin's claim of ineffective assistance of counsel.
Shifting gears, Judge Michael Keasler asked, "Isn't there a bit of a
separation of powers
problem here?"
"And what about the president's order?" Keller asked later. It has
no mandatory language
in it. "It reads like a memorandum."
Cochran subsequently raised a different concern: "We normally defer
on
questions of
substance on conflict-of-laws areas, but the forum state always applies
its own
procedural
rules."
It seemed as though the judges were piling on, peppering Babcock
with
questions about
pre-emption and the limits of executive power -- questions co-counsel
Donovan
had
prepared to answer in his portion of the argument. Babcock hoped to
limit her
remarks
to questions about Texas law, so, with six minutes left, she tendered
her time
to Donovan,
who began by telling the court that the United States had an
international
obligation to
comply with Avena, and the president had determined that the United
States will
comply
in state courts.
"Who must comply?" interrupted Johnson. "How do we get charged with this?"
"That goes back to the obligation," Donovan said. The president
signed the treaty, which
the Senate ratified, and a commitment was made on behalf of the United
States,
he said.
Donovan would later argue that the Constitution grants the president
near
plenary authority
in foreign affairs, and both his determination and Avena pre-empt Texas
habeas
and
procedural rules under the supremacy clause.
"But what the president did was kind of a memo," Johnson would
later say. The White
House Web site lists it as a press release. "Are we to give a press
release
legal effect?"
Several judges seemed miffed that the memo was brought to their
attention
only after it was
attached to the deputy solicitor general's brief. The memo seemed
lacking in
mandatory
language, and it was directed to the U.S. attorney general, rather than
to the
court. Shouldn't
it be construed as a request to implement Avena rather than an order to
do so?
"Normally
things attached to briefs are just not before us," Cochran maintained.
Governments Respond
Deputy Solicitor General Dreeben addressed the court's concern about
the
memo,
maintaining that the president's determination is mandatory and a
"source
of law," no matter
what form it takes. Dreeben argued that the court must permit review
and
reconsideration
of Medellin's Vienna Convention claims, not because Avena said so, but
because
the
president did.
Staking out a middling position between Medellin and the state,
Dreeben
argued that the
president "strenuously disagreed" with the Avena holding that the
Vienna Convention
created individually enforceable rights, but Dreeben maintained that
the
president is at the
zenith of the lawful exercise of executive power in his determination
because
of his inherent
constitutional authority to conduct foreign affairs, the United States'
international obligation
to comply with Avena under the U.N. Charter and the nation's
obligations under
the Vienna
Convention itself. By taking issue with Avena and saying it had no
effect
absent the president's
determination, the government sought to limit review hearings to the 51
Mexican
nationals only,
and not extend them to every foreign national convicted of a crime in
the
United States and
whose consular rights allegedly were violated.
That Dreeben gave credibility and consistency to Medellin's argument
seemed
obvious from
the rapt attention of several judges, at least one of whom commented
that he
found Dreeben's
remarks about the binding nature of the memo persuasive.
When Harris County Assistant District Attorney Roe Wilson laid out
her arguments
-- failure
to invoke habeas jurisdiction, procedural default, the president's
order was no
order, Avena
is bad law, Medellin suffered no prejudice -- the court offered her no
free
ride either.
"We are here because of the president's memo," said Judge Tom
Price, wanting to know
why the state was fighting so hard. "Texas has an obligation to follow
the
treaties of the U.S.
. . . It seems like we are running around the bush."
"No pun intended," added Keasler who sounded disbelieving when
Wilson argued that caselaw
reflected that the president was at the low ebb of his executive power
because
he acted
unilaterally, improperly and without congressional authority when he
attempted
to override state
law.
Cochran said it seemed like "a modest intrusion of state function"
when balanced against U.S.
obligations under international treaties -- especially when limited to
51
cases.
"I don't think it is a modest intrusion," Wilson contended.
"I don't know where it will end."
Wilson suggested that the court dismiss the writ and make a factual
finding
that Medellin
suffered no prejudice from his Vienna Convention violation. The facts
of the
crime
were as egregious as they were overwhelming, she said. And that would
provide
the ICJ
decision the comity that the president's memo had requested.
Several judges seemed on board with this suggestion, which Babcock
vehemently contested
in her rebuttal. The prejudice Medellin suffered, she argued, wasn't
merely
speculative; it was
palpable and real. Avena didn't just entitle Medellin to consular
notification
prior to his
confession; Mexico had a policy of assisting capital defendants at
every stage
of the
proceeding -- with resources, mitigation experts, attorneys. Even
assuming
Medellin wasn't
denied effective assistance, "he was entitled to the best counsel his
government could provide
him," she said.
---
Briefs submitted to the CCA in the Medellin case are posted at:
http://www.debevoise.com/newseventspubs/news/RepresentationList.aspx?type=viewall
(click on the entry for August 8, 2005)
OKLAHOMA COURT DECIDES TORRES CASE, FINDS ARTICLE 36
PREJUDICE
On September 6th, the Oklahoma Court of Criminal Appeals issued its
decision
in the case
of Osbaldo Torres, one of the 51 Mexican nationals covered by the Avena
decision of the
International Court of Justice.
Reviewing the findings of an evidentiary hearing held last November
to
examine whether
Mr. Torres' conviction or sentence was impaired by the violation of his
consular rights,
the Court determined that:
"Torres clearly showed that the Mexican government would have
expended
considerable
resources on the capital phase of his case. If Torres were still
under a
capital sentence,
this would indeed amount to a showing of prejudice. However, the
Governor’s grant of
clemency in Torres’s case ensures that Torres is not subject to the
death
penalty. Any
assistance Mexico could have given in this regard has become
moot. Torres
did not
present evidence showing he was prejudiced in the guilt/innocence stage
of
trial by the
Vienna Convention violation. Under these circumstances, Torres is
not
entitled to relief
from his convictions, and has already received relief from his capital
sentences. No further
relief is required."
The Court adopted a 3-part prejudice test for its determination of
harm
arising from
Article 36 violations:
"In finding that Torres was prejudiced by the violation of his
Vienna
Convention rights, the
trial court used the following three-prong test: (1) whether the
defendant
did not know he
had a right to contact his consulate for assistance; (2) whether he
would have
availed himself
of the right had he known of it; and (3) whether it was likely that the
consulate would have
assisted the defendant.. . . .Under this test, prejudice is presumed if
all
three factors are
present.. . . . The defendant must present evidence showing what
efforts his
consulate would
have made to assist in his criminal case. The majority of
jurisdictions
considering the Vienna
Convention question have adopted some version of this test. The
common
thread in each is
a threshold requirement that a defendant make some showing of how his
consulate
would have
aided him."
In adopting this test, the Court rejected any requirement to show
that a
different outcome
would have resulted from timely consular notification:
"We reject any construction of the third prong of the test which
would
require a defendant to
show that the consular assistance would, or could, have made a
difference in
the outcome of
the criminal trial. . . . The essence of a Vienna Convention claim is
that a
foreign citizen, haled
before an unfamiliar jurisdiction and accused of a crime, is entitled
to seek
the assistance of his
government. Even if that assistance cannot, ultimately, affect
the
outcome of the proceedings,
it is a right and privilege of national citizenship and international
law. The issue is not whether a
government can actually affect the outcome of a citizen’s case, but
whether under the Convention
a citizen has the opportunity to seek and receive his government’s
help. This protection extends
to every signatory of the Convention, including American citizens. . .
. That
is the right and privilege
safeguarded by the Convention. This Court is unwilling to raise
the bar
beyond that which the
Convention guarantees. If a defendant shows that he did not know
he could
have contacted his
consulate, would have done so, and the consulate would have taken
specific
actions to assist in
his criminal case, he will have shown he was prejudiced by the
violation of his
Vienna Convention
rights."
The Court also determined that this test for harm was consistent
with the
requirements of
the Avena decision:
This test for prejudice from a violation of Vienna Convention rights
is
consistent with the direction
of the International Court of Justice decision. . . Avena noted that
the remedy
directed in that case,
the judicial review we here undertake, should be done “with a view to
ascertaining whether in each
case the violation of Article 36 committed by the competent authorities
caused
actual prejudice to
the defendant in the process of administration of criminal
justice.” The phrase “actual prejudice”
can refer only to prejudice flowing from the violation of the purpose
of the
Convention provision.
That purpose is to ensure that a foreign citizen has the opportunity
for aid
from his or her
government in an unfamiliar criminal jurisdiction. Whether or not
the aid
results in a different
case outcome, a citizen must be actually prejudiced when he is denied
aid his
government would
have provided."
The decision is Torres v. State, 2005 OK CR 17 (Okla. Crim. App.
Sept. 6,
2005); it is
posted at:
http://www.oscn.net/applications/oscn/deliverdocument.asp?citeID=444490
FOREIGN CONSULATES JOIN POST-KATRINA RESCUE EFFORTS
880 foreigners still missing
By Nicholas Kralev
The Washington Times
Published September 8, 2005
WASHINGTON -- Foreign consular officials have taken to the streets
of
New Orleans and other Hurricane Katrina-stricken areas in boots and
boats in search of more than 880 foreign nationals -- most of them
French and British -- who are not yet accounted for, diplomats said
yesterday.
Apart from the official numbers, Mexicans caught
up in
the storm
were expected to be more numerous than any other nationality, but
officials said it was difficult to locate them because many are in the
United States illegally.
"We have guys who literally put people on boats.
Some of those who
haven't been to Britain in years were surprised to see a consular
official on their doorstep," said Steve Atkins, spokesman for the
British Embassy in Washington.
"We've had many success stories, and we provide
the
people we find
with accommodations, medical assistance and Red Cross counseling," he
said, noting that the latest number of unaccounted for Britons was 96.
Nathalie Loiseau, spokeswoman for the French
Embassy,
said Tuesday
that 160 French citizens were yet to be found. Yesterday, she said that
50 had been located, but the embassy had received new information about
10 French nationals who have yet to contact their families.
Both diplomats said that officials from their
embassies
and
consulates in the United States were working round-the-clock in the
affected areas looking for more people, including tourists, students,
workers and U.S. residents.
Mr. Atkins said there were 50 Britons in New
Orleans'
Superdome, but
they are all safe.
Some of them have given interviews upon their
return home
to the
London press, which has harshly criticized British officials in the
United States for not getting to New Orleans earlier than Monday.
But U.S. and British diplomats said that
Louisiana state
officials
did not allow consular officers into the city earlier, despite
Britain's
request.
An official at the Mexican consulate in Houston
said it
was hard to
come up with a number of missing Mexicans because many of them are not
documented. He urged those who have not called families or friends to
do
so immediately.
Martina Nibbeling-Wriessnig, spokeswoman for the
German
Embassy in
Washington, declined to cite a number but said that, out of 70 Germans
initially unaccounted for, "we've managed to trace all but a few."
Five Swedes are still considered missing, said
Claes
Thorson,
spokesman for the Swedish Embassy.
The State Department said that 883 foreign
nationals had
not been
accounted for as of yesterday afternoon, based on numbers provided from
various embassies in Washington.
"An equal concern is that 14 Americans who worked
for the [New
Orleans] Passport Agency we still have not been able to contact and we
are trying to find them," said Harry Thomas, the State Department's
executive secretary in charge of the agency's relief effort.
Another State Department official said U.S. entry
visa
requirements
have been waived for foreign government and international organizations
officials coming to the United States for the relief effort.
BRITISH INMATE SEEKS AVENA REVIEW
BBC News
June 21, 2005
Briton asks for US murder review
Krishna Maharaj claims to have new witnesses
Lawyers representing a Briton who has spent 18 years in a US prison
for a
double
murder he denies committing are to petition for a review of his case.
Krishna Maharaj, 65, spent 15 years on Florida's Death Row before
his
sentence
for shooting a drug trafficker and his son was commuted to life in
2002.
The Londoner's lawyers say the US broke treaty rules by not
informing the
British
Consulate of his 1986 arrest.
They say this made it hard for him to get proper legal representation.
Maharaj was arrested for the murders of Maharaj Jamaican Derrick Moo
Young
and
his son Duane in a Miami Hotel room in October 1986.
Although he claims to have witnesses who can place him 30 miles away
at a
business
meeting in Fort Lauderdale at the time of the killings, these witnesses
were
not called
by the lawyer who represented him at his trial.
Maharaj's current legal team also says the US failed in its
obligation under
the Vienna
Convention to inform British consulate officials of his arrest so that
they
could help get
proper legal representation.
The Vienna Convention sets out agreed diplomatic protocols between states.
Procedural bar
The cases of 51 other non-US citizens whose arrests breached the
Vienna
Convention
were recently examined by the International Court of Justice (ICJ),
which
ordered the
US to hold substantive reviews of their cases.
The US agreed to do this, and the cases are going to be reviewed initially by state courts.
Maharaj's legal representatives hope he will be granted a similar review by the Florida courts.
The former businessman from Peckham, south London, also has an
appeal
pending in the
federal appeals court, which his lawyers say they will ask to be put on
hold if
they are granted
a Florida court review.
Lawyer Annabel Harris, of human rights charity Reprieve, which is
now
handling Maharaj's
case, says the review petition is
"crucially important".
She says his previous appeals have been dismissed for the "technical
reason" that his claims
are "procedurally barred" because his previous lawyers did not raise
them early enough.
But the ICJ ruled that the procedural bar doctrine should not be
used to
deny substantive
reviews of Vienna Convention claims.
As well as the witnesses placing him away from the crime scene,
Maharaj's
team say they
know of the existence of other suspects with clear motives for carrying
out the
killings.
**********************
Article 36 Update
Consular Rights in America
Issue #28 May 2005
SUPREME COURT DECIDES NOT TO DECIDE MEDELLIN CASE--FOR NOW, AT LEAST
By a 5-4 vote, the U.S. Supreme Court has dismissed the case of
Medellin v.
Dretke
as "improvidently granted", a procedural mechanism used when new
developments arise
after the Court agrees to hear an appeal that make it inappropriate to
issue a
ruling
on the legal questions under review.
Pivotal to the decision was the announcement by President Bush in
February
that the USA
would comply with the Avena Judgment of the International Court of
Justice, by
requiring
state courts to provide review and reconsideration of the effects of
the
consular rights
violations on the convictions and sentences of Mr. Medellin and 50
other
Mexican nationals.
The effect of the Supreme Court ruling is to place the burden
squarely on
the Texas courts,
which must now decide how they will respond to the Presidential
determination.
The ruling
also opens the door to further review of the Medellin case by the
Supreme
Court, after the
lower courts issue their decisions. The majority opinion noted that the
Supreme
Court
"would in all likelihood have an opportunity to review" the Texas
courts’ treatment of the
President’s memorandum and the Avena Judgment on appeal,
"unencumbered by the issues
that arise from the procedural posture" of the case at present.
During oral argument last month, several of the Justices raised
questions
about the complex
procedural issues that had arisen, both as a result of the President's
decision
and because of the
potential applicability of rules restricting habeas corpus
review
of state cases by the federal circuit
courts. Following the oral argument, legal observers had
predicted that
the Court would likely
respond to those new concerns by dismissing the case as improvidently
granted.
Prior to the
Supreme Court hearing, Mr. Medellin and the other Mexican nationals on
Texas'
death row affected
by the Avena Judgment had already filed new habeas petitions with the
Texas
Court of Criminal
Appeals, arguing that they are entitled to effective judicial review of
their
Article 36 claims based
both on the ICJ decision and on the President's memorandum.
Although the Supreme Court was sharply decided on the right
procedural step
to take, there was a
broad consensus on one key point: a clear recognition in all of the
Justices'
opinions that the Court
must be prepared to revisit and resolve the important issues raised by
the
Medellin case. As Justice
Ginsburg concluded in her concurring opinion:
"The Texas courts are now positioned immediately to adjudicate these
cleanly presented issues
in the first instance. In turn, it will be this Court’s responsibility,
at the proper time and if need be,
to provide the ultimate answers."
The Court's order and the individual opinions are available at:
http://a257.g.akamaitech.net/7/257/2422/23may20051130/www.supremecourtus.gov/opinions/04pdf/04-5928.pdf
High Court Turns Aside Mexican's Appeal of Death Sentence
Tuesday May 24, 3:01 am ET
Tony Mauro, Legal Times
The Supreme Court stepped back from a major dispute over
international law
Monday
when it dismissed from its docket a case in which the World Court had
ordered
new
hearings for Mexican nationals on death row in Texas.
The World Court, officially the International Court of Justice, last
year
ordered the new
hearings in U.S. courts for Ernesto Medellin and 50 other Mexican
nationals because,
at the time of their arrests, local police had not informed them of
their
rights to seek help
from Mexican consulates, in violation of the Vienna Convention on
Consular
Relations.
Medellin was sentenced to death for participating in the murder and
rape of two
girls in
1993.
The Court said Monday that it took the action in Medellin v. Dretke
because
while the
case was pending, President George W. Bush announced he would have
state courts
"give effect" to the World Court ruling. Lawyers for Medellin
promptly went back to
the Texas Court of Criminal Appeals with a habeas corpus petition based
on
Bush's
statement.
"This state-court proceeding may provide Medellin with the very
reconsideration of his
Vienna Convention claims that he now seeks in the present proceeding,"
the
Court said
in its unsigned opinion. In light of that pending proceeding, the Court
said it
would be
"unwise" to decide the issues raised in Medellin's case concerning
the impact of World
Court rulings on federal courts.
Significantly, the Court in a footnote held out the likelihood that
Medellin
will be back
before the Supreme Court once the Texas court makes its decision and
the losing
party
appeals. "In that instance, this Court would in all likelihood have an
opportunity to review
the Texas courts' treatment of the President's memorandum and [the
World Court
ruling]
unencumbered by the issue that arise from the procedural posture of
this
case."
By shifting the spotlight back to Texas, the Court has opened a
second front
in the battle
over the impact of World Court judgments within U.S. borders. Before
the Texas
court,
Bush may be opposed by the state he once was governor of. Texas
officials have
questioned
whether Bush has the authority to order Texas courts to hold habeas
hearings to
implement
World Court decisions.
"Now we have to wait and see what happens in state courts," said
Sandra Babcock, a
Minneapolis solo practitioner who filed a brief in the case on behalf
of
Mexico. "This is
exactly what Medellin and Mexico hoped for: the opportunity to pursue a
remedy
in state
courts."
Babcock, who also heads a project aiding Mexican nationals in
mounting U.S.
death penalty
appeals, was encouraged by the tone of the Court's brief ruling and
four
separate concurrences
and dissents by individual justices. "There was nothing that was
disrespectful toward the
International Court of Justice," she said.
The ruling was closely watched not only because of the implications
for the
World Court and
U.S. foreign relations but also in light of the ongoing Supreme Court
debate
over the relevance
of international law to Supreme Court decision making.
Justice Antonin Scalia, usually viewed as the leading opponent to
use of
international law in high
court decisions, joined Justice Ruth Bader Ginsburg, an
internationalist, in a
concurrence Monday
that seemed somewhat deferential toward World Court judgments. Justice
Sandra
Day O'Connor,
joined by Justices John Paul Stevens, David Souter, and Stephen Breyer,
dissented from the Court's
action, arguing that the Court should have decided the case without
delay.
"It seems to me unsound
to avoid questions of national importance when they are bound to
recur,"
O'Connor wrote.
Souter wrote separately to say he thinks the Court should have kept
the case
on its docket while
Texas reviews Medellin's case. "We would, however, remain in a position
to
address promptly the
nation's obligation under the judgment of the ICJ if that should prove
necessary."
STATE DEPARTMENT REAFFIRMS CONSULAR NOTIFICATION REQUIREMENTS
http://travel.state.gov/news/news_2155.html
Announcement: All Consular Notification Requirements Remain in Effect
On March 7, 2005 the United States advised the United Nations of its
withdrawal
from the Optional Protocol to the Vienna Convention on Consular
Relations
(VCCR).
The Optional Protocol is a purely jurisdictional treaty, separate from
the
Vienna Convention,
giving the ICJ jurisdiction over disputes concerning the
Convention. The
United States has
not withdrawn from the Vienna Consular Convention and remains committed
to its
principles
and provisions.
The obligations of American law enforcement personnel regarding
consular
notification and
access for arrested or detained foreign nationals are unchanged by this
event. Here are the
key facts:
* The U.S. remains a party to the Vienna
Convention on
Consular Relations (VCCR),
and all of our obligations under this treaty remain in effect,
including our
obligations with
regard to consular notification
* The U.S. is fully committed to compliance with
our
international legal obligations under
the VCCR, and actively works to improve compliance nationally
* American law enforcement personnel must
continue to
inform, without delay, all foreign
nationals who are arrested or detained that consular officials of their
country
may be notified
of the detention
* If the detainee requests it, law enforcement
personnel
must continue to notify consular officials
from the detainee’s country of the detention and must continue to give
such consular officials access
to the detainee.
* The requirements to notify consular officials
of all
detentions of nationals of certain countries
(“mandatory notification”) also remain in effect.
To learn more about consular notification and access policy and
procedures,
click here.
POLICE SHOOTING PROMPTS VCCR TRAINING IN FLORIDA
BSO shooting of Mexican national spurs talk of better
training
By Sandra Hernandez
Florida Sun-Sentinel
November 22, 2004
After the controversial shooting of an undocumented immigrant,
Broward
Sheriff Ken Jenne met with Mexican officials last week to discuss ways
to
ensure foreign nationals involved in police action meet with their
consular
officers.
"We met with [Jenne], who was very concerned about the shooting and
he
was open to how consular notification should be interpreted and
applied,"
Mexican Consul General Jorge Lomonaco said on Thursday. "He wanted
our help in enlisting Spanish-speaking recruits and in coming up with
classes
that deal with racial profiling."
The meeting, which a Sheriff's Office spokesman confirmed, was
prompted
by the Nov. 3 shooting of a Mexican national outside the Whispering
Isles
apartment complex in Pompano Beach. Deputies approached him and another
man after they mistakenly tried to enter the wrong apartment. An
attorney for
the men,
who are undocumented immigrants, said they were returning home from
their first
day
at work and were confused about which building they lived in.
One of the men, Germán Gómez, remains hospitalized
with a gunshot wound
to the head, barely able to speak and unable to move much of his body.
The
second
man, his cousin Javier Dominguez, was detained for several hours by the
Sheriff's Office
and threatened with deportation. It remains unclear whether he was
informed of
his right
to contact the consulate for help.
Implemented in the 1960s, when the United States signed an
international
convention,
consular notification requires law enforcement officials to allow any
foreign
national who
is detained, arrested or imprisoned to contact the consulate. Many
experts in
international
law insist it must be observed to ensure U.S. citizens are given the
same
treatment when
out of thecountry.
Consular notification is aimed at protecting foreign nationals'
rights by
guaranteeing their
government's right to assist them and provide legal aid.
Because neither of the Mexican nationals was arrested, the Sheriff's
Office
initially
maintained it was not required to notify the men of their right to call
the
consulate or
the consular officials.Officials later said they had tried to reach
Lomonaco's
office.
Mexican officials have no record of the call or a message.
The shooting and the Sheriff's Office's handling of consular
notification
raises a larger
issue: the gap that exists between law enforcement's understanding of
the law
and
Florida's shifting demographics, which has given rise to new
communities of
immigrants.
"This has always been an issue in South Florida," said John De
Leon, vice president
of the American Civil Liberties Union, who is also a consulting
attorney for
the Mexican
Consulate. "I think there are a lot of cultural issues [police] need to
be
sensitized to because
they don't know what they are supposed to be doing."
Among the issues at play are language and laws specifically aimed at
safeguarding the
rights of immigrants, whether they have entered the country legally or
illegally. Neither
deputy involved in the shooting spoke Spanish and neither of the
Mexican
nationals, who arrived in the U.S. days earlier, spoke English.
Experts acknowledge police departments with new communities of
immigrants
are
sometimes unaware of laws and agreements.
"You find everything, you find police who have never heard of
[consular
notification] before,"
said Bruce Ammerman, head ofthe State Department Consular Notification
and
Outreach
program.
His office is scheduled to offer consular notification classes this
month in
Florida as part of
a new program launched by Gov. Jeb Bush this year.
"We are required by statute to do something like this," said Scott
Openshaw, a spokesman
for the governor's Office on Tourism, Trade and Economic Development.
Jenne told Mexican officials someone from his department would
attend
the training classes this month, Lomonaco said.
While the classes are a first step, some say more should be done.
"There is a problem with how some police departments are dealing
with
ethnic communities
and especially the undocumented," De Leon said. "The police are
desensitized to what
[undocumented immigrants'] rights are, but they are also taking action
deliberately against
them because they think there are no repercussions."
De Leon represents an undocumented Mexican national whose arm was
broken
during a
run-in with police in Naples. The man was never charged nor was he told
he
could contact
his consular officer, De Leon said. He later received medical
treatment.
"The consulate only found out because another Mexican man was so
outraged
when he
learned what happened that he contacted the consulate," De Leon said.
Police experts think efforts to reach out to the community are
important to
reduce tensions
during a crisis, as well as to improve law enforcements' ability to
secure immigrants'
help
in solving crimes.
"It's very important for the police to address this question of
working
with new immigrants
and a shifting demographic," said former San Jose, Calif., Police Chief
Joseph D. McNamara,
a fellow at Stanford University's Hoover Institution. "You have to win
the
trust of the various
groups before a crisis. Inevitably in police work there will be things
that
happen that you wish
didn't happen. But people can live with it as long as they feel the
police
department is trying."
Some departments have already begun such programs.
This spring Lake Worth's Police Department contacted the Guatemalan
Consulate in Miami
in an effort to reduce crime among migrant workers who carried large
sums of
money. The result
was that officials from Guatemala flew to Lake Worth and issued
passports to
about 600 migrant
workers, Lake Worth Police Officer Oscar Cardenas said.
They were then able to open bank accounts.
OREGON SUPREME COURT REJECTS SUPPRESSION AS VCCR REMEDY
Court rules on suspects' treaty rights
3/10/2005, 10:45 a.m. PT
By CHARLES E. BEGGS
The Associated Press
SALEM, Ore. (AP) — Statements made to police by foreign nationals
charged with
crimes can be used as evidence even if officers don't advise suspects
of their
right to
talk to consulates, the Oregon Supreme Court ruled on Thursday.
The issue is rights of arrested foreign citizens under a 1963
multilateral
treaty known as
the Vienna Convention on Consular Relations.
The case involves Moises Sanchez-Llamas, who was convicted of
attempted
murder and
sentenced to nearly 20 years in prison for wounding a Medford police
officer in
a 1999
gunfight.
He claims his pretrial statements to police shouldn't have been
allowed as
evidence at his trial
because he wasn't told of his right under the treaty to contact the
Mexican
consulate.
Jackson County Circuit Judge Raymond White rejected Sanchez-Llamas'
argument, and the
state Court of Appeals upheld the lower court. The state Supreme Court
unanimously agreed
with the lower courts.
Sanchez-Llamas was told in English and Spanish of his right to
remain
silent, that anything he said
could be used against him in court and that he was entitled to a
lawyer.
He said he understood the advice to mean "it would be better if I
told
the truth and everything," and
he made numerous incriminating statements, the Supreme Court said.
The treaty requires "competent authorities" to tell a consulate
when a foreign national is arrested, to
allow the consulate to communicate with the detained foreign national
and
advise the foreign national
"without delay" of the rights.
INTERNATIONAL NEWS BRIEFS
AMERICAN WOMAN SPARED FROM EXECUTION IN OMAN
18 January 2005
Amnesty International
Rebecca Thompson (f), aged 44, US citizen
US national Rebecca Thompson is no longer at risk of execution. The
Sultan
of Oman has reportedly commuted her death sentence to 15 years'
imprisonment.
Her daughter issued a press statement on 18 January, saying, 'I
would like
to thank
the hundreds of people that have written letters on my mother's behalf:
I truly
believe
every single one of them made a
difference.'
Rebecca Thompson was sentenced to death on 8 May 2004 for the murder
of her
husband, Mark Lee Thompson. The sentence was upheld by the Appeal court
on 17
July and then by the Supreme Court on 9 November. Three other
defendants in the
same
case were sentenced to prison terms. Among them was one minor, who
received a
suspended sentence.
Many thanks to all those who sent appeals. Amnesty International
will
continue to monitor
the case and take further action as necessary.
SINGAPORE MOVES TO INCORPORATE VCCR INTO DOMESTIC LAW
25/01/2005
MOS Zainul Abidin's address in Parliament on Diplomatic and Consular
Relations Bill 2004
"This Bill seeks to enact the new Diplomatic and Consular Relations
Act
which gives force of law in Singapore to relevant provisions of the
Vienna Convention on Diplomatic Relations 1961 and the Vienna
Convention
on Consular Relations 1963...
2 Singapore is currently not a signatory to the Vienna Convention on
Diplomatic Relations 1961 and the Vienna Convention on Consular
Relations 1963, although we follow closely the provisions of both
Conventions in our dealings with foreign missions in Singapore and in
managing our overseas missions in other countries. The two Conventions
are universally recognised as customary international laws governing
the
protection and granting of privileges and immunities by the receiving
State to diplomatic and consular missions and members of the missions
so
as to facilitate the smooth functioning of the foreign missions in the
receiving State. To bring ourselves in line with international
practices, Singapore has decided to accede to both the Vienna
Convention
on Diplomatic Relations as well as the Vienna Convention on Consular
Relations without any reservations...
4 Let me conclude by saying that the passing of the Bill will put in
place the necessary legislation for Singapore's accession to the two
Conventions. Our accession will be one further demonstration of
Singapore as a committed and responsible member of the international
community."
Editor's note: Singapore has joined a growing list of nations
that have
recently
incorporated the VCCR into domestic law. Unlike the USA, most
countries do
not recognize the doctrine of self-executiong treaties (whereby a
treaty may
acquire full force under domestic law upon its ratification).
Instead, other
countries typically require separate implementing legislation before
a
ratified
treaty becomes enforceable domestic law. Another recent example
is South Africa:
The new Diplomatic Immunities and Privileges Act came into force on
28
February 2002 and repealed the Diplomatic Immunities and Privileges
Act,
Act No. 74 of 1989. The purpose of this document is to introduce the
new
Diplomatic Immunities and Privileges Act, Act No. 37 of 2001 and to
explain what the reasons were for the adoption of a new Act and what
the
new Act involves.
The new Act gives effect to South Africa’s international obligations by
* incorporating the provisions of the Conventions
on
Diplomatic
Relations and on Consular Relations in full in South African
legislation;
SRI LANKA URGED TO RATIFY VCCR AND OPTIONAL PROTOCOL
Date : 2005-04-09
Asian Tribune
Government negligence may cost 3 Sri Lankan lives in Saudi
By Sugeeswara Senadhira - Asian Tribune Bureau Chief, Colombo
Colombo, 09 April, (Asiantribune.com): The Sri Lankan government’s
negligence to ratify the Optional Protocol of the Vienna Convention on
Consular Relations, will hinder the efforts to save the lives of three
Sri Lankan expatriates facing death sentence Saudi Arabia for the
charge
of theft.
Nishan de Mel, a Sri Lankan researcher said that Mexico had
succeeded in
saving the lives of several Mexicans who faced death sentence in United
States by legal action in the International Courts of Justice. However,
Sri Lanka will not be able to emulate Mexico to save the lives of its
citizens abroad because Sri Lanka has failed to sign or ratify the
Optional Protocol or the Vienna Convention on Consular Relations.
Those close to these unfortunate Sri Lankans on death row have said
that
the accused did not receive proper legal representation and, at best,
barely managed to decipher the proceedings being instituted against
them. In any kind of legal case this would be very wrong; in a case
that
leads to a death sentence, it is intolerable.
It is quite possible that the Sri Lankans in Saudi Arabia did not
receive any better legal representation than the Mexicans in the United
States. The Mexican case against the US hinged on the Optional
Protocol,
which stipulates that disputes with regard to the application of the
Vienna Convention on Consular Relations can be adjudicated by the
International Court of Justice.
“As far as I can see, Sri Lanka has no good reason for not signing
the
Vienna Convention on Consular relations,” de Mel said. “The fact
that it
has not been signed or ratified is due most likely to Bureaucratic and
Parliamentary inattention to the significant role that the Vienna
Convention on Consular Relations could play in providing protection for
Sri Lankan citizens who are abroad.”
“Even at this late stage, this might be the time for us to initiate
action both within civil society and the government to ensure that Sri
Lanka ratifies as soon as possible the Vienna Convention on Consular
Relations along with the Optional Protocol on Dispute Settlement,” the
researcher said.
There are about one million Sri Lankans working in the Middle East.
They
are a tremendous asset to the economy of the country and to the
financial well being of their communities. It is also common knowledge
that some countries in the Middle East, and Saudi Arabia in particular,
pay very little regard to international standards of human rights and
legal due process.
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