Representing Foreign Nationals Facing the Death Penalty:

A Resource Guide

December, 2001




prepared by: Mark Warren

(613) 256-8308

Human Rights Research

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Introduction

Enlisting the Consulate as an Ally

The Role of the Consul

Litigating VCCR Claims

Consular Assistance and Miranda Claims

Other Resources

Conclusion

Introduction(1)

Representing foreign nationals facing a capital charge poses unique challenges-and opportunities-for defense teams. Foreign nationality can impede effective assistance at basic levels, such as communicating with and obtaining instructions from your client or gathering mitigating evidence. Particularly in life-or-death situations, counsel representing foreign clients should explore other available avenues for assistance to overcome these obstacles.

Of the approximately 115 foreign nationals known to be under sentence of death in the USA, the vast majority were never notified by the arresting authorities of their right to seek assistance from their consulate. That right is enshrined in Article 36 of the Vienna Convention on Consular Relations, a multilateral treaty ratified unconditionally by the USA in 1969 (21 U.S.T. 77, T.I.A.S. 6820). Under its provisions, local authorities must promptly inform detained or arrested foreign nationals of their right to communicate with their consulate. At the request of the national, authorities must contact the consulate and permit consular communication and access. Consuls are empowered to arrange for their nationals' legal representation and to provide other services. Local laws and regulations must give full effect to these rights. (2)

The provisions of the Vienna Convention (VCCR) are binding on all federal, state and local authorities in the United States. The notification obligations enshrined in VCCR Article 36 apply regardless of the immigration status or length of residence of the foreign national in the receiving State. Despite recent efforts by the State Department and foreign consular services to improve compliance, violations of this binding treaty obligation remain commonplace across the USA.

These breaches of a ratified treaty designed to protect the legal and human rights of foreign detainees may provide a variety of potential grounds for appeal and for pre-trial motions. They also serve as compelling justification for attorneys to contact the diplomatic representatives of a foreign client and to seek material and legal assistance from the home government.

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Enlisting the Consulate as an Ally: a 12-step strategy

Protecting and assisting nationals who have run afoul of the law while abroad is a primary function of consular officials. Most nations' consulates are thus very sensitive to Article 36 breaches, particularly when their citizen is facing a death sentence. Approaching a foreign client's consulate and enlisting their support should be viewed by attorneys as an essential element in effective representation. Even if your research indicates that your client was promptly informed of their consular rights upon arrest, you should still make contact with the consulate to discuss possible assistance.

The consulates of most nations strive to provide at least basic consular protections to their nationals detained abroad. However, the scope of assistance that you and your client will receive may vary, depending on the severity of the offense, the resources available to the local consular post, the priority placed by the home government on consular services and even the degree of interest of the local consul. Nonetheless, in all reported capital cases to date, contacted consulates have provided meaningful assistance of varying kinds to US defense counsel.

1) Familiarize yourself with the provisions of Article 36 and consider its potential ramifications in your client's case. Review the case file (particularly arrest reports) to ascertain that the arresting authorities were aware that the suspect was a foreigner and that they failed to notify your client of the right to communicate with the consulate. Please note that communications between domestic and foreign law enforcement agencies (i.e. requesting criminal records from the home jurisdiction) do not meet the notification requirements of Article 36.

2) Discuss the advantages of consular assistance with your client. Not all foreign nationals would wish their consulates to be contacted: political exiles or refugees, for example. Obtain an affidavit from your client stating that a) they were not informed of their right to contact their consulate at any time after their arrest and b) that they would have availed themselves of this right, had they been duly notified. Begin preparing motions to introduce this claim in pre-trial or trial proceedings, or on appeal. (Contact me for access to reference motions).

3) Contact the nearest consulate of your client's home government.If there is no consulate nearby, contact the nation's embassy in Washington.(3)In either case, you'll want to speak with the Consul-General, the diplomatic official in charge of consular affairs. If possible, arrange to meet with them directly. If not, send an introductory letter summarizing your client's background, the case history and stressing both the breach of the Vienna Convention on Consular Relations and the grave predicament of the defendant. At this point, your purpose should be to acquaint the consulate with the situation and to establish a dialogue on how you might work together on your client's behalf.

4) After establishing contact, request basic consular assistance.There are two requests for assistance you may make which most consulates will feel duty-bound to comply with. First of all, a consular representative should immediately arrange to visit their national. Secondly, request that a consular official be present at all subsequent court hearings. Both are general consular functions under the Vienna Convention; evidence of this participation will add credibility to your claim that the consulate would have rendered valuable assistance to your client following arrest.

At all stages, the consulate should regularly visit or communicate with your client and should lodge formal complaints over any irregularity in the prisoner's treatment. A general listing of the forms of diplomatic assistance available to detained nationals is contained in Article 5 of the VCCR. Of course, some nations are more active than others in representing the rights of arrested nationals.

In the aftermath of September 11th, you should advise the consulate of the risk that federal authorities may begin monitoring conversations between consular officials and detained foreigners, particularlyif your client is Muslim or from the Middle East. To be on the safe side, consular officials should not discuss case specifics or other sensitive information with your client.

The consulate may also be willing to provide you with an affidavit attesting to the standard assistance they provide when they are informed of the arrest of one of their nationals on serious charges. Establishing that the consulate would have responded with valuable assistance is an essential element in meeting the standard of prejudice that courts are increasingly applying to Article 36 claims.

You should be aware that not all consulates will be familiar with US death penalty procedures, or the potential scope and benefit of consular assistance in these cases. A companion document on effective consular assistance is also available from the author. Intended primarily for consuls in the USA, the 16-page text includes examples of effective consular interventions, an overview of the US death penalty process and advice for consuls working with defense teams. File CONINTRO is available on request, as an e-mail attachment. (4)

5) If the consulate is receptive to their national's plight and expresses a willingness to help, ask them to have a diplomatic note sent to the US State Department from their embassy, formally protesting the alleged breach of Article 36. The note should request a full investigation into the allegation. Diplomatic protocol requires that the State Department relay the request to the relevant state Attorney General's office for investigation and response. A substantive response to the note will take at least a month and probably longer.

Find out from the consulate if there is a bilateral consular convention between the USA and the home government which can be invoked. The United States has bilateral consular agreements with some 52 nations; unlike Article 36, these agreements generally stipulate that the consulate itself must be directly notified of the detention within 72 hours, irrespective of the national's wishes. These agreements place a high measure of responsibility on the local authorities beyond those in the Vienna Convention and may provide legitimate grounds for direct legal intervention by the home government, in order to vindicate its sovereign rights.

6) If the consulate agrees to intervene in the case, discuss other forms of direct assistance. Depending on the case circumstances and the stage of proceedings, this may include: asking prosecutors not to seek the death penalty, the hiring of a mitigation investigator to visit the home country, funding for your own work on the case, the appointment of paralegals or law firms to assist you, the transfer and notarization by the consulate of documents from the home country (e.g. medical records), filing a statement in support of a motion for a stay following hearings, attending court proceedings or appointing an attorney to represent the consular interest at hearings.

7) Recommend that the consulate's legal adviser should be representing its interests in the case. If the consulate agrees but does not have a legal adviser on staff or a law firm on retainer, you may wish to recommend an attorney of your acquaintance to represent the consular interest. They should, of course, be familiar with treaty law as well as capital litigation in your jurisdiction. This stage is a "point of no return" in terms of consular involvement; a foreign government may be reluctant to intervene in a US domestic court case and may require some patient persuasion on your part.

8) Other forms of consular support are also possible, depending on the case. For example, you could request a consular representative to testify at an evidentiary hearing on this issue, describing the forms of assistance available to detainees (senior officials may have diplomatic immunity, so their voluntary consent to appear is crucial). The consulate may agree to pay the travel expenses of your client's friends or family so they may testify at a mitigation hearing. In the latter stages of appeal, the Consul-General or Ambassador might request a personal meeting with the state governor to request clemency, testify at a clemency hearing or arrange for a formal letter from a senior official in the home government requesting commutation.

One important element of consular assistance in clemency initiatives is the possibility of an offender transfer. Following consultation with the home government, the consulate may be empowered to offer the repatriation of the prisoner to serve a lengthy sentence, in exchange for commutation of the death penalty.

9) The probable response from state officials to the State Department enquiry will be to admit that arresting authorities failed to notify your client of his consular rights but that, for a variety of reasons, the breach of the treaty constitutes harmless error. Consular officials will likely perceive this response as unacceptable. Now may be the ideal time to ask the consulate to file an amicus curiae brief or other intervention to support the amended habeas petition (or similar interventions in pre-trial). The brief should outline the forms of assistance that the consulate provides to its detained nationals and argue that this breach of international law prejudiced the defendant's legal rights.

10) If your first contact or subsequent relations with the consulate are unsatisfactory, don't give up. Send a copy of your introductory letter to the home government's Foreign Affairs Minister (names/addresses available through any Amnesty International office). Do not criticize the consulate in your correspondence with the home government; should the government decide to intervene in the case, you'll still need to work with the local consular officials.

11) When all else fails, you may wish to consider publicity or lobbying in the home country to persuade a reluctant government to take action. However, this step should only be taken after consultation with well-informed and reliable people 'on the ground' in the home country. Amnesty International maintains national Sections in some 55 countries worldwide. Many AI Sections have press officers and campaign coordinators who can advise you on the local opportunities for media outreach, government lobbying, approaches to domestic bar associations, etc. For information on Amnesty International contacts in the home country, consult with the AI USA Death Penalty Program Director in Washington (tel: (202) 544-0200).

12) Be patient and tactful in all your dealings with the consulate: make suggestions, not demands. A final word of advice: most diplomats have lower metabolisms than death penalty attorneys; they're accustomed to moving slowly and deliberately. It may be frustrating, but the yield will be greater if you employ gentle but persistent pressure. Be aware of the political realities between the United States and the home government: some consulates may prefer to keep their interventions low-key and will strive to avoid publicity, while others may use your client's case to further their own nation's agenda. In either situation, let the consulate retain a sense of control over their participation in the case. Always keep them fully informed of any relevant legal developments, and always show your appreciation for any assistance that they decide to provide. Good luck!

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The  Role of the Consul in Criminal Cases: An Informal Summary

Assisting its nationals in distress is one of the defining aspects of the consular service of every nation. Few nationals require that assistance more urgently than those who are arrested and face prosecution in a foreign country. Arrested foreigners are truly "strangers in a strange land", confronted by an unfamiliar legal system, far from home and at the mercy of the local authorities.

International law has long recognized that consuls have the right to visit, communicate with and assist their nationals who are jailed or imprisoned abroad. Indeed, the concept that all states are entitled to protect the interests of their nationals abroad is a basic principle of international consular law and diplomatic practice.

While consular assistance for detained nationals can take many forms, each intervention serves three basic purposes. The first is humanitarian: consuls provide detainees with access to the outside world (e.g. communicating with family and friends) and ensure that they have the basic necessities of life (e.g. in some countries, prisons do not provide adequate food or medicine).

The second purpose is protective: consular visits help to ensure that foreign nationals are not mistreated in custody. In many countries, unfortunately, timely consular assistance is all that stands between foreign prisoners and ill-treatment, torture, or even death in custody.

The final purpose is legal assistance: consuls acquaint their nationals with the basic procedures under the local legal system, provide them with lists of local lawyers to defend them and take other appropriate steps to ensure that their nationals receive fair and equal treatment under the laws of the arresting state.

In a US capital case, consular assistance can include:

--monitoring the performance of court-appointed attorneys;

--ensuring that the detainee and the defense attorney are in close contact;

--resolving problems that may arise between the lawyer and the national;

--interceding with prosecutors to avoid excessive punishment;

--attending court hearings;

--if necessary, funding the hiring of competent counsel for the accused;

-visiting the detainee on an ongoing basis;

--monitoring the treatment of the detainee in custody and protesting ill-treatment or lack of access;

--contacting friends and family in the home country;

--funding expert witnesses and investigators, where the courts deny adequate defense funding;

--notarizing and conveying documents from the home country (e.g. medical, educational, military records);

--funding mitigation investigations in the home country;

--bringing mitigation witnesses to testify;

--retaining an attorney to represent the consular interest;

--submitting amicus briefs or motions based on any violations of international law;

--participating directly or indirectly in appellate review;

--petitioning for clemency;

-hosting press conferences or assisting in publicity;

--any other assistance necessary to ensure that the national receives fair, equal and humane treatment, both before trial and after sentencing.

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Litigating VCCR Claims

Briefly put, most courts in the United States that have addressed this issue have bent over backwards to deny relief for admitted and glaring violations of defendants' consular rights. However, the issue is far from settled and there have been some encouraging developments recently which establish the value of pursuing and preserving these claims.

A violation of the Vienna Convention is thus not a magic bullet to avoid a death sentence or execution. While stand-alone claims citing VCCR violations have not fared well in most jurisdictions, the treaty issue may also be used to augment more traditional claims (like the Miranda issues discussed below). The novelty of the claim may persuade some judges to pay closer attention to your brief, or to grant a hearing. The intervention of a foreign government or the complexity of litigating international law claims may persuade some prosecutors to find an easier (and cheaper) target for a death penalty trial.

Under Article 6 of the US Constitution, treaties are part of the supreme law of the land and are binding on all courts. The Supreme Court has long recognized that treaties take precedence over inconsistent domestic practices and must be enforced. (5)Where a treaty confers a legal right on an individual, it is the role of the judiciary to construe that right and to fashion remedies for its violation.(6)Although the plain text of this ratified treaty confers distinct rights on individuals, most US courts have so far declined to fashion meaningful remedies.

The only substantive Supreme Court decision on this issue is Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per curiam), a denial of certiorari in the case of a Paraguayan national. The Supreme Court held that the right to consular notification did not rise to a constitutional right and that Article 36 stood on par with an act of federal legislation. Appeals based on Article 36 could thus be limited by subsequent legislation (e.g. the time limits imposed on habeas appeals by the Anti-Terrorism and Effective Death Penalty Act) or foreclosed by domestic legal procedures such as procedural default. Significantly, the Supreme Court decision does not preclude consideration of individual habeas claims on the basis of the treaty, assuming that they are properly filed and can demonstrate actual prejudice. The Court also acknowledged that"[the Convention] arguably confers on an individual the right to consular assistance following arrest".

International courts which have addressed this issue have reached a dramatically different conclusion. Following the 1997 execution of two Mexican nationals in the USA, the Mexican government obtained an advisory opinion from the Inter-American Court of Human Rights. The Court held that the treaty confers due process rights on individual nationals which apply from the moment of detention, that the denial of those rights would render a subsequent execution illegal under international law and that no prejudice need be demonstrated to mandate a suitable remedy.(7)

While the USA does not recognize the binding domestic nature of Inter-American Court decisions, a recent judgement from the International Court of Justice (ICJ) stands on a higher footing. When the USA ratified the Vienna Convention in 1969, it also ratified its international enforcement mechanism without reservations. Under the provisions of the VCCR Optional Protocol Concerning the Compulsory Settlement of Disputes, disputes over the interpretation or application of the treaty falls under the compulsory jurisdiction of the ICJ, which is empowered to issue binding decisions.

In response to the imminent execution in Arizona of German nationals Karl and Walter Lagrand in 1999, the Republic of Germany brought an action against the USA at the International Court of Justice (Germany v. USA). After the USA and Arizona authorities ignored the ICJ injunction requiring a stay of execution, Germany then proceeded to obtain a binding judgement from the ICJ, which was issued on June 27th, 2001.

The ICJ determined that the United States had violated every major provision of Article 36, thus incurring obligations both to Germany and to its detained nationals. The key elements of the ruling squarely contradict the legal position adopted by US authorities in the domestic courts, as well as the per curiam decision of the US Supreme Court in Breard v. Greene (523 U.S. 371 (1998)).

In a nutshell, the ICJ determined that Article 36 confers rights on individuals, that procedural default may not be applied to bar domestic judicial consideration of the treaty violation, that prejudice is irrelevant to determining the treaty breach and that the USA must provide "review and reconsideration" of the treaty violation in all cases of prolonged detention or severe sentences. (8)

Since the VCCR Optional Protocol is also a ratified US treaty (and one which cedes judicial authority to the ICJ), several current cases are arguing that the LaGrand decision is binding on the domestic courts. In the first domestic death penalty case to take full cognizance of the LaGrand decision, the Oklahoma Court of Criminal Appeals granted an indefinite stay of execution to Mexican national Gerardo Valdez, finding that Valdez's successor habeas petition based on Lagrand raised "a unique and serious matter involving novel legal issues and international law". Valdez had previously been granted two reprieves by the Governor of Oklahoma after Mexican authorities intervened in the case and the state pardons board had recommended the commutation of the death sentence, largely on the grounds of the treaty violation. However, the governor eventually refused to follow the clemency recommendation, resulting in the last-minute appeal and stay of execution.(9)

The issue will no doubt require consideration by the US Supreme Court-meanwhile, the ICJ decision in LaGrand should be cited as controlling authority.

Among the arguments that you may need to confront are domestic court decisions holding that:

-the VCCR confers no legal rights on individual nationals;

-any rights conferred are not on the same footing as fundamental constitutional rights;

-classic remedies such as suppression, exclusion or dismissal are not available;

-prejudice must be demonstrated to justify a remedy;

-remedying a consular rights violations is a political question which lies beyond the scope of the judiciary;

-procedural default or other domestic rules trump a treaty obligation;

-the ICJ decision in LaGrand is not binding on the domestic courts or applies only to Germans;

-no other nation provides judicial remedies for Article 36 violations.(10)

While there are good responses available for each of these arguments, a full discussion lies beyond the scope of this guide. Please contact me for sample motions, articles and briefs addressing these points.

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A Sample Issue: Consular Assistance and  Miranda Claims

The most essential legal function of the consul in these cases is to ensure that the detainee fully comprehends their legal rights and options, as well as the differences between the US criminal justice system and that of their home country--in terms that the foreign national will understand. As you all know, while a waiver of Miranda rights must be knowing, intelligent and voluntary, there is no obligation on the police to explain the underlying significance of these rights or the full consequences of waiving them.

However, Miranda-style rights are not universally recognized. Very few countries outside of the USA, the UK and the Commonwealth use the adversarial system of justice, which is based on English common law. Most countries--and their nationals--rely on an inquisitorial system, in which the rights of the accused during the pre-trial stage are protected not by an attorney, but rather by an investigating magistrate.

A statement as basic as "you have the right to an attorney" is meaningless to many foreign detainees--why should they need an attorney, before the trial begins? Similarly, "you have the right to remain silent" is simply bizarre to someone who knows that, back home, remaining silent under questioning will be used against them in court--or may result in torture or death! Few local lawyers can explain those crucial differences, and it's not enough just to translate the words. In far too many cases, it's perfectly clear that foreign nationals have no clue what the Miranda rights are about--simply because they're foreigners.

As the training manual for US consuls abroad points out, consular assistance is intended to act as a "cultural bridge" between the detained national, their attorney and the local authorities. Consular intervention thus serves to ensure that the national makes knowing and voluntary decisions regarding their legal options and fully understands the consequences of those choices under local procedures. In cases where Article 36 has been breached, the subsequent absence of consular assistance arguably provides an important consideration in determining the voluntariness of Miranda waivers, in the totality of the circumstances.(11)

Beyond that function as a cultural translator, the consul also ensures that the detainee has all the means necessary to mount an effective defense. The general scope of consular assistance is outlined in Article 5 of the VCCR. Article 37 also requires mandatory consular notification in cases of guardianship -an issue of particular relevance when representing a foreign juvenile or person of diminished capacity

Even in capital cases where a foreign national is entirely familiar with US criminal justice procedures, the consulate still provides an indispensable function. For example, crucial mitigating evidence may exist only in the home country but may lie beyond the reach of defense counsel. In other words, the protective and supportive function of the consulate does not end with the arrest and interrogation of their national--it continues with unabated significance throughout the trial, sentencing and appellate review.

A violation of consular rights may thus have far-reaching consequences in a capital case. Your re-examination of the case record from this perspective may reveal other fruitful ways to augment existing claims with the treaty violation. For example, the failure of trial counsel to introduce the issue (or to seek consular assistance) may strengthen an IAC claim in post-conviction habeas proceedings. (12)

Cases expressly holding that Article 36 confers a personal right, the violation of which is subject to judicial review and potential remedy

Standt v. City of New York, 153 F. Supp.2d 417 (S.D.N.Y. 2001) (civil). (The Vienna Convention confers a private right of action enforceable by individuals. Defendants may pursue an affirmative claim for violations of their VCCR rights pursuant to 42 U.S.C. §1983)

United States v. Esparza-Ponce, 7 F. Supp. 2d 1084 (S.D. Cal. 1998) (in an appropriate case, a violation of the Convention may warrant suppressing a defendant's statements or granting other appropriate relief") (n.10).

United States v. Hongla-Yamche, Criminal No. 98-10296-JLA, June 15, 1999, United States District Court, District of Massachusetts; United States v. Alvarado-Torres, No. Crim. 98-3351-R, 1999 WL 236197, at *2 (S.D. Cal. Apr. 19, 1999);United States v. Superville, 40 F. Supp.2d 672, 676-78 (D. Virgin Islands 1999); United States v. Rodrigues, 1999 U.S. Dist. LEXIS 15546 (E.D.N.Y. Sept. 28, 1999); United States v. Chaparo-Alacantra, 37 F. Supp. 2d 1122, 1125 (C.D. Ill. 1999);

United States v. $69, 350 in United States Currency, 22 F. Supp. 2d, 593, 594 (W.D. Tex. 1998) (expressly rejecting the government's argument that the Convention creates no enforceable rights).

See also: People v. Mata Medina, District Court, Pueblo County (Colorado), Case No. 97 CR 307, May 7, 1998, holdingthat a violation of Article 36 rights may be grounds for suppression of defendant's statements, in the totality of circumstances in the individual case.

See also: State of Ohio v. Ramirez, 1999 WL 1313670, slip op. at *7 (Ohio Ct. App. 11 Dist., Dec.23, 1999) (unpublished opinion) (noting, in dicta, that "if the Vienna Convention had been complied with in this case, the errors detailed in appellant's first point of error would have been avoided," and reiterating that "it is the imperative duty of the judicial tribunals of Ohio to take cognizance of the rights of persons arising under a treaty to the same extent as if they arose under a statute of the state itself.")

Cases granting relief which were upheld on appeal

State of Delaware v. Reyes, 740 A.2d 7, 14 (Del. 1999) (No. 9805001002 (Del. Super. Ct. -- New Castle Co. July 22, 1999)(suppressing custodial statements based solely on a VCCR violation).

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Other  Available Resources

Human Rights Research acts as a clearinghouse of information and contacts on Article 36 issues. Among other services, it offers a free electronic newsletter on recent developments, access to an extensive electronic library, contacts with attorneys, law professors and NGOs with experience in this field. Please contact me for more details.

The Mexican Capital Legal Assistance Program is an initiative funded by the Mexican Foreign Ministry to provide various forms of support to attorneys representing Mexican nationals facing the death penalty in the USA. Its services include a team of attorneys experienced in raising Vienna Convention and other international law claims, model briefs and motions, amicus briefs and assistance in working with local Mexican consular officials. For more information, contact the Program Director, Sandra L. Babcock, at sandrababcock@earthlink.net, 612/871-5080, Fax. 612/872-4967

Assistance for detained foreign nationals may also be available from other organizations, including cultural, religious and special interest groups. For a detailed list of these groups in the USA by nationality, see: The Vienna Convention, Consular Access and Other Assistance Available to Foreign Nationals: A Guide for Criminal and Immigration Lawyers, by Lara A. Ballard, Columbia Human Rights Law Review (1998). Also available on-line at: www.gacdl.org.

In some cases, jail or prison authorities have refused to allow consular access to prisoners or communications between the consulate and the detainee. The State Department's Bureau of Consular Affairs will undertake to remedy consular access problems, at the request of the affected diplomatic post. To register a complaint regarding consular notification or access, the consulate should contact the Office of Public Affairs, Outreach Liaison, (202) 647-2606. [N.B. The US Government's position is that the treaty confers no judicially-enforceable rights on individual nationals and that no judicial remedies are available for its violation-so the consulate should not discuss the case circumstances or legal strategies when registering a complaint.]

On-line Material

-- data on death-sentenced foreign nationals in the USA and other background material:

http: //www.deathpenaltyinfo.org/foreignnatl.html

-- US Department of State manual for law enforcement on Article 36:

http://travel.state.gov/consul_notify.html

-- material from the International Court of Justice on the LaGrand case:

http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm

--Vienna Convention briefs and decision in People v. Mata-Medina(a Colorado trial court decision ordering police to inform foreign detainees of their consular rights; recognizing that non-notification may be grounds for suppression, in the totality of the circumstances.)

http://www.state.co.us/gov_dir/pdef_dir/Library/Mata-Medina/MEDINA%20TOC.htm

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Conclusion: an issue worth developing

Claims citing a violation of consular rights should be filed at the earliest possible stage of the proceedings (including pre-trial motions), if only to preserve the issue for further review. Obtain an affidavit from your client to establish that they were not informed of their consular rights and would have exercised them. After obtaining your client's consent, immediately contact the consulate and apprise them of the situation. Given the significance of the Vienna Convention, most consuls will respond positively, particularly in cases where timely consular assistance could plausibly mean the difference between life and death.

Clearly, motions or appeals citing an Article 36 violation in the USA would be most effective where it can be demonstrated that the violation materially harmed the plaintiff's ability to mount an adequate defense or affected the outcome of the trial. Of particular importance is the crafting of a strong argument that judicial remedies are both available and appropriate for the violation of an individual's treaty-based rights, if only to deter widespread, serious and ongoing governmental misconduct. Claims raised as post-conviction habeas appeals should strive to establish that the prejudice sustained by the defendant was clearly not harmless error and should address procedural default issues.

Consular intervention can be beneficial to your client in unexpected ways. The active involvement of the consulate has dissuaded some prosecutors from seeking the death penalty in the first place; in other cases, consular support has persuaded condemned prisoners to resume their appeals. In some non-capital cases, timely consular intervention has facilitated plea negotiations.

Aside from the potential value of this issue as a litigation issue, consular support can be crucial in providing the additional resources to adequately defend a foreign citizen, by providing access to mitigating evidence, witnesses, cultural expertise, diplomatic influence and a host of other forms of assistance. Above all, one general rule applies when exploring consular support for a foreign client: be creative!

For more information and assistance, please contact:

Mark Warren

Human Rights Research web site http://www.deathpenaltyinfo.org/foreignnatl.html

tel: (613)278-2280 e-mail: aiwarren@sympatico.ca

fax: (613)746-2411

END NOTES
 

1. This resource kit is derived from a longer document by Human Rights Research entitled Consular Notification and Assistance: A Guide for Attorneys. Now in its sixth edition, the full guide also includes a litigation history, case studies, bibliography, case citations, treaty excerpts, contact lists and a file library. It is available free of charge upon request as an e-mail attachment.

2. The full text and other valuable information regarding consular notification and assistance is found in the US Department of State manual for law enforcement, available at:

http://travel.state.gov/consul_notify.html

3. The State Department web site provides a full list of foreign embassies and consulates in the USA, at: http://travel.state.gov/notification6.html#phone

4. An extensive electronic file library covering all aspects of this issue is freely available to defense attorneys. Please contact me for a current list.

5. See e.g. 'The Amiable Isabella', 19 U.S. 1, 72 (1821)).

6. See e.g. Holmes v. Laird , 459 F. 2d 1211, 1215, 1222 (D.C. Cir. 1972): "[i]n the domestic realm courts are not only equipped to enforce self-executing treaties affecting individual rights, but by virtue of the Supremacy Clause are required to do so."

7. The Court vigorously upheld the rights conferred under Article 36 as individual human rights, the denial of which violates international due process norms and requires a remedy. The full text in English is available at: http://corteidh-oea.nu.or.cr/ci/PUBLICAT/SERIES_A/A_16_ING.HTM

8. The full text of the historic ruling and all of the related documents are available at:

http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm

9. The Valdez successor petition is available upon request as an e-mail attachment, in Adobe Acrobat format.

10. Although this last point is plainly incorrect, the Department of Justice and the State Department have asserted it in domestic and international court proceedings; it's now part of the standard prosecution template for responding to VCCR litigation.

11. For a memo outlining cases in which US courts have held that unfamiliarity with English constituted an involuntary waiver of Miranda rights, please contact the author.

12 . See, e.g. Murphy v.Netherland, (116 F.3d 97 (4th Cir. 1996), noting that "reasonably diligent counsel" would have investigated and introduced potential treaty issues when representing a foreign national facing capital charges.
 

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