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Texas Court Rejects Presidential Order in Death Penalty Case

The Texas Court of Criminal Appeals rebuffed President Bush's order that Texas courts review the cases of Mexican foreign nationals who were sentenced to death without the benefit of their rights under the Vienna Convention on Consular Relations.  Writing for the court, Judge Michael Keasler, stated: "We hold that the President has exceeded his constitutional authority by intruding into the independent powers of the judiciary."  Judge Sharon Keller concurred, writing: "this unprecedented, unnnecessary, and intrusive exercise of power over the Texas court system cannot be supported by the foreign policy authority conferred on him by the United States Constitution."

In 2004, the International Court of Justice in The Hague ruled that 51 Mexican citizens who were on death row in the U.S. were entitled to a review of their convictions and sentences in light of the fact that they were not informed of their right to speak to their consular officials at the time of their arrest, as guaranteed under the Vienna Convention.  While one of these cases, that of Jose Ernesto Medellin, was making its way to the U.S. Supreme Court, President Bush issued a memorandum to the Justice Department ordering that state courts abide by the decision of the International Court.  The U.S. State Department also announced that, for future cases, the U.S. was withdrawing from the agreement that gave the International Court jurisdiction in the case of the 51 Mexican citizens.


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Supreme Court Denies Remedies Under International Treaty

On June 28, 2006, the U.S. Supreme Court decided two consolidated cases involving the Vienna Convention on Consular Relations. In both cases, the foreign nationals were arrested but not informed by police officers of their consular rights under the Convention to ask that their respective consulates be notified of their detention. The Court concluded that statements made by foreign nationals do not need to be suppressed, even though the defendants were not informed of their consular rights.

The consolidated cases were: Sanchez-Llamas v. Oregon (No. 04-10566) and Bustillo v. Johnson. In the first case, Moises Sanchez-Llamas, a Mexican national, was arrested after an exchange of gunfire with police. The officers did not inform him of his rights under Article 36(1)(b) of the Vienna Convention, namely his right to ask that the Mexican Consulate be notified of his detention. He made incriminating statements about the shootout during interrogation, but the state court denied his motion to suppress those statements on the ground that the authorities failed to comply with Article 36. Sanchez-Llamas was convicted and sentenced to prison. The Oregon Supreme Court affirmed his conviction, concluding that Article 36 does not create rights to consular access or notification that a detained individual can enforce in a judicial proceeding.


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Foreign Nationals on U.S. Death Rows

There are currently 120 foreign nationals from 32 countries on death rows across the U.S. These are individuals who have been condemned to death in this country but are not citizens of the U.S. In many cases, these defendants were not informed of their rights under Article 36 of the Vienna Convention on Consular Relations. This treaty was signed and ratified by the U.S., but many defendants from countries that are also parties to the Vienna Convention were not told of their right to contact the consulate of their native country. The consulates were also not promptly informed of the arrest of one of their citizens.  (DPIC's page on Foreign Nationals provides further details.  Information on foreign nationals is from Mark Warren of Human Rights Research, updated May 24, 2006).

The U.S. Supreme Court heard two cases this term involving the rights of such foreign nationals. Although neither defendant was sentenced to death, resolution of the cases will decide legal questions that will likely affect those on death row. The cases are Sanchez-Llamas v. Oregon and Bustillo v. Johnson. Decisons from the Supreme Court are expected this month.  See law firm of Debevoise and Plimpton for briefs in the above cases.


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Virginia Man Denied Consular Rights, Will Not Face Death Penalty

A Virginia judge ruled that prosecutors may not seek the death penalty against a Vietnamese man accused of murdering two people because police violated the man's rights under the Vienna Convention on Consular Relations by not informing him that he could contact his country's consulate. "[T]he duty to give notice is absolute. . . . [T]he idea that the state can completely ignore its treaty obligations without consequence essentially obliterates the purpose for which the rights under the Vienna Convention were intended," Judge Alden of Fairfax County wrote in barring the death penalty against Dihn Pham. Pham's trial is scheduled to take place later this month, and he now faces a possible sentence of life without parole.

This is the second Fairfax case in three months to involve legal repercussions for failure to notify a murder suspect of his Vienna Convention rights. In November 2005, the U.S. Supreme Court agreed to review the non-capital case of Honduras native Mario A. Bustillo because he also was not told of his international treaty rights. The Vienna Convention was signed by the United States in 1969 and was created to provide protections for people arrested in another country. (Washington Post, January 4, 2006).


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