Representation News and Developments: 2006
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.
After initially agreeing to hear Medellin's case, the
U.S. Supreme Court dismissed it because the President's order could
resolve Medellin's request for further review. In light of the
Texas
court's assertion that the President lacked the power to direct such a
review, the case may go back to the Supreme Court.
(N.Y. Times, Nov. 16, 2006). Read the Texas
opinion. See Foreign
Nationals and Supreme
Court.
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.
In the second case, Mario Bustillo, a Honduran
national, was arrested and charged with murder, but the police officers
also never informed him of his consular rights. He was convicted and
sentenced to prison. After his conviction and sentence were affirmed on
appeal, Bustillo filed a habeas petition in state court, claiming for
the first time that his consular rights under Article 36 were violated.
The Virginia Supreme Court found no reversible error in the state
court's dismissal of the claim as procedurally barred because he had
failed to raise it at trial or on appeal.
The U.S. Supreme
Court held (6-3) that suppression of evidence is not an appropriate
remedy for a violation of a treaty, even under the assumption that the
Convention creates judicially enforceable rights. The Court found that
neither the Vienna Convention nor the Court's precedents applying the
exclusionary rule support suppression or any other specific remedy, but
expressly leaves Article 36's implementation to domestic law. Because
the Vienna Convention does not provide a particular remedy, the Court
reasoned that it is not for the federal courts to impose a remedy on
the states. The Court also noted that Article 36 has nothing to do with
searches or interrogations, so the exclusionary rule, which has been
used primarily to deter certain Fourth and Fifth Amendment violations,
should not apply.
The Court held that states may subject
Article 36 claims to the same procedural default rules that apply
generally to other federal-law claims. The Court based its holding on
Breard v. Greene (1998) (a capital case) in which it had held that the
petitioner's failure to raise an Article 36 claim in a state court
prevented him from having the claim heard in a subsequent federal
habeas proceeding. The Court followed its reasoning in Breard that in
international law, absent a clear and express statement to the
contrary, the procedural rules of the forum state govern the
implementation of the treaty in that state. The Court also indicated
that treaty protections, such as Article 36, are like the provisions of
the Constitution, to which rules of procedural default apply.
In
a dissent joined by two other justices, Justice Breyer criticized the
majority for not deciding whether a criminal defendant may, at trial or
in a post-conviction proceeding, raise the claim that state authorities
violated the Convention. The majority assumed the answer to be "yes,"
but did not decide the matter because it concluded that in any event
the foreign nationals in the two cases were not entitled to the
remedies they sought. However, Justice Breyer concluded that a criminal
defendant may have judicially enforceable rights under the Convention.
He examined the Convention provisions and determined that the nature of
the provisions indicated that they were intended to set forth standards
that are judicially enforceable. Justice Ginsburg, though siding with
the majority, also said that the treaty establishes individual rights.
Breyer
also asserted that suppression of evidence may sometimes provide an
appropriate remedy. Miranda warnings guarantee that police will
inform
an arrested foreign national of his right to contact a lawyer, but "one
cannot guarantee in advance that Miranda will adequately cure every
seriously prejudicial failure to inform an arrested person of his right
to contact his consular post." He reasoned that a person who fully
understands his Miranda rights, but does not fully understand the
implications of his consular rights in our legal system, may have a
claim under the Vienna Convention. In such a case, suppression may
prove to be the only effective remedy.
See Supreme
Court and Foreign
Nationals.
There are over 100 foreign nationals on death rows across the country,
most of whom were also not informed of their rights under the Vienna
Convention.
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.
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). UPDATE: The Virginia Supreme
Court overruled the trial judge and has allowed the state to seek the
death penalty. (Wash. Post, Jan. 20, 2006).
See International
and Foreign
Nationals.
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