Representation News and Developments: 2006
Texas Court Rejects Presidential Order in Death Penalty Case
The Texas Court of Criminal Appeals rebuffed President
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
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
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
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
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.