[ql06] CRIMINAL: US violation of Vienna Convention may result innew trials for Mexicans
- From: Stephen Kennedy <2srk@xxxxxxxxxxxxxxxx>
- To: ql06@xxxxxxxxxxxxx
- Date: Tue, 20 Jan 2004 22:51:19 -0500
Sheldon,
By pure coincidence, here's an article from Friday's NY Times regarding
the US government's obligation under the Vienna Convention to notify
detained foreigners of their right to contact their nation's consulate
prior to making a statement to police. The "no more Arars" commitment
Paul Martin got from the Bush regime last week is really nothing more
than this.
*Mexico Awaits Hague Ruling on Citizens on U.S. Death Row*
By Adam Liptak
The New York Times
Friday 16 January 2004
Osbaldo Torres, a convicted murderer on death row in Oklahoma, should
have been dead by now, his appeals exhausted, his time up.
But because 15 judges in The Hague, acting at the request of the
government of Mexico, have forbidden his execution for now, he is alive
in a cell in McAlester, awaiting the next move from the Netherlands.
Mr. Torres belongs to a subset of death-row inmates at the center of a
struggle that has crossed national borders and raised combustible
questions about the death penalty, due process, the reach of
international law and the United States' standing in the court of world
opinion.
He is one of 52 Mexican citizens in eight states whose convictions and
death sentences are being challenged by Mexico in the International
Court of Justice in The Hague. Mexico says the United States violated a
treaty guaranteeing that foreigners arrested in this country have access
to representatives of their government.
The court ordered the United States last February not to kill Mr.
Torres and two compatriots, at least until it issues its final ruling,
which is expected to come in the spring.
None of the 52 Mexicans have been put to death. In Mr. Torres's case,
the Oklahoma attorney general asked a state appeals court in November to
stay the execution "out of courtesy" to the international court. It was
an unprecedented act of deference by an American official, legal experts
said.
Mexico is seeking to void all 52 convictions and death sentences,
contending that its citizens were denied the right to meet promptly with
Mexican diplomats. The defendants should be retried, Mexico says, with
statements obtained before such meetings excluded.
Mexico also asked the court to require that the United States honor
these so-called consular rights in the future, perhaps by rewriting the
standard Miranda warning given suspects before they are questioned by
the police.
In its filings in The Hague, the United States, represented by lawyers
from the State and Justice Departments, called Mexico's demands "an
unjustified, unwise and ultimately unacceptable intrusion into the
United States criminal justice system."
The acquiescence of the Oklahoma attorney general, Drew Edmondson,
given after consultations with the State Department, is thus remarkable.
It may reflect tactical prudence, as the international court is not
likely to welcome being defied while the larger case is pending. Or it
may indicate a desire by the United States to maintain a level of
international comity, even as the war in Iraq and the widespread use of
the death penalty in the United States have been criticized by some of
its allies.
The United States' arguments before The Hague are not quite those of a
global scofflaw. This country has, in fact, been a party to the Vienna
Convention on Consular Relations since 1969, as well as to a separate
protocol in which it submitted to the jurisdiction of the international
court to interpret the convention and to resolve disputes about it.
Treaties are, under the Constitution, "the supreme law of the land."
Although the United States does not view the rulings of many
international bodies as binding, it does acknowledge the jurisdiction of
the International Court of Justice to decide cases brought under the
consular relations convention and, in some circumstances, to order
nations to comply with the court's interpretation of it. In the Mexican
case, however, the United States contends that the court lacks
jurisdiction to determine by "highly specific means" what nations must
do to comply.
One hundred sixty-four other nations are also parties to the
convention, and the United States invokes it often when its citizens are
detained abroad.
"If you were arrested in Damascus and they gave you a dime," said
Donald F. Donovan, a lawyer at Debevoise & Plimpton, which represents
Mexico in the case, "would you want to call your court-appointed lawyer
or the American embassy?"
The convention requires that arrested foreigners be told of their
right to speak with consular officials. If they do, local officials must
contact the appropriate consulate. Both actions, the convention says,
must be taken "without delay."
Mexico contends that these obligations are often ignored in the United
States, and that Mexican officials frequently learn of arrests of
Mexican citizens only years later, and only by happenstance. The two
nations differ about how well Mexico, which does not have the death
penalty, complies with the convention.
The Mexican government says it did not learn of the 1993 arrest of Mr.
Torres, then 18, until 1996. Mr. Torres had lived in the United States
since he was 5, prosecutors said.
By the time Mexico learned of the charges against Mr. Torres, from
relatives, he had already been twice tried for the murder of a couple in
front of their children. The first trial ended in a mistrial because the
jury could not agree about whether he was guilty. The second ended with
a death sentence.
When Mr. Torres's lawyers then tried to raise the Vienna Convention in
his defense, courts said that the defendant was too late, and that he
would not have benefited from Mexican assistance in any event.
Mexico disputes that.
"When consular protection is permitted to function," Victor Manuel
Uribe Avina of the Mexican foreign affairs ministry told the Hague court
last month, "life sentences are the likely outcome."
Mexico says it provides an important "cultural bridge" when its
citizens become entangled in the American criminal justice system. Such
defendants are often confused, distrustful, unable to speak English and
baffled by American procedures, Mexican officials say. If notified, the
Mexican government provides lawyers, translators and investigators. It
also helps round up evidence in Mexico, which can be very valuable in
the sentencing phase in capital cases.
There are 122 foreign citizens from 31 countries on death row in the
United States, in 14 states and in the federal system, according to
Human Rights Research, a consulting firm that assists lawyers and
consulates in capital cases involving foreigners. Almost half are from
Mexico.
The issue has been an ongoing source of tension between Mexico and the
United States, and in January 2003 Mexico took its case to the
international court. Three Mexicans have been executed since 2000. In
all three cases, the Vienna Convention was violated, Mexico argues. In
2002, Vicente Fox, the Mexican president, canceled a trip to President
Bush's ranch in Texas to protest the execution of one of the men, Javier
Suarez Medina.
There is little dispute that the United States violated the treaty in
most or all of the 52 cases before the court in The Hague. The core
issue during several days of arguments before the court last month was
what should follow from that.
Until not long ago, the government's official position was that an
apology should suffice. After a decision of the international court in
2001 that violations require "review and reconsideration," the United
States has taken the position that it has complied with that ruling, in
cases including Mr. Torres's, by encouraging governors to consider
Vienna Convention claims as part of clemency proceedings.
"The United States says the only remedy a defendant is entitled to is
an opportunity to beg for mercy," said Sandra L. Babcock, a Minneapolis
lawyer and the director of the Mexican Capital Legal Assistance Program.
"But we're talking about a legal right. It requires a legal remedy."
At The Hague last month and in legal filings, State Department lawyers
described "the very substantial efforts undertaken by the United States
to comply with its obligations," including the circulation of 100,000
copies of a compliance manual and 600,000 pocket cards to local law
enforcement officials. Still, they noted, there are 700,000 law
enforcement officials in the United States in 18,000 separate state and
local jurisdictions.
Catherine W. Brown, a State Department lawyer, told the international
court last month that asking more of the United States was unreasonable.
"As a practical matter, a country the size of the United States would
never have accepted an obligation that would have put the ordinary
conduct of criminal investigations and public safety at jeopardy," Ms.
Brown said.
A State Department spokeswoman declined to comment on Mr. Torres's
pending execution in Oklahoma and those of two defendants in Texas that
would presumably have taken place by now, but for the case in The Hague.
In March, the department's top lawyer acknowledged in a speech to
state attorneys general that the pending executions were a matter of
concern. "We have had a number of conversations with government lawyers
in both states about these cases," the lawyer, William Howard Taft IV,
said. In November, Mr. Torres asked the United States Supreme Court to
honor the international court's interim order staying his execution. The
Supreme Court declined to hear the case. Justices John Paul Stevens and
Stephen Breyer indicated that they would be inclined to consider it once
the international court rendered its final judgment.
"The answer to Lord Ellenborough's famous rhetorical question, `Can
the Island of Tobago pass a law to bind the whole world?,' may well be
yes," Justice Breyer mused, "where the world has conferred such binding
authority through treaty."
Mr. Edmondson, the Oklahoma attorney general, effectively stopped the
execution the same day the Supreme Court failed to act, and Mr. Torres
remains in a sort of limbo, caught between two legal systems. Charlie
Price, a spokesman for Mr. Edmondson, said that would continue until the
15 judges in the Netherlands ruled.
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