The government has long taken the position that the treaty,
the Vienna Convention on Consular Relations, applies to relationships
between nations but does not provide enforceable rights to individual
criminal defendants.
The court granted two appeals, one from a Mexican
who is in prison in Oregon after being convicted of attempted murder in the
shooting of a police officer, and another from a Honduran convicted and
sentenced to 30 years' imprisonment in a gang-related murder in Springfield,
Va., a Washington suburb.
In neither case did officials comply with the Vienna
Convention's requirement to advise detained foreign citizens of their right to
consult with representatives of their government. There is no dispute that the
treaty was violated. In fact, the United States issued a formal apology to Honduras
in the case of the Honduran defendant, Mario A. Bustillo.
The question is whether either he or the Mexican
defendant, Moises Sanchez-Llamas, can challenge the conviction on that basis. Mr.
Bustillo's case, Bustillo v. Johnson, No. 05-51, raises the further issue of
whether, even if the treaty is individually enforceable, a state court may
nonetheless refuse to consider it in light of a procedural obstacle, like a
defendant's failure to raise the issue at the right point in the trial.
These issues reached the Supreme Court last year in somewhat
different form in a case brought by José Ernesto Medellín, a Mexican citizen on
death row in Texas. Mr. Medellín was one of 50 Mexicans on death row in nine
states who had won a favorable ruling from the International Court of Justice,
usually known as the World Court, in a case brought there against the United
States by the Mexican government.
A federal appeals court had refused to consider Mr.
Medellín's Vienna Convention argument because he had not raised it in initial
state court proceedings. After the Supreme Court agreed to hear his appeal,
Medellín v. Dretke, the Bush administration withdrew the United States from
the World Court's jurisdiction in Vienna Convention cases but said that as a
matter of American foreign policy, the Texas courts should enforce the World
Court's judgment and give Mr. Medellín a new hearing. He then brought a new
appeal in the Texas courts, and the Supreme Court dismissed the case by a vote
of 5 to 4.
In accepting the two cases on Monday (the other is Sanchez-Llamas
v. Oregon, No. 04-10566), the justices did not seek the views of the
federal government - presumably in the interests of time, since those views are
well known to the court from earlier cases. But the solicitor general's office
is highly likely to enter the cases at this point.
The Sanchez-Llamas case raises the further issue of whether
a defendant who makes an incriminating statement to the police, in the absence
of the notification required by the treaty, has a right to have that statement
excluded from the trial.
After his arrest, following an altercation with the police,
Mr. Sanchez-Llamas was advised in Spanish of his Miranda rights and then
interrogated for several hours. Once convicted, he argued on appeal that his
statements should have been suppressed. But the Oregon Supreme Court ruled that
the Vienna Convention did not confer personally enforceable rights.
His appeal to the United States Supreme Court, filed by the
Oregon public defender's office, argues that suppression of his statements is
the proper remedy for the violation of his treaty rights because, 35 years
after the United States signed the Vienna Convention, "violations continue
to occur on a regular basis" and will keep occurring unless law
enforcement agencies have to pay a price for failure to notify foreign
defendants of their rights.
Mr. Bustillo's lawyer, Jeffrey A. Lamken, argues that the
failure of notification was particularly harmful in his case because his
defense to the murder charge was one of mistaken identity. He was denied access
"to the assistance of Honduran officials in his effort to show that
another Honduran national who had fled to Honduras had committed the
offense," the brief explained, adding that "it is difficult to
imagine circumstances in which the aid of the consulate could be more critical
than it was here."
Mr. Bustillo did not raise his Vienna Convention argument
until a second round of appeals in the Virginia state courts. That was too
late, the Fairfax County Circuit Court ruled in a decision that the Virginia
Supreme Court affirmed.