Reaction: Sanchez-Llamas v. Oregon/Bustillo v. Johnson

BY JENNIFER KOONS, MEDILL NEWS SERVICEJune 2006

[to the lead story in Sanchez-Llamas v. Oregon/Bustillo v. Johnson]

As of May 26, 2006, 120 foreign nationals from 32 countries were awaiting execution in the United States. Countless others have been arrested and sentenced to lesser criminal charges, according to data compiled by Amnesty International.

Two foreign defendants, Mario Bustillo of Honduras and Moises Sanchez-Llamas of Mexico, convicted of murder and attempted murder respectively, have questioned the legitimacy of their arrests, claiming U.S. law enforcement officials acted in violation of an international treaty by failing to inform them of their right to consular access.

Under Article 36 of the Vienna Convention on Consular Relations, which the United States signed and ratified in 1969, authorities must inform other treaty members' consulates if one of their citizens is arrested in that country.

Bustillo, who was convicted of killing a Virginia teen outside a Popeye's restaurant in December 1997, filed a habeas petition with the Circuit Court of Fairfax County, asserting that his Vienna Convention rights had been violated and requesting a new trial.

The circuit court rejected Bustillo's claim in August 2002 since the Vienna Convention rights matter was not brought up during the trial, and the Virginia Supreme Court denied his appeal.

The U.S. Supreme Court agreed to hear Bustillo's case in November 2005, along with an appeal from Sanchez-Llamas, who asked the justices to suppress evidence from a police interrogation since he was not given access to his consulate.

Police in Oregon arrested Sanchez-Llamas in December 1999 following a shoot-out with officers. The police then read Sanchez-Llamas his Miranda rights in both Spanish and English but failed to inform him of his right to contact the Mexican consulate. Following an interrogation, Sanchez-Llamas was charged with attempted murder and attempted aggravated murder.

But Sanchez-Llamas asked that the evidence be suppressed during his trial as a result of the Vienna Convention rights violation.

The court denied his request and he was sentenced to more than 20 years in prison. The Oregon Court of Appeals affirmed, and the state Supreme Court agreed upon further appeal.

On June 28, 2006, a divided U.S. Supreme Court upheld the conviction of the defendants, holding that the types of remedies that arise in a criminal law context are not sufficient for Vienna Convention rights violations.

"It is no slight to the convention to deny petitioners' claims under the same principle this court would apply to claims under acts of Congress or the Constitution itself," Chief Justice John Roberts wrote in the 6-3 opinion.

Benjamin W. Bull, chief counsel for the Arizona-based Alliance Defense Fund, applauded the ruling. "To have a conviction thrown out because of a technical violation of not informing a foreign national of his right to talk to his consulate would be a remedy so disproportionately catastrophic as to be shocking to the average American," he said.

Bull credits the outcome in the case to the recent appointments of Roberts and Samuel Alito to the bench.

"My first reaction to this case is that you're seeing an immediate impact to having Chief Justice Roberts on the Court and Justice Alito replacing Justice [Sandra Day] O'Connor," he said. "If O'Connor were still on the Court, this would have gone the other way, and it's comfortable to say that tens of thousands of foreign nationals would have had their cases thrown out."

The justices declined to rule on the larger issue of whether individuals could sue to enforce their right to contact the consulate.

"It's a curiously incomplete and unconvincing decision," said Mark Warren of Human Rights Research in Ottawa, Canada. "If this treaty does not confer justifiable rights on individuals, now was the time for the Court to say so. And if it does, then the Court should have accepted the consequences and indicated appropriate remedies"

Johann Sattler, the first secretary at the embassy of Austria, the country that holds the rotating presidency of the European Union this month, expressed concern that the ruling "doesn't give a clear direction to states about what needs to be done when there's a [Vienna Convention] rights violation."

"The Vienna Consular Convention is well known throughout the country in Austria because the minister of justice has made a big effort to let everyone know," he said. "The United States and the State Department have begun to make a more concerted effort to inform authorities but more needs to be done."

Mark Stancil, one of the attorneys representing Bustillo, said he was "disappointed with the result the Court reached" but noted the door is not shut for his client and others.

"What's remarkable is that there's a lack of objection to the rights question," Stancil said. "So we're disappointed but cautiously optimistic that there will be other avenues for Mr. Bustillo, and that other cases will come down the pike to resolve some of these issues further."

Catherine M. Amirfar, an attorney for Sanchez-Llamas, said one such case is currently pending before the Texas Court of Criminal Appeals.

Jose Ernesto Medellin, a Mexican national, was one of six convicted in 1993 for raping and murdering two young women in Houston. On appeal, he has raised the Vienna Convention rights issue.

"It's entirely possible this case could find its way before the Supreme Court next term," Amirfar said.

During its previous term, the high court had dismissed the case of Medellin v. Dretke to allow the Texas courts more time to resolve the issue.

Another case that is drawing attention is Jogi v. Voges, an Illinois-based civil suit the resolution of which was put on hold by the 7th Circuit Court of Appeals pending the high court's ruling in Bustillo v. Johnson and Sanchez-Llamas v. Oregon.

On Sept. 27, 2005, a three-judge panel on the 7th Circuit held that Tejpaul Jogi, an Indian citizen living in Illinois who pled guilty to committing a crime without being informed of his treaty rights, could sue for monetary damages.

The defendants in the case appealed the ruling and petitioned for an "en banc" review by all of the judges on the circuit.

Now that the Supreme Court has issued its opinion, "the parties have 14 days to file a position statement regarding the significance of the [court's] decision on the Jogi case," said Washington, D.C.-based attorney Brad P. Rosenberg, who represents Jogi.

"It's clear that the Supreme Court has not addressed the issue that is at the heart of Mr. Jogi's case -- namely, whether an individual can seek a remedy of a violation of their Vienna Convention rights through a monetary damages claim," Rosenberg said.

Each of these cases may have far-reaching implications for foreign nationals in the United States, as well as Americans abroad, according to Chicago attorney Richard Hanus.

"There's an underlying principle at play," Hanus said: "Namely, an individual who is on trial or being charged is afforded a chance to have appropriate representation and is afforded a chance to fully understand the nature of the consequences and proceedings against him or her."

Howard S. Schiffman, the director of the Global Affairs master's program at New York University, noted the rulings potential impact on Americans overseas.

"One of the reasons I've been so involved in this issue is because if you're an American and you're arrested or detained abroad, the first thing you're going to want to do is call the U.S. consulate," he said. "We should be granting that reciprocal right."

Justice Stephen Breyer expressed a similar sentiment in his dissent, contending that majority opinion "risks weakening respect abroad for the rights of foreign nationals, a respect that America, in 1969, sought to make effective throughout the world." Justices John Paul Stevens and David Souter joined the dissent.

[to the lead story in Sanchez-Llamas v. Oregon/Bustillo v. Johnson]