Logene L. Foster, Sugarland, TX, is board certified in Texas in criminal law and family law. A charter member of the Texas Criminal Defense lawyers Association, Foster has been in prcatice over 30 years.
Stephen Doggett, Richmond, TX, past president of the Fort Bend County Criminal Defense Lawyers Association and the Fort Bend County Bar Association has practiced law in Texas for over 20 years.
Foreign Nationals arrested on criminal charges are at a disadvantage in mounting a criminal defense. This disadvantage is particularly serious in a capital case, in which the accused may lose his life because of an inability to respond effectively to the charges.1 To compensate for the disadvantages experienced by accused foreign nationals, international law guarantees the right of consular access.2
The United States ratified the Vienna Convention on November 24, 1969.3 The convention is the major worldwide treaty on the topic of consular relations and regulates all aspects of the relationship of consuls to a host government and the consul's activities.4 The Vienna Convention is on the same level as constitutional rights granted by the United States Constitution. A federal treaty or statute establishing rules and regulations touching rights, privileges, obligations or burdens of aliens as such is the law of the land, and no state can add to or take from the force and effect thereof.5
Convention Article 36 deals with obligations to inform aliens who are arrested of the right to consult with their consul. The pertinent parts of Article 36 are:
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
a. Consular officials shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
b. If he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
c. Consular officials shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.6
The last sentence of paragraph (b) obliges the police to advise an arrested alien of his right to consult with his consul.
Despite the fact that the Vienna Convention has been in effect since 1963, there is very little case law raising the issue of the effect of the failure of the police to advise an alien of his right to consult with his consul. The Ninth Circuit Court of Appeals reversed a conviction of illegal entry after deportation because of the failure to inform the defendant of his right to communicate with Mexican consular officers as required by Immigration and Naturalization Service (INS) regulations. The court noted that the right established by the regulations is a personal one.7
The Austin Court of Appeals recently addressed the effect of the Vienna Convention and the notice provisions in a termination of parental rights of a foreign national.8 Article 37 of the convention deals with the duty to inform the competent consular post without delay of any case where the "appointment of a guardian or trustee appears to be in the interests of a minor . . . who is a national of the sending State." The appellant argued that the trial court erred in terminating his parental rights to his daughter because the state failed to give notice to the Mexican Consulate as required by the Vienna Convention on Consular Relations. Although the court of appeals found that the State complied with the Convention by writing and telephoning the Mexican Consulate about the cases, the Court said "the state's actions in this cause constitute the bare minimum of acceptable notice to the Mexican Consulate. We urge the state, in circumstances such as these, to provide a definite documentary record demonstrating that the Mexican Consulate received adequate notice affording it the opportunity for an intervention if desired." The court also stated it is axiomatic that the state must adhere to United States treaties as the Supreme law of the land.9
It can be expected that this issue will be raised in the courts of the United States in the coming years because most state and local police do not give the warning. The police are usually unaware of the rights under the Vienna Convention, or do not believe they are obligated to give any warning. This should be an important issue to raise, especially in capital murder cases, where an alien is given the required Miranda warnings and gives a statement, but is not told he/she has the right to consult with his/her consul. These cases would certainly raise an important constitutional issue, especially where the punishment is a death sentence.
A number of aliens have been executed or are on death row who gave confessions and were never warned of this right. The lack of access to their consul deprived the aliens of critical mitigating evidence and in one case resulted in serious questions concerning the validity of the accused's confession.10 There will also be aliens arrested, evidence seized, and confessions taken, all with no warning of the right to consult with the consular officials. There have been a number of papers written discussing this problem.11
This issue is similar to the question posed in Miranda v. Arizona12, Miranda held that because a criminal defendant has a constitutional right to an attorney, the police must inform the accused of that right so that he may knowingly exercise or waive it. If a foreign national criminal defendant has a constitutional right to access his consul, how can he exercise that right unless he has been informed of the right? The legal reasoning is exactly the same as the legal reasoning that resulted in Miranda.
The requirement that the accused be informed of his right to consult with his consul seems even stronger because the Vienna Convention specifically requires a warning be given. When Miranda was decided there was no mandatory requirement for a warning in the Constitution. It became a constitutional mandate only after the United States Supreme Court decision.
The failure to inform a foreign national of his right to consul often puts the accused at a severe disadvantage. Foreign nationals are often unfamiliar with U.S. customs, police policies and criminal proceedings. Latin Americans are familiar with legal systems which differ significantly from that in the United States. Foreign Nationals may also be particularly vulnerable to deception used by police detectives as an interrogation technique. Defendants from countries with authoritarian governments may fear their own torture or murder and retaliation against their family members.11 Thus, common police practices such as feigning anger, raising of the voice, cursing, the wearing of weapons, and isolation of the subject in an interrogation room may invoke terror in a foreign national. Additionally, language differences and poor translation by authorities of the Miranda warnings often put the foreign accused in a poor position to knowingly exercise his/her rights.
The Constitution historically has been construed to extend its protection to aliens. The guarantee of the Fourteenth Amendment that no state shall deny to any person within its jurisdiction equal protection of the law applies to all persons, including aliens, whether legally or illegally within the jurisdiction of the state.13 The Fifth Amendment of the United States Constitution protects aliens from being deprived of life, liberty, or property without due process of law.14
The INS has a prepared Notice of Rights that is given to aliens when they are arrested. The rights are in English and Spanish and comply with the Vienna Convention requirement that the accused be informed of his right to consult with his consul. The notice states: You may talk to the consular or diplomatic officer of your country. If you wish to do so, your legal representative or the officer who gave you this notice may be able to help you get in touch with the proper person.
Based on the provisions of the Vienna Convention, it would seem prudent for attorneys to raise this issue in any criminal case, along with the usual motions to suppress evidence and confessions. A side issue that will have to be confronted lies in the area of post conviction writs. There is a good chance that all the aliens that have been convicted in our courts, some sitting on death row, may well have an issue to raise if they were never informed of the right to consult with their consul.
This may impact not only the guilt-innocence stage of trials, but also the punishment stage, particularly in capital cases. The consul office can be of great assistance in providing cultural information, punishment evidence and experts that may well be decisive as to whether a defendant receives the death penalty or life.
NOTES
1.Foreigners on Texas Death Row and the Right of Access to a Consul, 26 St. Mary's L.J. 719, 720, 1995 (hereafter Foreigners).2.Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36 (1)(a), 21 U.S.T. 77, 100-101, 596 U.N.T.S. at 261, 292.
3. Vienna Convention, 21 U.S.T. at 77.
4. Vienna Convention, 21 U.S.T. at 77, 596 U.N.T.S. at 262.
5. U. S. Const. art. VI, c1. 2; see also U.S. Const. art. II, c1. 2.
6. Vienna Convention, art. 36, 21 U.S.T. at 100-101, 596 U.N.T.S. at 292.
7. United States v. Rangel-Gonzales, 617 F.2d 529, 530-533 (9th Cir. 1980). A similar decision was reached in Waldron v. Immigration and Naturalization Service, 994 F.2d 71 (2nd Cir. 1993).
8. Arteaga v. Texas Department of Protective and Regulatory Services, 924 S.W.2d 756 (Tex. App.-Austin 1996).
9. U.S. Const. art. VI, cl.2. (Supremacy Clause).
10.Foreigners at 722-727 discussing Santana v. State, 714 S.W. 2d 1 (Tex.Crim.App.1986); Faulder v. State, 745 S.W.2d 327 (Tex.Crim.App. 1987); Fierro v. State, 706 S.W.2d 310 (Tex.Crim.App. 1986).
11.Foreigners; Suspicious Capital Punishment: International Human Rights and the Death Penalty, 3 San Diego Justice J. 379 (1995).
12.Foreigners at 720.
13. Wong Wing v. United States, 163 U.S. 238, 41 L. Ed 140, 16 S.Ct. 977 (1896); Plyler v. Doe, 457 U.S. 202, 72 L. Ed 2d 786, 102 S. Ct. 2382 (1982).
14. Brownell v. Tom We Sung, 352 U.S. 180, 1 L. Ed 2d 225, 77 S. Ct. 252 (1956); Plyler v. Doe, 457 U.S. at 210-213, 72 L. Ed 2d at 795-797.