The Champion
Sept/Oct 1998


Representing Foreign Nationals:
Emerging Importance of the Vienna Convention on Consular Relations as a Defense Tool

By John Cary Sims and Linda E. Carter

John C. Sims and Linda E. Carter are faculty members of the University of the Pacific, McGeorge School of Law, in Sacramento, California. John Sims specializes in constitutional law. He wrote the amicus brief filed in the Fourth Circuit on behalf of the Union Internationale des Avocats in support of Paraguay in Republic of Paraguay v. Allen. Linda Carter specializes in criminal law, criminal procedure, and capital punishment. The authors wish to thank Mark Warren, Charles Sevilla, and Sandra Babcock for their comments.

When Sandra Babcock graduated from law school in 1991, she became a staff attorney at the Texas Resource Center, where her practice was limited to indigent criminal defense. One of her early assignments was the case of Joseph Stanley Faulder, a Canadian citizen who had been convicted of a 1975 murder and sentenced to death.

After filing a state habeas corpus petition on Faulder's behalf, Babcock made a discovery that has dramatically affected the defense of non-citizens in the United States, and the consequences of her efforts are likely to be especially significant in capital cases. A Canadian consular official notified Babcock of the existence of the Vienna Convention on Consular Relations, and urged her to look further into its applicability to Faulder's case. Babcock followed up on the suggestion, and the chain reaction her research set off is still reverberating.

What Babcock discovered, and what more criminal defense attorneys learn with each passing day, is that the Vienna Convention on Consular Relations (referred to hereafter as the "VCCR" or the "treaty") is a multinational treaty in which most nations have joined, and which the United States Senate ratified in 1969. The Vienna Convention guarantees consular officials of each nation that has adopted it access to their nationals who may need assistance when traveling, working, or living abroad.1 More specifically, nationals who are arrested or imprisoned in a foreign land may communicate with, and be visited by, their consular officials. Such communications and visits are essential to guard against the possible mistreatment of prisoners, and to facilitate the presentation of an effective legal defense by those possibly facing serious charges in a language they do not understand under a legal system with which they are unfamiliar.

The VCCR may seem more suitable as a device for diplomatic negotiations than as a tool for criminal defense, but Sandra Babcock learned that the Vienna Convention does have direct and potentially dramatic consequences for U.S. criminal defendants who are foreign citizens. Joseph Faulder, when he was arrested and prosecuted in Texas, was never told of his right to seek assistance from Canadian consular officers.2 Nor, it turns out, was the failure to notify him in accordance with Article 36 of the VCCR a slip-up. It appears that it is rare indeed for those arrested by state and local law enforcement officials to be advised of their right to seek assistance from their home nation's consulate. The U.S. State Department has mailed out notices about the VCCR every few years to the states and major cities, but the treaty remains largely unenforced.

Once Babcock unearthed the VCCR and realized that the failure of Texas to comply with it provided Faulder with a new theory for challenging his death sentence, she amended the state habeas corpus petition she had filed on his behalf.3 The courts have so far denied Faulder any relief that might be based on the state's violation of the VCCR, but the published decision of the United States Court of Appeals for the Fifth Circuit on April 10, 1996, made the VCCR issue more visible to defense attorneys representing foreign citizens.4 In the short time since the Fifth Circuit's Faulder opinion was issued, the VCCR has gone from being novel in criminal defense to being the source of complex, far-ranging litigation in a number of state and federal courts, and even before international tribunals.

Recently, the once-arcane topic of the VCCR became urgent news across the country and around the world as Virginia prepared to execute Angel Breard of Paraguay. Although it was undisputed that Virginia violated the VCCR by failing to inform Breard of his right to contact the Paraguayan consulate after his arrest on a capital murder charge, the United States Court of Appeals for the Fourth Circuit ruled in January 1998 that neither Breard nor Paraguay could seek to overturn Breard's death sentence based on the treaty violation.5 While petitions for certiorari were pending in the Supreme Court of the United States, Paraguay invoked the jurisdiction of the International Court of Justice (ICJ) at The Hague, which accepted jurisdiction April 9, 1998, and ordered the United States to "take all measures at its disposal to ensure" that Breard was not executed by Virginia before the ICJ had the opportunity to consider the case on the merits.6 Secretary of State Madeleine Albright then sent a letter to Virginia Governor James Gilmore requesting that the execution be delayed, but the United States chose to make no efforts to comply with the ICJ's order beyond this flaccid gesture. The United States opposed the efforts by Breard and Paraguay to have the Supreme Court delay the execution. The Supreme Court denied all relief,7 and the Governor of Virginia refused clemency. Despite extraordinary efforts on his behalf, Breard was executed April 14, 1998.

It is imperative for defense attorneys to understand the rights of their non-citizen clients and how to best raise the VCCR notification issue. This article will provide an overview of the issues that the VCCR may raise for attorneys representing criminal defendants who are foreign nationals. While there are many unresolved issues and uncharted pathways in this area, we will provide a roadmap identifying the broad boundaries of the territory covered by the VCCR and marking the major routes that have been charted for litigating the notification issue. The areas covered are: 1) the provisions of the Vienna Convention on Consular Relations; 2) the types of assistance a consulate can provide; 3) the legal issues that arise during pretrial and trial stages; 4) the legal issues that arise in post-trial proceedings; and 5) the legal and practical problems of showing prejudice from a violation of the VCCR.

Vienna Conventionon Consular Relations
The central function of consular officers is to generate "a sense of security and confidence conducive to trade, travel, and residence in foreign lands."8 Well over 100 nations have accepted the VCCR, which depends for its effectiveness on the reciprocal obligations it imposes on all signatories, without regard to their political systems or legal processes. The VCCR secures rights for each nation and its citizens by recognizing the corresponding rights of other nations and their nationals.9 The treaty was ratified by the United States in 1969. The State Department invokes it frequently and aggressively to protect the interests of Americans arrested or detained abroad.10

Article 36 of the Vienna Convention establishes mechanisms by which consular officers may assist their citizens who have been arrested or detained in another country that has accepted the VCCR. The last sentence of Article 36(1)(b) of the VCCR provides that the authorities in a country which has arrested a foreign national "shall inform the person concerned without delay of his rights" under Article 36(1)(b). Upon the request of the arrestee, the officials of the country holding the prisoner are required to inform the consulate of the arrest of its national and forward to the consulate, without delay, any communication from the arrestee. Article 36(1)(c) further guarantees that consular officers shall have the right to visit one of their nationals who is in custody, "to converse and correspond with him and to arrange for his legal representation."

The Supremacy Clause contained in Article VI of the United States Constitution establishes that treaties are part of "the supreme Law of the Land." Thus, state officials are duty-bound to comply with the VCCR. However, Faulder, Breard, and other recent cases have exposed a pattern of VCCR violations by state and local law enforcement officials and prosecutors across the United States. For example, a federal district judge in Virginia has criticized "Virginia's persistent refusal to abide by the Vienna Convention"11 and, when Breard was before the Supreme Court this spring, Virginia's violation of the treaty was taken as a given.12 Over 60 foreign citizens are on death row in America, and it appears unlikely that more than a few of them were told in a timely fashion of their VCCR-guaranteed right to seek consular assistance. Of the numerous capital cases pending against its citizens, the Mexican Consulate claims there is not a single instance of the United States complying with the treaty.13

Consular Assistance in a Criminal Proceeding
Consular officials have a strong interest in the well-being of their nationals who are visiting or living in a foreign country. A foreign national's welfare is seriously at risk when he or she is detained and questioned by law enforcement officials. All governments want to monitor the criminal prosecutions of their nationals to ensure fair treatment, and the United States has long been an aggressive user of and advocate for the Vienna Convention.14 Due to the reciprocal nature of the rights established by the treaty, and as compelled by the practicalities of international politics, each nation's ability to provide protection for its citizens when they are detained abroad depends upon a corresponding respect for the VCCR in the treatment of the foreign nationals that it arrests.

Judge John D. Butzner, Jr. of the United States Court of Appeals for the Fourth Circuit recently provided a lucid summary of the consequences that would flow from neglect by the United States of its obligations under the treaty:

United States citizens are scattered about the world -- as missionaries, Peace Corps volunteers, doctors, teachers and students, as travelers for business and for pleasure. Their freedom and safety are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example. Public officials should bear in mind that "international law is founded upon mutuality and reciprocity."15



Many American defense attorneys might well operate under the assumption that consular assistance is not necessary, or even helpful, in mounting a defense to criminal charges. The need for whatever additional tools are provided by the VCCR might not be obvious.

Attorneys who are aware of and who creatively use the treaty may be able to provide substantially more effective representation for clients who are foreign nationals.16 The following description of consular services is reflective of the innumerable ways that consular officials, once made aware of the defendant's plight, can assist the defendant's attorney.

Consular officials can provide contact with the defendant's family. Once advised of the situation, the family can write, visit, or otherwise assist the defendant. The defendant's family can also be assured that he or she is safe.17 Similarly, the consul can assure the defendant that his or her family is well.18

Someone from the consulate is likely to visit the defendant in jail, and that may yield a number of benefits. Consular officials are able to speak the defendant's language, and to anticipate any confusion that arises from encountering a different legal system. At the outset, consular officials can assure an arrestee that he or she is not required to make any statement to the police or prosecutors, and consuls may well advise that no statement be made before an attorney has been consulted. Thereafter, a defendant will be more likely to cooperate fully in the defense if assured by the consulate that the defense attorney has the defendant's best interests at heart and is bound by the confidentiality principle. Since many countries do not have the same rights to a jury trial and to the assistance of counsel as we do, not to mention the Fifth Amendment right not to be compelled to testify against oneself, an official from the defendant's country will often be able to assist the defendant in coming to an accurate and realistic understanding of risks and options. Such an understanding will often be a predicate for the defendant's full participation in the defense. Although interpreters are provided through the court for critical proceedings, consular officials may also be able to assist in finding interpreters to assist defense attorneys in interviewing their clients and assessing and preparing their cases.

Consular officials may also be invaluable in providing the defense attorney with background information about the defendant and any pertinent cultural differences. The consul may be able to provide the defense attorney with information about where the defendant lived, went to school, or worked. Consular officials can help obtain documents, locate and assist in transporting witnesses, and otherwise assist in developing evidence for defenses such as insanity, duress, or alibi. Such help is especially crucial in developing mitigating evidence in a capital case. For example, in Santana v. State,19 another case where a foreign national was executed despite a violation of the VCCR, no mitigating evidence was presented in the penalty phase.20

Distance, language, and cultural differences are all stumbling blocks for American defense counsel in representing foreign nationals. An interested consul can provide the bridge linking the defense attorney to needed witnesses and evidence.

Angel Breard's case illustrates another potent role for consular officials attempting to assist a foreign national facing a capital charge. Breard rejected a plea bargain that would have avoided the death penalty. If notified, Paraguayan consular officers would have helped him evaluate the plea offer and perhaps he would have accepted it. The Paraguayan officials surely understood, in a way that Breard may well not have, that the attorneys representing him were independent advisers professionally obligated to act in his best interest. Even if Breard still had insisted on a trial contrary to his attorneys' advice, he might well have been persuaded to refrain from the disastrous appearance as a witness that resulted in his confession to capital murder and to a futile attempt to escape responsibility by blaming his conduct on a Satanic curse placed on him by his former father-in-law. The Supreme Court's opinion in Breard dismissed this line of argument with the observation that the American attorneys could fully explain this country's legal system to him.

In future cases, however, a well-developed record could demonstrate that, contrary to the Supreme Court's assumption in Breard, the intermediation of consular officials would greatly influence the ability of defendants to effectively utilize the services of their attorneys, especially appointed ones.

Foreign consulates may also be invaluable in providing support through judicial and political avenues. In a number of cases, foreign governments have filed amicus briefs on the VCCR issue on behalf of a defendant in criminal proceedings. In two instances, foreign governments have sued individual states for violating the VCCR.21 A consulate can also file a protest with the State Department, raising the visibility of the case.22

Pretrial and Trial Stages
It is imperative that defense counsel seek consular help and raise the notification issue as soon as possible. Not only is the assistance of the consulate maximized by involving them prior to trial, but also there are significant legal roadblocks, as discussed below, to raising the notification issue for the first time on appeal or in a collateral attack.

There are four basic steps that a defense attorney should take to protect the defendant's rights under the VCCR:

Determine whether the defendant is a foreign national. At the earliest opportunity, defense counsel should ask each new client about nationality as routinely as asking for name and address. Dual citizenship is a possibility, so inquiry is justified even beyond a defendant's initial response identifying the United States or another country as the country of citizenship.23

File a motion requesting that the state formally advise the defendant of the notification right and notify the consulate of the charges against the defendant. Once defense counsel determines that the defendant is a foreign national, counsel should demand that the prosecution formally notify the defendant and contact the consulate. A formal motion will help to preserve the record for post-trial proceedings.

File any appropriate motions to suppress evidence. Defense counsel should also consider a motion to suppress any evidence obtained in the interim between detention and notification. The defendant has the right to the VCCR notification "without delay." Arguably, "without delay" means as soon as the defendant is detained, which would typically be when placed under arrest.24 If any evidence is gained from a defendant prior to notification, the remedy should arguably be suppression, as it is for coerced confessions or Miranda violations.25 However, as discussed below, counsel should be prepared to argue that prejudice resulted from the violation. Persistent motions for notification or suppression may eventually lead to standardized police or prosecutorial procedures for notifying foreign nationals accused of crimes in the United States.26

Contact the consulate on behalf of the defendant. Even if law enforcement, jail, or prosecuting officials contact the foreign consulate, defense counsel should establish independent contact as well, as the first step in encouraging the consular officials to provide all the assistance possible.27

The cases in which VCCR issues have been litigated so far do not involve situations in which the defendant or defense counsel was aware or became aware of the treaty soon after arrest and demanded the protections it provides. Rather, in the scenario that uniformly finds its way into the reported cases, the required notification is not given upon arrest, or even thereafter, and it is only much later that any effort is made to raise the issue on behalf of the defendant. Even though the state's failure to notify the defendant of the treaty-guaranteed right to consular assistance is a clearcut violation of the VCCR, there are a number of procedural and substantive roadblocks to obtaining relief after the fact.

Post-Trial Proceedings
There are at least four possible post-trial forums where the treaty violation could potentially be raised:

The following section describes the procedural and substantive hurdles encountered in the various forums and arguments to overcome each hurdle. Appellate and habeas lawyers need to consider the procedural problems described in the following subsections in addition to the substantive proof of prejudice discussed in the final segment of this article.

Direct Appeal.
We are aware of only one case where the treaty violation was raised on direct appeal from a conviction. In Cardona v. State,28 the Texas Court of Criminal Appeals held that the violation of the VCCR was not reversible error.29 The defendant claimed that his pretrial statement should have been suppressed because he was not notified that he could contact the Mexican consulate.30 The court found that, under pertinent Texas law, the statement was not a significant piece of evidence and did not affect "substantial rights" in the trial.31

Raising the treaty issue on direct appeal is problematic in most cases due to the lack of a record. Similar to a claim for ineffective assistance of counsel, there is likely to be no indication in the trial record of the type of assistance that consular officers could have provided unless trial counsel files a motion to compel notification or a motion to dismiss based on the violation. Moreover, the record is unlikely to reflect prejudice to the defendant from the violation. Defense counsel who discovers the treaty issue after trial commences should try to create a record with an evidentiary hearing or documents attached to a motion. Appellate counsel in a case where the treaty violation was not raised at trial should try to utilize any state procedures for post-trial motions or concurrent state habeas proceedings to document the effect of the treaty violation.32 Both direct appeal and state post-conviction proceedings are largely unexplored, but potentially fruitful, avenues to relief for the treaty violation.

State Habeas Proceedings.
The use of state post-conviction proceedings for VCCR violations is even more in its infancy than the use of federal habeas proceedings since, until recently, the treaty violations were not discovered until the cases had progressed into federal court. Although unsuccessful because the Ohio court found its state habeas proceedings limited to "constitutional" issues, which excluded a treaty issue, State v. Loza represents the first reported case where the VCCR issue was raised in state habeas.33 Despite the scarcity of reported cases, a state post-conviction proceeding is the most promising forum for litigating a violation of the VCCR post-trial, since in that context it is much less likely that procedural barriers will foreclose efforts to raise the treaty violation.

In addition, state habeas proceedings provide an opportunity to make a record on the effect of the treaty violation. Lawyers who represent defendants in state habeas proceedings should develop evidence through declarations, documents, and live testimony that establishes what actions the consulate would have taken and what prejudice the defendant suffered as a result of the failure to notify.

Federal habeas proceedings.
Both Breard and Murphy v. Netherland,34 another case arising from a Virginia prosecution, are examples of the procedural nightmares that may be expected to develop when a defendant is unaware of the right to contact the consulate because the state fails to notify him of that right. Neither Breard nor Murphy raised the VCCR issue until federal habeas corpus. Each proceeded through the trial and penalty phases,35 state appeal, and state habeas corpus without ever being notified by Virginia, or otherwise becoming aware, that he had a right to contact his consulate for assistance. State trial, appellate, and habeas counsel for Breard and Murphy were similarly unaware of the VCCR's guarantees. Despite Virginia's continuing violation of the treaty, when federal habeas counsel raised the VCCR as a basis for a writ of habeas corpus, the lower federal courts in both cases, and the Supreme Court in Breard, held that their claims were procedurally defaulted.36

Procedural default occurs when the defendant fails to raise a claim in state court that could have been raised in either a direct appeal or a state habeas action, but is now precluded.37 The Breard and Murphy treaty claims were procedurally defaulted for the failure to raise the VCCR notification issue in state court. Both Murphy and Breard argued that they should be excused from the procedural default rules because there was "cause and prejudice" for the failure to raise the issue or, in the alternative, that the failure to hear the claim would result in a "miscarriage of justice." The Supreme Court was not receptive to these arguments when it ruled in Breard. The Court held that the Anti-terrorism and Effective Death Penalty Act (AEDPA), adopted in 1996, which amended the federal habeas statutes, applied to Breard and specifically denied a hearing if a defendant has failed to develop the claim in state court proceedings.

As the Court noted, "[w]ithout a hearing, Breard cannot establish how the Consul would have advised him, how the advice of his attorneys differed from the advice the Consul could have provided, and what factors he considered in electing to reject the plea bargain that the state offered him."38

Although it was not addressed in Breard's case, poor drafting in the AEDPA may create an additional problem for defendants attempting to raise the VCCR in federal habeas proceedings. Federal writs of habeas corpus may issue for a violation of the "Constitution or laws or treaties of the United States,"39 but 2253(c)(2) now states that a certificate of appealability is required for an appeal and may be issued only "if the applicant has made a substantial showing of the denial of a constitutional right."40 If this language is read literally, a treaty claim can be raised in federal district court, but the district court's decision cannot be appealed. This absurdity has been noted by commentators, who express the hope that the statute will be interpreted in light of the overall purpose of the statutory scheme.41 In the Murphy case, however, the Fourth Circuit refused to issue a certificate of appealability on the treaty issue because it was not a "constitutional" claim.

Civil Lawsuits.
In the past several years, a number of the foreign governments whose nationals are on death row in the United States have attempted to persuade courts to give effect to the VCCR. Initially the involvement of foreign nations in assisting their citizens was in the role of amici. After this tack failed to yield demonstrable results, Paraguay and Mexico each filed suit themselves to enforce the treaty. Numerous thorny procedural objections were raised to these actions, and the Supreme Court's recent Breard decision offers scant encouragement to any nation contemplating further litigation along this line. The Supreme Court observed that "neither the text nor the history of the VCCR clearly provides a foreign nation a private right of action in United States' courts to set aside a criminal conviction and sentence for violation of consular notification provisions."42

Other jurisdictional concerns addressed by the Supreme Court included the Eleventh Amendment and the construction of 42 U.S.C. 1983 to exclude foreign governments and their officials (suing in their official capacity) from the class of plaintiffs authorized to sue for violation of federal rights. An additional possible barrier to consideration of such cases in the federal courts, raised by the United States as an amicus in the Fourth Circuit but not ruled upon by the courts in the Breard litigation, was the allegation that a claim by a foreign government based on an alleged treaty violation raised a "political question" not justiciable in the federal courts. While the discussion in Breard is murky on some points, it would take an exceedingly optimistic foreign government, after Breard, to expect to be able to bring a successful federal lawsuit to overturn a state court conviction alleged to have been obtained in violation of the VCCR.

One possible line of attack that apparently has not been yet attempted by any foreign government is an effort to obtain declaratory or injunctive relief against the continuing pattern of VCCR violations by certain states, as opposed to efforts to seek relief from a particular violation that has already occurred. A request for broad-based, prospective relief would not trigger the same Eleventh Amendment problems as an effort to overturn a particular criminal conviction, and the difficulties faced by a court attempting to frame a remedy would also be less daunting. It seems likely that, with the increasing awareness of and concern about the pervasive and blatant violations of the treaty in the United States, one or more foreign countries will seek prospective relief on the basis of the pattern of VCCR violations. In such a suit, obtaining declaratory or injunctive relief would not depend upon showing prejudice to an individual defendant.

In criminal proceedings, however, whether at the trial or post-trial stage, demonstrating prejudice looms as a major hurdle.

Prejudice from a Violation of the Treaty
A major issue in successfully litigating a VCCR case at any of the stages discussed here is whether there is any prejudice to the defendant from the violation. The violation of the notification requirements of the treaty is easily proved. Although there are good arguments to treat the notification violation as creating a per se reversible error,43 the United States Supreme Court in Breard assumed that relief was dependent on a showing of prejudice. Consequently, lower federal courts and state courts will undoubtedly require a finding of prejudice from the violation as a prerequisite for relief.44

Although the Supreme Court treated the issue hypothetically, the Court noted that it was "extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial."45 The Court gave no explanation of why the treaty violation should require a showing of effect or prejudice, but cited Arizona v. Fulminante,46 which held that the erroneous admission of a coerced confession is subject to harmless error analysis. Citing Fulminante implies that the Court would apply the same harmless error standard and analysis in cases of treaty violation.

What does "prejudice" mean? "Prejudice" is an umbrella term that requires refinement in different contexts. The Supreme Court's citation of Fulminante presumably refers to the prejudice standard for constitutional violations on direct review, which results in not reversing for constitutional errors if the error is "harmless." Trial errors, such as ineffective performance by counsel, admission of a coerced confession, or admission of illegally seized evidence, are only reversible if they are not "harmless" errors. For an error to be harmless, the court must find that it was "harmless beyond a reasonable doubt."47

In Breard's case, the Supreme Court rejected his claim of prejudice in dictum.48 According to the Court, Breard's claim that he would have accepted a plea bargain and thus avoided the death penalty if he had had the advice of his consul was too speculative. Breard's decision not to plead and his decision to testify were both against the advice of his American attorneys. Although it is quite possible that Breard did not understand the American criminal justice system well enough to give credence to his attorneys' advice, the Supreme Court stated that American lawyers "were likely far better able to explain the United States legal system to him than any consular official would have been."49

Again, the Court failed to explain the reasons for this assumption. In fact, the assumption is misguided. Instead of an explanation of the American system, Breard needed a comparative analysis of the differences in procedures and likely outcomes in order to make an informed decision. A sounder assumption would be that Breard could not evaluate the value of the plea bargain or testifying without understanding why it might be prudent for him to proceed differently in the United States than he would if prosecuted in Paraguay.50 Clearly the Paraguayan consul could have provided Breard with a better understanding of how criminal proceedings in the two countries differ and thus why the American lawyers were recommending certain courses of action. With misguided assumptions complicating the analysis, it will take careful lawyering to develop the record of prejudice to the defendant.

Another example where the court oversimplified the issue was the Fifth Circuit decision in Faulder. As is true in all of the cases reported, the violation of the Vienna Convention was clear.51 The Fifth Circuit, however, found that there was no prejudice because Faulder's defense counsel had access to all of the evidence that the consul would have developed. Looking no further, the court concluded that the violation did not warrant a reversal.52

A likely analogy for assessing treaty violations is the analysis developed by courts confronting violations of the Immigration and Naturalization Service (INS) regulations that implement the VCCR notification requirements.53 In that context, the courts have required a showing of prejudice in order to obtain relief. For example, in United States v. Rangel-Gonzales,54 the Ninth Circuit found prejudice where the defendant was not notified of his right to contact his consul in a deportation proceeding that was later used as the foundation for a prosecution for illegal re-entry. The court held that, in the original proceedings, the consul could have helped the defendant, who was not represented, find an attorney and gather evidence on his behalf. This constituted prejudice flowing from the violation of the regulation.55 Although the defendant presented affidavits from many sources,56 the court appeared to rely the most on the combination of the affidavit from the Mexican Consulate General, which stated that they would have advised and helped the defendant to obtain an attorney, and the affidavit of an immigration attorney, which stated that with legal assistance the defendant would have been eligible for a voluntary departure.

In light of these cases, how can a record be developed to show prejudice from the notification violation? Drawing on the lessons we can distill from Breard, Rangel-Gonzales and Faulder, defense counsel should develop a record that specifically demonstrates what the foreign consul would do that a defense attorney would not have been able to accomplish. The court decisions, although few in number, reflect the view that consular assistance for actions that the defense attorney could have taken is insufficient for prejudice. Thus, it is important to emphasize the resources and special expertise of the consulate. If the foreign consul would have helped with financial resources for investigation, for example, the record could reflect the additional people who would have been interviewed, the additional trips to the defendant's home country that defense counsel would have used to assist in the defense, or the additional experts who would have been retained.

Even more importantly, the record should reflect any investigation or evidence that would have resulted from the unique expertise of the consul.57 Prejudice from the VCCR violation is more apparent if the possible consular assistance that was frustrated by the failure of notification differs from the typical assistance of a defense attorney and instead reflects the distinctive role of the consul. For instance, the presence and advice of a consular official explaining the Fifth Amendment right to remain silent and the significance of Miranda warnings at an interrogation could be invaluable to a foreign national in understanding the rights of an accused in the American system for at least two reasons. First, because there is no automatic right to an American attorney at a post-arrest interrogation and it is likely that no attorney would be present, the argument (as in Breard) that an American attorney's advice suffices is meaningless. Second, the foreign consul is also uniquely positioned to anticipate any misunderstanding or confusion that a foreign national might have based on knowledge of a different system of justice.58 Thus, the specialized knowledge of a consular official who understands likely miscommunications and misunderstandings of a foreign national facing the American system, such as not appreciating the significance of the right to remain silent or not accurately assessing the risks of a trial, ties the prejudice directly to the consular expertise.

Prevailing on the prejudice issue will be the biggest hurdle for defense attorneys at any stage in litigating VCCR violations. A well-developed record on the specialized assistance of the consular officials will be critical to success. Many of the currently reported cases can be distinguished on the basis of a lack of a sufficient record of prejudice. It is clear, though, that each new case merits study and comparison in order to prepare the best record possible on prejudice.

Great Potential
The Vienna Convention on Consular Relations has the potential to be of great utility to attorneys defending foreign nationals facing prosecution in the United States, especially in capital cases. However, elaboration of the law concerning the VCCR and the development of appropriate remedies for violations in criminal cases has largely been stymied so far by widespread lack of familiarity with the treaty. Once a defendant has been convicted in state court and been sentenced to death without the VCCR being raised by the defense, the procedural default doctrine and myriad other procedural hurdles make it very difficult for a defendant to obtain redress for a VCCR violation. As Sandra Babcock discovered, the VCCR guarantees a right that defense attorneys should aggressively and creatively raise from the moment that they ascertain that a defendant is a foreign citizen entitled to its protections. Ms. Babcock herself continues to invoke the treaty on behalf of Joseph Faulder,59 and in the future many other defense attorneys will find it worthwhile to become familiar with the complexities of the VCCR and the possible remedies for its violation.

Notes
1. Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77.

2. Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996), cert. denied, 117 S. Ct. 487 (1996).

3. Affidavit of Sandra Lynn Babcock (July 3, 1997), Addendum 2 to Petition for Rehearing and Suggestion for Rehearing En Banc, Murphy v. Netherland, 116 F.3d 97 (4th Cir.), cert. denied, 118 S. Ct. 26 (1997).

4. 81 F.3d 515 (5th Cir. 1996). While attorneys defending capital cases brought against foreign citizens generally were not aware of the VCCR prior to the publication of Faulder, there will no doubt be examination in future proceedings of whether attorneys should have found and used the VCCR in the course of providing effective assistance to their clients. The U.S. Solicitor General's brief in Breard v. Greene, 118 S. Ct. 1352 (1998), argued that "the Convention has been in effect since 1969, is published at 21 U.S.T. 77, has been mentioned in several reported decisions, and therefore would have been found upon a reasonably diligent search by competent counsel." Brief for the United States as Amicus Curiae, at 42.

5. Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998); Republic of Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998).

6. Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), International Court of Justice, Order dated April 9, 1998.

7. Breard v. Greene, 118 S. Ct. 1352 (April 14, 1998).

8. Luke T. Lee, Consular Law and Practice 3 (2d ed. 1991).

9. For a detailed history of the treaty, see William C. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies, 31 Vand. J. Transnat'l Law 257 (1998); Victor M. Uribe, Consuls at Work: Universal Instruments of Human Rights and Consular Protection in the Context of Criminal Justice, 19 Hous. J. Int'l L. 375 (1997).

10. For example, the United States strongly protested the failure of Syria to comply with the VCCR after two Americans were arrested in 1975, and responded similarly in 1977 when two U.S. citizens were arrested in El Salvador. Lee, supra note 8, at 145, 149.

11. Breard v. Netherland, 949 F. Supp. 1255, 1263 (E.D. Va. 1996).

12. Breard v. Greene, 118 S. Ct. 1352, 1357 (Breyer, J., dissenting) (the U.S. Solicitor General conceded that the VCCR was violated by Virginia).

13. Robert F. Brooks & William H. Wright, Jr., States Deny Treaty Rights to Foreign Defendants, National Law Journal, November 4, 1996, at B8 (Mexico is monitoring more than 20 capital cases against its citizens). Two Mexican citizens have been executed recently despite known violations of the VCCR. Irineo Tristan Montoya was executed by Texas on June 19, 1997, and Mario Murphy was put to death by Virginia on September 17, 1997.

14. See Uribe, supra note 9, at 396 (describing role of U.S. consulate when Americans are arrested abroad).

15. Breard v. Pruett, 134 F.3d 615, 622 (4th Cir.) (Butzner, J., concurring) (citation omitted), cert. denied, 118 S. Ct. 1352 (1998). Foreign affairs columnist Jim Hoagland has wryly made the same point. Jim Hoagland, Justice for All, The Washington Post, April 19, 1998, at C7 ("For your next business trip to the Congo, Belarus, or Syria, hope the Breard case has not been getting much coverage there.").

16. By its terms, the VCCR applies whenever a foreign national is arrested or otherwise detained in the United States, and thus in theory all the discussion that follows is as applicable to the defense of non-capital charges as it is to capital charges. However, almost all of the recent litigation of VCCR issues has occurred in capital cases and capital cases are likely to continue to predominate for the foreseeable future. In allocating the often limited resources that they have available to assist their citizens who face prosecution in the United States, foreign nations inevitably concentrate on the cases involving the most serious charges. The focus on capital cases is further intensified by the fact that almost all of the foreigners on death row in the United States or facing capital charges are from nations that do not impose the death penalty. In nations that do not utilize the death penalty (such as Mexico, Canada, and all of Western Europe), the prospect of one of their citizens being executed by the United States stimulates diplomatic activity and public outcry of great intensity. Thus, while those defending foreign nationals in all types of cases should make full use of the VCCR, vigorous assistance from the defendant's home country is most likely to be obtained in capital cases.

17. Canadian Stanley Faulder's family believed for years that he was dead.

18. In the Texas case of Cesar Fierro, it was alleged that Fierro confessed out of fear for the well-being of family members who were being held by authorities in Mexico. S. Adele Shank and John Quigley, Foreigners on Texas's Death Row and the Right of Access to a Consul, 26 St. Mary's L.J. 719, 725 (1995). Similarly, in the Ohio case of Jose Loza, it is alleged that Loza confessed out of fear for the well-being of his girlfriend. Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int'l L. 565, 611-12 (1997).

19. 714 S.W.2d 1 (Tex. Crim. App. 1986). Santana is similar to the Breard case in the disregard for pending proceedings in an international tribunal. Santana was executed while proceedings filed by the Dominican Republic were still pending before the Inter-American Commission on Human Rights. Shank & Quigley, supra note 18, at 746-47.

20. Shank and Quigley document that, if the Dominican Republic consulate had been notified, the consul would have facilitated the presentation of evidence that Santana came from an abusive background and yet had been well-regarded as a good person in his home community. 26 St. Mary's L.J. at 724-25. Similarly, the participation of the Paraguayan consul might have helped to give the attorneys background into Breard's belief system and misunderstanding of the American criminal justice system. Breard might have understood and cooperated more with his attorneys if Paraguayan consular officials had assisted in the discussions. Canada has filed an exhaustive amicus brief in Faulder describing the assistance it offers when it learns that one of its nationals is being prosecuted in another country. The brief also explains how notification in accordance with the VCCR would have enabled Canada to substantially assist in Faulder's defense, such as by helping defense counsel to establish that Faulder suffered organic brain damage at the age of three.

21. In addition to Paraguay's unsuccessful suit against Virginia, Mexico pursued a similar claim against Arizona, with like results. United Mexican States v. Woods, 126 F.2d 1220 (9th Cir. 1997), cert. denied, 118 S. Ct. 1517 (1998).

22. After Virginia executed Mario Murphy in 1997, the U.S. State Department sent a diplomatic note to Mexico apologizing for the VCCR violation that had taken place. In the amicus brief filed for the United States in Breard, the U.S. Solicitor General stated that the State Department "has intensified its efforts to ensure that federal, state, and local law officials in the United States are aware of and comply with the consular notification and access requirements of the Vienna Convention." Brief for the United States as Amicus Curiae, Breard v. Greene, at 10. A "new comprehensive guidance on the subject" has been distributed to the states and "a pocket-sized reference card for law enforcement officers to carry on the street" has been prepared. Id. The State Department's latest publication about the VCCR (January 1998) is described in some detail in Marian Nash (Leich), Contemporary Practice of the United States Relating to International Law: Consular Officers and Consulates, 92 Am. J. Int'l L. 243 (1998).

23. For example, there were indications that Breard was a citizen of both Paraguay and Argentina.

24. See Shank & Quigley, 26 St. Mary's L. J. at 750 (notification should be "immediately upon detention;" State Department view is "'as quickly as possible and, in any event, no later than the passage of a few days.'"). The United States is a party to a number of bilateral agreements that require prompt notification in all cases where nationals of the signatory nations are arrested, even if the person detained does not request that the consulate be told.

25. See, e.g., United States v. Esparza-Ponce, ___ F. Supp. ___, 1998 WL 258432 (S.D. Cal. 1998) (Amended Order Addressing Pretrial Motions). In Esparza-Ponce, the defense filed a motion to suppress defendant's statements to border patrol agents on the basis of violations of Miranda and the VCCR. In its order, the court denied the motion to suppress on the VCCR claim without a hearing. The court found that, even if defendant had standing to raise the claim, he had not shown any prejudice from the violation. The court distinguished a Miranda violation, where there is no need to demonstrate prejudice. See also Petition for a Writ of Habeas Corpus, In re Peng, Orange County, California No. 94SF0019 (denied August 17, 1998) (arguing that defendant's statements should have been suppressed on the basis of violations of both the VCCR and Miranda).

26. See Logene L. Foster and Stephen Doggett, Vienna Convention: New Tool for Representing Foreign Nationals in the Criminal Justice System, 21-MAR Champion 6 (1997) (suggesting that the warning of a right to contact the consul has a stronger foundation, in specific language in a treaty, than does a Miranda warning, which is merely implied from more general language in the Constitution). See also Gregory Dean Gisvold, Strangers in a Strange Land: Assessing the Fate of Foreign Nationals Arrested in the United States by State and Local Authorities, 78 Minn. L. Rev. 771, 800 (1994) (suggesting that law enforcement should stand-ardize notification of aliens of their VCCR rights at the time of arrest); Shank & Quigley, 26 St. Mary's L. J. at 748-49 (suggesting that U.S. Attorneys should devise a system at the federal level for notification and that police training on the state levels should include education about consular access).

27. See Mark Warren, Obtaining Consular Assistance for Death-Sentenced Foreign Nationals, Amnesty International Canadian Section, October 1997, at 3-4, for a detailed description of steps to take in enlisting the aid of a consulate. Warren (aiwarren@web.net) functions as an up-to-the-minute clearinghouse for information on VCCR developments.

28. 1998 WL 394004 (Tex. App.-Austin, July 16, 1998).

29. The court found that the provision of the VCCR that requires that the defendant be notified of his right to have the consulate contacted was violated even though the investigator directly contacted the consulate after arresting and interrogating defendant. Id. at *5.

30. The defendant was arrested and charged with the murder of his girlfriend. When interrogated, the defendant invoked his Miranda right to counsel, but then continued talking to the investigator and ultimately made a statement that "'he didn't know why he did it.'" Id. at *1. The defense argued that the statement weakened their argument that the defendant lacked the mental state necessary to support the conviction, because he was merely trying to scare the victim when he fired the shots that killed her. Id. at *2, *6.

31. According to the court, the pretrial statement received little attention at trial. Id. at *6. Under a Texas rule, the court applied the prejudice standard for a nonconstitutional error. As discussed infra, note 43, the standard for constitutional errors, harmless beyond a reasonable doubt, is arguably the appropriate standard.

32. Defense counsel should carefully study their individual state's habeas rules. In Al-Mosawi v. State, 1998 WL 120199 (Okla. Crim. App.), the court refused to consider, in state habeas, the claim that trial counsel was ineffective for failing to raise the VCCR issue. The court held that appellate counsel should have raised the issue on direct appeal.

33. State v. Loza, 1997 WL 634348 (Ohio App. 12 Dist. 1997). State habeas cases are difficult to catalog because so many are unreported. Through various sources, such as Amnesty International and news accounts, we are aware of state habeas cases raising VCCR issues in Colorado, Illinois, Texas (Faulder), and Arizona (see reference to state habeas in Villafuerte v. Stewart, 142 F.3d 1124 (1998)). We are also aware of a state habeas action pending in California, In re Peng, Orange County No. 94SF0019 (denied August 17, 1998).

34. 116 F.3d 97 (4th Cir.), cert. denied, 118 S. Ct. 26 (1997).

35. Mario Murphy pleaded guilty in a murder-for-hire case without any concession from the prosecutor concerning the penalty to be sought. All the others charged in the crime, including the wife who had hired Murphy to murder her husband, were offered and accepted the opportunity to plead guilty in order to avoid the death penalty.

36. See also LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998). In LaGrand, the court found that the failure to notify German nationals of their right to contact their consulate was "undisputed." The claim was procedurally defaulted, however, for failure to raise it in state court. The court further found that a claim of ineffective assistance of counsel was not "cause and prejudice" where no "external factor" precluded the state court attorneys from raising the VCCR issue. Moreover, the defendants could not prevail on a claim of "miscarriage of justice" on the basis that they were innocent of the death penalty because their claim involved an alleged denial of access to mitigating evidence concerning their childhoods, which did not affect their "eligibility" for the death penalty and thus could not substantiate their claim of actual innocence Id. at 1262.

37. Even if state habeas counsel becomes aware of the VCCR violation, it may be too late and the claim may be procedurally defaulted in state court, which in turn precludes raising the claim in federal court. See Villafuerte v. Stewart, 142 F.3d 1124, cert. denied, 118 S. Ct. 1557 (1998) (attempt to raise VCCR claim in third state habeas rejected by Arizona court and precluded in federal habeas because claim was neither a "new rule of constitutional law" nor "previously unavailable").

38. 118 S. Ct. at 1355.

39. 28 U.S.C. 2241(c)(3) (emphasis added).

40. 28 U.S.C. 2253(c)(2) (emphasis added).

41. See James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure 9.1 (Supp. 1997) (suggesting that the best understanding of the "haphazard" use of "constitutional," "federal rights," or "claims cognizable in habeas corpus," should be that all terms refer to the "Constitution or laws or treaties of the United States"); William J. Aceves, Treaties -- Vienna Convention on Consular Relations -- Consular Access to Detained Nationals -- Habeas Corpus -- Antiterrorism and Effective Death Penalty Act of 1996, 92 Am. J. Int'l L. 87, 89 (1998) (noting that the inability to appeal statutory and treaty issues "seems inconsistent with the underlying jurisdictional provisions"). See also Hohn v. United States, 118 S. Ct. 1969 (1998) (allowing Supreme Court review on certiorari of a denial of certificate of appealability).

42. 118 S. Ct. at 1356.

43. With constitutional issues, the Supreme Court has drawn a line between "structural" and "trial" errors. Structural errors, such as the denial of the right to counsel or a biased judge, are per se reversible. Trial errors, such as the erroneous admission or exclusion of evidence, are reversible only if they are not harmless errors. A violation of the VCCR is arguably a closer match to a structural error than to a trial error. Like other structural errors, the entire trial is infected when there is a complete denial of contact with the defendant's foreign consul. As with the complete denial of the assistance of counsel, a structural error, the denial of contact with the consulate deprives the defendant of the benefit of the advice for the entire proceeding. The loss cannot be calculated in the same manner as one can calculate the effect of the admission or exclusion of a piece of evidence. The assistance of the consul is comprehensive, including assistance in understanding legal advice as well as help in presenting evidence. When an error affects the "framework" of the trial, rather than just the "presentation" of the case, the error is too fundamental to be subjected to harmless error analysis. Thus, despite the Court's reference to showing an "effect" from the violation, there is a sound argument that harmless error analysis should not apply. See Shank & Quigley, 26 St. Mary's L.J. at 751 (suggesting that the VCCR creates an "absolute" right which should not require a showing of prejudice); Uribe, 19 Hous. J. Int'l L. at 419-20 (arguing that the treaty error is structural error and therefore harmless error analysis is inappropriate).

44. See, e.g., United States v. Esparza-Ponce, 1998 WL 258432 (S.D. CAL. 1998)(Amended Order Addressing Pretrial Motions) (defense argument for considering the violation reversible per se, based on the analogy to Miranda violations, was rejected by the court).

45. Breard v. Greene, 118 S. Ct. at 1355.

46. 499 U.S. 279 (1991).

47. Id. at 295, 302. "Harmless beyond a reasonable doubt," means that the state must demonstrate that the error (such as the admission of a coerced confession in Fulminante) "did not contribute to [the] conviction." Id. at 295. See Linda E. Carter, Harmless Error in the Penalty Phase of a Capital Case: A Doctrine Misunderstood and Misapplied, 28 Ga. L. Rev. 125, 127-134 (1993).

48. Breard v. Greene, 118 S. Ct. at 1355. The Court did not need to reach the issue of prejudice because it affirmed the finding of procedural default essentially on the basis that there was no "cause." The Court noted, however, "Even were Breard's Vienna Convention claim properly raised and proven, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial. . . . In this case, no such showing [of prejudice] could even arguably be made."

49. Breard v. Greene, 118 S. Ct. at 1355.

50. See Kadish, 18 Mich. J. Int'l L. at 582 (Breard "believed that if he confessed his crime and explained his new 'conversion and rebirth in Jesus Christ,' the jury would forgive him as had Christ."). Kadish argues that "because of culture, language barriers, and the inability to obtain evidence, a foreign national is inherently prejudiced when detained or in custody in a foreign criminal justice system." Id. at 606.

51. 81 F.3d at 520 ("Texas admits that the Vienna Convention was violated.").

52. Id.

53. 8 C.F.R. 242.2(g).

54. 617 F.2d 529 (9th Cir. 1980).

55. Id. at 531-533. It is also worthy of note that the Ninth Circuit required that the defendant meet a burden of production on showing prejudice, not the ultimate burden of persuasion, which remained with the government. Thus, the government had to demonstrate that there was no prejudice after defendant's initial showing. The burden of production in Rangel-Gonzales was met by demonstrating that "he did not know of his right to consult with consular officials, that he would have availed himself of that right had he known of it, and that there was a likelihood that the contact would have resulted in assistance to him in resisting deportation." In a recent case, United States v. Esparza-Ponce, 1998 WL 258432 (S.D. CAL. 1998)(Amended Order Addressing Pretrial Motions), the court followed the Rangel-Gonzales format, but found that the defendant failed to demonstrate either that he would have contacted his consul or that the consul would have rendered assistance. Id. at 16.

56. There were affidavits from the Mexican Consulate General, an immigration attorney, family members, and social service groups. 617 F.2d at 531.

57. See Mami v. Van Zandt, 1989 WL 52308 (S.D.N.Y. 1989) (not reported in F. Supp.) (defendant's request to speak with the Jordanian consulate had been denied, but there was no showing of prejudice).

58. See Petition for a Writ of Habeas Corpus, In re Peng, Orange County No. 94SF 0019 (petition denied August 17, 1998), where the defendant was not notified of her rights under the VCCR, was interrogated for hours, repeatedly asked for an attorney which was never provided, and ultimately made an incriminating statement.

59. Joseph Faulder's most recent application for a writ of habeas corpus was denied by the District Court for Angelina County, Texas on June 24, 1998 (No. 10,748-AA). In addition to continuing to represent Faulder in state habeas proceedings, Sandra Babcock recently presented oral argument before the Inter-American Court on Human Rights in Costa Rica concerning the VCCR.



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