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Foreign Nationals and the Death Penalty in the United States

As of September 26, 2002

Information Chiefly Provided by Mark Warren of Human Rights Research *

Foreign Nationals Currently on Death Row

Violation of the Rights of Foreign Nationals

Current Issues and News About Foreign Nationals

Recent changes to the list are in brackets.

Mexico 55	France 1
Jamaica 7	Poland 1
Cuba 6	Tonga 1
Germany 3	Trinidad 1
Colombia 3	Belize 1
United Kingdom 2	Argentina 1
El Salvador 3	Philippines 1
Canada 1	Cambodia 2
Estonia 2	Laos 1
Honduras 1	Thailand 2
Nicaragua 1	Egypt 1
Guyana 1	Bangladesh 1
Croatia 1	Haiti 1
Lebanon 1	Jordan 1
Peru 1	Pakistan 1
Vietnam 2	Iran 1

Unknown nationality* 12

*Inmates with INS registration numbers (indicating foreign nationality), but for whom no specific nationality information is currently available.

TOTAL: 120   As of September 19, 2002

TOTAL NATIONALITIES:32

TOTALS BY JURISDICTION: California (36), Texas (25), Florida (22), Arizona (7), Oklahoma (4), Illinois (5), Ohio (4), Nevada (4), Pennsylvania (2), Louisiana (2), Virginia (2), Oregon (1), Delaware (1), Arkansas (1), Montana (1), Federal (3).

Totals include all reported foreign nationals under sentence of death, including those awaiting new sentencing hearings. It includes several cases where the individual's immigration status is uncertain or their nationality is disputed. Confirmed cases of dual citizenship (individuals possessing both US citizenship and that of another country) are not listed. For more information, see dual nationality below.

A number of the cases listed below may require re-sentencing in light of the US Supreme Court decisions in Ring v. Arizona and Atkins v. Virginia. Case status information will be updated as it becomes available.

CONSULAR RIGHTS, FOREIGN NATIONALS AND THE DEATH PENALTY

Under Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR), local authorities must notify all detained foreigners "without delay" of their right to have their consulate informed of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate unfettered consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals' legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give "full effect" to the rights enshrined in Article 36. The USA ratified the VCCR without reservations in 1969; so fundamental is the right to consular notification and access that the US Department of State considers it to be required under customary international law in all cases, even if the detainee's home country has not signed the VCCR. As of 1 January, 2000, at least 165 countries were parties to the VCCR.

According to the Inter-American Court of Human Rights, the term "without delay" in VCCR Article 36 means immediate notification of consular rights upon detention and before any interrogation takes place. The State Department interprets the term "without delay" to mean as soon as possible (i.e. without undue delay), and normally by the time the detainee is booked for detention. While not all of the reported foreign nationals currently on death row were necessarily deprived of their consular rights by arresting authorities, there is overwhelming evidence that prompt notification of these rights across the United States remains the exception rather than the rule. No comparative study has yet been done, but the available data indicates that timely consular assistance significantly reduces the likelihood that death sentences will be sought or imposed on foreign nationals facing capital charges.

Even applying the less stringent definition of prompt notification used by the State Department, only 4 cases of complete compliance with Article 36 requirements have been identified so far, out of 146 total reported death sentences (including those executed, reversed on appeal or released). In most of the remaining cases, detained nationals learned of their consular rights weeks, months or even years after their arrest, typically from attorneys or other prisoners and not from the local authorities. As a consequence, consular officials were often unable to provide crucial assistance to their nationals when it would be most beneficial: at the arrest and pre-trial stage of capital cases. For example, Arizona authorities did not formally inform German nationals Karl and Walter LaGrand of their Article 36 rights until 17 years after their arrest-- and just weeks before their execution.

Although not a capital case, evidence from a recent law suit indicates the extent to which police departments in the USA may have breached their consular notification obligations. In Sorensen v. City of New York, a Danish national sought punitive and compensatory damages for the failure of the NYPD to inform her upon arrest in 1997 of her right to consular notification. Official records produced by the plaintiff revealed that over 53,000 foreign nationals were arrested in New York City during 1997, but that the NYPD Alien Notification Log registered only 4 cases in which consulates were notified of those arrests--a failure rate well in excess of 99 per cent (even presuming that a majority of the detainees might have declined consular notification).

CONFIRMED FOREIGN NATIONALS EXECUTED SINCE 1976

All indications are that none of these executed individuals were notified by U.S. authorities upon arrest of their right to communicate with their consular representatives, as required under Article 36 of the Vienna Convention on Consular Relations. In several instances, prisoners on this list did not learn of their right to request consular assistance for more than a decade, by which time the treaty violation was considered by the appellate courts to be a procedurally defaulted claim. Cases indicated with (#) are those in which the consular notification issue was raised on appeal or in clemency proceedings (major appellate opinions on consular rights in brackets).

Leslie Lowenfield		Guyana	Louisiana	April 13, 1988
Carlos Santana	#	Dominican Republic	Texas	March 23, 1993
Ramon Montoya	#	Mexico	Texas	March 25, 1993
Pedro Medina		Cuba	Florida	March 25, 1997
Irineo Tristan Montoya	#	Mexico	Texas	June 18, 1997
Mario Murphy	#(Fourth Circuit)	Mexico	Virginia	September 18, 1997
Angel Breard	#(US Supreme Court)	Paraguay	Virginia	April 14, 1998
Jose Villafuerte	#	Honduras	Arizona	April 22, 1998
Tuan Nguyen		Viet Nam	Oklahoma	December 10, 1998
Jaturun Siripongs	#	Thailand	California	February 9, 1999
Karl LaGrand	#(Ninth Circuit)	Germany	Arizona	February 24, 1999
Walter LaGrand	#(Ninth Circuit)	Germany	Arizona	March 3, 1999
Alvaro Calamvro	#	Philippines	Nevada	April 5, 1999
Joseph Stanley Faulder	#(Fifth Circuit)	Canada	Texas	June 17, 1999
Miguel Angel Flores	#(Fifth Circuit)	Mexico	Texas	November 9, 2000
Sebastian Bridges		South Africa	Nevada	April 21, 2001
Sahib al-Mosawi	#	Iraq	Oklahoma	December 6, 2001
Javier Suárez Medina	#	Mexico	Texas	August 14, 2002

 
 
 

 FOREIGN NATIONALS RELEASED ON GROUNDS OF INNOCENCE

Ricardo Aldape Guerra	#	Mexico	Texas	April 1997
Roberto Miranda		Cuba	Nevada	September 1996
Joaquin Martinez (acquitted after retrial)	#	Spain	Florida	June 2001

 

 FOREIGN NATIONALS WITH SCHEDULED EXECUTION DATES

Mir Aimal Kasi	#	Pakistan	Virginia	November 7
Rigoberto Sanchez Velasco		Cuba	Florida	October 2

 RECENT COURT DECISIONS

Gerardo Valdez Maltos	Mexico	Oklahoma	Oklahoma Court of Criminal Appeals 05/01/02	Sentence vacated; NEW SENTENCING HEARING ORDERED
Kwan Fai Mak	Hong Kong	Washington	Trial court 04/30/02; 05/20/02	Sentence vacated; 13 LIFE SENTENCES
Gregory Madej	Poland	Illinois	Federal District Court 03/10/02	Sentence vacated; NEW SENTENCING HEARING ORDERED
Julio Mora	Spain	Florida	State Supreme Court 01/25/02; Trial court 09/04/02	Sentence vacated; LIFE SENTENCE
Krishna Maharaj	United Kingdom	Florida	Trial court 03/27/02	New penalty hearing; LIFE SENTENCE

 
 
 

 REPORTED DEATH-SENTENCED FOREIGN NATIONALS BY STATE, NAME AND NATIONALITY

List of symbols in tables

# identity independently confirmed by two or more sources

! awaiting re-sentencing after appellate court ruling

MI/MR/BD cases of reported mental illness, mental retardation or brain damage (incomplete data)

INN claim of innocence raised on appeal (incomplete data)

INS Inmate with INS detention numbers, but for whom no nationality has been specified

<< facing possible execution in the near future

& cases in which a violation of consular rights has been raised on appeal or otherwise directly reported. (N.B. According to Mexican authorities, very few of their nationals received consular notification. For the sake of consistency with other nationals' data, only those Mexican cases in which a violation has been directly reported are indicated on the list.)

^ cases in which notification of consular rights was reportedly provided by authorities without delay (i.e. upon arrest, or prior to booking for detention).
 

TOTALS BY STATE

TOTALS DO NOT YET REFLECT POSSIBLE CHANGES TO SENTENCING IN A NUMBER OF STATES, AS A RESULT OF THE SUPREME COURT DECISIONS IN RING V. ARIZONA AND ATKINS V. VIRGINIA.
 

ARIZONA (7)

Martin Raul Fong Soto	& juvenile	Mexico	#
Ramon Martinez Villareal	& MI	Mexico	#
Michael Apelt	&	Germany	#
Rudi Apelt	& MR/BD	Germany	#
Kajornsak Prasertphong		Thailand
Jose Amaya Ruiz	& MI/MR	El Salvador	#
Claude Maturana	& MI	France	#

ARKANSAS (1)

Rafael Camargo Ojeda

Mexico

#

CALIFORNIA (36)

Carlos Avena Guillén	&	Mexico	#
José Luis Aviles de la Cruz		Mexico	#
Juan Hector Ayala	&	Mexico	#
Vicente Benavides Figueroa	&	Mexico	#
Constantino Carrera Montenegro	&	Mexico	#
José Lupercio Cázares		Mexico
Abelino Manríquez Jacquez	&	Mexico	#
Sergio Ochoa Tamayo		Mexico
Ramón Salcido Bojórquez,	&	Mexico	#
Alfredo Valdés Reyes	&	Mexico	#
Jaime Armando Hoyos	&	Mexico	#
Tomás Verano Cruz	&	Mexico	#
Manuel Machado Alvarez		Cuba
Miguel Angel Bacigalupo	&	Peru	#
Peter Sakarias	&	Estonia	#
Tauro Waidla	&	Estonia	#
Hooman Ashkan Panah	&	Iran	#
Luis Alberto Maciel Hernández		Mexico	#
Enrique Parras Dueñas		Mexico	#
Samuel Zamudio Jiménez		Mexico	#
Martín Mendoza García,		Mexico	#
Daniel Covarrubias Sánchez		Mexico	#
Jorge Contreras López		Mexico	#
Juan Sánchez Ramirez		Mexico	#
Ignacio Tafoya Arriola		Mexico
Sonny Enraca	&	Philippines	#
Miguel Angel Martínez		Mexico
Juan Manuel López		Mexico
Eduardo Vargas		Mexico
Arturo Juárez Suárez		Mexico	#
Samreth Sam Pan		Cambodia
John Ghobrial		Egypt
Marcos Esquivel Barrera		Mexico
Juan Manuel Lopez		Mexico
Juan Dedios Ramirez		Mexico

DELAWARE(1)

Hector Barrow

!

Guyana

#

FLORIDA (22)

Dieter Reichmann	! & INN	Germany	#
Noel Doorbal		Trinidad
Rigoberto Sanchez Velasco	<<	Cuba
Lynford Blackwood		Jamaica
Robert Gordon		Jamaica
Sean Smith		Jamaica
Paul Howell		Jamaica
Lancelot Armstrong		Jamaica
Guillermo Arbelaez		Colombia
Ana Cardona (female)		Cuba
Pedro Alberto Hernandez		Mexico
Manuel Valle	INS	Unknown
Ian Lightbourn	INS	Unknown
Omar Blanco	INS	Unknown
Eduardo Lopez	INS	Unknown
Manolo Rodriguez	INS	Unknown
Robert Rimmer	INS	Unknown
Terance Valentine	INS	Unknown
Leonardo Franqui	INS	Unknown
Pablo San Martin	INS	Unknown
Marbel Mendoza	INS	Unknown
David Carpenter	INS	Unknown
Jesus Delgado	INS	Unknown

ILLINOIS (5)

Juan Alonso Caballero Hernandez		Mexico	#
Mario Flores Urbano		Mexico	#
Gregory Madej	!&	Poland	#
Gabriel Solache Romero		Mexico	#
Evan Griffith		Belize	#

LOUISIANA (2)

Thao Tan Lam		Viet Nam
Manuel Ortiz	& MI INN	El Salvador	#

MONTANA (1)

Ronald Smith

^

Canada

#

NEVADA (4)

Carlos Gutierrez		Mexico	#
Avram Vineto Nika	&	Croatia	#
Sioasi Vanisi		Tonga
Jose Echavarria		Cuba

OHIO (4)

Jose Trinidad Loza Ventura	&	Mexico	#
Abdul Awkal		Lebanon
Kenneth Richey	& INN	United Kingdom (nationality disputed)	#
Ahmad Fawzi Abdelnor Issa		Jordan

OKLAHOMA (4)

Hungh Thanh Le		Vietnam
Gilberto Martinez		Cuba
Osvaldo Torres Aguilera		Mexico	#
Gerardo Valdez Maltos	!&BD	Mexico	#

OREGON (1)

Horacio Alberto Reyes Camarena

Mexico

#

PENNSYLVANIA (2)

Albert Reid		Jamaica	#
Borgela Philistin		Haiti

TEXAS (25) (listed with TDCJ ID number)

000650	Cesar Roberto Fierro	& INN<<	Mexico	#
000985	Héctor García Torres	& INN	Mexico	#
999162	Humberto Leal Garcia		Mexico	#
999134	Jose Ernesto Medellin Rojas		Mexico	#
999214	Daniel Angel Plata Estrada		Mexico	#
999062	Roberto Moreno  Ramos		Mexico	#
999096	Oswaldo Regalado Soriano	juvenile	Mexico	#
999130	Edgar Tamayo Arias		Mexico	#
999240	Dennis Zelaya Corea (a.k.a. Carlos Ayestas)	&	Honduras	#
999030	Lim Kim Ly		Cambodia	#
000910	Syed Rabani		Bangladesh	#
999122	Michael Blair		Thailand	#
999203	Victor Saldano	! &	Argentina	#
000942	Anibal Garcia Rosseau	&	Cuba	#
999275	Ruben Ramirez Cardenas	&	Mexico	#
999247	Ramiro Ibarra Rubí		Mexico	#
999290	Ignacio Gómez		Mexico	#
999249	Virgilio Maldonado Rodriguez		Mexico	#
999291	Félix Rocha Díaz		Mexico	#
999369	Bernardo Tercero		Nicaragua	#
999342	Ramiro Hernández Llanas		Mexico	#
999332	Juan Carlos Alvarez Banda		Mexico	#
999356	Angel Maturino Resendiz	^	Mexico	#
999390	Gilmar Alexander Guevara		El Salvador	#
999406	Linda Carty	female	British Virgin Islands (UK)

VIRGINIA (2)

Edward Nathaniel Bell	&	Jamaica
Mir Aimal Kasi	&<<	Pakistan	#

FEDERAL (3)

Bountaem Chanthadara	!&	Laos	#
German Sinisterra	&	Colombia	#
Arboleda Ortiz	&	Colombia	#

TOTAL: 120 entries

As of September 19, 2002

NOTES

Solely for the purposes of this list, a 'foreign national' is any individual under sentence of death in the USA who does not possess United States citizenship. Foreign nationals in the USA would thus include: tourists and visitors, migrant workers with temporary permits, resident aliens, illegal aliens, asylum-seekers and persons in transit.

Along with the general consular notification obligations which apply under the Vienna Convention on Consular Relations, the USA has also negotiated separate bilateral consular agreements with some 50 countries. Under the terms of most of these agreements there is a mandatory obligation to promptly notify the consulate of an arrest, irrespective of the national's wishes (typically within a specified time period, such as 72 hours following arrest).
 

Dual nationality Back to top

Individuals retaining dual nationality who are arrested in one of their countries of citizenship are problematic for the purposes of consular notification under the Vienna Convention on Consular Relations (which makes no reference to dual citizenship). The list includes several cases of disputed or uncertain nationality, where the individual has either renounced their US citizenship derived through an American parent (Richey, Ohio) or where their US naturalization status is unclear (Maturana, Arizona). Individuals are listed provisionally if a report is received that they possess citizenship in a country other than the USA; if dual citizenship is later confirmed, the name is removed from this list.

The US Department of State has taken the position that individuals who retain US citizenship along with another nationality are not entitled to notification of consular rights if arrested in the USA. Other nations do not necessarily share that interpretation of consular treaty obligations; at a minimum, consuls should always have the right to communicate and visit with foreign prisoners, if the consulate in question deems it appropriate to extend that assistance to its dual nationals. Foreign governments would also retain the right to seek clemency for dual nationals on humanitarian grounds, as part of the general protective function that they may choose to provide to their citizens abroad. While the scope of consular notification rights for dual nationals may thus be open to some interpretation, non-US citizens detained or arrested in the USA are unquestionably entitled to the full range of consular rights afforded under international law.

Sources of Information

Since US authorities frequently do not list incarcerated individuals by nationality, it is difficult to identify and verify all foreign nationals under sentence of death. There is no accessible national registry of these individuals (although the INS data base of deportable aliens serving prison terms would likely include all known foreign nationals on death row nationwide). Compounding the problem is the general failure of US law enforcement officials to notify detained foreigners of their consular rights. Without this notification and subsequent communication at the request of the detained national, foreign consulates in the United States are likely to remain unaware of the true number of their nationals who are imprisoned, let alone sentenced to death.

The information for this list comes from a variety of sources, including appellate attorneys, post-conviction resource centers, trial counsel, prosecutors, newspaper articles, reporters, consulates and prison officials.

Research to date indicates that there are no foreign nationals on death row in South Carolina and New Jersey. There is as yet no complete data from a number of US states with significant death row populations, including Pennsylvania, Mississippi, Tennessee, Georgia, Kentucky, Florida and Missouri. A comprehensive list would likely include some 150 names (i.e. roughly 3% of the total US death row population).

A name is included on the list if it is confirmed by at least one reliable contact. The eventual goal is to verify the nationalities of all individuals on this list from two or more independent sources. At present, approximately two-thirds of the names have been corroborated by multiple independent sources.

I welcome any and all additional information on this subject.

Mark Warren, Human Rights Research
aiwarren@sympatico.ca
tel: (613)278-2280

Violation of the Rights of Foreign Nationals Under Sentence of Death

AI INDEX: AMR 51/01/98 (Published in 1998)

More than 60 foreign citizens representing 22 nationalities are under sentence of death in the United States of America (USA). In virtually every case, the arresting authorities failed to notify detained foreigners of their right to communicate with their consular representatives. As a consequence, foreign nationals confronted by an unfamiliar legal system were tried and sentenced to death without the benefit of the crucial support from the authorities of their native countries. Since 1993, the United States has executed at least 5 foreign nationals, including citizens of the Dominican Republic, Mexico and Cuba.

In 1969, the USA ratified the Vienna Convention on Consular Relations, a multilateral treaty regulating the functions of consulates in at least 144 nations. Article 36 of the Vienna Convention requires the local authorities to promptly inform arrested foreigners of their right to consular assistance. At the request of the detainee, the authorities must notify the consulate of the arrest and permit consular access to the detained national.

Article 36 ensures that all arrested foreigners have the means at their disposal to prepare an adequate defence and to receive the same treatment before the law as domestic citizens. Consuls are uniquely placed to provide a wide range of essential services to their nationals, including legal advice and assistance, translation, notification of family members, the transferring of documentation from the native country and observing court hearings.

The right to consular notification and visits is also reiterated under international human rights standards, including Principle 16(2) of the UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment and Article 38(1) of the UN Standard Minimum Rules for the Treatment of Prisoners.

The US Department of State considers Article 36 notification for American citizens arrested abroad to be a matter of the highest importance. However, the US federal government has taken no meaningful measures to ensure domestic compliance with the Vienna Convention or to remedy past violations which resulted in death sentences and executions of foreign nationals. Amnesty International is concerned that what appears to be a double standard applied by the US authorities may undermine the integrity of international law and endanger the fundamental human rights of foreign nationals detained worldwide.

In May 1997, 32 US law firms that represent foreigners on death row sent a joint letter to Secretary of State Madeleine Albright, protesting the denial of their clients' consular rights. The letter pointed to "an alarming, widespread pattern of indisputable and indefensible violations" of Article 36 and urged the State Department to intervene. To date, there has been no substantive reply from the Secretary of State to the joint letter.

The cases of two Mexican nationals executed in 1997 illustrates the vital importance of timely consular intervention and the utter failure of the US authorities to meet their obligations under international law.

On 18 June 1997, Texas executed Irineo Tristan Montoya, a Mexican national sentenced to death in 1986. Following his arrest, Montoya underwent a lengthy police interrogation without the presence of an attorney or the assistance of the Mexican Consulate. He then signed a four-page confession written in English, a language that he did not read, speak or understand.

Although only eighteen years old at the time and despite his secondary involvement in the crime (Montoya was charged as an accessory to the murder), Montoya was condemned to death. The actual killer received a prison sentence. Texas authorities were fully aware of Montoya's nationality but failed to inform him of his right to consular access.

Shortly before the execution, the State Department contacted the Governor of Texas, in a belated attempt to determine the circumstances surrounding the breach of Article 36. However, in a remarkable reply that showed the Texan authorities' misunderstanding of, or contempt for, international treaties, the officials refused to investigate the violation or to assess its possible impact, on the grounds that Texas was not a signatory to the Vienna Convention. A final appeal to the US Supreme Court on the treaty violation was dismissed without comment.

Mario Benjamin Murphy was executed in Virginia on 17 September 1997. Murphy was one of six people charged with the 1991 'murder for hire' of a US Navy petty officer. Murphy fully cooperated with the police and was clearly not the most culpable individual. He was also the only defendant not offered a plea bargain by the prosecution and the only one sentenced to death -- and the only foreign national.

Mario Murphy finally learned of his consular rights in 1996; however, both the prison warden and the Virginia Attorney General refused his request that they contact the Mexican Consulate on his behalf. A District Court judge later criticised Virginia officials for their "defiant and continuing disregard" of the Vienna Convention. During a hearing at the Fourth Circuit Court of Appeal, the Virginia Assistant Attorney General and two of the panel judges admitted that they had never heard of the Vienna Convention prior to the Murphy case.

The Mexican Consulate filed an 'amicus curiae' brief (interested parties may appeal to a court via an 'amicus curiae' (friend of the court) brief), outlining the "flexible and far-reaching assistance to avoid imposition of the death penalty" which consular officials would have provided, including efforts to obtain a plea bargain and the gathering of mitigating evidence. Ignoring the obvious misconduct of state officials, the US courts ruled that the issue was "procedurally defaulted" because Murphy had failed to raise the claim at an earlier stage of appeal.

The day after Murphy's execution, the State Department sent a formal apology to the Mexican Embassy for the failure of Virginia officials to provide Murphy with the required notification of his right to consular assistance.

The consistent failure of the United States to meet its obligations under the Vienna Convention on Consular Relations is an issue of legitimate and growing concern to the international community. The governments of Canada, Mexico and Paraguay have all taken vigorous diplomatic and legal action to protect the consular rights of their citizens currently under a sentence of death.

Despite sporadic advisory notices from the State Department, most state and local authorities remain ignorant of their Article 36 responsibilities. Gerald Arenberg, Executive Director of the National Association of Retired Police Chiefs, was recently quoted as stating that: "In my 47 years in law enforcement, I have never seen anything from the State Department or FBI about this".

In an interview prior to the execution of Mario Murphy, the trial prosecutor, Robert Humphreys, showed contempt for Virginia's treaty violation: "I mean, what is the remedy? I suppose Mexico could declare war on us...To me, it's a completely ridiculous issue". In the same interview, Humphreys gave an entirely incorrect interpretation of Article 36: "The burden is on [defendants] to say, 'Hey, excuse me, I'm a Mexican citizen. Tell my Embassy'... ".

Many violations of foreign nationals rights under the Vienna Convention are also violations of the USA's obligations under the International Covenant of Civil and Political Rights (ICCPR), ratified by the USA on 8 June 1992. For example, Article 14 (3a) of the ICCPR states that:

'...[a defendant has the right] To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;' (emphasis added). General Comment 15 of the ICCPR's Position of Aliens under the Covenant also expands on the rights of foreign nationals charged with a criminal offence.

In response to mounting international pressure, the State Department is reportedly considering measures to ensure better domestic compliance with the Vienna Convention. These measures are said to include revised material for advising US police forces of the procedures to be followed when arresting foreign nationals.

Amnesty International welcomes these preliminary steps. However, the organization believes that they are insufficient to ensure that all US police departments are aware of--and comply with--the binding requirements of Article 36.

Amnesty International also remains deeply concerned over the reluctance of the US authorities to develop effective remedies in the cases of foreign nationals who were sentenced to death without receiving notification of their consular rights. The US Government continues to oppose efforts by death-sentenced foreign citizens (and their governments) to obtain relief through the courts.

In response to a law-suit filed by the Republic of Paraguay against Virginia officials, attorneys for the US Department of Justice argued that foreign governments are not entitled to a judicial remedy for Article 36 violations and that the proper recourse for breaches of consular rights is through diplomatic channels. However, it is not clear how diplomatic channels could correct the violation of the rights of those foreign nationals currently under sentence of death.

In light of the State Department's insufficient efforts to intervene prior to the recent execution of foreign nationals, Amnesty International finds this position completely unacceptable. Without fair and effective remedies for past violations of Article 36 in capital cases, any assurances of future domestic compliance from the US authorities can only be seen as hollow promises.

********************

Other Amnesty International reports on death-sentenced foreign nationals include:

United States of America: A Time for Action-- Protecting the consular rights of foreign nationals facing the death penalty AI Index: AMR 51/106/2001 http://www.web.amnesty.org/ai.nsf/recent/AMR511062001  (This report documents the ruling of the International Court of Justice in the LaGrand Case, upholding the consular rights of foreign nationals in the USA. The report also describes the worldwide concern over violations of consular rights in U.S. death penalty cases. ( Amnesty International Press Release , 8/21/01)

Saudi Arabia: Execution of Nigerian Men and Women AI Index MDE 23/49/00

http://www.amnesty.org/ailib/aipub/2000/MDE/52304900.htm

United States of America: Worlds Apart. Violations of the Rights of Foreign Nationals on Death Row - Cases of Europeans AI Index AMR 51/101/00

http://www.amnesty.org/ailib/aipub/2000/AMR/25110100.htm

The Execution of Angel Breard: Apologies Are Not Enough AI Index AMR 51/27/98 http://www.amnesty.org/ailib/aipub/1998/AMR/25102798.htm

Angel Francisco Breard: Facing Death in a Foreign Land AI Index AMR 51/14/98 http://www.amnesty.org/ailib/aipub/1998/AMR/25101498.htm

Adding Insult to Injury: the Case of Joseph Stanley Faulder AI Index AMR 51/86/98

http://www.amnesty.org/ailib/aipub/1998/AMR/25108698.htm

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Additional Web sites:

" Know Your Rights : What To Do If You're Stopped By the Police, the FBI, the INS or the Customs Service "

(to access the report in Spanish and Arabic, visit http://www.aclu.org/issues/immigrant/hmir.html  - look under 'Special Features')

U.S. State Department - Consular Notification and Access (January 1998) - Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them

U.S. State Department - Assistance to U.S. Citizens Arrested Abroad - a summary of services provided to U.S. citizens arrested abroad.

Foreign Nationals, Consular Rights and the Death Penalty a collection of Human Rights Research documents including: resource guides for attorneys and consular officials; model notification procedures for law enforcement agencies, international standards on consular rights.

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UPDATES

 Mexican President Cancels U.S. Trip to Protest Execution of Foreign National
    Mexican President Vincente Fox canceled a trip to Texas scheduled for late August to protest the state's August 14th execution of Mexican foreign national Javier Suarez Medina, whom Mexican officials say was denied his right to contact the Mexican consulate following his arrest (see below). "This decision is an unequivocal sign of our rejection of the execution of our citizen, Javier Suarez Medina . . . . Mexico is confident that the cancellation of this important presidential visit contributes to a strengthening of the respect by all states of the rule of international law," said the president's spokesman, Rodolfo Elizondo. Prior to the execution, Fox wrote a letter to Texas Governor Rick Perry calling on the state to halt the execution because the punishment violated the 1963 Vienna Convention on Consular Relations, which requires foreigners detained by authorities to be notified of their consular rights. Fox also spoke with President George W. Bush on the eve of the execution. The Texas trip would have taken Fox to four cities and to President Bush's Crawford ranch. (Dallas Morning News, August 15, 2002). See also, International Death Penalty.

Mexican Officials Claim Execution of Foreign National is Illegal
    Texas death row inmate Javier Suarez Medina, a condemned foreign national whom Mexican officials say was denied his right to contact the Mexican consulate following his arrest, was executed on August 14. In a letter sent to Texas Governor Rick Perry prior to the execution, Mexican President Vicente Fox called on the state to halt the execution, saying the punishment is "illegal" because it violates the 1963 Vienna Convention on Consular Relations, which requires foreigners detained by authorities to be notified of their consular rights. In his letter to Perry, President Fox stated, "As a consequence of this serious violation, Mr. Suarez Medina was not only deprived of the assistance of his country when he needed it, but the Mexican government was also prevented from providing the priority assistance that could have influenced the result of the trial." Following decisions to deny Suarez Media a hearing before the Texas appeals court and the state's board of pardons and paroles, attorneys for Suarez Medina filed petitions with the U.S. Supreme Court. The Court also received a second petition signed by an unprecedented 14 nations, including Argentina, Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Panama, Paraguay, Poland, Spain, Uruguay and Venezuela. (Associated Press, August 12, 2002). See the Press Release from Suarez Medina's Legal Counsel.
 

Human Rights Commission to Review Petition of Mexican National Scheduled for Execution The Inter-American Commission on Human Rights will review a petition submitted on behalf of Javier Suarez Medina, a Mexican national scheduled for execution in Texas on August 14th. The Commission, established to ensure that nations comply with safeguards established in human rights treaties, will review whether or not the arresting police notified Medina of his right to obtain assistance from the Mexican Consulate. The petition claims that, while Texas police were aware of Medina's Mexican nationality, new evidence reveals that they provided false information to Mexican consular officials about his nationality and prevented them from assisting Medina during his capital murder trial. If consular rights were denied, Medina's execution would be illegal under international law according to the representatives of the Mexican Capital Legal Assistance Program. See the Press Release from Medina's Legal Counsel.

Oklahoma Governor Grants Temporary Reprieve for Mexican National
     Governor Frank Keating granted a 30-day stay of execution for Gerardo Valdez, a Mexican citizen on Oklahoma's death row. (The Oklahoman, 8/17/01)  Valdez, who was scheduled to be executed on August 30, was denied consular access upon his arrest, a move Keating acknowledged was a "clear violation" of the Vienna Convention.  Notwithstanding, Keating denied clemency for Valdez in July, despite a personal appeal from Mexico's President, Vincente Fox.  (New York Times, 7/21/01 and Associated Press, 7/22/01)

Germany v. United States in the International Court of Justice
The United Nation's principal court, the International Court of Justice (ICJ), held public hearings in the case of Germany v. United States of America, from November 13-17, 2000 at The Hague.  Germany is suing the United States for violating international laws and treaties by executing two German foreign nationals in Arizona in 1999.  Germany maintains that brothers Karl and Walter LaGrand were denied consular access, as required by the Vienna Convention. Germany also says that Arizona prosecutors violated the Convention because they knew the defendants were foreign nationals and did not inform German authorities of the arrests and convictions for the 1982 crimes until 1992, when the brothers' legal avenues had all been exhausted. (Press Communiqué, ICJ, 9/27/00)
 

Stanley Faulder, 61, was executed by lethal injection in Texas on June 17, 1999 after 22 years on death row. Faulder is the first Canadian to be executed in the United States since 1952. The Supreme Court rejected Faulder's attorney's argument that his death sentence should be overturned because Texas violated the Vienna Convention by failing to notify Faulder of his right to contact the Canadian Consulate upon his arrest.

Angel Breard, a Paraguayan citizen, was executed by Virginia April 14, 1998. Despite requests from the U.S. State Department, the International Court of Justice and the Paraguayan government, neither the U.S. Supreme Court nor Virginia's Governor Gilmore would halt the execution. Breard was denied his rights under the Vienna Convention to consult with a Paraguayan consular official. TheInternational Court of Justice at The Hague voted unanimously that the U.S. should "take all measures at its disposal" to prevent the execution ofAngel Breard,( full text of Court opinion ). The United Nations's highest judicial organ wanted more time to consider whether the U.S. violated theVienna Convention. Secretary of State Madeleine Albright had asked Virginia to stay the execution. The U.S. Supreme Court voted 6-3 not to delay the execution. For more information on the Breard case, see Amnesty International's release .Jose Villafuerte, a foreign national from Honduras, who was also not informed of his consular rights, was executed on April 22 in Arizona, despite protests from his country.

The Inter-American Court of Human Rights held a hearing on June 12, 1998 on the Government of Mexico's request for an advisory opinion concerning the Vienna Convention consular rights of foreign nationals. Article 36 of the Vienna Convention requires that foreign nationals be informed of the right to contact their national consulate upon arrest. The majority of foreign nationals executed and currently on death row were not informed of this right.

Cesar Fierro, scheduled for execution in Texas on Nov. 19, 1997, has received a stay and is being allowed to file a successor habeas petition. Fierro is a Mexican national. When he was arrested, the El Paso police put him on the phone with the police in Juarez, Mexico, who told him that if he did not confess they would torture his family who were being held in custody. The Texas prosecutor who tried this case later submitted an affidavit saying that if he had known the conditions of the confession he would not have been able to use it and there would have been insufficient evidence to even charge Fierro.

Additional Updates by Mark Warren of Human Rights Research

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SUAREZ EXECUTION STRAINS FOREIGN RELATIONS (August 2002)

The decision by President Vicente Fox of Mexico to cancel a meeting with President Bush at his Texas ranch after the execution, in that state, of a Mexican citizen on Wednesday is the latest confrontation over the death penalty between the United States and some of its closest allies.

Mr. Fox moved swiftly to protest the execution of Javier Suárez Medina in Huntsville, announcing the cancellation of his trip a few hours after Mr. Suárez was declared dead by lethal injection.

Mexican officials say that he was denied his right to help from his government when he was arrested in 1988. Some 16 other nations filed court briefs or wrote letters pleading for clemency for Mr. Suárez, including Poland, Switzerland, Brazil and Argentina.

The Súarez execution pits the United States against one of its closest neighbors and a president that the Bush administration has called a close friend

Differences over the death penalty have also prompted diplomatic wrangling between the United States and some of its firmest friends in Europe, especially in the last year as Washington has pursued its campaign against global terror. Spain, France and Germany have taken issue with the Bush administration's efforts to obtain evidence to prosecute suspected terrorists in the United States or to extradite suspects for trial there.

The disputes point up how the United States is at odds with many other industrialized democracies as it continues to apply death sentences for capital crimes.

The Mexican government said Mr. Fox canceled his trip, scheduled for Aug. 26, as an "unequivocal sign of repudiation" of Mr. Suárez's execution. Mexico has the death penalty but does not apply it.

The government's statement added, "Mexico is confident that the cancellation of this important presidential visit contributes to strengthening respect among all nations for the norms of international law, as well as the conventions that regulate the relations between nations."

Most of the international protests against the United States focus on violations of the Vienna Convention, which requires law enforcement officials to advise foreign citizens under arrest of their right to seek legal support from their governments. Many nations, including the 15 members of the European Union, South Africa and Canada, have refused to extradite suspects to a country without assurances that the suspects will not face the death penalty.

In 1999, Germany accused the United States of "barbarism," after one of its citizens, Walter LaGrand, was put to death in an Arizona gas chamber. His brother Karl had been executed in Arizona a week earlier. German officials said they had not been had not been able to provide timely legal aid to the brothers. Last year, the International Court of Justice ruled that the United States had violated international obligations in the LaGrand case.

Mr. Fox has recently reinforced government help to Mexican citizens on death row in the United States. Of some 120 foreigners on death row, almost half are from Mexico.

Mr. Suárez was executed despite letters from around the world to Gov. Rick Perry of Texas and the State Department, and a phone call by Mr. Fox to Mr. Bush.

(Source: New York Times, Aug. 16/02, An Execution in Texas Strains Ties With Mexico and Others, by Ginger Thompson)

MEXICO MOBILIZES TO OPPOSE TEXAS EXECUTION

July 3, 2002,

Associated Press

Mexico tries to save Texas prisoner condemned to die

MEXICO CITY - The Mexican government has launched a last-ditch effort to save the life of Javier Suarez, sentenced to die in Texas in August for the murder of an undercover drug agent in 1988.

"I still have faith that soon someone will say to me, Senora Guadalupe your son's death sentence has been suspended," Suarez's mother, Guadalupe Medina, said today. She spoke during a press conference in the foreign ministry while flanked by her husband, Samuel Avila, and government officials working on the case.

There are now 17 Mexicans facing the death penalty in Texas and 54 in the whole of the United States, according to ministry figures. Four have been executed over the last 10 years: three in Texas and one in Virginia.

The ministry's chief legal adviser, Juan Manuel Gomez, said that all ordinary legal means to halt the execution of Suarez, now 33, were exhausted at the end of June.

That leaves the possibility of persuading Texas Gov. Rick Perry to grant clemency, something Gomez admitted was unlikely.

But he said Mexico would try to find ways to reopen the case under the argument that Texas authorities violated international law by failing to inform Suarez of his right to get help from the Mexican consulate when he was detained.

Suarez is set to die Aug. 14.

This argument, the official said, was the basis of a recent ruling in Oklahoma in favor of Gerardo Valdez, another Mexican sentenced to death.

It would also form the backbone of a petition to the Inter-American Commission on Human Rights.

Suarez's mother and stepfather appeared to pin most of their hopes on a campaign to rally public sympathy for having death penalty commuted to a life sentence.

"I want to reach the hearts of everyone I can," Medina said, holding tightly to her husband's hand throughout the press conference, during which she frequently broke down in tears.

"I want to explain the pain and the fear of knowing that you could lose a son."

Suarez was convicted by a Dallas court in 1989 of killing narcotics agent Larry Cadena the year before. Cadena had been posing as a drug buyer.

No one denies that the then 19-year-old Mexican killed Cadena, but his supporters insist it was not a premeditated murder.

"It would be a terrible injustice if the state of Texas executes Javier Suarez," said Sandra Babcock, a U.S. lawyer who heads a program set up by the Mexican government to support Mexicans facing the death penalty.

Babcock said Suarez got mixed up with drug traffickers the same night of the murder because they had threatened to hurt his family and that he shot Cadena in a moment of fear and confusion.

The lawyer claimed that the court sentenced Suarez to die because of dubious testimony linking him to a violent robbery in 1987, despite his ability to prove he was working in a restaurant at the time.

"He was 19 and had no record of criminal violence at all," said Babcock.

She also complained of the stress caused by the 14 changes in the scheduled execution.

"Every time they (Suarez and his family) have had to prepare themselves," she said. "I don't think it is an exaggeration to say this has been torture."

Suarez has lived in Texas since he was 3 years old. He was taken there by his mother after she left her native state of Coahuila in search of work.

"He was always a good boy and a good teenager. Always joking, always in a good mood, always kind to his mother," Medina said.

She sobbed as she spoke of never touching him since he went to prison 14 years ago: "There is always glass between us."
 

OKLAHOMA COURT REVERSES VALDEZ DEATH SENTENCE (May, 2002)

The Oklahoma Court of Criminal Appeals has set aside the death sentence of Mexican national Gerardo Valdez Maltos, finding that he had received ineffective assistance of counsel at his 1989 trial. Facing imminent execution last summer, Valdez had filed a successor petition based entirely on the judgement of the International Court of Justice in the LaGrand Case, arguing that the ICJ decision required the US courts to grant him a new trial or sentencing hearing. The Oklahoma CCA declined to grant relief on that basis, finding that Valdez's claim that his Vienna Convention rights had been violated was procedurally defaulted.

However, the Court emphasized the potential significance of timely consular assistance in this case:

"We cannot ignore the significance and importance of the factual evidence discovered with the assistance of the Mexican Consulate. It is evident from the record before this Court that the Government of Mexico would have intervened in the case, assisted with Petitioner's defense, and provided resources to ensure that he received a fair trial and sentencing hearing...We believe trial counsel, as well as representatives of the State who had contact with Petitioner prior to trial and knew he was a citizen of Mexico, failed in their duties to inform Petitioner of his right to contact his consulate."

Although the Court had twice previously considered a claim that Valdez received inadequate representation, the cumulative impact of the new evidence was deemed sufficient to require a new sentencing hearing:

"While we have no doubt the evidence discovered with the assistance of the Mexican Consulate could have been discovered earlier, under the unique circumstances of this case, it is plain that the evidence was not discovered due to trial counsel's inexperience and ineffectiveness... this Court cannot have confidence in the jury's sentencing determination and affirm its assessment of a death sentence where the jury was not presented with very significant and important evidence bearing upon Petitioner's mental status and psyche at the time of the crime. Absent the presentation of this evidence, we find there is a reasonable probability that the sentencer might "have concluded that the balance of aggravating and mitigating circumstances did not warrant death." (citing Strickland).
 

MEXICO RATIFIES VCCR OPTIONAL PROTOCOL (April, 2002)

On March 15, the Mexican Foreign Ministry announced Mexico's wholesale ratification of six significant human rights instruments, including the VCCR Optional Protocol Concerning the Compulsory Settlement of Disputes. The Optional Protocol is the enforcement mechanism for the Vienna Convention on Consular Relations. Under its provisions, the International Court of Justice (ICJ) has compulsory jurisdiction over any disagreement between parties to the Protocol over the interpretation or application of the VCCR.

Ratified by some 50 nations, the Optional Protocol's dispute settlement mechanism produced last year's historic ruling by the ICJ on the individual treaty rights of foreign nationals under sentence of death in the USA (the LaGrand Case). Only nations which are parties to the Protocol may bring a complaint for compulsory settlement before the ICJ.

Through a series of ratifications and formal declarations, Mexico also recognized the competence of various human rights committees to receive petitions from individuals, including the Committee against Torture, the Human Rights Committee and the Committee for the Elimination of Racial Discrimination.
 

DIPLOMATS PROTEST PROLONGED DETENTIONS, LACK OF ACCESS (December 2001)

Diplomats in New York whose job it is to monitor the welfare of their citizens here say that as detentions of foreigners for investigations into terrorism drag on into the fourth month, they are frustrated by the dearth of information available to them on many cases and concerned by reports of mistreatment of some detainees.

The diplomats -- officials in charge of New York consulates separate from United Nations missions-- say they are hard pressed to explain to their governments and the news media back home why scores of people remain in detention, usually on minor immigration charges, at a time when the United States seeks the support of public opinion abroad for its war on terrorism.

Hundreds of people are in custody in the New York region, most of them at the Metropolitan Detention Center in Brooklyn, the Manhattan Correctional Center, the Hudson County Correctional Center in Newark or the Passaic County jail, diplomats say. Human rights monitors trying to check reports of mistreatment say they are being denied access to most of these prisons for the first time.

In protests to the State Department, diplomats in New York are accusing the authorities of violating international conventions governing access to detainees. Canada is the most recent country to raise the issue after a Canadian citizen disappeared on Sept. 20, and American officials at first denied he was in their custody.

Some diplomats say that whatever the provocation, what they see as a failure to abide by international norms in handling detentions has undermined assertions by the Bush administration that the United States is fighting to preserve freedom.

One European diplomat said he was surprised on a consular visit to see a detainee from his country brought out in chains and forced to sit behind bulletproof glass at the Metropolitan Detention Center, although the man had not been charged with a criminal offense. The detainee told of being kept in close confinement with little space to exercise, and allowed to do that only on weekdays, the diplomat said.

Irfan Ahmad, vice consul for Pakistan in the New York region, where more than 200 Pakistanis are in custody, said in an interview yesterday that detainees told him they were left in the cold without blankets for 24 hours after being picked up, apparently to weaken their resistance. Since then they have been housed with convicted criminals, Mr. Ahmad said, and are beaten or live in constant fear of physical assaults.

Mr. Ahmad said that many detainees -- Pakistan has the largest number in the New York area -- had waived the right to contact Pakistani consular officials, which puzzled diplomats. "When we ask why, they tell us the I.N.S. or an I.N.S. interpreter would tell them informally that their cases would be delayed if they notified the consulate," he said. The Pakistan consulate remains totally in the dark about the cases of about 100 detainees.

Ambassador Mehmet Nuri Ezen, a Turkish diplomat who serves as consul general here, said in an interview that 42 Turkish citizens were in detention in the New York region, down from 58 after Sept. 11. All were initially detained to determine if they had links with terrorists, he said. The immigration violations were then invoked. Some have since been deported or released on bond.

"The problem for our people is that Turkey was among the first to help the United States, supporting the United States policy in Afghanistan and in the fight against terrorism," he said.

The Pakistanis find their situation particularly distressing, Mr. Ahmad said. The United States has relied on Pakistan in its battle against the Taliban and in the search for Osama bin Laden.

"I can't talk to any of the detainees without this coming up," Mr. Ahmad said. "They say, `We are helping the U.S. in its war on terrorism, and this is what we get in return.' "

(Source: New York Times, December 20, 2001, Diplomats Protest Lack of Information, by Barbara Crossette)

OKLAHOMA GOVERNOR DENIES CLEMENCY TO MEXICAN NATIONAL (August, 2001)

Case Update: On September 10^th, the Oklahoma Court of Criminal Appeals granted an indefinite stay of execution to Gerardo Valdez, citing the novel and complex issues of international law raised by his last-minute appeal. Valdez's attorneys had filed a habeas corpus petition based on the recent binding judgement of the International Court of Justice in the LaGrand Case (see below).

On July 20th, Oklahoma Governor Frank Keating announced that he was refusing to commute the death sentence of Mexican national Gerardo Valdez Maltos, in spite of a recommendation by the state pardons board that the sentence be commuted to life imprisonment. Although Oklahoma authorities were aware of his nationality at the time of his arrest more than a decade ago, Valdez was never informed of his consular rights and Mexican authorities only became aware of the case in April of this year.

On June 6th, two weeks before Valdez's previous execution date, the Oklahoma Pardon and Parole Board had voted 3-1 to recommend the commutation of his death sentence to life imprisonment without parole. The clemency hearing had produced compelling new mitigating evidence discovered through Mexican consular assistance, including evidence of head injuries Valdez had sustained as a child and teenager in Mexico. The Board also considered a submission by the Mexican government asserting that the violation of Valdez's consular rights directly contributed to his death sentence, by preventing consular officials from providing crucial assistance that would have remedied serious deficiencies in his legal representation at trial.

Following a personal plea for clemency from Mexican President Vicente Fox, Keating announced on June 16th that he had ordered a 30-day reprieve in order to more fully consider the pardon board's recommendation. In his statement announcing the reprieve, Keating pointed out that "Officials of the US State Department have acknowledged that the failure of Mr. Valdez to speak with the consulate violated the Vienna Convention, and they have asked that I take it into consideration when determining whether to grant clemency. Nevertheless, State Department officials concur that the violation should not be the sole determining factor here. I am considering the possible impact of that violation and weighing it against the brutality of Mr. Valdez's admitted crime."

In a letter to the President of Mexico announcing his decision to deny clemency, Keating described the consular rights violation as "regrettable and inexcusable" but concluded that it resulted in "harmless errors" and that granting clemency on this basis would be an "inappropriate remedy in this case". Keating made note in his letter of the International Court of Justice (ICJ) ruling in the LaGrand Case, indicating that "my staff and I have consulted throughout this process with the United States Department of State and the United States Department of Justice about the legal aspects of the consular notification issue. Taking the decision in LaGrand into account, I have conducted this review and reconsideration of Mr. Valdez's conviction and sentence by taking account of the admitted violation of Article 36 of the Vienna Convention regarding consular notification, as well as the information provided by, among others, representatives of your government."

However, Keating declared that "the failure to comply with Article 36 did not have a prejudicial effect on either the final determination of guilt or the sentence imposed in this case. No compelling reason exists to undermine the confidence and integrity of the jury and the courts in this case."

The Mexican government responded by stating that it "deeply regrets the decision, which is contrary to international law and the elemental principles of cooperation between nations. . . We consider it is an obligation of the government of the United States to assure that states comply with the Vienna Convention." The Mexican government later announced that it would "take all available legal actions in US, as well as international tribunals ... in order to preserve the life of our fellow citizen and obtain clemency."

Keating's rationale for refusing clemency does not withstand scrutiny, on any legal grounds. For example, the International Court of Justice was fully aware that both LaGrand brothers had received clemency review which considered the effect of the consular rights violations, yet nonetheless found that the USA had failed to provide reconsideration of their sentences. In Valdez, clemency had been recommended by the pardons board and then rejected by the governor who, in effect, reinstated the death sentence-- hardly the kind of meaningful reconsideration that the ICJ clearly intended.

Valdez was represented by a court-appointed attorney conducting his first death penalty trial. Although the defense was temporary insanity, his attorney utterly failed to investigate Valdez's medical history or conduct a routine background check, never discovering the easily obtained evidence that Valdez had sustained numerous head injuries. The defense psychologist has since stated that knowing of this history would have completely altered his testing, diagnosis and trial testimony. Virtually no mitigating evidence was presented to the jury during the sentencing phase. Recent neuropsychological testing has confirmed that Valdez suffers from extensive brain damage, of a kind often associated with "hyper-religiosity": the irrational belief by the patient that their aberrant behaviour is dictated by divine instructions. The testing methods used and the diagnosis obtained through them were both readily available at the time of the trial.

If just one juror had been persuaded by this evidence of Valdez's diminished responsibility for his actions, he could not have been sentenced to death. In at least 80 cases, the appellate courts have reversed death sentences on the grounds that the failure to develop and produce mitigating evidence such as brain damage constitutes ineffective assistance of counsel. As the US Fifth Circuit Court recently held, "while juries tend to distrust claims of insanity, they are more likely to react sympathetically when their attention is drawn to organic brain problems..." (Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000)). Even more tellingly, the Seventh Circuit has determined that "Where it is apparent from evidence concerning the crime itself, from conversation with the defendant, or from other readily available sources of information, that the defendant has some mental or other condition that would likely qualify as a mitigating factor, the failure to investigate will be ineffective assistance." (Hall v. Washington, 106 F.3d 742, 749 (7th Cir.), cert. denied, 522 U.S. 907 (1997)).

Just days after learning of the case, Mexican consular authorities had facilitated the discovery of this powerful mitigating evidence, which neither the jury nor the appellate courts have ever heard--a new factor which must seriously undermine confidence in the reliability of the jury's sentence. It is plainly absurd to describe the Article 36 violation and the resulting deficiencies in Valdez's legal representation as "harmless errors" beyond any reasonable doubt.

On August first, the Oklahoma Court of Criminal Appeals set a new execution date of August 30th for Gerardo Valdez.

INTERNATIONAL COURTS RULES AGAINST USA FOR VIOLATIONS OF CONSULAR RIGHTS

27 June 2001

LaGrand Case (Germany v. United States of America)

The Court finds that the United States has breached its obligations to Germany and to the LaGrand brothers under the Vienna Convention on Consular Relations.

The Court finds, for the first time in its history, that orders indicating provisional measures are legally binding.

THE HAGUE, 27 June 2001. Today the International Court of Justice (ICJ), principal judicial organ of the United Nations, delivered its Judgment in the LaGrand Case (Germany v. United States of America).

In its Judgment, which is final, without appeal and binding for the Parties, the Court, with regard to the merits of the dispute,

finds by fourteen votes to one that, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, and by thereby depriving Germany of the possibility, in a timely fashion, to render the assistance provided for by the Convention to the individuals concerned, the United States breached its obligations to Germany and to the LaGrand brothers under Article 36, paragraph 1, of the Convention;

finds by fourteen votes to one that, by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the convictions and sentences of the LaGrand brothers after the violations referred to in paragraph (3) above had been established, the United States breached its obligation to Germany and to the LaGrand brothers under Article 36, paragraph 2, of the Convention;

finds by thirteen votes to two that, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice in the case, the United States breached the obligation incumbent upon it under the Order indicating provisional measures issued by the Court on 3 March 1999;

takes note unanimously of the commitment undertaken by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Convention; and finds that this commitment must be regarded as meeting Germany's request for a general assurance of non-repetition;

finds by fourteen votes to one that should nationals of Germany nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention.

The full text of the historic judgement is available at:

http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm
 

EDITORIAL RESPONSE TO LAGRAND DECISION (July 2001)

Take me to the American consul!

July 2, 2001 Chicago Tribune

Legal scholars can debate the impact of the World Court decision Wednesday against the United States, concerning Arizona's execution of two German brothers in 1999. The heart of the matter is this: When does an international legal body have the right to meddle in a country's legal system, in this case the U.S.?

According to the 1963 Vienna Convention on consular relations, foreigners who are arrested have a right to consult with their country's nearest consulate, presumably for legal advice. In this case, the two Germans who were put to death didn't have that chance.

Germany filed suit before the World Court just before the second brother, Walter LaGrand, was executed in 1999, but the governor of Arizona dismissed or ignored all appeals.

Locally, the Chicago Police Department says it follows the consular notification procedure. But among suburban police departments, compliance is spotty at best. Most of the cases involve Mexican citizens, who are usually unfamiliar with American legal practice, including the right to remain silent and to get a lawyer.

Before you dismiss this as scholastic nitpicking, consider the flipside: If you were arrested in a foreign country, wouldn't you like to have access to an American consular representative for legal advice?

The answer is clearly yes, and that alone ought to be compelling reason to afford that courtesy to immigrants here. In fact, there are hundreds of Americans awaiting trial in foreign countries.

In the Arizona case no one has argued that the brothers were innocent. After 17 years of appeals and hearings their guilt was clearly established. Consular intervention is not likely to have changed the outcome of the case.

An international court has no right to override laws in the U.S., and efforts by death penalty opponents to use the World Court for that purpose shouldn't be taken seriously.

But the U.S. signed the Vienna Accords and the federal government ought to ensure the state and local law enforcement officials abide by the provisions concerning consular notification.

With its worldwide interests--and tens of thousands of its citizens traveling abroad daily--the U.S. has the most to gain from following this international convention.
 

CHICAGO POLICE UPGRADE CONSULAR PROCEDURES (October 2000)

After Mexico and Poland complained that their citizens' rights were being violated, the Chicago Police Department has decided to post signs notifying arrested foreigners of their right to contact their countries for legal help.

The department is printing notices in Spanish and Polish with telephone numbers of the Mexican and Polish consulates in Chicago. A 3rd, generic sign will be in English. The signs will be placed in the lockups of Chicago's 25 police districts, the 5 area detective headquarters and the central lockup within 30 days, said Karen Rowan, general counsel to police Supt. Terry Hillard.

"The department met with the director of the [Immigration and Naturalization Service] in an effort to ensure all visitors to the city are aware of the rights to reach their consular offices," she said. The department decided to post signs rather than give verbal notices because city policy bars police from asking detainees about their citizenship, Rowan said. Booking forms, however, do ask detainees where they were born.

The move comes as Mexico is stepping up efforts to urge U.S. law enforcement agencies to comply with the Vienna Convention, which guarantees the right of arrested foreign nationals to contact their consulates for legal advice. Mexico and the Center for International Human Rights at Northwestern University Law School are sponsoring an Oct. 6 conference to discuss the issue with police and prosecutors from across the Midwest.

Douglass Cassel, director of the Center for International Human Rights, said the Chicago police policy was a "step forward," but he wants to know how likely foreigners are to see the signs and when they will see them.

The Vienna Convention requires that notice be given promptly, which an international court of human rights has interpreted to mean "immediately," Cassel said. "They should be giving these warnings the same way they give Miranda warnings" on the right to remain silent and call an attorney, he said.

Last year, the Cook County state's attorney's office started providing such consular notifications to defendants when there is a reason to believe they are foreign nationals, said Assistant State's Attorney Renee Goldfarb.

An Illinois Supreme Court decision last month highlighted the issue. The court upheld the 1982 murder conviction of death row inmate Gregory Madej, a Polish national, but the 3 dissenting justices stressed that police failed to provide him with consular notification, violating the Vienna Convention.

(source: Chicago Sun-Times, 27 September 2000)

INTER-AMERICAN COURT UPHOLDS ARTICLE 36 RIGHTS (November/99)

The Inter-American Court of Human Rights has issued its long-awaited ruling on the significance of the right to consular notification and assistance. Mexico had sought an advisory opinion from the Court in 1997, following the execution of two Mexican nationals in the USA who were not informed after arrest of their right to seek consular assistance.

In a unanimous decision, the Court held that Article 36 of the Vienna Convention on Consular Relations confers specific legal and human rights on individual foreign nationals. Consular notification is essential for foreign nationals to mount an effective defense; consular assistance is included in the concept of due process enshrined in international human rights instruments. To preserve those rights, consular notification must take place at the time of arrest and before any interrogation takes place.

The court's most important holding (by a 6-1 plurality) is that the execution of an individual whose VCCR rights have been violated is an "arbitrary" deprivation of life, and violates international law.

The violation of the duty to advise is in all cases a violation of due process under the International Covenant on Civil and Political Rights and the American Convention on Human Rights, which entails state responsibilities and reparations. The decision does not indicate precisely what the remedies should be, but leaves that to the law of state responsibility (i.e. the obligation under international law to provide a domestic recourse and remedy that would nullify the effects of the treaty violation).

Even the dissenting opinion accepts these basic principles: Judge Jackman, however, would make the due process determination on a case by case basis, not as a blanket finding.

Although the advisory opinions of the Inter-American Court are not legally binding (and the USA does not recognize the Court's authority), the ruling may have significant implications for the future litigation of this issue both domestically and internationally.

Perhaps most significantly, the international tribunal explicitly rejected every argument put forward by the US Department of State, answering in the affirmative each of the four questions posed by Mexico on the scope and significance of Article 36. That clear rejection of the USA position will undoubtedly provide a factor in the deliberations of the International Court of Justice on this same issue.

The full text of the Court's opinion in OC-16 is posted in English on the Web site of the Inter-American Court

UNITED NATIONS REAFFIRMS CONSULAR RIGHTS

The United Nations General Assembly has officially endorsed the findings of the Inter-American Court on the significance of consular notification and assistance as a due process protection. During committee hearings, Mexico introduced the following preambular paragraph into the UN draft resolution calling for ratification of the Convention on the Protection of Migrants:

"Taking note of the decisions of the relevant international juridical bodies on questions relating to migrants, particularly Advisory Opinion OC-16/99 of the Inter-American Court of Human rights regarding the Right to Information about Consular Assistance within the Framework of Due Process Guarantees,"

Over the strenuous objections of the United States, the paragraph was approved and incorporated into the draft text of the resolution, by a vote of 121 to 1.

The UN General Assembly then took up the final draft on the protection of migrants. It adopted the tenth preambular paragraph by a recorded vote of 134 in favor to one against, with 14 abstentions. It adopted the draft resolution as a whole without a vote.

The one opposing vote came from the United States.

CALIFORNIA ENFORCES CONSULAR RIGHTS (September/99)

California has become the first US state to pass legislation requiring full compliance with the notification provisions of the Vienna Convention. Senate Bill 287 requires California law enforcement agencies to ensure that policy or procedure and training manuals incorporate language based on the provisions of the 1963 Vienna Convention on Consular Relations. The bill also requires every peace officer, upon the arrest and booking or detaining of a foreign national, to advise the foreign national that he or she has a right to communicate with a consular representative. Notification of consular rights must take place within two hours of the detention.

A number of other US jurisdictions have implemented various provisions to improve compliance with Article 36, typically as a result of court orders (examples include: Pueblo County, Colorado; Cook County, Illinois; Hudson County, New Jersey).

STAN FAULDER EXECUTED IN TEXAS (July/99)

Canadian citizen Joseph Stanley Faulder was executed in Texas on 17 June. Mr. Faulder had spent nearly 22 years on death row; his final appeals were dismissed without comment by the US Supreme Court.

In the days leading up to his execution, Texas authorities were flooded with appeals for clemency from the Vatican, the UN Human Rights Commissioner, Amnesty International, the Canadian government and other organizations, all to no avail. A request for precautionary measures issued by the Inter-American Commission on Human Rights was ignored.

The Faulder case achieved international prominence last fall after an unprecedented intervention by the US Secretary of State, in which Madeleine Albright expressed deep concern over the failure of Texas authorities to inform Faulder of his consular rights upon his arrest--or at any time in the following 15 years. In the final days before the execution, the State Department reportedly renewed its appeal for the serious consideration of clemency, including a personal call from the Secretary of State to Governor Bush.

In a defiant statement to the media after witnessing the execution, Sandra Babcock, counsel to Stan Faulder, described the case as "emblematic of everything that is wrong with the death penalty...redemption and justice are concepts that are completely foreign to the Texas justice system."

Since 1991, Ms. Babcock had sought the reversal of the conviction on a variety of grounds, including a series of comprehensive appeals based on the violation of Article 36 rights. Much of the current litigation across the USA stems from those pioneering efforts by Sandra Babcock. The government of Canada supported those efforts by filing a series of 'amicus curiae' briefs, through diplomatic initiatives and appeals for clemency.

A statement issued by the Canadian government minutes after the execution noted that Canada "deeply regrets that Texas authorities did not accept its request for executive clemency...the Government of Canada will continue its efforts to ensure that the rights of Canadians in such circumstances are fully respected in accordance with the law."

PARAGUAY AND USA RESOLVE DISPUTE OVER BREARD EXECUTION (March/99)

On November 3, 1998 the USA issued a formal apology to Paraguay over the failure of US authorities to notify a Paraguayan national of his treaty-based right to seek consular assistance following his arrest on capital murder charges. The case of Angel Breard attracted international attention after Paraguay initiated legal action against the USA at the International Court of Justice (ICJ) in an effort to prevent the execution. Despite a unanimous ICJ order requiring the US government to stay the execution pending the Court's decision on the treaty dispute, Angel Breard was executed in Virginia on 14 April, 1998.

The US apology noted that "such notification was required by the Vienna Convention on Consular Relations and should have been made by competent US authorities. This failure to notify Mr. Breard was unquestionably a violation of an obligation owed to the Government of Paraguay...We fully appreciate that the United States must see to it that foreign nationals in the United States receive the same treatment that we expect for our citizens overseas. We cannot have a double standard."

At least 80 foreign nationals representing 30 nationalities are reported to be under sentence of death in the USA. In virtually every case, arresting authorities failed to inform them of their right under international law to obtain the crucial assistance and support of their consulate. One day after receiving the apology, Paraguay withdrew its case against the USA at the International Court. The Paraguayan government announced that its concerns had been met and praised "the courage of the U.S. government in admitting an error."

Within days of that decision, the US government withdrew threatened trade sanctions against Paraguay for condoning the widespread illegal copying of brand-name goods. Paraguayan authorities announced new measures to crack down on the production of counterfeit goods and other copyright infringements, which reportedly cost US producers $100 million annually in lost revenues. Paraguayan officials denied that there was any link between the withdrawal of the ICJ complaint and the US decision not to impose trade sanctions.

ARTICLE 36 GOES ON-LINE (July/98)

Several Web sites are now reportedly offering information about various aspects of the Article 36 issue, including:

- a compilation of the legal briefs filed in the Breard case and related material.

The NACDL site at www.criminaljustice.org

offers an archive of former articles, including a comprehensive overview of defense strategies for raising Article 36 claims at various stages of legal proceedings. Entitled "Representing Foreign Nationals: Emerging Importance of the Vienna Convention on Consular Relations as a Defense Tool" (by John Cary Sims and Linda E. Carter), the article first appeared in the Sept/Oct. 1998 issue of 'The Champion'.

STATE DEPARTMENT CHANGES ITS TUNE (April/98)

One of the more remarkable consequences of recent Article 36 cases is a distinct (and positive) policy shift within the US Department of State. When 2 Mexican nationals were executed in 1997, State Department interventions were feeble at best--mostly consisting of an apology to the Mexican government the day after the execution. Even the periodic (and inadequate) notifications of consular obligations which the Department sent out to US law enforcement agencies had lapsed, with the last bulletin dating to 1993.

However, following the ICJ order in the Breard case, Secretary of State Albright took the unprecedented step of writing directly to the governor of Virginia, urging him to stay the execution in the interests of protecting US citizens' consular access abroad. On her way to the Summit of the Americas, Albright emphasized that the United States considers consular notification of its detained nationals to be essential and that the State Department was insisting that US law enforcement agencies also comply with Article 36.

The State Department has produced new and more comprehensive instructional material for US police forces on their Article 36 obligations. It has also produced a wallet-sized notification card for police officers, which is being sent to all state Attorneys-General for distribution. The Department's Legal Adviser on Consular Affairs is reportedly working on producing training material for police, including an instructional seminar for law enforcement conferences. (The first seminar was given last November in Texas).