An unconventional defense

For apparently the first time in North Carolina, the state's violation of a 1963 international treaty has been raised as a defense in a criminal trial, invoking an issue that the U.S. Supreme Court has already agreed to hear.

Franklin Manacer-Herrera, a Honduran citizen, is on trial in Durham for murder. His lawyer, Mark Edwards, says he was arrested in violation of the Vienna Convention on Consular Relations. (Durham Herald-Sun 12/16/04.)

The adoption of the Vienna Convention, says an ACLU source (.pdf), was "'undoubtedly the single most important event in the entire history of the consular institution.'" Even so, it has not been consistently enforced in this country. But in more recent years, "foreign nationals have increasingly referenced violations of the Vienna Convention in criminal litigation."

Art. 36 of the Vienna Convention requires that when foreign nationals are criminally detained, they be informed of their right to communicate with consular officials.

When Manacer-Herrera was arrested, no one informed him of his right under the convention. But the question is: so what? Does this mean that evidence against him has to be suppressed? Is it an exclusionary rule like Miranda? Is this "a new form of attack on the death penalty," as Durham judge Orlando Hudson asserted? The cases cited in the ACLU .pdf above tend to say no. Over vigorous dissents, the courts either dened that there is a private right of action or said that even if there is, Art. 36 was never meant to operate as an exclusionary rule. But those cases go only through the year 2000.

In March 2004 something very interesting happened. Mexico took the United States to court. In a case involving over 50 Mexican citizens arrested on capital charges, the International Court of Justice ruled that indeed Art. 36 of the Vienna Convention has teeth. The court

said that it was "for the courts" of the United States to provide "effective" review of the convictions to determine whether the violations caused "actual prejudice" to each defendant. It rejected the U.S. argument that failure to respect the right to consular notification could be rectified by simply raising that fact in a petition for clemency.

In Oklahoma, as a result of this decision, the court stayed an execution and the govenor issued a clemency order. But down in the rights-hostile 5th Circuit, it was a different story. In May 2004, in Medellin v. Dretke, 371 F.3d 270, that court held that the issue of the Vienna Convention was "procedurally defaulted" because the defendant had not raised it in Texas court at the trial stage (and, further flouting the international court's opinion, it said there was no private right of action).

This is the case the Supreme Court will hear in the spring. As Tony Mauro wrote in advance of the court's decision to hear the case, it arises admidst an "already intense debate over the role of international law in Supreme Court decision making."

Justice Stephen Breyer in a recent talk before the Paris Bar Association meeting in Washington, D.C., said his job has "changed tremendously" in 10 years because an increasing portion of the Court's docket involves international law. But whereas justices have cited foreign law in recent years to give a global context to their decisions, Medellin poses a direct conflict between a ruling by a U.S.-endorsed international court and a lower federal appeals court, with Oklahoma's contrary state court decision thrown in for good measure. All the rulings interpret a treaty, the Vienna Convention on Consular Relations, that was actively embraced and advocated by the United States in the early 1960s.

Much is at stake, including the fate of one Franklin Manacer-Herrera of Honduras, lately of Durham.