Alyeska wrote:A little late, but as promised.
I believe that the United States is obligated to follow the Vienna Convention that is signed. The purposes for this treaty are valid and they serve a very needed purpose in a growing international world. The same obligations that the US expects from other countries should be followed by the US. I believe that Texas should be bound by the obligation. Even in cases where the immigration status of the suspect or incarcerated is learned after the fact. The suspect should be allowed to ask for consular access. If the suspects makes the request AND the nation agrees to consular resources, then I believe it would be fair for the courts to determine if the access has an impact on the case.
I disagree with this almost entirely. While I recognize that you would focus more broadly on the Vienna Convention, the facts of the Leal case, IMO, demonstrate serious and fundamental weaknesses in both its framework and conception. The purposes of the treaty, in my view, do not extend to people like Leal at all, and certainly should not extend to people who do not request consular access until after trial. In short, I agree with the State of Texas that the Convention must needs recognize a procedural default for this right: it should simply have no applicability if the accused refuses to assert it. There is no need even to reach the question, in such circumstances, of whether consular access would have materially affected the outcome of the trial--even if it conclusively would have, an individual represented by counsel and otherwise provided all procedural protections normally afforded by the nation in question should not be able to seek to have a valid verdict set aside on such grounds.
I reach the above conclusion partly based on the ICJ's express finding that the Vienna Convention creates a
personal right of the accused (i.e., one that the state may not assert on their behalf, but rather one that adheres to the
individual involved), and also because even a careful and diligent state can have great difficulty in ascertaining whether suspects in all cases are foreign citizens or not--even ignoring the facts in Leal (where an illegal immigrant would have been difficult or impossible for law enforcement to identify as a foreign national), you also have instances of dual or multi-citizenship. In these cases, the accused is in a
much better position to identify himself as a foreign national than the prosecuting state,
and they may have strategic or their own legal reasons for trying to withhold this information from one or more of the states involved. Even recognizing that certain rights should be extended almost irrespective of cost, surely minor rights such as this one (which aren't even extended--even by analogous rights--to a state's own citizens in identical circumstances), should be extended only with
some understanding of the relative costs involved between the various parties, and particularly given that the costs of
false claims that one is a foreign national are likely to be rare and relatively inexpensive (rather than placing the burden on the state to investigate
all accused to determine whether or not they are foreigners).
Further, permitting the sort of analysis that you propose is costly in terms of judicial resources, and permits a level of gaming the judicial system. Consider a person who knows both that they are a foreign national, and that they are entitled to consular access after being arrested. Such a person would have an incentive to conceal the fact that they are a foreigner and
not request consular access because, if they win at trial without consular access, they have been adjudged innocent and go free, but in the case that they lose they would then have an additional opportunity to claim that their lack of consular access prejudiced the outcome of the case and that they should therefore be given another hearing. This is a perverse situation because it requires an arresting state to expend resources vastly in excess of what their own citizenry receive on such individuals
and specifically encourages foreigners to force states to expend these resources.
Therefore, I think that reading in a procedural default possibility into the Convention is unambiguously good policy. At
most people in these situations who later assert the right to consular access should be entitled to receive consular access to ensure that their sentences are carried out in accordance with the laws of the arresting state--they should not be entitled either to a reexamination of the case or to an inquiry into whether their initial refusal to request consular access prejudiced the outcome of their trial.
In light of this analysis, it seems preposterous to argue that the Vienna Convention could have been purposed to achieve these effects. I cannot agree that such a purpose is either important or even desirable in the modern world, and I cannot agree that the US would expect this sort of treatment for its own citizens from foreign countries (even if they claimed such rights, I would not agree with them that they should be granted).
The right to consular access should be restricted to assisting people who are unfamiliar with the legal systems in countries in which they are arrested, and to ensuring that their rights
under the laws of the arresting country are preserved, without undue prejudice stemming from their identity as a foreigner. When there is no realistic possibility that any of these objectives are threatened, any right to consular access should not be read so as to provide a do-over for a foreign citizen who refuses to assert these rights.
I consider the request for consular resources to be like that of asking for a lawyer. Once the resources are granted, then it should be considered. I also believe that certain types of crime should require more significant effort in identifying the suspect. A simple misdemeanor would not qualify the same degree of resources an assault would get, and a murder would receive even more resources.
I am not aware of any language suggesting such a balancing test in the Vienna Convention. Can you provide it, if you think that this is central to the objectives of the Convention?
If an individual has dual citizenship or otherwise hid information from the police, I believe that other nations should understand that a conviction was made in good faith and that the system was followed with the best available information. Consular access might be granted, but a retrial on an already established and convicted case is unlikely baring introduction of new elements. But consular access should still be granted.
Here we don't differ greatly, but what purpose does consular access in these circumstances serve?
Also note that this is essentially the position that Texas has taken in the Leal Garcia case, about which this thread revolves.
