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Supreme Court Decision Update - Sanchez-Llamas v. Oregon

supreme2.jpgIn Sanchez-Llamas v. Oregon (PDF of the opinion), the Supremes look at a portion of the Vienna Convention which says that when a foreign individual is detained, the U.S. authorities are required to tell him that he can notify his government of his detention.

QuizLaw Analysis: The Supremes basically skirted the big issue here, which is what really happens when the cops fail to tell a foreign suspect that he’s entitled to get in touch with his government. Instead, they ruled that, when the cops do actually fail to do so, (i) the detainees aren’t entitled to have evidence suppressed and (ii) the detainees must make any claims about the violation in a manner consistent with federal and state procedural law (so if they don’t raise the alleged violation in trial, they lose the right to claim it later). The majority ruling, by skirting the big issue, appears to leave this treaty requirement with little power or effect, almost telling U.S. authorities that it’s ok if they don’t tell foreign suspects that they can get in touch with their consulates.

This decision consolidates two cases, Sanchez-Llamas and Bustillo v. Johnson. At play in both of these cases is the Vienna Convention on Consular Relations, an international treaty which 170 countries, including the U.S., are a part of. The relevant portion of the Vienna Convention is Article 36, which establishes that a detaining country must notify the authorities of the detainee’s home country that they are detaining that person, if that person so requests. Article 36 also says that the detaining country must notify the detainee of his rights under the Article, including this notification right (i.e., local authorities are obligated to tell foreign detainees that they have a right to get in touch with their consulate.

In December 1999, Moises Sanchez-Llamas (a Mexican national) got into a shootout with cops, hitting one in the leg. He was arrested and read his Miranda rights, in English and Spanish, but he was not told that the could request to have the Mexican Consulate informed of his detention, pursuant to Article 36. He was then interrogated by the police with the help of an interpreter and during these interrogations, he provided several incriminating statements about the shootout. He was charged with several criminal offenses, including attempted murder and, before going to trial, he tried to suppress his statements to the police on the grounds that they were involuntary in light of the cops failing to comply with Article 36. The court denied his motion and he was eventually convicted and sentenced to over 20 years in prison. Sanchez-Llamas appealed, again arguing that his statements should have been suppressed, but the Oregon appellate court and Supreme Court both affirmed the trial court decision, holding that Article 36 doesn’t create any right of access or notification to a consulate which a detainee can enforce within the context of a judicial proceeding.

Meanwhile, in 1997, Mario Bustillo (a Honduran national) was in a Virginia restaurant where a man was hit in the head with a baseball bat, eventually dying. Bustillo was identified as the man’s attacker, and he was arrested and charged with murder. The cops did not notify him of his Article 36 right to request that the Honduran Consulate be notified of his arrest. During his trial for murder, Bustillo argued that another man was responsible for the attack, presenting several corroborating witnesses. The jury convicted him of murder, anyway, and sentenced her to 30 years in the clink. Following his conviction, Bustillo filed a writ of habeas corpus arguing, for the first time, that his Article 36 rights had been violated and that he would’ve notified the Honduran Consulate immediately if he had known of these rights. He also had an affidavit from the Honduran Consulate stating that it would’ve helped Bustillo in his defense if it had been notified of his detention. Bustillo claimed that the consulate could have helped him track down the man he claimed was the actual attacker. Bustillo’s claim was dismissed, however, on the basis that he was procedurally barred from raising it because he did not raise the issue at trial or through a standard appeal.

With these facts under our belt, we can turn to the majority opinion, written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Thomas and Alito. Roberts identifies three issues which are raised by these cases. First, there is the question of whether a detainee can invoke their Article 36 rights in a judicial proceeding (i.e., enforce an alleged violation of those rights). Then, there’s the question of whether the remedy for a violation of Article 36 should be the suppression of evidence. And finally, there is a question of whether a detainee can forfeit a claim that their Article 36 rights were violated by not first raising the issue at trial. Roberts punks out on the first issue, which is really the big one here. He decides not to actually rule on whether there are any judicially enforceable rights created by the Vienna Convention because, even if there are, the second and third issues would play out the same way for him. So he’s just going to work under the assumption that Article 36 does create some judicially enforceable right, without actually deciding this issue.

The second issue, whether suppression of evidence is a viable remedy for an Article 36 violation, comes from the Sanchez-Llamas case. Roberts rules that the Vienna Convention does not support the suppression of evidence for an Article 36 violation, nor does Supreme Court precedent. The Vienna Convention says that Article 36 should “be exercised in conformity with the laws” of the detaining state. This is important because Roberts says that the Supreme Court can only order the suppression of evidence for procedural violations where it’s a federal statute that’s been violated and where the proceeding is in a federal court. “It is beyond dispute that we do not hold a supervisory power over the courts of the several States.” In other words, the Supremes can only otherwise step into state proceedings when there’s a constitutional issue at play. So Sanchez-Llamas can only win if the Vienna Convention, itself, gives the Supremes the authority to create a judicial remedy which applies to the state courts (in that case, the Court can step-in and enforce the treaty in the state courts because of the Supremacy Clause of the Constitution). Here, however, there is no such authority created or granted by Article 36.

Sanchez-Llamas tries to argue that the Court must give “full effect” to Article 36, by its own terms, and that this requires some judicial remedy to be created (even if that remedy isn’t the suppression of evidence). Roberts doubts this interpretation but says, even if it’s true, it still doesn’t support application of an exclusionary rule allowing for the suppression/exclusion of evidence in this situation. This is because the Court does not apply the exclusionary rule lightly, only doing so where there are constitutional issues at play, such as improper search and seizures or compelled self-incrimination. Article 36 has nothing to do with these kinds of rights, since it simply grants a right of notifying and informing the home country of the detainee’s arrest - it doesn’t require police to stop interrogations, or require the consulate to intervene, etc. So a remedy calling for the suppression of evidence would simply be out of proportion with an Article 36 violation.

The third issue in this case, whether a claim that Article 36 rights were violated can be waived due to procedural errors, arises from the Bustillo case. Roberts says that the same procedural default rules which generally apply in the United States equally apply to Article 36 claims. Roberts looks to a 1998 Supreme Court case, Beard v. Greene, and finds that case controlling in this situation. In Beard, the Court addressed this exact issue, ruling that a defendant who didn’t raise his Article 36 claim in trial or on appeal, could not raise it in a habeas proceeding. Bustillo tried to get out of having Beard apply with two different arguments, both of which Roberts rejected. First, Bustillo argued that the ruling in Beard was actually unnecessary because the defendant would have lost in that case anyway. Roberts flat-out rejects this because “[i]t is no answer to argue…that the holding in Beard was ‘unnecessary’ simply because the petitioner in that case had several ways to lose.”

Bustillo’s other attempt to avoid the application of Beard relies on an argument that the International Court of Justice (which the US withdrew from in 2005) has ruled that Article 36 claims can’t be precluded because of procedural default rules such as the one used to preclude Bustillo’s claim. Roberts rejects this argument as well. While the Court should respectfully consider how the ICJ interprets the Vienna Convention, it is not obligated to defer to the ICJ because the Supreme Court, alone, has the power to enforce treaties within the United States. So the ICJ’s interpretation simply doesn’t overcome the fact that Article 36 says it should be exercised in the United States in conformity with U.S. law. And under U.S. law, procedural default is used to waive claims, even alleged violations of the Constitution – so procedural default also applies to Article 36 claims. For example, if a criminal defendant has a valid claim that his Miranda rights were violated but doesn’t raise this issue at trial, he’s barred from raising the violation later. Why, asks Roberts, should this be any different?

So in conclusion, Sanchez-Llamas is out of luck because there is no reason that an Article 36 violation should mean that evidence can be suppressed, and Bustillo is out of luck because he should have raised his claim at the original trial. Thus, both state Supreme Court decisions are affirmed. Roberts notes at the end of his opinion that none of this should be understood as a belittlement of the Vienna Convention. “It is no slight to the Convention to deny petitioners’ claims under the same principles we would apply to an Act of Congress, or to the Constitution itself.”

Justice Ginsburg pens a separate opinion, concurring the judgment. She actually joins in one section of the dissent’s argument, which we’ll discuss below. But regardless of that, she agrees that in these cases, the majority is correct on the suppression and procedural default issues and she therefore agrees that both cases should be affirmed. However, she does concede, unlike the majority, that there could be some situations where a violation of the Vienna Convention would warrant the suppression of evidence or the setting-aside of the normal procedural default rules (which is really what the dissent argues, so she is mainly disagreeing with the dissent on its application of this “sometimes” rule in these particular cases).

Justice Breyer wrote the dissent in this case, joined wholly by Justices Stevens and Souter, and joined in part by Justice Ginsburg. Breyer thinks the majority should’ve given an actual answer to the first issue (the big one), whether a criminal defendant can raise claims over the violation of Article 36. Breyer would rule that such a right to raise claims definitely exists. This is the portion of Breyer’s opinion that Ginsburg is on board with. However, Ginsburg doesn’t join the rest of Breyer’s opinion, where he argues that the majority and the two state Supreme Courts got the rest of it wrong. First, Breyer believes that, in certain situations, the procedural default rule should not be applied to claims of Article 36 violations. He relies heavily on international interpretation of Article 36, as well as ICJ decisions interpreting the Article (and he provides a page and a half of citations to cases where the Supreme Court has looked to the ICJ for guidance in deciding international law). He believes that Bustillo might present such a situation, and he would therefore remand the case so that the Virginia courts can decide if Bustillo has been afforded an effective remedy, as required by the Vienna Convention. Second, on the issue of suppression, Breyer again believes that suppression might sometimes be an effective remedy. So he would also remand Sanchez-Llamas so that the state court could make a substantive determination of whether suppression of evidence was warranted (since the Oregon courts denied suppression based solely on the position that suppression was not warranted under the Vienna Convention, without looking into the merits of Sanchez-Llamas’ claims).