Death Penalty Barred In Slaying

By Tom Jackman
Washington Post Staff Writer
Wednesday, January 4, 2006

A Vietnamese man accused of strangling a Fairfax County woman and her 22-month-old daughter will not face the death penalty, a Fairfax judge ruled yesterday, because police violated the man's Vienna Convention rights by not informing him that he could contact his embassy.

The ruling came six days before the scheduled capital murder trial of Dinh Pham, 34, of Annandale, who was arrested Jan. 8, 2004. Pham was picked up a day after Huy Huang Ton discovered the bodies of his wife, Loan P. Nguyen, 30, and his daughter, Ashley N. Ton, in a crawl space beneath their townhouse in the Merrifield area.

The case is the second Fairfax killing to spark legal repercussions for failure to notify a murder suspect of his Vienna Convention right to consult with his local embassy or consular officials. In November, the U.S. Supreme Court agreed to review the case of Honduras native Mario A. Bustillo, convicted of a fatal beating with a baseball bat in Springfield in 1997, because he also was not told of his international treaty rights.

Fairfax Commonwealth's Attorney Robert F. Horan Jr. (D) said that "the Fairfax police department notifies people of their Vienna Convention rights all the time" and that Fairfax police have a written policy requiring such notification. In Pham's case, homicide detectives sent a fax to the Vietnamese Embassy informing them of Pham's arrest but did not tell Pham he had the right to consult with his country's officials.

Horan said he was researching whether prosecutors could appeal the ruling by Fairfax Circuit Court Judge Leslie M. Alden. Typically, Virginia prosecutors can appeal rulings only on constitutional issues or suppression of defendants' statements. Paul A. Maslakowski, a capital public defender representing Pham, said Horan probably could not appeal.

Pham is charged with first-degree murder in the slaying of Nguyen and capital murder in the premeditated killing of a child. In an interview with Fairfax detectives, and with a Vietnamese interpreter, Pham said he went to the family's home on Lester Lee Court to steal money, was surprised by Nguyen, strangled her with a belt and then strangled the crying child, according to a transcript of his statement. Pham had worked for Ton, a construction contractor.

The Vienna Convention, signed by the United States in 1969, was created to provide protections for people arrested in another country. Locally, police departments have different practices on dealing with foreign nationals: Some have detailed instruction cards for officers; some have no policy.

When Mexico recently protested the failure by U.S. police to notify 51 Mexicans of their rights, the International Court of Justice sided with Mexico. Before the U.S. Supreme Court could rule on the issue, President Bush ordered the cases returned to state court for review.

Horan said the Vienna Convention does not confer rights on individuals, only on countries. Alden disagreed, citing a nonbinding opinion by U.S. Supreme Court Justice Sandra Day O'Connor in the Mexican case that the high court "commonly enforces treaty-based rights of individual foreigners."

Alden wrote, "[T]he duty to give notice is absolute. . . . [T]he idea that the state can completely ignore its treaty obligations without consequence essentially obliterates the purposes for which the rights under the Vienna Convention were intended."

Maslakowski said the United States signed the Vienna Convention specifically to protect the rights of citizens overseas. He also noted that Alden had rejected the more drastic option of throwing out Pham's statement to police, and he still faces two murder charges and possible life in prison.

Several months after Pham's arrest, Huy Ton sold the house where his family was killed. He could not be located for comment yesterday.

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