Court Hears Arguments In Consular Access Case

By Charles Lane
Washington Post Staff Writer
Thursday, March 30, 2006

On a December night in 1997, a Honduran man swung a baseball bat and killed James Merry outside a Popeye's restaurant in Springfield. Mario Bustillo was convicted of murder and sentenced to 30 years.

Now that local slaying has evolved into a Supreme Court case with major implications for the rights of 21.1 million noncitizens in the United States, as well as for U.S. international relations.

At issue is the Vienna Convention on consular access, a pact among the United States and 160 other nations that guarantees foreign detainees access to diplomats from their home country. In oral arguments at the court yesterday, an attorney for Bustillo told the justices that his conviction should be overturned because Virginia authorities never informed him of his Vienna Convention rights.

As a result of the delay, Mark T. Stancil said, Bustillo, who maintains that another man from his home country is the real culprit, was denied "critical exculpatory evidence in the possession of the Honduran government."

The Vienna Convention issue has generated several difficult cases for the court in recent years, and the Bustillo case offers the justices a chance to clarify the domestic effect of treaties, which the Constitution says are part of "the supreme law of the land."

A ruling in Bustillo's favor could affect relations between millions of noncitizens and local law enforcement officers, whose knowledge of and compliance with the Vienna Convention is spotty. It would be a defeat for the Bush administration, which says the convention should be enforced through diplomatic negotiations.

But it would represent a major step toward incorporating international law into U.S. domestic affairs -- as several justices have been urging in recent years.

In a companion case, an attorney for Moises Sanchez-Llamas, a Mexican convicted of trying to kill a police officer in Oregon, said that his client's statements to police should not have been admitted as evidence because they were obtained without notifying him of his Vienna Convention rights.

None of the justices seemed eager to embrace that claim, but they appeared more evenly divided on the two men's basic contention that the Vienna Convention creates rights that can be enforced by lawsuits in a U.S. court.

Ratified by the United States in 1969, the pact commits signatories to provide one another's arrested citizens access to consular officials and to inform detainees of these "rights" "without delay."

The United States, which led the international effort to negotiate the convention, has long backed its goals. But Mexico and Germany sued the United States at the International Court of Justice in The Hague because their citizens who were not informed of their Vienna Convention rights were sentenced to death in the United States in recent years.

The international court ruled in 2004 that the convention required the United States to give 51 Mexicans a new chance to appeal the violation of their consular rights in a U.S. court, even though state procedural rules say defendants forfeit legal claims they do not first raise at trial.

The issue of whether that international court ruling could bind U.S. courts came to the Supreme Court last year, but the court dismissed the case after the Bush administration, invoking the president's foreign policy powers, announced that it would require Texas state courts to give the Mexicans a new hearing -- and then withdrew the United States from the part of the convention that says it must abide by the international court's rulings.

Yet the two cases argued yesterday raise what may be much more fundamental issues -- whether the international court's interpretation of the convention should essentially be binding on all states.

Backed by the Bush administration and by 28 other states, Virginia and Oregon counter that neither the treaty nor the international court's ruling can trump the states' own rules of criminal procedure.

To decide that noncitizens can belatedly raise Vienna Convention claims, they argue, would give noncitizens in this country a right that Americans do not have with regard to claims under the Constitution, and that is denied to Americans by governments abroad.

"These treaty claims should not be treated more favorably than constitutional rights," Virginia's solicitor general, William E. Thro, told the court.

Several justices suggested that because U.S. law already requires states to provide suspects lawyers, the remedy for the international court's concerns is to give defendants whose lawyers fail to tell them about the Vienna Convention the right to appeal. Such "ineffective assistance of counsel" claims are already allowed.

The cases are Bustillo v. Johnson , No. 05-51, and Sanchez-Llamas v. Oregon , No. 04-10566. A decision is expected by July.

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