The Justices Miss the Point

Friday, April 7, 2006

THE SUPREME COURT heard arguments last week in the latest salvo in a long-running legal dispute about the proper role of foreign and international law in American adjudication. The case of Mario Bustillo, convicted in Virginia of a brutal murder in Springfield that occurred in 1997, raises anew the question of what happens when American states fail to let foreign nationals accused of crimes contact their consulates, as a treaty requires. Police did not permit Mr. Bustillo, a Honduran, to contact his government after his arrest, and he is serving 30 years in prison. The legal issue presented by his case -- along with another case from Oregon -- is not terribly difficult or compelling. He should lose. Yet there's another issue in this case that has been largely lost amid the high court's fascination with the scope of treaty obligations: Virginia authorities may have prosecuted the wrong man, and they clearly suppressed important evidence suggesting his innocence.

On the narrow question, yes, the Vienna Convention on consular relations requires that when nations arrest each other's citizens, they tell one another and give the detainee the right to contact his home country's consulate for assistance. But this treaty was designed to gives states certain privileges, not to grant judicially enforceable rights to individuals. So state failures to follow the treaty may create a diplomatic issue between the United States and other countries and potentially raise risks for Americans arrested abroad. But they don't create a basis for an appeal by a person convicted of a crime.

What makes Mr. Bustillo's case alarming is not the denial of his consular access but the possibility that he may not have been guilty. Mr. Bustillo was convicted of fatally bashing James Merry on the head with a baseball bat in a parking lot on the basis of testimony from three eyewitnesses. His counsel asserted that another man, identified by his street name, "Sirena," committed the crime. But Sirena could not be found or even identified. So when a defense witness claimed to have seen him on a flight to Honduras the day after Mr. Merry died, the jury understandably did not credit her.

In the years after the killing, however, it has emerged that police saw this man, since identified as Julio Osorto, in the vicinity of the crime and that he had -- as a police report records -- ketchup-like stains on his clothes. Honduran immigration records verify that he did arrive back in Honduras the very day the defense claimed. What's more, in a surreptitiously recorded videotape, he allegedly confessed to the killing. The Virginia courts ruled that the police report concerning Mr. Osorto was exculpatory and that the commonwealth had improperly withheld it from the defense. Yet, amazingly, they went on to determine that it would not have made a difference at trial. So Mr. Bustillo's conviction stands. And the justices, apparently more interested in their long-simmering academic debate about foreign and international law than about a possible fundamental injustice staring them in the face, bit off the least important dimension of Mr. Bustillo's case to review.

State authorities remain confident that they got the right man. They may be right, but the record in the case offers little basis to share their confidence. If the high court rejects Mr. Bustillo's appeal, this case still needs a thorough and independent review, one that Gov. Timothy M. Kaine (D) should make sure it receives.

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