By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
Article 36 of the Vienna Convention on Consular Relations, which is a treaty signed and ratified by over 160 countries, including the United States and Mexico, provides that on arrest, police have a duty to inform a foreign national of his or her right to consular assistance. The same treaty gives that protection to Americans who are traveling abroad for any reason--missionaries, teachers, or Peace Corps volunteers, they all have the right to seek the assistance of the American consulate or embassy, and they have the right to be informed of that fact when they are detained.
CP:But it isn't enforced very often in the United States, is it?
Babcock: It is getting a little bit better, but I hear about violations every day, which is somewhat astonishing because the United States signed the treaty in 1963 and ratified it in 1969. It has been the supreme law of the land under the constitution of the United States for over 30 years.
In general, U.S. courts have refused to provide any remedy for violations of the treaty. If the police have failed to notify someone that he's got a right to seek the consulate's assistance, what's going to happen? Nothing. Police departments don't believe international law is important and they don't see why it should apply to them. They don't make the connection that their actions here could affect Americans traveling abroad in, say, the Ivory Coast.
If a judge tomorrow decided to exclude a confession based on a violation of the Vienna Convention, the next day there would be a memo circulated making sure that police complied. But that doesn't happen, so there's no real incentive for police.
CP:The case you recently won in the World Court, how did it get started?
Babcock: In January of 2003, Mexico filed a case before the International Court of Justice, which sits in the Netherlands in The Hague and has 15 judges from around the world, including an American judge. Mexico brought this suit on behalf of 54 Mexican nationals on death rows around the country. I represented Mexico along with a team of lawyers in that case.
On March 31, the court issued a final judgment in favor of Mexico, finding that in cases involving violations of Article 36 of the Vienna Convention, U.S. courts had an obligation to find a remedy. That is, review and reconsideration of the conviction and sentence, to determine whether the violation affected the outcome of the trial or the sentencing, because in capital cases we're talking about two phases of trial.
At the time that decision came down, Oklahoma had already scheduled the execution of Osvaldo Torres, who was 18 years old at the time of his arrest, with no prior convictions. He was scheduled to be executed on May 18. After the decision came down in the International Court, we filed a petition asking the Oklahoma court to respect and apply the decision from the International Court. The Oklahoma Court of Criminal Appeals, in a 3-2 decision issued on May 13, held that the decision of the International Court was binding for U.S. courts. They sent the case back to trial court for a hearing on that prejudice question.
The fact that they found that decision by the International Court binding was historic. It was the first time, to my knowledge, that any court in the United States has agreed that the World Court's jurisdiction is binding. And we're talking about Oklahoma--this is a very conservative court that allows a lot of people to be executed. It was astounding.
Two hours after we got that decision, the governor of Oklahoma decided to commute Torres's death sentence to life imprisonment, also observing that the International Court decisions were binding, and noting that he was concerned about the Vienna Convention violations.
CP:Does the Oklahoma court's decision create a precedent that other courts will need to respect?
Babcock: It's not binding in the sense that the Minnesota trial courts are bound by the Minnesota Supreme Court. The next two executions are going to come up next fall in Texas, where the legal system in place for death row inmates is virtually identical to the system they have in place in Oklahoma, so we've got very strong parallels between the two states. Which is going to help us argue that Texas should follow Oklahoma's lead. If they don't, then that sets it up perfectly for the Supreme Court, because there's going to be a split in the way that the states are reacting to the decision by the International Court of Justice.
The Supreme Court has never decided what effect a decision from the International Court has--whether it's binding in U.S. state and federal courts. There's a case that is going up to them now of another Mexican national, and they will decide in October whether to bring it up for review. So we'll see. I think they're going to take a case, I just don't know which one.
The Oklahoma decision was important in so many ways. Most importantly for Osvaldo Torres, who would have been executed but is still alive. And it was also personally just a fabulous thing. My very first case out of law school was a Canadian national, and I raised this issue in his case. I was the first lawyer in this country to raise this issue in a capital case, and everybody thought this was just kooky. I've been working on this issue for 14 years now, and it's nice to finally win.