Blows Against the Death Penalty

Aguila legal: From her Minneapolis office, Sandra Babcock makes international law
Craig Lassig

In 1999, when Sandra Babcock left her job as a public defender for Hennepin County, she ordered new business cards. On them, she listed her areas of practice as civil rights, criminal defense, and international criminal law. Never mind that she worked in Minneapolis and had no plans to leave. "My friends all laughed at me. They said, 'You don't do international criminal law,'" she recalls. "I said, 'But that's what I want to do.'" What she had wanted to do, actually, since she was a student at Harvard Law.

Serendipitously, a few months later the Mexican government asked her to set up a program to improve the quality of defense for Mexicans facing the death penalty in the United States. Since the Mexican Capital Legal Assistance Program was born in September 2000, the program has assisted in 158 such cases. In 66 of those, the defendants avoided the imposition of the death penalty. In eight, the Mexican defendants were sentenced to death. Only two have been executed.

Impressive as those statistics are, Babcock's biggest victories have occurred in recent weeks. On March 31, the International Court of Justice ruled against the United States and in Mexico's favor in a case Babcock helped argue. The court agreed that the United States violated a long-standing treaty giving foreign detainees around the world the right to contact their consulates for assistance. No small technicality during any arrest, it's vital when the stakes include the death penalty.

A few weeks later, courts in Oklahoma, which leads the nation in per capita executions, concluded that the World Court's ruling held sway, and that the treaty had been violated in the case of a Mexican man whose execution was scheduled to take place two days later. Even more amazingly, Oklahoma's conservative governor immediately commuted the man's death sentence. There's every chance that the issue will soon come before the U.S. Supreme Court as well.

Last year, Mexican President Vicente Fox awarded Babcock the highest honor Mexico gives foreigners, the Aztec Eagle. An elegant glass proclamation, it hangs on the wall of her Park Avenue office in Minneapolis. Recently, she sat down there to describe her work for City Pages.

City Pages: How did you come to represent Mexico before the World Court?

Sandra Babcock: The second client I represented out of law school was a Mexican national who was wrongfully convicted. His name was Ricardo Aldape Guerra. He was wrongfully convicted and sentenced to death, and his case received an enormous amount of attention from the media in Mexico. I worked on his case very closely with the government of Mexico and in particular with one consular official in Mexico, a very young official and a brilliant lawyer. Many years later, after I had moved to Minnesota and was working in the public defender's office, he contacted me and asked whether I would assist Mexico with a case that they had brought before the Inter-American Court on Human Rights in 1998.

That rekindled this relationship I had had with the Mexican government. About a year later the Mexican government asked whether I would be interested in helping them with this program that they had in mind. There really weren't any other attorneys in the country who had expertise in defending foreign nationals in capital cases.

CP: Why do foreigners need special representation in death penalty cases in U.S. courts? Why the help of their consulate?

Babcock: You have to look at it against the backdrop of the death penalty in the United States--the scarcity of qualified, competent, and experienced criminal defense lawyers representing people who are facing the death penalty. People on death row are overwhelmingly poor. That is by far the most common denominator. In many jurisdictions there is no public defender system, and many public defender systems are underfunded. It's an unequal system of justice where someone who has resources, like O.J. Simpson, who was death-eligible, they don't even seek the death penalty against him.

Mexican nationals have additional liabilities. They don't speak the language. Mexicans who grow up in Mexico come from poverty that we can only imagine because it doesn't exist in this country anymore. Most immigrants I see in these cases have come from an almost-feudal agrarian existence. They live in villages that have no running water. There is such poor environmental regulation they are exposed to toxins that affect their cognitive development, that cause organic brain damage. Many haven't been to school, or maybe a year or two of primary school. Many are illiterate. An overwhelming number of Mexican nationals facing the death penalty have experienced head trauma from accidents.

They also have terrible problems communicating with their lawyers, compounding the problems they have receiving decent representation. Ironically, lawyers who should be spending extra time with these clients educating them about the American legal system are actually spending less time with them because they have to bring an interpreter and everything takes twice as long.  

For example, plea bargaining doesn't exist in Mexico. Here it's the most important phase of a capital murder trial. One of your most important objectives is to convince the prosecutor not to seek the death penalty in exchange for some kind of plea bargain in which, say, the accused will plead guilty and receive a life sentence. Mexican nationals don't understand that. They mistrust their attorneys, they don't understand why they are talking to the prosecutor, and they often turn down plea offers because they don't understand that it's in their best interest. The consulate can fill in those cultural and linguistic gaps.

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.

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