Court Considers Burden of Telling Foreigners Their Rights

The Supreme Court hears arguments on whether police are required to inform foreign nationals of their right to talk to their countries' consulates when arrested. A 1969 treaty provides that right; the court considers whether police bear the burden of informing the suspect of that right.

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The Supreme Court heard arguments today in a case about foreign nationals arrested in the U.S. The question, must courts enforce a treaty requiring that foreign nationals be told they can contact their governments when they're picked up? NPR's Nina Totenberg reports.

NINA TOTENBERG: The Vienna Convention, signed by the United States more than 40 years ago, has a provision inserted at the suggestion of the United States that requires a host country to inform a foreign national detained in prison of his right to consult his home country's consulate. The U.S. has been the most frequent user of this provision, because it has the most travelers. And, according to the State Department, some 6,000 U.S. travelers are detained in foreign prisons each year.

But here in the U.S., state and local governments have often failed to comply with the treaty, and two years ago, the International Court of Justice, by a vote of 14 to 1, ruled that the U.S. was in violation of the treaty and must provide some recourse. Today in the Supreme Court, the Bush administration's Greg Garre told the justices the International Court had been wrong, and that U.S. courts are not bound by that ruling. Several justices quickly bought the argument.

Chief Justice Roberts: "There aren't any individual rights to be enforced here."

Justice Scalia: "It's a matter to be resolved by state-to-state protests."

No justice seemed to buy the defense argument that because a defendant has not been advised of his right to consult his home country's diplomats that the evidence used against him should be excluded at trial. Other alternatives were batted around.

"It's not rocket science," said Justice Kennedy, "for police to advise a defendant. Certainly lawyers can advise the defendants of their rights." But the defense said that lawyers often fear that the home country will replace them with a different attorney.

Justice Ginsburg: "Couldn't state court judges be required to advise defendants of their consular rights?"

Chief Justice Roberts replied, "That might be an unconstitutional enlistment of state court officers to carry out a federal treaty."

Justice Stephens replied dryly, "As officers of the court, they're required to carry out federal law."

V: "Why wouldn't it be an appropriate remedy if a defense lawyer didn't advise the defendant of his rights under the treaty, that would be ineffective assistance of counsel and grounds for reversing a conviction? That would take care of the tough claims where it really did make a difference." The case of Mario Bustillo is just such a case. Bustillo was convicted of killing a Virginia man with a baseball bat outside a Popeye's restaurant. Three witnesses identified him as the killer. Two said it was another man known as Sirena.

Bustillo's lawyer never told him he had the right to contact the Honduran Embassy for help, and later Honduras said it could have provided valuable assistance. Four years after the trial, a new lawyer found evidence that Sirena had indeed been stopped by police near the crime, that he fled the country the next day, and in Honduras, friends of the defendant located Sirena and secretly videotaped him bragging that he had committed the crime.

Today in the Supreme Court, Bustillo's lawyer, Mark Stancil, told the justices that the failure to advise Bustillo of his rights under the treaty is grounds to reverse the conviction.

Justice Breyer: "Why isn't this ineffective assistance of counsel?"

Answer: "Because relying on the defense lawyer to fulfill the duty of the state does not fulfill the obligation of the treaty. Besides," said Stancil, "this would only lead to claim after claim of ineffective assistance of counsel, and, of the 60 filed so far, none has won."

Justice Souter: "Maybe after one of these actually wins, people will wake up."

Virginia's Solicitor General William Thro noted, however, that the state courts had rejected the ineffective assistance of counsel claim. He said Bustillo's lawyer did know about the treaty but chose as a matter of strategy not to inform his client of his consular rights. Thus, the conviction must stand, because the ineffective assistance of counsel claim was not raised in the state Supreme Court.

Justice Breyer: "But if you can't raise this as an issue, isn't that defeating the treaty?"

Justice Stephens: "The harm to the defendant is just so stark, you wonder what was going on here?"

Nina Totenberg, NPR News, Washington.

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