An obscure court case in a Chicago suburb could become part of a diplomatic wrangle in which the U.S. government is facing worldwide criticism for flouting international law–criticism certain to intensify if Texas proceeds with the planned execution of a Canadian national.
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Joseph Stanley Faulder, 61– whose case has drawn in Secretary of State Madeleine Albright, the Canadian government and Texas Gov. George Bush–is on Death Row for the brutal 1975 murder of an elderly widow. Albright last month took the extraordinary step of asking Bush to delay the execution for 30 days to allow officials time to decide if his rights under an international treaty were violated.
On Wednesday, after the Texas parole board denied Faulder’s appeal, a federal judge blocked the execution. But the parole board appealed the decision to the U.S. Court of Appeals for the 5th Circuit in New Orleans, saying it expected to carry out the execution as planned.
Meanwhile, a Bridgeview judge this week ruled on a similar case involving a Mexican immigrant charged with first-degree murder–a case that could become the vehicle for a higher court to force law-enforcement officials to change their procedures upon arresting foreign nationals.
The issue involves the 31-year-old Vienna Convention on Consular Relations, which the U.S. ratified in 1969. Article 36 of the treaty gives arrested foreign nationals the right to seek assistance from their home countries’ consular officers.
Although the treaty is critical in protecting the rights of Americans traveling abroad, it is rarely observed by U.S. law-enforcement agents when foreign citizens are arrested here.
In the local case, Cook County Circuit Judge Thomas Carmody Jr. supported the prosecution, saying the police officers’ failure to inform the suspect of his rights did not prejudice the case.
Luis Fernando Ortiz, 27, was arrested last year after being accused of stabbing an acquaintance to death near Stickney, but he was never notified that as a Mexican national he had a right to contact a representative of the Mexican government.
Carmody on Tuesday denied his lawyer’s motion that Ortiz’s confession should be thrown out because of that oversight. His lawyer, Taher Kameli, said he planned to file a motion Thursday to reconsider the decision in light of the Texas case.
Experts in human rights and international law were not surprised. Professor Douglass Cassel, director of the Center for International Human Rights at Northwestern University’s School of Law, said the ruling was “pretty typical of American judges.”
Although he would not comment specifically on the Ortiz case, Cassel said violation of the treaty is “not a meaningless technicality,” as prosecutors generally argue. “People have been released from Death Row as a result of consular intervention.”
Cassel said suspects who are eligible for state-appointed counsel don’t usually see their lawyers until they get to court. “In the meantime, the police continue to work the guy over.” In a case such as Ortiz’s, he said, “if they made timely notification to the consulate, I have every reason to assume they would arrange for an attorney to see him and tell him to keep his mouth shut.”
Cassel said police, as well as lawyers and judges, are generally unaware of the Vienna Convention.
“In my 29 years on the job I never told anybody he had a right to call a consul of any kind,” said Chicago police spokesman Patrick Camden. “We notify him of his Miranda rights (to remain silent and to be represented by an attorney). There is no other legal requirement.”
But a recent case in New Jersey resulted in a new rule requiring that Hudson County judges warn suspects at their first court appearance that if they have foreign citizenship, they have the right to contact their local consulate.
The American Bar Association, at its annual meeting this year, adopted a resolution urging all law-enforcement authorities to adopt a warning of consular rights, similar to that for Miranda rights.
A background report to the ABA House of Delegates that accompanied the draft resolution said: “While State Department officials have tried to educate law enforcement officials about the relevant provisions of the Vienna Convention, the enforcement of these rights remains a rare occurrence.”
Amnesty International, which opposes capital punishment and has been active in trumpeting the Faulder case, said there are 74 foreign nationals from 24 countries on Death Row in the U.S. “Only about three of them got their (consular) rights,” said Sam Jordan of the group’s Washington, D.C., office.
In Illinois, two Mexican citizens and a Polish national are awaiting execution. All three are appealing on grounds that, along with other violations, their Vienna rights were ignored.
Salvador Cicero, an attorney at the Mexican Consulate General in Chicago, said there are thousands of foreign nationals arrested for lesser crimes who are treated similarly.
In Illinois, Indiana and Wisconsin alone, he said, there are 1,200 cases in which Mexican nationals were not granted consular rights, Cicero said.
In her letter to the Texas governor, Albright warned that the safety of U.S. citizens abroad could hinge on America’s treatment of foreign nationals in the U.S.
According to the State Department, there are about 2,500 U.S. citizens in foreign jails.
The Mexican consul general in Chicago, Heriberto Galindo, said his country would continue to abide by international law, although “it pains us to the depths of our heart when judges don’t comply with these treaties.”
But the issue has brought the U.S. into diplomatic conflict with other countries.
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Paraguay appealed to the International Court of Justice in The Hague earlier this year over the impending execution in Virginia of a Paraguayan national named Angel Breard.
Breard, who was convicted of murder, never received consular notification. But the Paraguayan Consulate found out late in the case and brought in a private law firm to raise the issue on appeal.
The Court of Justice asked for a stay, but the U.S. Supreme Court refused, saying the appeal had been raised too late and Breard couldn’t prove consular notification would have made a difference.
“So, despite a letter from Secretary Albright asking the governor of Virginia to delay the execution, the governor had Breard executed that same day,” Cassel said. “It was a blatant display of U.S. disrespect for international law.”
Cassel believes it will take a better case to get U.S. law-enforcement officials to start giving foreign nationals their consular rights–one in which it’s clear that the failure to notify prejudiced the outcome and in which the issue was raised earlier in the proceedings.
Ortiz, who is accused of killing Luis Manuel Morales, 25, could be that case.
Kameli said if Ortiz is convicted, he will appeal all the way to the U.S. Supreme Court.
“Law enforcement will not listen until judges start to throw these cases out based on this violation,” Kameli said.