4 of 4 DOCUMENTS

INTERNATIONAL COURT OF JUSTICE

CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS

(MEXICO V. UNITED STATES OF AMERICA

MEMORIAL OF MEXICO

INTERNATIONAL COURT OF JUSTICE

2003 ICJ LEXIS 16

20 June 2003

TYPE: [*1] Written Pleading

TEXT: I.

INTRODUCTION

1. By Application dated 9 January 2003, Mexico instituted proceedings before this Court against the United States on claims concerning fifty-four Mexican nationals who have been convicted and sentenced to death in criminal proceedings that violated the provisions of Article 36 of the Vienna Convention on Consular Relations. By Order dated 5 February 2003, the Court ordered the United States to take all steps necessary to ensure that the three nationals in most imminent danger of execution were not executed before the Court rendered judgment on Mexico's claims. To date, no execution date has been set for any of the Mexican nationals who are the subject of this proceeding.

2. Thus, this case comes to the Court in a fundamentally different posture than did LaGrand, and for the most basic of reasons: while the nationals who were the subject of Germany's application had been executed prior to the rendering of the Court's judgment, the nationals that Mexico here seeks to protect remain alive. In LaGrand, the Court had occasion to provide a definitive interpretation of the substantive rights of the sending State and its nationals under Article 36, and the [*2] corresponding obligations of the receiving State under that Article. As a result, Mexico's case rests on the substantive foundation laid by the Court in LaGrand. But here, the Court will also have an opportunity to prescribe the full range of relief to which a State aggrieved by Article 36 violations is entitled, in a situation in which the nationals who are the subject of the proceeding remain in a position to benefit from that relief.

3. Put simply, Mexico contends that when a State acts to take human life through the application of law in a criminal proceeding, it should scrupulously conform its own conduct to the dictates of legal norms to which it has consented to be bound -- including, as here, Article 36 of the Vienna Convention. And when the State fails in that obligation -- as here, the United States has-- it should provide fully effective relief in the form of new proceedings that conform to those dictates.

4. Like the United States, Mexico attaches great importance to the consular assistance and access rights codified in Article 36, particularly in the case of nationals charged with capital crimes. Over time, Mexico has created a comprehensive program of consular assistance [*3] to its detained nationals in the United States who face the death penalty. Mexican consular officers act to ensure fair treatment of their nationals in U.S. criminal proceedings, provide the national with an understanding of the U.S. criminal system and his legal rights, closely monitor judicial proceedings, advocate before judges and prosecutors, regularly communicate with the detained national and his relatives, assist in the thorough investigation of facts, arrange and fund expert testimony, and, where necessary, provide funds for the retention of more qualified defense counsel.

5. The right of consular notification and assistance is a necessary and essential procedural safeguard for detained foreign nationals. As the drafters of Article 36 recognized, the foreign national facing criminal charges stands on a different footing than a national facing the same charges. And it is the criminal defendant's status as foreign national, rather than simply criminal defendant, to which the rights guaranteed by Article 36 are addressed.

6. The right of consular notification and assistance therefore constitutes a fundamental component of due process. The assisting consular officer can bring [*4] to bear professional expertise and local knowledge that can be used to protect the foreign national from the vulnerable position he or she occupies in the receiving State. Further, consular notification and assistance serve to ensure the effective enforcement of all other due process guarantees. For a detained foreign national, the right to be informed of the prospect of consular assistance is the necessary prerequisite to a knowing decision regarding whether to exercise or waive the right against self-incrimination, to the effective assistance of counsel, and to the opportunity to prepare a defense. As a result, the fundamental due process character of the right to consular access has been recognized in international instruments, tribunal decisions, state practice, and scholarly writings.

7. Given the critical role of the right of consular notification, a criminal proceeding that has been tainted by a violation of that right -- as in the case of each of the fifty-four Mexican nationals before this Court -- cannot yield a substantively acceptable conviction or sentence. This principle applies with special force in capital proceedings, which, given the irreversible character of the [*5] death penalty, require the most rigorous enforcement of procedural safeguards.

8. Yet in each and every one of the fifty-four separate capital cases that form the basis of this action, the United States has violated Mexico's rights and the rights of its nationals under the Vienna Convention, which Mexico asserts in the exercise of its right of diplomatic protection. As in LaGrand, the United States has breached two separate provisions of Article 36.

9. First, as this Court authoritatively determined in the LaGrand case, the interlocking subsections of Article 36(1) of the Vienna Convention establish a system of consular protection predicated upon the requirement that competent authorities of a receiving state notify, without delay, a detained national of a sending State of his right to consular communication and assistance. To be effective, notification "without delay" requires that the competent authorities provide the contemplated consular notification prior to any act potentially detrimental to the rights of the foreign nationals, such as interrogation.

10. This functional definition is supported by the object and purpose of the Vienna Convention, the well-documented [*6] vulnerability of foreign nationals in custody to abuse during interrogation, and the United States's own practice with regard to the protection of U.S. nationals detained in other states.

11. In the cases of fifty-one of the Mexican nationals sentenced to death whose cases form the basis of this proceeding, the United States made no attempt to comply with Article 36(1) of the Vienna Convention, even though the competent authorities had reason to know of the detainee's Mexican nationality. In only three cases did the competent authorities make an effort to provide notice to the detained Mexican national, but in those cases, the notice was either not conveyed in full or not conveyed "without delay," as the Convention requires.

12. Second, the United States violated Article 36(2) by invoking municipal law bars to prevent Mexican nationals from challenging their convictions and death sentences on the basis of violations of Article 36. In LaGrand, this Court held that Article 36(2) requires that municipal laws and regulations be applied in a manner that allows "full effect" to be given to "the purposes for which the rights accorded under this Article are intended." A receiving [*7] state violates the Convention when its laws prevent the municipal courts of that State "from attaching any legal significance to the fact...[of] the violation."

13. The United States employs municipal law bars that do not allow the attribution of legal consequences to the failure of competent authorities of the United States to provide the requisite Article 36 notification. United States courts have applied procedural default doctrines to hold that where a Mexican national has not raised his Vienna Convention claim during the prescribed phase of the criminal proceeding, he is barred from raising it subsequently. For example, where the national has not raised the claim during the course of trial, he may not raise it on direct appeal. Likewise if the national fails to raise a claim on direct appeal or in state post-judgment proceedings, he may not raise it in any subsequent federal habeas corpus proceedings. Thus, state and federal default doctrines bar review and reconsideration of Vienna Convention claims, even where the failure of the defendant to raise his Vienna Convention claims is a direct result of the United States's own failure to provide the required notification.

14. [*8] United States courts have also held that pursuant to a non-retroactivity doctrine, Mexican nationals are barred from any judicial relief for acknowledged Vienna Convention violations in federal habeas corpus proceedings. Finally, even where Mexican nationals' claims have not been defaulted, United States courts refuse to provide judicial remedies for the violations, on the ground that the Vienna Convention does not create individual or fundamental rights, or that, in any event, the defendant Mexican national has not shown prejudice from the United States's failure to abide by its obligations under Article 36.

15. The continued application of these municipal law doctrines violates not only the plain dictates of Article 36(2), but the equally plain mandate of LaGrand, in which this Court held that in cases implicating severe punishment, the United States was required to permit review and reconsideration of impaired convictions and sentences that take account of the Vienna Convention violation.

16. In an attempt to meet that mandate, the United States takes the position that state clemency processes provide the requisite review and reconsideration. To the contrary, the Vienna [*9] Convention confers rights both on the sending State and its nationals. Review and reconsideration that takes account of the Vienna Convention must therefore take account of the deprivation of a right and, it follows, provide a rights-based remedy. Clemency, by contrast, is just that: a discretionary act of executive grace, to which no applicant has a right, and the grant of which cannot be assured no matter how egregious the violation that the applicant might show. Moreover, as conducted, clemency processes are generally standardless, secretive, and immune from judicial oversight. Clemency processes cannot serve to fulfill the United States' obligation to give full effect to the purpose for which the rights afforded under Article 36 are intended.

17. To remedy the United States' violations of Article 36(1) and (2) in the criminal proceedings in which the Mexican nationals who are subject to this proceeding have been convicted of capital crimes and sentenced to death, Mexico is entitled to full reparations. Mexico seeks no monetary compensation. Nor does it seek a blanket pardon or any other form of relief that would prevent the United States from retrying or resentencing its nationals [*10] in proceedings that comport with Article 36.

18. Mexico seeks, instead, only that relief which is essential to ensure that any of its nationals who are put in jeopardy of their lives in capital criminal proceedings in the United States receive the procedural safeguards that, by its adherence to the Vienna Convention, the United States has agreed to provide. Specifically, Mexico seeks reparations in the form of appropriate declarations, restitutio in integrum, an order of cessation, and guarantees of non-repetition.

19. The remedial starting point is restitutio in integrum. As the primary form of reparation available, restitutio in integrum seeks to reestablish the situation that existed prior to the commission of the internationally wrongful act. To restore the status quo ante in the circumstances of this case, the United States must take several separate and independent steps.

20. First, the United States must take all steps necessary to ensure the vacatur of the convictions and sentences of the fifty-four Mexican nationals, so that any subsequent criminal proceedings can be undertaken in conformity with international law. The annulment of judicial decisions [*11] is a well-recognized form of restitution, and is especially compelling where, as here, criminal proceedings have been tainted by violations of fundamental due process.

21. Second, the Court should require that the United States take all steps necessary to ensure the exclusion of evidence obtained in violation of Article 36. The rule excluding from use in criminal proceedings evidence obtained illegally is a general principle of law under Article 38(1)(c) of the Court's Statute and, in the circumstances here, requires that prosecuting authorities be barred from using in evidence statements and confessions obtained prior to the time a foreign national is informed of his consular notification rights.

22. Finally, restitutio requires that courts in the United States be prohibited from applying any municipal law doctrine that prevents a court from attributing legal significance to an Article 36 violation because of a foreign national's failure timely to raise the Vienna Convention claim where the competent authorities have failed in their obligation to apprise the national of his rights, or any doctrine that prevents the Court from providing a remedy for an Article 36 violation, [*12] or any doctrine that requires a defendant to make an individualized showing of prejudice as a prerequisite to relief.

23. Since LaGrand, and contrary to the sanguine assertions of the United States about its education and training program, competent authorities in the United States continue regularly to violate the Article 36 notification provisions of the Vienna Convention, including in capital cases or other cases involving severe penalties. For example, Mexico has been apprised by its consulates of over one hundred cases since 27 June 2001 involving severe penalties in which the United States has failed to provide the requisite consular notification.

24. As a result, Mexico seeks orders from the Court that the United States cease its ongoing violations of Article 36 and, at the same time, provide Mexico with specific guarantees that its competent authorities will regularly comply with their obligations under that Article. The United States should be required to employ whatever legislative, executive, or judicial means are necessary to achieve that result.

25. This case is the third in which a State Party to the Vienna Convention on Consular Relations has sought relief on the [*13] basis of violations by the United States of Article 36 in criminal proceedings that led to the death penalty. Paraguay obtained an order of provisional measures barring the execution of its national pending the Court's judgment on the merits, but then withdrew the case after the United States, in violation of that order, allowed the execution to go forward. Germany, too, saw its national executed in violation of an order of provisional measures, but carried the case through to a judgment that allowed the Court to provide a definitive treatment of the substantive mandate of Article 36.

26. Mexico is the third State to file and to obtain an order of provisional measures. Thus far, the United States has complied with that order. Mexico hopes that, by prescribing the full range of relief that Mexico seeks in these proceedings, the Court will provide a definitive treatment of the remedial dimension of the Vienna Convention and thereby complete its work on that instrument. Equally, Mexico hopes that that work will increase the respect for and compliance with law that is the surest safeguard of international peace and justice.

II.

JURISDICTION

27. The Court's jurisdiction is based [*14] on Article I of the Optional Protocol to the Vienna Convention on Consular Relations, on which the Court based its jurisdiction in LaGrand. n1 Article I of the Optional Protocol provides that

disputes arising out of the interpretation or application of the [Vienna Convention on Consular Relations] shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a party to the present Protocol. n2

n1 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, paras. 42, 128(1).

n2 Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 24 April 1963, 596 UNTS 487, Article I.

28. Article I establishes two requirements for the Court to have jurisdiction. First, the Applicant must be a party to the Optional Protocol. Second, there must be a dispute "arising out of the interpretation or application" of the Vienna Convention on Consular Relations. According to this Court's long-standing jurisprudence, these jurisdictional requirements must be met as of the date [*15] of the filing of the Application, which is the critical date for the Court to determine its jurisdiction. n3 Both requirements are met here.

n3 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, para. 26; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J., Reports 1998, pp. 23-24, para. 38; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 129, para. 37.

29. First, on 9 January 2003, when the Application was filed, Mexico and the United States of America were both parties to the Vienna Convention on Consular Relations and to the Optional Protocol. The United States has been a party to both the Vienna Convention and to its Optional Protocol since 24 November 1969. Mexico, in its turn, has been a party to the Vienna Convention since 16 June 1965, and acceded to the Optional [*16] Protocol on 15 March 2002. Neither of the two parties made any reservations to the Optional Protocol. n4

n4 List of Participants, Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, available at http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIII/treaty33.asp (last visited 16 June 2003).

30. Second, on 9 January 2003, there existed between Mexico and the United States a dispute "arising out of the interpretation or application" of the Vienna Convention. Prior to the filing of the Application, Mexico undertook considerable diplomatic and legal efforts to vindicate its rights and those of its nationals under Article 36 of the Vienna Convention and has spared no effort to persuade the United States to comply with its obligations under the Vienna Convention. n5 All of these efforts failed. It is clear that Mexico and the United States hold irreconcilable views about the mandate of the Vienna Convention, including fundamental disagreements about the remedy to which the sending State and its nationals are entitled in the event of a breach of the Convention in a proceeding that leads to the [*17] death penalty.

n5 See infra Chapter III.D.

31. Mexico has consistently argued that the United States must restore the status quo ante, that is, re-establish the situation that existed at the time of the detention and before the convictions and sentences of Mexico's nationals as a result of proceedings that violated the United States' obligations under the Vienna Convention. To date, the United States has made no effort to provide any remedy other than repeated apologies, which this Court determined clearly in LaGrand are inadequate, n6 and discretionary reviews by executive officials, which Mexico maintains are equally inadequate. n7

n6 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, para. 123.

n7 See infra Chapter IV.B.4.

32. As this Court held in LaGrand, "a dispute regarding the appropriate remedies for the violation of the Convention . . . is a dispute that arises out of the interpretation or application of the Convention and thus is within the Court's jurisdiction. n8

n8 LaGrand (Germany v. United States of America), Merits, Judgment, I.C.J. Reports 2001, para. 48; see also Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, para. 31.

[*18]

33. The Court thus has jurisdiction to entertain Mexico's claims.

III.

STATEMENT OF FACTS

A. THE PURPOSE OF CONSULAR ASSISTANCE IN CAPITAL CASES

34. For many decades, Mexican consular officers have been dedicated to the protection of Mexican nationals incarcerated abroad. To that end, Mexico has established an extensive and sophisticated program of consular assistance for its citizens incarcerated in the United States. n9

n9 Mexico's history of consular assistance in the United States dates back to the turn of the century. See Declaration of Roberto Rodriguez Hernandez, paras. 12-23 (detailing historical assistance), Annex 7.

35. Ever since capital punishment was re-introduced in the United States in 1976, Mexico has closely monitored the cases of Mexican nationals facing the death penalty. Mexico's commitment to the defense of its nationals has been consistent and unwavering for more than twenty-five years. As the numbers of Mexican nationals on death row have increased, however, Mexico has devoted more resources to their defense, and has become increasingly concerned over repeated violations of Article 36 in their capital murder prosecutions.

36. Thus, in September [*19] 2000, Mexico formed the ground-breaking Mexican Capital Legal Assistance Program, which to date constitutes the sole capital legal assistance program established by a foreign government in the United States. The Program is staffed by a network often lawyers, all of whom are experienced capital litigators. n10 These lawyers, in turn, provide expert advice to consular officers and defense lawyers representing Mexican nationals. The Program has made a qualitative difference in the legal representation provided to Mexican nationals, and has enhanced the services already provided by Mexico's forty-five consulates in the United States. The Program also seeks to increase awareness of and compliance with international law. n11

n10 See id.

n11 See Declaration of Roberto Rodriguez Hernandez, para. 30, Annex 7.

37. Among other services, Mexican consular officers ensure that detained nationals understand the U.S. criminal justice system and their legal rights; closely monitor judicial proceedings; advocate before judges and prosecutors; regularly communicate with detained nationals and their relatives; provide interpreters and translation services; provide funds and logistical [*20] support to assist defense counsel in obtaining documentary evidence and conducting investigations in Mexico; retain bilingual experts and investigators; assist in the thorough investigation of facts; arrange expert testimony where helpful; and, where necessary, obtain more qualified defense counsel for their nationals. n12

n12 See id., paras. 4-17.

38. Through the combined efforts of consular officers and the Program lawyers, Mexico has played a decisive role in preventing the imposition of the death penalty in at least forty-five cases in less than three years. n13 In that same time, Mexico has filed sixteen amicus curiae briefs in U.S. courts, has provided funds for investigators and experts in at least twenty-two cases, and has offered important legal assistance to defense counsel in sixty-seven other cases. n14

n13 See id., para. 31. In thirty-eight of those cases, prosecutors agreed to waive the death penalty prior to trial. In four cases, defendants were sentenced to life imprisonment after jury trials. And in three cases, the defendants' sentences were commuted to life in prison.

n14 See id., para. 32.

39. Consular assistance to nationals detained [*21] on criminal charges can be broken down into four essential services. First, by their very presence in the courtroom or at the police station, consular officers ensure that local authorities treat their nationals fairly. n15 Second, consular officers speak to their nationals in a language they understand, and ensure the provision of adequate interpreters. Third, consular officers explain the detainee's legal rights and facilitate communications with defense attorneys and other actors in the criminal justice system, acting, in effect, as a "cultural bridge" for the detained foreign national. Fourth, consular officers enhance the quality of the detainee's legal representation by providing competent counsel, gathering documentary or other evidence from the home state, and apprising courts and counsel of international legal arguments. n16

n15 See L. Lee, Consular Law and Practice (2d ed. 1991), p. 124.

n16 See Lee, supra, at pp. 133-35, 166; United States State Department, Pub. No. 10518, Consular Notification and Access: Instructions for Federal, State and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular officers to Assist Them (released Jan. 1998) at 42; J. Sims & L. E. Carter, Emerging Importance of the Vienna Convention on Consular Relations as a Defense Tool, The Champion, Sept./Oct. 1998 at p. 30 ("Consular officers have a strong interest in the well-being of their nationals who are visiting or living in a foreign country...All governments want to monitor the criminal prosecutions of their nationals to ensure fair treatment."); S. A. Shank & J. Quigley, Foreigners on Texas's Death Row and the Right of Access to a Consul, 26 St. Mary's Law J. at pp. 719, 720-21 (1995) ("The mere involvement of a consul may encourage local government to follow procedural norms and minimize discrimination against a foreigner.").

[*22]

1. Mexican Consular Officers Ensure the General Fairness of Proceedings

40. Mexican consular officers, at the very minimum, ensure by their very presence that a foreign national is treated with fairness in the detaining state's judicial system. n17 Innumerable studies have shown that race and ethnicity play a significant role in the administration of the death penalty in the United States. n18 Mexico has documented numerous cases in which Mexican nationals have been subjected to discriminatory treatment. At times, authorities are overtly hostile to Mexican nationals, many of whom are poor laborers who have immigrated illegally to the United States in search of work. In some communities, Mexican nationals are described as "wetbacks," "illegal aliens," and other disparaging terms. As one commentary has observed,

Mexican immigrants come to the United States to face grossly incorrect perceptions, negative stereotypes, both malignant and benign prejudices, hostility, and antipathy. n19

n17 See Declaration of Roberto Rodriguez, para. 9, Annex 7; C. Cooper, Foes of Death Penalty Have a Friend Mexico, Sacramento Bee, 26 June 1994, at A1 (noting Mexico's intervention in Kentucky and California capital cases where death penalty avoided); A. Mendieta, Mexico Will Aid Nationals in US; Fund will Help 45 Death Row Inmates, Chicago Sun-Times, 6 October 2000, at 18 (describing creation of legal assistance program to defend the rights of Mexican nationals sentenced to death in the United States and bolster recognition of rights under the Vienna Convention).

[*23]

n18 See, e.g., Department of Justice, Survey of the Federal Death Penalty System (1998-2000) (concluding that federal prosecutors seek the death penalty more often for Hispanics and other minorities than whites; and noting that in Pennsylvania, prosecutors are three times as likely to seek the death penalty against Hispanics); Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias In the Justice System, Chapter 6: Racial and Ethnic Disparities In the Imposition Of the Death Penalty (2003); R. Paternoster et al, An Empirical Analysis of Maryland's Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction (2003); U.S. General Accounting Office, Report to Senate and House Committees on the Judiciary: Death Penalty Sentencing 5 (Feb. 1990); Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, With Recent Findings from Philadelphia, 83 Cornell Law Review (1998) at p. 1661; D. Baldus, et al., Reflections on the "Inevitability" of Racial Discrimination in Capital Sentencing and the "Impossibility" of Its Prevention, Detection, and Correction, 51 Washington & Lee Law Review (1994) at p. 365; S. Gross & R. Mauro, Death & Discrimination: Racial Disparities in Capital Sentencing 151 (1989); D. Baldus & G. Woodworth, Race Discrimination in America's Capital Punishment System Since Furman v. Georgia (1972): The Evidence of Race Disparities and the Record of Our Courts and Legislatures in Addressing This Issue (1997) (report prepared for the American Bar Association); T. Keil & G. Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976-1991, 20 American Journal of Criminal Justice (1995) at p. 17; J. Jackson, Legal Lynching: Racism, Injustice and the Death Penalty (1996).

[*24]

n19 J. Palerm, B.R. Vincent, and K. Vincent, "Mexican Immigrants in Courts," in Joanne Moore, ed., Immigrants in Courts (1999) at p. 96.

41. These attitudes, not surprisingly, can affect the authorities' decisions to seek the death penalty against a Mexican national, as well as the jury's willingness to impose it. n20

n20 See J. G. Connell, III and Rene L. Valladares, Cultural Issues in Criminal Defense (2003) at xxiii-iv [hereinafter Connell and Valladares](describing jury deliberations in which many jurors made ethnically biased comments regarding the defendant, such as "If a Mexican has a gun, he must be guilty.")

42. Mexican consular officers are keenly aware of the overt and subtle ways in which Mexican nationals can be treated differently, based upon their nationality. Through their vigilant presence in courtrooms, jails, and lawyers' offices, they can detect the presence of unfair bias, and take steps to expose it. In a capital murder prosecution, Mexican consular officers would raise such concerns with the appropriate authorities, and if need be, with the court. n21

n21 See Declaration of Roberto Rodriguez Hernandez, para. 9, Annex 7.

43. But where [*25] consular officers are absent, the defense lawyer is ineffective, and the Mexican defendant is isolated, there is often no effective way to prevent discrimination from tainting the fairness of the proceedings. Unfortunately, there are many examples of this phenomenon. The case of Mexican national Jose Trinidad Loza, convicted and sentenced to death in the state of Ohio, is illustrative. n22 The lead police detective in Mr. Loza's case has admitted that he referred to Mr. Loza as a "wetback" -- an exceedingly derogatory ethnic slur used to describe recent Mexican immigrants -- throughout his investigation. This same officer made the decision to seek the death penalty against Mr. Loza. Indeed, the prosecution of Mr. Loza was infused with racial animus and police misconduct. In addition to the lead detective, other law enforcement officers involved in the investigation admitted that they used the term "wetback" with some regularity. Some officers agreed the term was inappropriate and could compromise an investigation, but others saw nothing wrong with it or were uncertain about the propriety of using such a term. n23

n22 Case No. 52 in Mexico's Application. See Declaration of Roberto Rodriguez Hernandez, Appendix A, paras. 334-350 (detailing case), Annex 7.

[*26]

n23 See Declaration of Roberto Rodriguez Hernandez, Appendix A, para. 336 (citing Gingerich Deposition at 13, 27 (okay if said "jokingly among the guys"), at 14 (term is neither racially insensitive or derogatory), Sulfstead Deposition at 24 (did not know if use of term was racially insensitive or derogatory)), Annex 7.

44. Mr. Loza was never informed of his rights to consular notification and assistance by the competent authorities. Had Mexican consular officers been notified of Mr. Loza's detention, they would have been sensitive to the ethnic bias that pervaded the Middleton, Ohio police department, and would have educated trial counsel regarding the derogatory use of the term "wetback." Consular officers would also have brought the matter to the attention of the prosecutor and/or the trial court in an effort to ensure fair treatment for Mr. Loza.

45. In certain cases, Mexico has observed that Mexican nationals are singled out for the death penalty, when other, equally culpable defendants receive lesser sentences. For example, Juan Caballero Hernandez, who was sentenced to death in the state of Illinois, n24 was the only Mexican national among four co-defendants, was [*27] 18 at the time of the crime, and had no record of violence. He received a death sentence, but a co-defendant who had an appalling criminal history, and was accused of instigating and committing two of the murders, received a life sentence.

n24 Case No. 45 in Mexico's Application.

46. In other cases, prosecutors have encouraged jurors to sentence a Mexican national to death, based in part on the defendant's immigration status. In the case of Hector Garcia Torres, n25 for example, the prosecution emphasized Mr. Garcia Torres's status as an undocumented alien as one of the justifications for the imposition of a death sentence. n26 Defense counsel failed to object to the prosecution's irrelevant and inflammatory references to Mr. Garcia Torres's immigration status, and Mr. Garcia Torres was sentenced to death. n27

n25 Case No. 31 in Mexico's Application.

n26 See Declaration of Roberto Rodriguez Hernandez, Appendix A, para. 186, Annex 7.

n27 Prosecutors used similar tactics in the case of Ricardo Aldape Guerra, a Mexican national (not included in Mexico's Application) who was wrongly convicted of capital murder and spent 15 years on death row before he was exonerated. There, prosecutors encouraged jurors to find Mr. Aldape Guerra posed a danger to society, because he had entered the United States without proper documentation. Following Mr. Aldape Guerra's sentencing proceeding, the Ku Klux Klan demonstrated outside the courtroom, carrying signs saying "Houston will not tolerate illegal alien crimes." The evidence of discrimination in Mr. Aldape Guerra's trial was raised on appeal in amicus curiae briefs filed by Mexico, as well as several non-governmental organizations. A federal district court eventually granted relief and vacated Mr. Aldape Guerra's conviction, concluding that the police and prosecutors in the case had intimidated Mexican witnesses and engaged in other forms of misconduct that tainted the fairness of the proceedings. See Guerra v. Collins, 916 F.Supp. 620 (S.D. Tex. 1995).

[*28]

47. Naturally, the examples cited above are not exhaustive. And foreign nationals in general, as well as Mexican nationals in particular, are vulnerable to disparate treatment.

48. When they have learned of a national's incarceration well before trial, Mexican consular officers have been able to bring evidence of disparate treatment to the attention of the court, with positive results. One example is the case of Mexican national Felipe Petrona Cabanas, n28 who was charged with the murder of a police officer in Arizona. Although he was only seventeen at the time of the offense, prosecutors sought the death penalty. At the time of his arrest, numerous media reports highlighted his unlawful immigration status. Moreover, Mexico discovered that Arizona had only executed two juvenile offenders in 120 years, and both were of Mexican heritage. n29 Armed with these disturbing facts, Mexico submitted an amicus curiae brief to the trial court, arguing that Mr. Petrona Cabanas should not be sentenced to death. The court subsequently sentenced him to life imprisonment.

n28 Mr. Petrona Cabanas is not included in Mexico's Application.

n29 One of the juvenile offenders currently sentenced to death in Arizona is also Mexican -- Martin Raul Fong Soto, who is Case No. 48 in Mexico's Application. In addition, as of this writing, the state of Arizona is seeking the death penalty against yet another Mexican national who was only 16 years old at the time of the offense.

[*29]

2. Mexican Consular Officers Serve as a "Cultural Bridge" For Their Detained Nationals.

49. The United States State Department has described the right of access to a consular officer as an invaluable "cultural bridge," which "no one needs...more than the individual...who has been arrested in a foreign country." n30 Arrested foreign nationals in the United States are often isolated from family and friends, speak English as a second language or not at all, and fail to understand their rights under the U.S. criminal justice system. n31 They may also suffer from unwarranted fears about the consequences of asserting their legal rights, such as the fear of deportation. n32

n30 See U.S. Dep't of State, 7 Foreign Affairs Manual 400, 401 at <http://foia.state.gov/FAMDir/masterdocs/07fam/07m0410.pdf>.

n31 See J. Palerm, et al., supra, at p. 73 ("In addition to problems of language, Mexican immigrants are likely to know nothing about the proceedings: who is in charge, what the roles of the various persons are, and what is happening.")

n32 See, e.g., id. at 95 (Mexican immigrants may abandon legal rights because they fear exposure of their own or family members' illegal status); United States v. Beraun-Panez, 812 F.2d 578, 580-81 (9th Cir. 1987) (police officers took advantage of the defendant's insecurities about his alien status by mentioning the possibility that he would be deported and separated from his family).

[*30]

50. In order to make informed and critical decisions about his case, a foreign national must understand the basic elements of the criminal law of the detaining state. n33 As the Government of Canada has observed:

[The typical detained foreign national,] who is not relatively sophisticated, or who lacks strong connections in the arresting community, is especially vulnerable to making dangerously uninformed choices in exercising even the rights of which the arresting authorities do inform him. He is therefore almost certain to be unable to avail himself of rights of which the arresting authorities fail to inform him. Finally, with no one to explain his predicament in the context of the more familiar system of his home country, a detained foreign national is at a considerable disadvantage in establishing a defense. n34

n33 See Lee, supra, at 166.

n34 See Brief Amicus Curiae of the Government of Canada in Support of an Application for the Writ of Habeas Corpus in the Case of Ex Parte Joseph Stanley Faulder, at 10, Annex 30.

51. Unlike other local participants in a state's criminal system, consular officers located in the detaining state are uniquely situated [*31] to translate the often complex and unfamiliar legal concepts into terms the foreign national can readily understand.

52. As the Foreign Affairs Manuel of the U.S. Department of State acknowledges:

Legal systems vary greatly. . . . U.S. citizens arrested abroad often have an imperfect understanding of American criminal procedure and may have absolutely no understanding of the legal procedures of the country in which they are detained. Thus, it is essential that each mission (or where variations in local conditions warrant, each constituent post) prepare informational material for delivery to each arrested U.S. citizen regarding the judicial process the arrestee is likely to face. Posts should prepare a packet of information covering initial arrest, remand procedure, trial procedure, appeal process, and penal conditions and rules.

The purpose of this material is not to usurp the function of legal counsel or encourage a "do it yourself approach. Rather, it serves the purpose of helping arrestees understand what is happening to them and provides a yardstick against which they can measure an attorney's performance. n35

n35 See U.S. Dep't of State, 7 Foreign Affairs Manual 407 at <http://foia.state.gov/FAMDir/masterdocs/07fam/07m0410.pdf>; see, e.g., Judge P. J. DeMuniz, "Introduction," in Joanne Moore, ed., Immigrants in Courts (1999) at p. 3 (describing case of wrongly convicted Mexican national who was Mixtec Indian, and who didn't speak Spanish or English proficiently, yet was only provided a Spanish interpreter at trial); Declaration of Duenas Gonzalez, paras. 35-36, Annex 4.

[*32]

53. Mexican consular officers are specifically trained in United States law to provide information that could prevent a detained national from waiving important legal rights and from making poor decisions with adverse legal consequences. n36 By taking the time to explain thoroughly the applicable procedural rules, the roles of various actors in the criminal prosecutions, and the rights guaranteed the national at each phase of the proceedings, consular officers can overcome the national's culturally-rooted misconceptions of the criminal justice system.

n36 See Declaration of Roberto Rodriguez Hernandez, para. 5, Annex 7.

54. Such services are vital for recent Mexican immigrants, as well as those who have lived in the United States for several years. Mexican nationals often remain deeply immersed in Mexican culture after their immigration to the United States. n37 Some never learn English, even after living in the United States for decades. Moreover, Mexican nationals facing the death penalty suffer the multiple impediments of foreign culture, poverty, and extremely limited education. The average Mexican national on death row has completed less than seven years of school. Seven [*33] of the Mexican nationals on death row have gone to school for less than three years. n38 Many others suffer from cognitive impairments stemming from mental retardation, brain damage, and mental illness. n39

n37 See Declaration of Duenas Gonzalez, paras. 9-10, Annex 4.

n38 Hector Garcia Torres, Ramiro Ibarra Rubi, Virgilio Maldonado, Abelino Manriquez Jaquez, Juan Ramon Sanchez Ramirez, Ramiro Hernandez Llanas, and Rafael Camargo Ojeda.

n39 See Declaration of Ambassador Roberto Rodriguez Hernandez, para. 6, Annex 7.

55. The consular officer's role as a "cultural bridge" is particularly important in relation to four aspects of a capital murder prosecution: interrogation, plea bargaining, the role of the defense attorney, and the establishment of a defense.

a. Vulnerability to Interrogation

56. Consular assistance is invaluable in order to compensate for the well-documented susceptibility of a detained foreign national to a misunderstanding of his rights during interrogation. n40 Language barriers, as well as the detained foreign national's unfamiliarity with the legal process, leave him particularly vulnerable to deception or coercion by standard police interrogation [*34] techniques into waiving his rights and confessing falsely. n41 Moreover, because an indigent Mexican national will not receive an attorney to advise him during interrogation, unless he specifically requests one, n42 consular officers are in a unique position to advise and assist nationals facing police interrogation, before the appointment of an attorney. n43

n40 See, e.g., Amnesty International, Saudi Arabia -- Alone, afraid and abused, AI Index: MDE 23/08/00, available at <http://www.amnesty.org/ailib/intcam/saudi/issues/migrant.html> (last visited April 15, 2003) ( "[Arrested foreign nationals in Saudi Arabia] may be deceived or coerced into signing a confession in Arabic, a language they may not understand."); Amnesty International, Japan: Ill-Treatment of Foreigners in Detention, AI Index: ASA 22/09/97, page 1, November 1997, available at <http://web.amnesty.org/library/index/engasa220091997> (last visited June 10, 2003) ("[Arrested foreign nationals in Japan] have been beaten, denied access to interpreters and lawyers [and] forced to sign statements in languages they did not understand..."); Human Rights Watch, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees, Vol. 14 No. 4(G) August 2002, pp. 33-46, available at <http://www.hrw.org/reports/2002/us911/USA0802.pdf> (last visited June 10, 2003) (noting that some foreign nationals detained in the United States were informed of their rights only after lengthy interrogation, while others waived those rights by signing documents that they did not understand); United States v. Short, 720 F.2d 464, 469 (6th Cir. 1986) (noting that German defendant, whose English was limited, "apparently had no knowledge of the American criminal justice system" and had not knowingly and voluntarily waived her legal rights at the time of interrogation).

[*35]

n41 This is precisely what happened in the case of Mexican national Omar Aguirre, who was wrongly convicted of murder and sentenced to fifty-five years in prison. In 1997, Mr. Aguirre was charged with the torture and murder of a Chicago store owner. He was interrogated and beaten over the course of three days. He spoke little English and believed the confession he eventually signed, which was in English, was a release for him to go home. In December 2002, federal prosecutors released Mr. Aguirre, who was entirely innocent of any wrongdoing. See David Heinzmann and Jeff Coen, Jailed by Lies, Freed by Truth, Chicago Tribune, December 22, 2002.

n42 Under Davis v. United States, an attorney will only be provided to an indigent detainee during interrogation if he clearly requests one. See 512 U.S. 452, 459 (1994). As some commentators have noted, "this rule disadvantages those who are unfamiliar with the American legal system or those whose first language is not English because they may not know how to communicate an unequivocal request." Connell and Valladares, supra, § 4.5(b); see also Davis at 460 (Kennedy, J., dissenting) (recognizing that the Davis rule will disadvantage defendants with a "lack of linguistic skills").

[*36]

n43 Although the Sixth Amendment to the United States Constitution guarantees defendants a right to an attorney, that right typically does not attach until the national makes his first appearance in court. See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (quoting United States v. Gouveia, 467 U.S. 180, 188 (1984)) ("[The right to counsel attaches] at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information or arraignment.").

57. Mexican consular officers have repeatedly observed that Mexican nationals, many of whom are poor, uneducated laborers who speak little English, n44 will sign confessions written in English, without understanding what they are signing. n45 In the case of Mexican national Gabriel Solache Romero, for example, police officers in Chicago, Illinois interrogated him without notifying him of his Article 36 rights. n46 Mr. Solache did not speak English at the time of his arrest, but signed a confession written in English after undergoing forty hours of interrogation without an interpreter and during which he was [*37] physically abused. His confession was subsequently introduced as the primary piece of evidence against him at his trial. n47

n44 "Compared to other immigrant groups, Mexican immigrants are distinguished by being young and having low educational levels, high labor participation, low family and per-capita income, and large household sizes. Mexican male immigrants are on average 17 -years old, and Mexican females, 23 years old . . . More than 60 percent of the adult Mexican-immigrant population have no more than an elementary education." J. Palerm, et al., supra, at p. 73.

n45 See Declaration of Duenas Gonzalez, paras. 35-36, Annex 4.

n46 Case No. 47 in Mexico's Application.

n47 Declaration of Roberto Rodriguez Hernandez, Appendix A, para 299-312, Annex 7.

58. When Mexican consular officers are promptly notified of a suspect's detention, they can alleviate these misunderstandings, and can deter police abuse of detainees n48 --a point the United States conceded long ago. n49 Had Mexican consular officers been immediately notified of Mr. Solache's detention, they would have advised Mr. Solache of the implications of signing a confession under U.S. law. They would [*38] also have advised him--and the proper authorities--of the need for an official interpreter to translate Mr. Solache's statements during his interactions with the authorities. n50

n48 See S. A. Shank & J. Quigley, supra, at 719, 720-21 ("A foreigner may also be particularly vulnerable to deception used by police detectives as a standard interrogation technique... If properly implemented, the right of consular access can significantly compensate for the difficulties confronting an accused foreigner."). See also Declaration of Michael Iaria, para. 9, Annex 6.

n49 See U.S. Citizens Imprisoned in Mexico: Hearings before the Subcommittee on International Political and Military Affairs of the House Committee on International Relations, 94th Cong., 2nd Sess. (1976), at 58 (Statement of Hon. Leonard F. Walentynowicz, Administrator, Bureau of Security and Consular Affairs, Department of State) ("Immediate consular access, in [the Department of State's] opinion, still remains the restraining factor preventing abusive treatment [in prison]"), and at 6 (Statement of Hon. William H. Luers, Deputy Assistant Secretary, Bureau of Inter-American Affairs, U.S. Department of State) ("immediate consular access" offers the best hope of effective deterrence of abuse during the interrogation").

[*39]

n50 See id.

59. Consular officers can also advise their nationals on the critical differences between U.S. law and Mexican law regarding statements to law enforcement authorities. Under Mexican criminal law, a confession obtained from a criminal defendant is admissible against that defendant at trial only if the confession was taken before the prosecutor ("Ministerio Publico") or judge and in the presence of counsel or "person of confidence" to the defendant. n51 Unlike in the United States, statements given to the police during an interrogation conducted outside the presence of defense counsel cannot be used against the defendant at trial. n52 Further, unlike in the United States, Mexican law greatly reduces the reliance on a confession in the trial and conviction of a defendant by minimizing its evidentiary value. n53

n51 See Declaration of Adrian Franco, para 8, Annex 3.

n52 See id.

n53 See id.

60. Mexican nationals, particularly if they have had no prior contact with the United States' criminal justice system, are unlikely to understand this distinction -- even when advised by the police of their Miranda rights. n54 Mexican national Arturo Juarez [*40] Suarez, n55 through his Spanish interpreter, told police during his interrogation that he "doesn't understand anything about the [U.S.] justice system." n56 Likewise, Felix Rocha Diaz, who spoke no English and had a fourth-grade education, testified at a pre-trial hearing that he did not understand that he had the right to have an attorney present during his interrogation, nor did he understand the meaning or implication of "waiving" his legal rights. n57 Both Mr. Juarez Suarez and Mr. Rocha Diaz gave incriminating statements to the authorities. n58 In Mr. Rocha Diaz's case, his statement was virtually the only evidence that connected him to the crime. n59 As is their practice in all cases, had consular officers been notified of their detention immediately upon arrest, they would have advised both men not to speak to the police without first seeking the advice of a lawyer, informed them about the implications of a confession under U.S. law, and insisted on the provision of a neutral, qualified interpreter.

n54 See Declaration of Duenas Gonzalez at paras. 24-34, Annex 4. In Miranda v. Arizona, the United States Supreme Court indicated that a defendant must be informed of certain constitutional rights prior to interrogation. The Court provided, however, that a defendant "may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently." 384 U.S. 436, 444 (1966).

[*41]

n55 Case No. 10 in Mexico's Application.

n56 See Declaration of Roberto Rodriguez Hernandez, Appendix A, para. 54, n. 45, Annex 7.

n57 See Declaration of Roberto Rodriguez Hernandez, Appendix A, para. 265, Annex 7.

n58 See id., paras. 53, 266.

n59 See id., para. 270.

b. Plea Bargaining

61. In the United States, a "plea bargain" is an offer to a defendant by a prosecutor of a reduced sentence in exchange for the defendant's plea of guilty. The resolution of criminal cases through the plea bargaining process is very common in the United States. n60 The American Bar Association has recognized that in a capital case, one of defense counsel's primary obligations is vigorously to pursue such a negotiated settlement, since it is one of the most important means of protecting a defendant from the imposition of the death penalty. n61 As described below, Mexican consular officers can provide critical assistance in this process.

n60 S. Gross, Lost Lives: Miscarriages of Justice in Capital Cases, 6 Law & Contemporary Problems (Autumn 1998) at p. 142 ("eighty to nearly ninety percent of convictions result from guilty pleas."). The vast majority of criminal prosecutions in the United States are resolved without trials. As Mr. Gross observes, most criminal cases are resolved pre-trial, "by the exercise of prosecutorial discretion to dismiss, reduce charges, or recommend or agree to a particular sentence." Id. (citations omitted). See also Santobello v. New York, 404 U.S. 257, 260 (1971) (U.S. Supreme Court called the practice of plea bargaining "an essential component of the administration of justice" in the U.S.).

[*42]

n61 See generally American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 10.9.1 (revised edition, 2003), Annex 66. As one of the most prominent capital litigators in the United States has observed, "death is different because avoiding execution is, in many capital cases, the best and only realistic result possible." K. McNally, Death is Different: Your Approach to a Capital Case Must be Different, Too, The Champion, Mar. 1984, at 8, 15. As a result, plea bargains must be aggressively sought by defense counsel in all capital prosecutions. Id.

62. In many U.S. jurisdictions, the prosecution will accept a formal proffer of evidence in support of mitigation of a possible sentence before deciding whether to seek the death penalty. n62 The strength of this presentation, along with other factors, can play a substantial role in persuading the prosecution to waive the death penalty. n63 In some jurisdictions, this decision may not be conditioned on the defendant's acceptance of guilt, but in many states, the prosecution will only agree to waive the death penalty if the defendant pleads guilty to murder and [*43] accepts a lengthy term of imprisonment. n64

n62 See ABA Guidelines, Guideline 10.9.1 (Commentary), Annex 66.

n63 See id; see also W. S. White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 University of Illinois Law Review (1993) at pp. 328-29.

n64 See ABA Guidelines, Guideline 10.9.1 (Commentary), Annex 66.

63. Consular officers play two critical functions in the delicate, often protracted negotiations that lead to a plea bargain. First, consular officers meet with prosecutors, or present written submissions, that contain crucial mitigating evidence. Often, consular officers will have gathered this evidence themselves, in Mexico, after learning of the defendant's detention. The consulate commonly searches all archives and databases in Mexico to determine whether the defendant has a prior criminal record, and provides documentation of that search to defense counsel. Other times, consular officers will obtain school and hospital records that provide proof of a defendant's mental or physical condition. n65 Sometimes, consular officers can explain cultural factors that mitigate the defendant's culpability. n66

n65 See Declaration of Roberto Rodriguez Hernandez, para. 11, Annex 7.

[*44]

n66 See A.D. Renteln, Raising Cultural Defenses, in Connell and Valladares, supra, at 7-20 (describing case of Mexican national who killed a man in response to a deeply offensive insult, and explaining how his culture influenced his response).

64. Through these efforts, Mexican consular officers have played a vital role in persuading prosecutors to waive the death penalty in at least thirty-eight cases in the last three years alone. n67

n67 Declaration of Roberto Rodriguez Hernandez, para. 31, Annex 7. See also Declaration of Michael Iaria, para. 6 (describing the case of Mexican national Nicolas Solorio Vasquez), Annex 6; L. Lafay, Virginia Ignores Outcry, The Roanoke Times, 6 July 1997, at C1 (noting that Mexican consulate negotiated plea bargains on behalf of two Mexican citizens facing the death penalty).

65. Second, consular officers assist in explaining the plea bargaining process to the defendant. It is critical that defendants understand this concept, since it may provide the only means by which they can avoid possible execution. n68 Mexican law, however, does not allow for plea bargaining for serious felonies. n69 Consequently, Mexican nationals [*45] unfamiliar with the plea bargaining process may not understand the benefits that derive from this practice. Defense counsel's efforts to explain the process are often unavailing, since Mexican nationals frequently mistrust court-appointed attorneys provided by the government that is seeking to incarcerate them. n70

n68 See, e.g., Declaration of Michael Iaria, para. 7, Annex 6.

n69 See Declaration of Adrian Franco, para. 7, Annex 3.

n70 See J. Palerm, et al., supra, at p. 93 ("If there is a high risk involved in the situation, Mexican immigrants may refuse to divulge information to anyone in authority -- attorney, judge, or counselor.").

66. Mexican nationals may also fail to comprehend that unless there is a specific agreement to provide leniency, their plea of guilty will not guarantee a lesser punishment. For example, in at least two of the cases listed in Mexico's Application, nationals entered guilty pleas without any negotiated settlement. n71 In neither case did the defendant obtain any concession from the prosecution in exchange for his guilty plea. Both received the death penalty.

n71 Daniel Angel Plata and Carlos Rene Perez Gutierrez (cases No. 40 and No. 51 in Mexico's Application, respectively). Mr. Perez Gutierrez entered a so-called "Alford" plea, under which he technically admitted no guilt; the practical effect, however, is exactly the same as a guilty plea. The defendant is convicted, and deemed to be guilty of the crime. See North Carolina v. Alford, 400 U.S. 25 (1970) (allowing plea of guilty even where defendant maintains innocence).

[*46]

67. In several cases, Mexican consular officers have played an instrumental role in explaining the advantags of accepting a plea bargain. One example is the case of Francisco Gonzalez Reyes, who was accused of a triple homicide in the state of Florida. In early 2002, the prosecution offered Mr. Gonzalez Reyes the option of pleading guilty, and receiving three life sentences. The evidence of his guilt was overwhelming. Mr. Gonzalez Reyes, however, would not accept the offer.

68. None of the doctors who had evaluated Mr. Gonzalez Reyes, either for the defense or the prosecution, spoke Spanish. The court would not authorize funds for an out-of-state expert, so Mexico retained Dr. Antonio Puente, a bilingual neuropsychologist to evaluate Mr. Gonzalez Reyes' mental status. According to defense counsel, Dr. Puente "quickly built a rapport with Francisco," and as a result, Mr. Gonzalez Reyes was more forthcoming in providing information relating to his mental health. The expert concluded that Mr. Gonzalez Reyes was mentally retarded.

69. Armed with this knowledge, consular officers took extra care in explaining his legal rights. In addition, the consulate explained the situation to Mr. Gonzalez [*47] Reyes' family, who also spoke to the defendant and encouraged him to accept the offer. Finally, on 23 January 2003, Mr. Gonzalez Reyes accepted the prosecution's offer, and was sentenced to life imprisonment. n72

n72 In addition, if defense attorneys do not speak Spanish, they may not spend enough time explaining key concepts to their Mexican national clients. This is particularly important when the prosecution offers to resolve the case through a plea bargain. The intervention of a Spanish-speaking consular officer or attorney, in these cases, is often critical in helping the national understand his rights. For instance, Mexican national Carlos Jahuey Carillo, who was facing the death penalty in Arizona, was offered a plea bargain by prosecutors that called for life imprisonment in lieu of the death penalty. He repeatedly rejected the offer, until Mexico retained a Spanish-speaking lawyer to explain the terms and conditions of the agreement, as well as the consequences of rejecting the agreement. On 18 December 2002, he accepted the prosecution's offer, and was sentenced to life imprisonment.

c. Providing a Bridge to Defense Counsel

70. Typically, poor Mexican nationals distrust [*48] individuals in a position of authority, and lack faith in the ability of the legal system to protect them. n73 Their distrust frequently extends to their own defense lawyers, whom they view as being part of the legal system. n74 Consular intervention is critical to explain the role of defense counsel, and encourage meaningful and open communication between lawyers and their Mexican national clients.

n73 See Declaration of Adrian Franco, para. 5, Annex 3; see generally J.Palerm, et al, supra, at p. 92. These attitudes are prevalent among other foreign nationals in the legal system, as well. See J. Bauer, Speaking of Culture: Immigrants in the American Legal System, in Joanne Moore, ed., Immigrants in Courts (1999), at p. 18; Connell and Valladares, supra, at 1-7 (describing El Salvadoran witness' tendency to defer to prosecutor's questions by answering "no recuerdo" (I don't remember) when she actually meant "no").

n74 See J. Palerm, et al., supra, at p. 92.

71. It is not uncommon for Mexican nationals to develop a relationship of trust with consular officers that simply does not extend to their defense attorneys. Consular officers speak [*49] their language, understand Mexican slang, and offer the solidarity of a fellow countryman. Consular officers can also detect symptoms of cognitive impairments that often go undetected by lawyers who do not speak Spanish, and cannot hear the verbal cues of mental illness. Some attorneys attribute odd behavior to cultural differences, when in reality, it is a sign of mental illness or mental retardation. n75

n75 See Declaration of Roberto Rodriguez Hernandez, para. 7, Annex 7.

3. Mexican Consular Officers Enhance the Quality of Legal Representation At Trial

a. Monitoring Trial Counsel

72. It is certainly no exaggeration to observe that the single most important factor in determining whether a capital defendant lives or dies is the quality of his trial attorney. As the American Bar Association has explained,

The quality of counsel's "guiding hand" in modern capital cases is crucial to ensuring a reliable determination of guilt and the imposition of an appropriate sentence. Today, it is universally accepted that the responsibilities of defense counsel are uniquely demanding, both in the highly specialized legal knowledge that counsel must possess and in the advocacy [*50] skills he or she must master. At every stage of a capital case, counsel must be aware of specialized and frequently changing legal principles and rules. n76

n76 ABA Guidelines, Guideline 1.1 (Commentary), Annex 66.

73. Yet it is by now commonplace in the United States that indigent defendants are represented by untrained, unqualified, or underfunded attorneys. As one leading expert on capital punishment has observed, it is often:

abysmally ineffectual lawyers - chronically under-remunerated; often young and inexperienced, patently unqualified and incompetent, unethical, or bar-disciplined; sometimes drug-impaired, drunken, comatose, psychotic, or senile; very often grossly negligent; and nearly always out-gunned -- who represent capital defendants in most death penalty states around the country. n77

n77 J. Liebman, The Overproduction of Death, 100 Columbia Law Review (2000) pp. 2102-06; see also Alabama v. Shelton, 122 S. Ct. 1764, 1772 (2002), quoting United States v. Cronic, 466 U.S. 648, 656 (1984) (indigent counsel often fail to subject the government's case to "the crucible of meaningful adversarial testing").

[*51]

74. It has been persuasively shown that in important respects "this counsel situation is worse in capital than in noncapital cases" in the United States. n78 United States Supreme Court Justice Ruth Bader Ginsburg has been quoted as stating flatly: "People who are well represented at trial do not get the death penalty," and "I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well-represented at trial." n79

n78 Liebman, supra, at pp. 2102-06.

n79 Anne Gearan, Supreme Court Justice Supports Death Penalty Moratorium, ASSOCIATED PRESS, 9 April 2001.

75. Mexican consular officers are specifically trained to monitor and support defense counsel's efforts, attend court proceedings, and confer regularly with the defendant and his family. n80 Some attorneys particularly if they are not Spanish-speaking -- will not take the time to visit their clients. n81 In these cases, consular officers -- or the attorneys working with the Government of Mexico -- are literally the only people communicating with detained Mexican nationals. Here, too, Mexico's involvement in a case can make the difference [*52] between life and death. n82

n80 See Declaration of Roberto Rodriguez Hernandez, para. 6, Annex 7.

n81 Two of the Mexican nationals listed in this Application, Daniel Angel Plata (No. 40) and Ramiro Ibarra Rubi (No. 35), never met the lawyers who represented them during their state post-conviction appeals. Clearly, a lawyer who never meets his client is unable reliably to determine whether the client suffers from mental disabilities, regardless of cultural barriers. See id., para 8.

n82 The case of Ernesto Baylon Mendoza is illustrative. Mr. Baylon Mendoza was charged with capital murder in rural Texas. Mexican consular officers enlisted the assistance of a Spanish-speaking attorney to interview Mr. Baylon Mendoza. After interviewing him, the attorney determined that Mr. Baylon Mendoza was a juvenile at the time of the crime. Mexican consular officers subsequently obtained his birth certificate for defense counsel. Defense counsel had been representing Mr. Baylon Mendoza for six months, but was not even aware that his client was only seventeen at the time of the crime. Counsel showed Mr. Baylon Mendoza's Mexican birth certificate to the prosecution, which promptly agreed to waive the death penalty. See Declaration of Roberto Rodriguez Hernandez, para. 33, Annex 7.

[*53]

76. Sometimes, defense attorneys are competent, but lack experience representing Mexican nationals. In these cases, consular officers will provide guidance on cultural factors, provide names of bilingual experts, and assist in investigating the national's life in Mexico. n83

n83 Id., paras. 6-8.

77. Other defense counsel are simply incompetent, as in the case of Mr. Carlos Avena Guillen. n84 In these cases, Mexican consular officers do not hesitate to (1) persuade the court to discharge court-appointed counsel and provide new counsel; (2) recruit pro bono counsel; or (3) retain counsel to represent the defendant. n85 By enhancing the quality of legal representation, consular assistance is vital to an adequate defense. n86

n84 See discussion of Mr. Avena Guillen's case infra, Chapter III.B.3.

n85 Id., para. 9.

n86 See, e.g., Report to the UN Commission on Human Rights (document E/CN.4/1998/68/Add.3), Findings of the Special Rapporteur, 117-121 ("Not informing the [foreign national] defendant of the right to contact his/her consulate for assistance may curtail the right to an adequate defence[.]"). The case of Liliana Pina, a Mexican national charged with murder in rural Arkansas, is illustrative. While Ms. Pina was initially represented by an experienced capital litigator, he was subsequently removed from the case and did not get another lawyer for several weeks. She remained in the jail, isolated and depressed, and her mental condition began to deteriorate. When a consular officer observed Ms. Pina's mental decline and learned that she was without legal representation, the consular officer contacted jail officials, the district attorney's office, and expert legal counsel with the Mexican Capital Legal Assistance Program. Counsel located an experienced capital litigator in Arkansas, and then persuaded a judge to appoint him to represent Ms. Pina. Ms. Pina was immediately removed from the jail and transferred to a psychiatric facility. Mexico then provided funds for both a bilingual neuropsychologist, and referred defense counsel to a bilingual psychiatrist, both of whom evaluated Ms. Pina. The psychiatrist concluded she was incompetent to stand trial, was insane at the time of the crime, and did not understand her legal rights at the time of her interrogation. Faced with this new information, as well as a competent and aggressive defense lawyer, the prosecutor offered to waive the death penalty, and Ms. Pina pleaded guilty to a lesser charge. See Declaration of Roberto Rodriguez Hernandez, para. 33, Annex 7.

[*54]

78. For example, in the case of Nicolas Solorio Vasquez, a Mexican national charged with capital murder in the state of Washington, n87 the court initially appointed a patently unqualified lawyer to represent him. n88 Mexican consular officers objected to his appointment, and requested that the court appoint a more qualified attorney. In response to Mexico's objections, the lawyer withdrew from the case, and another lawyer was appointed. The new lawyer was ultimately successful in persuading the prosecution to waive the death penalty, even though the case was highly aggravated. n89

n87 Mr. Solorio Vasquez's case is not included in Mexico's Application.

n88 See Declaration of Michael Iaria, para. 5, Annex 6.

n89 Id.

b. Gathering Evidence

Mexican consular officers also assist in gathering evidence for trial. Most often this takes the form of locating records and witnesses in Mexico. n90 Where necessary, however, the consulate also provides funds for the retention of experts and criminal investigators to aid in the presentation of an effective defense on behalf of the national. n91 For instance, in the case of Ernesto Esteban Ramirez Anguiano, charged with murder [*55] in Dallas, Texas, the Mexican consulate conducted such a thorough investigation of the crime that prosecutors dismissed the charges against him. In a letter written to the Texas Attorney General's office opposing Mexico's attempt to gather police reports on the case, the district attorney observed:

I have also learned that the Consulado General de Mexico has provided investigators for the benefit of the defendant and the attorney representing him in the murder case. They have interviewed witnesses in the criminal case and provided translators. They have made the defendant's defense attorney aware of additional witnesses that were unknown to law enforcement officers, helped the defense attorney locate additional witnesses, interviewed those witnesses and even determined who has possession of the murder weapon that deputies were unable to locate at the scene of the crime. They are clearly acting on behalf of the defendant in the criminal case. n92

n90 See Declaration of Roberto Rodriguez Hernandez, paras. 11-13, Annex 7.

n91 See Declaration of Roberto Rodriguez Hernandez, para. 11, Annex 7.