State v. Issa

Lundberg Stratton, J.,

dissenting. I respectfully dissent from the majority’s decision to affirm the defendant’s convictions and sentence of death. The defendant was not properly advised of his consular rights under the Vienna Convention, Article 36, and, therefore, I would reverse the judgment of the trial court and remand for a new trial.

The Vienna Convention on Consular Relations was created in 1963, and today, more than one hundred sixty countries have ratified the treaty. See State Department, Pub. No. 10518, Consular Notification and Access, January 1998: Instructions for Federal, State, and Other Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them (1998) at 42. The United States signed the Vienna Convention on April 24, 1963, and it became effective with respect to the United States on December 24,1969. 21 U.S.T. 77.

Article 36 sets forth the framework for communication between foreign nationals and their consuls and imposes obligations on United States law enforcement:

“1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

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“(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to any consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.” (Emphasis added.)

“Consular access serves two functions. It serves the needs of foreign nationals who benefit from prompt communication with consular officials, as well as their intervention during legal proceedings; at a minimum, it provides a cultural bridge for detained nationals who must otherwise navigate through an unfamiliar and often hostile legal system. It also enables governments to monitor the safety and fair treatment of their nationals abroad, to reassure relatives and friends at home, to promote respect for human rights, and to avoid disruptions in foreign relations that could result from the mistreatment of detained persons.” Aceves, International Decisions: Murphy v. Netherland (1997), 116 F.3d 97 (1998), 92 Am.J.Internatl.L. 87, 89-90.

In October 1973, the United States Department of State concluded, “In the Department’s view, Article 36 of the Vienna Convention contains obligations of the highest order and should not be dealt with lightly.” Quoted in Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies (1998), 31 Vand.J.Transnatl.L. 257, 270. Although the United States vigorously insists on consular notification for its own nationals, we often fail to comply with the treaty regarding foreign nationals in our country. Of the eighty-three foreign nationals currently on death row in the United States, the vast majority were not alerted to their right to consular notification under the Vienna Convention. Henry, Overcoming Federalism in Internationalized Death Penalty Cases (2000), 35 TexJnternatl.L.J. 459, 459-460, citing The International Bannister Foundation, Reported Nationals on Death Row in the United States, at a now inaccessible web address; see related address <http://www.ibf.brum.net/fornatl.htm>. Moreover, attempts to raise this issue have not been successful. At least two thirds of foreign nationals executed since reinstatement of the death penalty in 1976 unsuccessfully raised the treaty issue. Id. at 460.

Today, the majority follows the trend by fading to recognize the significance of defendant’s rights under the Vienna Convention. The majority concludes that because defense counsel failed to raise defendant’s Vienna Convention claim in the trial court, he has waived all but plain error, and the majority goes on to find no plain error on these facts.

*78 In my view, however, the failure to inform the defendant of his rights under the Vienna Convention constitutes structural error, affecting “ ‘the entire conduct of the trial from beginning to end’ as well as the ‘framework within which the trial proceeds.’ ” State v. Esparza (1996), 74 Ohio St.3d 660, 661 , 660 N.E.2d 1194, 1196 , quoting Arizona v. Fulminante (1991), 499 U.S. 279, 309-310 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302, 331 . I agree with the majority that suppression is not the remedy, however. Because the right to be advised of consulate access rights affects every aspect of a trial, I believe that the treaty’s provisions can be enforced only by starting anew. Therefore, I believe that a new trial is the appropriate remedy.

On June 27, 2001, the International Court of Justice agreed. The court, which is the principal judicial organ of the United Nations, delivered its judgment in the LaGrand case, holding that the United States, in arresting, detaining, trying, convicting, and sentencing Karl and Walter LaGrand, violated its international legal obligations to Germany, in its own right and in its right of diplomatic protection of its nationals, as provided by Articles 5 and 36 of the Vienna Convention. See Germany v. United States of Am. (2000), http://www.icjcij.org/icjumw/idocket/igus/igusframe.htm. The LaGrand brothers, born in Germany in 1962 and 1963 respectively, were arrested in 1982 in Arizona and convicted of first degree murder, attempted first degree murder, attempted armed robbery, and two counts of kidnapping. Both brothers were sentenced to death in 1984 for their crimes.

The German consulate was made aware of the case only in June 1992 by the LaGrands themselves, who had learned of their rights from other resources, and not from the Arizona authorities. On December 21, 1998, the LaGrands were formally notified by the United States authorities of their right to consular access. After the brothers’ execution dates were set for 1999, Germany intervened in an attempt to prevent the execution of the LaGrands. Although Germany sought on several levels to prevent the execution of the LaGrands, both were executed in 1999.

The International Court of Justice noted that the United States conceded that United States authorities failed to advise the LaGrand brothers of their consular rights under the Vienna Convention on Consular Relations. The court held in a fourteen-to-one decision that “by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, paragraph 1(6), of the Convention, and by thereby depriving the Federal Republic of Germany of the possibility, in a timely fashion, to render the assistance provided for by the Convention to the individuals concerned, the United States of America breached its obligations to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 1.” Id. at paragraph 128(3).

*79 Moreover, the court held that “by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the convictions and sentences of the LaGrand brothers after the violations referred to in paragraph (3) above had been established, the United States of America breached its obligation to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 2, of the Convention.” Id. at paragraph 128(4). Further, the court held that “by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice in the case, the United States of America breached the obligation incumbent upon it under the Order indicating provisional measures issued by the Court on 3 March 1999.” Id. at paragraph 128(5). Last, the court held that “should nationals of the Federal Republic of Germany nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (6), of the Convention having been respected, the United States of America, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention.” Id. at paragraph 128(7).

The LaGrand decision makes clear that the United States must not take lightly the provisions of the Vienna Convention on Consular Relations. Today the majority does that which the International Court of Justice and even • our Constitution warn against.

The Supremacy Clause, Section 2, Article VI of the United States Constitution provides: “This Constitution, and the Laws of the United States * * * and all Treaties made, or which shall be made, * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound * * *.” (Emphasis added.)

This very court has held in the past that the protections of treaties are on par with the Constitution. In State v. Vanderpool (1883), 39 Ohio St. 273 , this court reviewed the provisions of the Ashburton Treaty, which provided for extradition, and held, “The provisions of this treaty are part of the law of the land, enforceable by the judicial tribunals of this state, in behalf of a person so detained and prosecuted.” Id., paragraph two of the syllabus. The court continued, “This treaty is therefore the law of the land, and the judges of every state are as much bound-thereby as they are by the constitution and laws of the Federal or State governments. It is therefore the imperative duty of the judicial tribunals of Ohio to take cognizance of the rights of persons arising under a treaty to the same extent as if they arose under a statute of the state itself.” Id. at 276-277 .

Thus, in addition to the Supremacy Clause, this court in Vanderpool clearly held that treaties are on par with the Constitution, and we are bound by both. Therefore, I would find that the failure to advise the defendant of his rights *80 under the Vienna Convention is akin to the failure to advise a defendant of his Sixth Amendment right to counsel. See Gideon v. Wainwright (1963), 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 .

The majority finds that, as in the case of a statutory violation, the exclusionary rule is not an appropriate sanction, absent an underlying constitutional violation, unless the treaty expressly provides for that remedy. I agree with the majority that exclusion is not the remedy, but I would distinguish Kettering v. Hollen (1980), 64 Ohio St.2d 232 , 18 O.O.3d 435 , 416 N.E.2d 598 , in that it deals with a statutory violation, not a treaty violation. As noted above, I would find that the failure to advise defendant of his rights under the Vienna Convention equates to the failure to advise him of his Sixth Amendment right to effective assistance of counsel. See Vanderpool . Therefore, as noted above, I would reverse and remand to the trial court for a new trial.

The Vienna Convention offers foreign nationals, who often have both cultural and language barriers, the opportunity to obtain information from their consul about the legal system in which they are detained and how it may differ from the legal system in the defendant’s home country. Particularly with foreign nationals with language barriers, cultural differences, and scarce resources, the Vienna Convention can greatly enhance their ability to defend themselves; likewise, our nationals in foreign countries equally need such assistance.

Having grown up abroad and having lived in three different foreign countries, I have seen first-hand the vastly different foreign legal systems and how our nationals are often treated in a foreign land. Article 36 of the Vienna Convention may provide our nationals their only safeguard against a hostile legal system.

The Vienna Convention offers Americans abroad the comfort of reciprocity. Under starkly different legal systems, where rights we take for granted, such as the right to counsel, a jury, discovery, cross-examination, and open trials, are routinely not afforded by other countries, how could our nationals possibly prove that they did not waive their consulate rights? With the closed trials and secrecy of many legal systems, how could our nationals overcome foreign legal barriers to prove that the failure to provide access to a consul resulted in an error at trial? Our best way to ensure that other nations honor the treaty by providing consular access to our nationals is to demand strict adherence to the right to consular access for foreigners in our country. In that way, our nationals will be provided an advocate to try to safeguard the minimal protections we take for granted in the United States.

When we excuse our failure to advise the defendant of his consulate rights on the ground that there was “no plain error,” we provide the very words and tools to other countries to use to excuse their denial of rights to our nationals, and the protections of the treaty become meaningless. “If the right under the treaty *81 * * * can only be enforced by the surrendering nation by protest or otherwise against the one making the demand, that is, if it is a question not cognizable in the courts, it is of little value under our system of Federal and state governments.” Vanderpool, 39 Ohio St. at 277.

. If the United States fails in its responsibilities under the convention, then other member countries may choose to do unto us as we have done unto them. Oliver Wendell Holmes said, “Legal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp.” The Western Maid (1922), 257 U.S. 419, 433 , 42 S.Ct. 159 , 161, 66 L.Ed. 299, 303 . If we are to expect that our nationals will be afforded the rights guaranteed them under the treaty, we must guard the rights of foreign nationals in our country as well. I respectfully dissent and would reverse the judgment of the trial court and remand the cause for a new trial.

APPENDIX

Proposition of Law No. I. A treaty signed by the United States government is the law of the land. Therefore, under the Vienna Convention, Issa’s rights were violated by the police’s and court’s failure to inform him of his right to meet with Jordan counsel.

Proposition of Law No. II. The trial court allowing in hearsay statements of Andre Miles as to Issa’s alleged role in the murders violated Issa’s right to confront witnesses, as mandated by the United States and Ohio Constitutions.

Proposition of Law No. III. A defendant is denied effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Sections 10 and 16, Article I, of the Ohio Constitution, when defense counsel fails to raise the issue of defendant’s cultural competency to stand trial, fails to have an independent firearms expert, investigation or crime scene experts.

Proposition of Law No. IV. A change in the Ohio Constitution, which provides less review to capital appellants (whose crimes were committed on or after January 1, 1995) violates the Fourteenth Amendment and fails to provide the meaningful appellate review mandated by the Eighth Amendment.

Proposition of Law No. V. Appellant’s indictment was returned by an improperly constituted grand jury and upon inadequately presented evidence in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

Proposition of Law No. VI. The prejudicial publicity, which occurred throughout appellant Issa’s trial, deprived him of his right to a fair trial and a fair and *82 reliable sentencing determination as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

Proposition of Law No. VII. Appellant’s death sentence is excessive and disproportionate to sentences in similar cases, thereby depriving Mr. Issa of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Sections 9 and 16, Article I of the Ohio Constitution.

Proposition of Law No. VIII. The process used to select the foremen of grand juries which return capital indictments in Hamilton County is biased. As a result, appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

Proposition of Law No. IX. The defendant-appellant was prejudiced by a lack of funds to adequately defend himself in this litigation. As a result, Issa was deprived of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

Proposition of Law No. X. The judgment of conviction on the aggravated murder counts [sic] is unsupported by legally sufficient evidence and is contrary to the manifest weight of the evidence, and as a result, appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated.

Proposition of Law No. XI. Appellant was denied reasonable bond in violation of his rights under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, as well as Article I, Section 9, of the Ohio Constitution.

Proposition of Law No. XII. The admission of gruesome and otherwise prejudicial photographs which were cumulative of each other as well as other evidence violated appellant Issa’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.

Proposition of Law No. XIII. Requiring that mitigating factors be proven by a preponderance of the evidence violates the Eighth, Ninth and Fourteenth Amendments to the United States Constitution.

Proposition of Law No. XIV. The trial court’s application of Ohio’s statutory definition of reasonable doubt in the mitigation phase of appellant’s capital trial deprived him of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

Proposition of Law No. XV. Ohio’s death penalty law is unconstitutional. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code §§ 2903.01, *83 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Ahmad Fawzi Issa.

Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for appellee.

Faulkner & Tepe and A. Norman Aubin; Herbert E. Freeman, for appellant.

Speedy Rice, urging reversal for amicus curiae, National Association of Criminal Defense Lawyers.