The opinion
CHAPEL, JUDGE,
concurring in result:
¶ 11 concur in affirming the conviction and sentence in this case only in reluctant deference to: (1) the United States Supreme Court’s confused and illogical harmless error jurisprudence, 1 and (2) that Court’s bizarre, *788 gratuitous dicta concerning the effect of a violation of a right under a treaty ratified by the U.S. upon a criminal conviction. 2
¶ 2 Efforts by this Court’s majority opinion to determine whether a right created by treaty is a “constitutional right,” a “statutory right,” or some other kind of right, through some kind of illogical “analysis” in order to find a violation of the right to be harmless is particularly unhelpful. What matters is not what kind of right it is, but rather, what the purpose is behind the right.
¶3 Here we have a conceded state violation of notification rights under the Vienna Convention, a treaty signed by the United States The United States, through this treaty, has clearly granted certain specified rights to foreign nationals. The purpose behind those rights is two-fold: i) to afford minimal protections to foreign nationals detained by authorities in this country and ii) to assure minimal protections to United States (U.S.) citizens detained by authorities in foreign countries who are also signatories to the Treaty.
¶ 4 In my judgment, the decision of this Court in this case, and the decision of the United States Supreme Court puts U.S. citizens traveling abroad at risk of being detained without notice to U.S. consular officials. Why should Mexico, or any other signatory country, honor the Treaty if the U.S. will not enforce it? The next time we see a 60 Minutes piece on a U.S. citizen locked up in a Mexican jail without notice to any U.S. governmental official we ought to remember these cases.
¶5 This case has been tried twice. The crime involved is a horrible crime, and there is no doubt as to guilt. After both trials, Flores was sentenced to life without parole. Does the fact that we know that Flores is guilty of the crime justify winking at a serious violation of the law affecting Flores, and just as important, that might affect U.S. citizens in the future? Why would we do that? Flores is not going anywhere. He is in custody. But for the United States Supreme Court’s decision, I would be inclined to reverse and remand this case for a new trial with instructions to comply with the Treaty. 3 This might not be the best solution, but in my view, convictions in this State ought to be obtained without serious violations of the law by the State. Otherwise, the State cannot proclaim to be any better than the person it has charged with violating its laws.
. The Supreme Court's thoughtful effort to put forth a reasoned harmless error doctrine fifty-three (53) years ago in Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946) has degenerated into fictional distinctions between “structural” and "trial” errors put forth in Arizona v. Fulminante, 499 U.S. 279, 309-10 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302 (1991) and evidence of guilt in Harrington v. California, 395 U.S. 250, 254 , 89 S.Ct. 1726, 1728 , 23 L.Ed.2d 284 (1969). The rule today is that virtually any error, constitutional or statutory (and now presumably treaty), can be deemed harmless if the reviewing court believes the record establishes guilt. The due process requirement of a fair trial set forth in our constitution is met, *788 notwithstanding serious trial error, according to the Supreme Court, if the record indicates evidence of guilt. Rose v. Clark, 478 U.S. 570, 579 , 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 (1986).
. See Breard v. Greene, 523 U.S. 371 , 118 S.Ct. 1352, 1355 , 140 L.Ed.2d 529, 538 (1998). “Even were Breard’s Vienna Convention claim properly raised and proven, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.” Id. Of course, Breará is a federal habeas case in which relief was denied on procedural grounds. Here the issue is squarely presented to us. The majority resolves the issue on harmless error grounds.
. I find nothing in this record indicating that the State has ever complied with the Treaty. The State concedes Flores was not informed of his rights under the Vienna Convention, and the officer who originally questioned him testified that he did not inform Flores of his rights under the treaty.