# Amicus Curiae Brief — Medellin v. Dretke > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0112%3A25 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 544 U.S. 660 ## Text | Supreme Cour, US.) FILED i) JAN 24 2005 /2 Pin No. 04-5928 IN THE Supreme Court of the United States JOSE ERNESTO MEDELLIN, Petitioner. \ 2 DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit BRIEF AMICUS CURIAE OF THE GOVERNMENT OF THE UNITED MEXICAN STATES IN SUPPORT OF PETITIONER JOSE ERNESTO MEDELLIN SANDRA L. BABCOCK 2520 Park Avenue South Minneapolis, MN 55404 (612) 871-5080 Counsel of Record for Amicus Curiae ae a SP SEED ' TABLE OF CONTENTS TABLE OF AUT IRORIT IES. .....cccocesceccsecccsssessereossecssecevecsesss il INTEREST OF AMICUS CURIAE ..00.........cccccccccceeseeseeeeeees l SUMMARY OF ARGUMENT .....0..........cccssecssesseeesseeeeenees 2 IT eectcicosLiciiphineacaceaiatcetiesunishininiiliebieaadaiaiunitadeiaaiinreincaiteed 4 I. The United States and Mexico Have Consistently Recognized That When a Dispute Is Submitted by Mutual Consent to an International Tribunal, the Resulting Judgment Is Binding. ..................::ccccceeeeeeees 4 Il. The Protection of Nationals Abroad Has Long Been a Priority of Both Mexico and the United States........... 1] A. Mexico Has an Active and Longstanding Tradition of Providing Extensive Consular Services to Its FOIE cent covituiadniinccissenaiidnatiguiincibinbabedasibapiibcnnnbiods 12 B. The United States Has Been a Forceful Advocate for the Consular Rights of American Citizens Detained in UNE seiccenttsiasicehcsitainiesepmicedatiicaeibibonnpiiiambssiiibdaunainiaietts 17 Ill. The International Court of Justice Issued a Binding Judgment that Adjudicated the Rights of Individual SONU SHRINE, cn ceniscciisecpnstntnvoscnveinctpiviasbtinaianitennpiints 20 IV. The United States Is Obligated to Fully Implement the I Bs sect iccieiiiigcivtiieinenniitatihiitnanaietntiniaee 28 TABLE OF AUTHORITIES Federal Cases Breard v. Greene, 523 U.S. 371 (1998)........cccccccccceceeeeeeeees 29 Frelinghuysen v. United States ex rel. Key, 110 U.S. 63 (BBB). ...v..0coesecvesesseseoseeenennisisnniinseassennsnainnnnnnnnnnnEE 6, 7 Hines v. Davidowitz, 312 U.S. 52 (1941) ....ccccccccceeeeeeeeeeeees 20 La Abra Silver Mining Company v. United States, 175 U.S. 423 (1GDD).....00caceccsveseccesaccesssusnecnseubeenusininnnnnnnnnnnnn 7 United Mexican States v. Woods, 126 F.3d 1220 (9th Cir. $997) ...cccccecovceeeeesseeuemeseneieilseneienieainnsiinnnnnnninnnnnnnEnE 22 Williams v. Taylor, 529 U.S. 362 (2000) ..........cccccceceeeeeeeees 22 State Cases Respondent's Proposed Findings of Fact, Conclusions of Law, and Order, No. 675430-A (339th Dist. Ct., Tex. Jan. Sb, BUT ) ......-c0vereecveeseresncneonpunenstensanieninninninnnnnnnnnn 22 Torres v. State, No. PCD-04-442 (Okla. Crim. App. May 13, BUG) .........ccccescsecosseosenesseneesosecetensenaneenseininnnnnnnnnnnnnnnEE 14 Valdez v. State, 46 P.3d 703 (Okla. Crim. App. 2001)....... 15 International Cases Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 EEE Se passim B.E. Chattin (United States v. Mexico), Opinions of the Commissioners 422 (1926).............:::cccccccececeeeeeeeeeeeceeeees 18 Francisco Quintanilla (Mexico v. United States), Opinions of the Commissioners 136 (1926) ...............:ccccceececeeeeeeeees 5 Harry Roberts (United States v. Mexico), Opinions of the Commissioners 100 (1926)............ccccccccccceeeeeeeeeeeseceeeeeees 18 Metalclad Corp. v. United Mexican States, \CSID Case No. ARB(AF)/97/1 (ICSID AF) (Aug. 30, 2000).............. 5,10 OC-16/99, Inter-Am. Ct. H.R. (Oct. 1, 1999).......000.00. 22 Walter H. Faulkner (United States v. Mexico), Opinions of the Commissioners 86 (1926)..............:cccccccceeeeeeeeeeeeeeeees 18 Treaties Air Transport Agreement Between the Government of the United States of America and the Government of the United Mexican States, Aug. 15, 1960, U.S.-Mex., 12 Consular Convention Between the United Mexican States and the United States of America, Aug. 12, 1942, U.S.- a csnsentsadvonqnneoosee 11 Convention Between the United States of America and the Republic of Mexico for the Adjustment of Claims, July 4, oe i SR ee 6 Convention for the Arbitration of the Chamizal Case, June 24, 1910, U.S.-Mex., 36 Stat. 2481 ...........................eeeeeee s Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept. 18, 1992, U.S.-Mex., 1992 U.S.T. LEXIS SUP cicenccnersseenatiiatindagisenntaichisiniabannieaidandiainiiapdlilumiaaa cael 3 Convention for the Solution of the Problem of the Chamizal, U.S.-Mex., Aug. 29, 1963, 15 U.S.T. 21 .0.........ceeeeeeeees 10 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature Jan. 13, Ses OG Ce ale Qicccnesiinhnstamercescisidiiigdiiammiaia ids 3 General Claims Convention, Sept. 8, 1923, U.S.-Mex., 43 BNO, FFs ccsuntosctniacciipmppeiiicesitninapeinadinitinlddialiiciien ee eatle 18 International Convention for the Prevention of Pollution of the Sea by Oil, opened for signature May 12, 1954, 12 DO Be a te ate ae 3 North American Free Trade Agreement, Dec. 17, 1992, U.S.- oe Gt Ren ee 10 Optional Protocol Concerning the Compulsory Settlement of Disputes, art. 1, opened for signature Apr. 24, 1963, 21 Lan Bs Me veccrsstentuiitiniatihianenssiniidsitiaeniisanicanmaiaainaiel passim iV Protocol for the Adjustment of Certain Contentions Arising Under What is Known as the "Pious Fund of the Californias,” May 22, 1902, U.S.-Mex., 9 Bevans 12, 1902 CE Faas UI OI? dennecsmensijecctaniannineniicaianticindendpiiabuéatinstiotn 8 Statute of the International Court of Justice, 59 Stat. 1055, U.N. Charter, opened for signature Jun. 26, 1945, 59 Stat. DER, tls BA Divi icicscicccinatinaninapiniccateatiiinasipesebcaimmuniiicaea 28 United Nations Convention Against Dlicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature Dec. 20, 1988, 1988 U.S.T. LEXIS 194 0000.0... ce eeecseeeees 3 Universal Copyright Convention, opened for signature Sept. HE & de: | Re eer ae 3 Vienna Convention on Consular Relations, opened for signature Apr. 24, 1963, 21 U.S.T. 77 ......ccccccceeeees passim Other Authorities A.H. FELLER, THE MEXICAN CLAIMS COMMISSIONS (1935).5, 6 A.M. STUYT, SURVEY OF INTERNATIONAL ARBITRATIONS 653 ALAN C. LAMBORN & STEPHEN P. MUMME, STATECRAFT, DOMESTIC POLITICS, AND FOREIGN POLICY MAKING: THE EL CHAMIZAL DISPUTE (1988) ...........cccccccsscssseseeserceceees 8,9 AMERICAN BAR ASSOCIATION, STANDARDS FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES (2003 )............0:cccccccceseseceeeeeeeeees 22 ANTONIO GOMEZ ROBLEDO, MEXICO Y EL ARBITRAJE I Fe iaiteiccehanicnittaiitntaiiiiindiiatlitiantteaiia aliietis Y Convention With Mexico for Solution of the Problem of the Chamizal: Hearings Before the Committee on Foreign Relations, United States Senate, 88" Cong. (1963)....9, 10 Counter-Memorial of the United States of America (Mex. v. U.S.), 2003 LC.J. Pleadings (Avena and Other Mexican XR RR oe 17, 24 Eve on Investors, Mexico Pays U.S. Company, N. Y. TIMES, Se ioe re een Fae SU 8 10 FRANCIS J. WEBER, THE UNITED STATES VERSUS MEXICO: THE FINAL SETTLEMENT OF THE PIOUS FUND (1969) ....8, 9 FREDERICK DUNN, THE DIPLOMATIC PROTECTION OF AMERICANS IN MEXICO (1933)............cccccceeeeeeeees 4, 5,6, 18 HOWARD N. MEYER, THE WORLD COURT IN ACTION: JUDGING AMONG THE NATIONS (2002)..............cccccccceeeeees 8 J. Palerm, B.R. Vincent, and K. Vincent, Mexican Immigrants in Courts, in IMMIGRANTS IN COURTS (Joanne IT Oe, I i ia ele 14 JOHN BASSETT MOORE, 4 INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY (1898)5, 6 vi Memorial of Mexico (Mex. v. U.S.), 2003 L.C.J. Pleadings (Avena and Other Mexican Nationals) ( June 20, 2003) 13, 21, 22, 23 Mexico’s Application Instituting Proceedings, (Mex. v. U.S.), 2003 L.C.J. Pleadings (Avena and Other Mexican ey Ga, Wis ee inccticibinsendicicsinetebianlnntichatiasdiihaniciiiaiins 23 President’s Message to the Senate Transmitting the Convention for the Solution of the Problem of the Chamizal, 88 Cong. (1963).......c.cccssssessssseesesseseeseeseesees 10 Raymond Bonner, U.S. Bid to Execute Mexican Draws Fire, Fe ec BU, COUR, Bh, Bie icccnsnsvsctepstusintiniiiakdsiassnisabtadieibinien 15 REPORT OF JACKSON H. RALSTON, IN THE MATTER OF THE CASE OF THE PIOUS FUND OF THE CALIFORNIAS (1902) 7, 8 Reports of International Arbitral Awards, v. IX at 5, U.N. ORS BE Se oe CD ceciecencteintdttcesptnieneitininibctnintabntar 7 SHELDON B. Liss, A CENTURY OF DISAGREEMENT: THE CHAMIZAL DISPUTE (1965).........cccccccccccccccccccceceseresseneeerees y Summary Records of Plenary Meetings and of the Meetings of the First and Second Committees, U.N. Conference on Consular Relations, U.N. Doc. AS,CONF.25/16 (1963).. 12 Transcript of the President's News Conference on Foreign and Domestic Matters, N.Y. TIMES, Jul: 6, 1962 .......... 10 Two Mexicans Die in Electric Chair, N.Y. TIMES, Jan. 28, Ni Sees Cid oR EEN at Repl ye 8) Po 14 Vil U.S. Boundary Relations, 3 Whiteman DIGEST §30 (1964)..4 U.S. Citizens Imprisoned in Mexico: Hearings before the Subcommittee on International, Political and Military Affairs, 94 Cong. (1975) ....c.ccscssesssssssessessesesseseneeees 19, 20 U.S. DEPARTMENT OF STATE, CONSULAR NOTIFICATION AND ACCESS, FOREIGN EMBASSIES AND CONSULATES IN THE tRNA SE SS PIES eee eae a RRR a et 13 William Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs and Remedies, 31 VAND. J. TRANSNAT’L L. 257 (1998)..00....c.cccccccceceeeeeeeees 15 Vill INTEREST OF AMICUS CURIAE’ By signing and ratifying the Vienna Convention on Consular Relations, opened for signature Apr. 24, 1963, 21 U.S.T. 77, the Government of Mexico and the Government of the United States made commitments to each other, to their other treaty partners, and to the rule of law. Specifically, the United States promised that detained Mexican nationals would be promptly notified of their right to seek consular assistance, and that Mexico would be permitted to provide consular protection to those nationals. In tum, Mexico promised to extend those same rights to the United States and its nationals detained in Mexico. And by signing and ratifying the Optional Protocol to the Vienna Convention, the Government of Mexico and the Government of the United States agreed that irreconcilable disputes over the interpretation and application of the treaty’s provisions would be resolved by the International Court of Justice (“ICJ”). Optional Protocol Concerning the Compulsory Settlement of Disputes, art. 1, opened for signature Apr. 24, 1963, 21 U.S.T. 325. On March 31, 2004, the International Court of Justice rendered its judgment in Avena and Other Mexican Nationals. The ICJ held that the United States had violated the rights of Mexico and of Mr. Medellin under Article 36 of the Vienna Convention. As a remedy for those violations, the ICJ held that ' No person or entity other than the Government of Mexico or its counsel made a monetary contribution to the preparation or submission of this brief. Counsel for Petitioner has not authored this brief in whole or in part. Petitioner and Respondent have each consented in writing to the filing of this amicus brief. the United States must provide Mr. Medellin with meaningful review and reconsideration of his conviction and sentence that gives full effect to the purposes of Article 36. Despite the ICJ’s judgment, the Court of Appeals below refused even to grant a certificate of appealability to review Mr. Medellin’s claims under the Vienna Convention and the Avena judgment, brushing aside the legal obligation of the United States to abide by the remedial decree entered against it in an international adjudicative proceeding that it had agreed by treaty to accept as binding. Mexico has a direct interest in compliance by the United States with the Avena judgment. The very purpose of Article 36 is to permit the nations that signed the Vienna Convention — including Mexico, the United States, and 164 other countries — to protect the interests of their citizens when they are arrested or otherwise detained while living, working, or traveling abroad. That interest is most acute when a citizen is facing trial in another country for a crime that may lead to his execution. SUMMARY OF ARGUMENT When Mexico and the United States agreed to submit to the jurisdiction of the International Court of Justice, both parties recognized that thy would be bound by the Court’s final judgment. The two countries are both party to over 50 instruments that provide international dispute resolution ~ mechanisms. Indeed, over the last two centuries, Mexico and “ The subject matter of these treaties encompasses topics as diverse as taxation, see Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept. 18, the United States have settled hundreds of disputes in this manner.’ While the facts of the cases, the composition of the tribunals, and the rules of procedure have differed, each country has consistently recognized that when it commits itself to resolve a dispute by submitting to the jurisdiction of an international tribunal, it agrees to be bound by the result. In recent years, Mexico and the United States have disagreed on the scope of the rights established by Article 36. After the two nations failed to resolve their differences through diplomatic channels, Mexico exercised its right to submit the dispute to the International Court of Justice for binding resolution. In doing so, Mexico expressly invoked the rights of its nationals and sought specific remedies on their behalf in its exercise of diplomatic protection. The ICJ weighed the arguments of the parties and the facts of each Mexican national’s case, and issued a carefully reasoned judgment 1992, U.S.-Mex., art. 26, 1992 U.S.T. LEXIS 193; copyrights, see Universal Copyright Convention, opened for signature Sept. 6, 1952, art. XV, 6 U.S.T. 2731; narcotics, see United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature Dec. 20, 1988, art. 32, 1988 U.S.T. LEXIS 194, *80-81; pollution, see International Convention for the Prevention of Pollution of the Sea by Oil, opened for signature May 12, 1954, art. XIII, 12 U.S.T. 2989; aviation, see Air Transport Agreement Between the Government of the United States of America and the Government of the United Mexican States, Aug. 15, 1960, art. 13, U.S.-Mex., 12 U.S.T. 60; and chemical weapons, see Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature Jan. 13, 1993, art. XIV, 14 U.N.T.S. 45. * For a partial list of arbitrations to which each country has submitted, see A.M. STUYT, SURVEY OF INTERNATIONAL ARBITRATIONS 653, 636-37 (1990). adjudicating the rights of Mr. Medellin and 51 other Mexican nationals, thereby settling the dispute that had, at times, strained relations between the two nations. Under both international and United States law, the Avena judgment constitutes a binding adjudication of Mr. Medellin’s rights that the United States must fully implement. Mexico respectfully requests that this Court correct the judgment of the Court of Appeals and instruct the lower courts of the United States to comply with the judgment of the International Court of Justice. ARGUMENT 1. The United States and Mexico Have Consistently Recognized That When a Dispute Is Submitted by Mutual Consent to an International Tribunal, the Resulting Judgment Is Binding. As neighbors and trading partners, the United States and Mexico have an extraordinarily close relationship. Inevitably, the two nations have differed on matters ranging from boundary lines and trade practices to the treatment of each country’s nationals. When such disagreements have arisen, Mexico and the United States have attempted to resolve them amicably, often through arbitration. Arbitration has staved off armed conflict,* resolved boundary disputes,” and indemnified private * See, e. g., FREDERICK DUNN, THE DIPLOMATIC PROTECTION OF AMERICANS IN MEXICO 10-27 (1933). > See U.S. Boundary Relations, 3 Whiteman DIGEST §30, at 680-84 (1964) investors® as well as individuals who claimed personal injury’ or denial of due process.* Both countries have benefited from international arbitration of their disputes. This may explain why “the history of the relations between the United States and Mexico shows a constant endeavor to resort to this means of settlement.” A.H. FELLER, THE MEXICAN CLAIMS COMMISSIONS | (1935). Conflicts over the treatment of United States citizens in Mexico were a recurring theme in early diplomatic relations between the two countries. DUNN, supra, at 1-2. In the mid- nineteenth century, United States citizens flocked to Mexico in great numbers. FELLER, supra, at 1. Many complained they were subjected to unequal treatment, illegally detained, deprived of due process, or otherwise wronged by Mexican authorities.” They sought protection from the United States government, which in turn pressed their claims upon the Government of Mexico. See, e.g., DUNN, supra, at 18-19. The frequency with which such claims were brought by the United States against Mexico led one commentator to observe that (describing the agreement of the United States to abide by the terms of arbitral judgment regarding disputed tract of land known as “E] Chamizal” in El] Paso, Texas). ® See Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1 (ICSID AF) (Aug. 30, 2000) [hereinafter Metalclad”}. ” See Francisco Quintanilla (Mexico v. United States), Opinions of the Commissioners 136 (1926). ® See JOHN BASSETT MOORE, 4 INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY 3251 (1898). * See generally id. at 3235-3252. “[t]he subject of the claims of foreign nationals plays a more important role in the history of the foreign relations of Mexico than in that of any other country.” FELLER, supra, at 1. Diplomacy proved unable to resolve these disputes, and the unsettled claims of United States citizens in Mexico were cited as justification for war with Mexico in 1846. See DUNN, supra, at 45-49. After the war, United States citizens continued to allege mistreatment by Mexican authuities. This time, the two nations signed the Claims Convention of 1868, which established a Commission to hear the claims of both Mexican and United States citizens for property damage, personal injury, and wrongful detention.'” Convention Between the United States of America and the Republic of Mexico for the Adjustment of Claims, July 4, 1868, U.S.-Mex., art. II, 115 Stat. 679, 681. After reviewing more than 2,000 claims, the Commission entered judgments against Mexico totaling over $4,000,000.00, a sum far greater than that assessed against the United States. FELLER, supra, at 6. Mexico promptly complied with the Commission’s judgment. See Frelinghuysen v. United States ex rel. Key, 110 U.S. 63, 67 (1884) (“the government of Mexico has promptly and in good faith met its annual payments’); DUNN, supra, at 112. Mexico never disputed its legal obligation to comply with the judgments of the 1868 Claims Commission, even in 10 See, e.g., MOORE, supra, at 3243-44 (describing the wrongful imprisonment claim of A.H. Halstead, which resulted in an arbitral :udgment of $1,600.00); id. at 3247 (describing the arbitrary detention claim of William P. Barnes, resulting in arbitral judgment of $5,100.00); id. at 3251 (describing the wrongful detention claim of Augustus Jonan, resulting in arbitral judgment of $35,000.00 in Mexican gold). the face of compelling evidence that some claims were fraudulent.'' See La Abra Silver Mining Company v. United States, 175 U.S. 423, 458 (1899); Frelinghuysen, 110 U.S. at 67 (1884). In Frelinghuysen, the Court accepted that the judgments of arbitral tribunals “are final and conclusive until set aside by agreement between the two governments.” 110 U.S. at 67. The Court further observed that “Mexico cannot, under the terms of the treaty, refuse to make the payments at the times agreed on if required by the United States. This she does not seek to do.” Jd. at 467-68. Mexico and the United States have also resorted to international arbitration to resolve economic disputes. In the case of the Pious Fund of California, the Claims Commission awarded the Catholic church of California the sum of $904,070.79, which Mexico paid in full. REPORT OF JACKSON H. RALSTON, IN THE MATTER OF THE CASE OF THE PIOUS FUND OF THE CALIFORNIAS 5 (1902). But the matter did not end there. The United States contended that Mexico owed additional -interest on the fund,’ and in an attempt to resolve the dispute, both nations agreed to submit to the jurisdiction of the '! Article 2 of the Claims Convention provided that “(t}he president of the United States. . . and the president of the Mexican republic hereby solemnly and sincerely engage to consider the decision of the commissioners conjointly, or of the umpire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them or him respectively, and to give full effect to such decision without any objection, evasion, or delay whatsoever.” 15 Stat. 679. '? Reports of International Arbitral Awards, v. IX at 5, U.N. Sales No. 59.V.5 (1948). Permanent Court of Arbitration at The Hague.'? The Pious Fund case was the first judgment issued by the newly- established tribunal. HOWARD N. MEYER, THE WORLD COURT IN ACTION: JUDGING AMONG THE NATIONS 24 (2002). The Permanent Court of Arbitration issued a unanimous judgment against Mexico on October 14, 1902. Mexico was ordered to pay a lump sum of $1,460,682.67, and to make annual payments of $43,050.99 in perpetuity. RALSTON, supra, at 15- 16. Mexico complied with the judgment, which has now been paid in full. See FRANCIS J. WEBER, THE UNITED STATES VERSUS MEXICO: THE FINAL SETTLEMENT OF THE PIOUS FUND 53 (1969). The commitment of both nations to peaceful dispute resolution through arbitration wavered only once, and the results were disastrous. In 1910, the United States and Mexico agreed to arbitration to resolve a long-running border dispute in E] Paso, Texas. Convention for the Arbitration of the Chamizal Case, June 24, 1910, U.S.-Mex., 36 Stat. 2481. The Convention established that the decision of the arbitral commission would be “final and conclusive upon both Governments, and without appeal.” 36 Stat. 2483. Nevertheless, when the Commission awarded a large portion of the disputed tract to Mexico, the United States refused to comply with the judgment. ALAN C. LAMBORN & STEPHEN P. MUMME, STATECRAFT, DOMESTIC POLITICS, AND FOREIGN POLICY MAKING: THE EL CHAMIZAL DISPUTE 54-55 (1988). '* See Protocol for the Adjustment of Certain Contentions Arising Under What is Known as the "Pious Fund of the Californias,” May 22, 1902, U.S.- Mex., 9 Bevans 12, 1902 U.S.T. LEXIS 50. Article XIV of the Protocol provided that “the award ultimately given hereunder shall be final and conclusive as to the matters presented for consideration.” The effects of this decision upon bilateral relations were “significant and lasting,” and the United States’ refusal to comply became “an integral part of almost every diplomatic issue arising between the two nations” for the following 52 years." SHELDON B. Liss, A CENTURY OF DISAGREEMENT: THE CHAMIZAL DISPUTE 30 (1965). In addition to souring relations between the two countries, see id. at 77, the United States’ reaction to the judgment led Mexico to reject arbitration as a method of resolving disagreements with United States and British oil companies after President Lazaro Cardenas nationalized the Mexican oil industry in 1938. /d. at 75, 100. In addition, it led Mexico to temporarily suspend its compliance with the Pious Fund judgment entered by the Permanent Court of Arbitration.'" See LAMBORN AND MUMME, supra, at 171; ANTONIO GOMEZ ROBLEDO, MEXICO Y EL ARBITRAJE INTERNACIONAL 101 (1965). In 1963, the United States finally recognized the Chamizal arbitral award. See Liss, supra, at 89. In announcing the decision to comply with the Commission’s judgment, President Kennedy acknowledged the United States had been '* In 1925, the United States rejected Mexico’s suggestion that the dispute be submitted to the Permanent Court of International Justice (the precursor to the International Court of Justice) for arbitration. Since the United States did not accept the jurisdiction of the international tribunal, the Court had no power to resolve the dispute. See Convention With Mexico for Solution of the Problem of the Chamizal: Hearings Before the Committee on Foreign Relations, United States Senate, 88" Cong. 21 (1963) (statement of Ambassador Thomas C. Mann) [hereinafter “Chamizal Hearings’ }. 'S See Weber, supra, at 42. Mexico suspended payments on the Pious Fund in 1915. In 1966, it resumed payments, id. at 51, and fully satisfied its obligations in 1967. /d. at 53. wrong in rejecting the award. See President’s Message to the Senate Transmitting the Convention for the Solution of the Problem of the Chamizal, 88" Cong. 1-3 (1963); Transcript of the President's News Conference on Foreign and Domestic Matters, N.Y. TIMES, July 6, 1962, at A8. And notwithstanding the request of Texas Senator John Tower that the matter be submitted to the Texas legislature for approval,’® the United States ratified a new treaty giving effect to the judgment. Convention for the Solution of the Problem of the Chamizal, U.S.-Mex., Aug. 29, 1963, 15 U.S.T. 21. Since then, the United States and Mexico have submitted numerous economic disputes to international tribunals for resolution. And in the early 1990s, both nations signed and ratified the North American Free Trade Agreement, which provides unprecedented opportunities for arbitration of disputes between states and private investors. Dec. 17, 1992, U.S.-Can.-Mex., 32 LL.M. 289-397, 605-779. In Metalclad v. Mexico, an arbitral tribunal awarded a United States-based corporation $16.685 million in damages. Metalclad, supra n. 6. Although Mexico had vigorously contested Metalclad’s claims, it complied with the judgment. Explaining its decision to pay Metalclad in accordance with the tribunal's decision, Mexico reaffirmed its commitment to honor its international obligations, “even when it does not agree with the findings of the international tribunal nor with the way the tribunal works.” Eye on Investors, Mexico Pays U.S. Company, N. Y. TIMES, Oct. 29, 2001, at A4. As the examples above make clear, both the United States and Mexico have long understood that when a dispute is ‘© See Chamizal Hearings at 26 (statement of Senator John G. Tower). 10 submitted by mutual consent to an international tribunal for resolution — as under the Optional Protocol to the Vienna Convention — the resulting judgment is final and binding. il. The Protection of Nationals Abroad Has Long Been a Priority of Both Mexico and the United States. Ever since Mexico and the United States established diplomatic relations, the two countries have been actively involved in the protection of their nationals within the other’s territory. In 1943, the two countries signed a bilateral consular convention that codified the customary rights of consular officers to assist their nationals. Consular Convention Between the United Mexican States and the United States of America, Aug. 12, 1942, U.S.-Mex., art. 6, 57 Stat. 800. Among other things, the bilateral consular convention grants consular officers the right to visit detained nationals, to assist them “in proceedings before or relations with authorities of the State,” and to “address the authorities, National, State, Provincial or Municipal, for the purpose of protecting the nationals of the State by which they were appointed in the enjoyment of rights accruing by treaty or otherwise.” Jd. The bilateral convention did not contain any provision for arbitration of disputes; instead, article 6 provides that grievances may be addressed through diplomatic channels. /d. The 1963 Vienna Convention on Consular Relations reaffirmed the rights set forth in the Bilateral Convention and elaborated on the types of services consular officers could provide. Vienna Convention, arts. 5, 36. For example, article 5(i) of the Vienna Convention states that “Consular functions consist in: ... representing or arranging appropriate 11 representation for nationals of the sending State before the tribunals and other authorities of the receiving State.” Article 36(1)(c) reinforces this provision, expressly stating that consular officers may “arrange for [the] legal representation” of detained nationals. Significantly, the Optional Protocol to the Vienna Convention gave states parties an additional avenue for dispute resolution that was unavailable under the bilateral consular convention. The United States was the leading proponent of this instrument,'’ which provides: Disputes arising out of the interpretation or application of the Convention 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. Optional Protocol, art. 1. Within the framework of these two conventions, both nations have developed comprehensive programs of consular assistance to their nationals abroad. A. Mexico Has an Active and Longstanding Tradition of Providing Extensive Consular Services to Its Nationals. Mexican consular officers have provided services to detained Mexican nationals in the United States for nearly two '” See Summary Records of Plenary Meetings and of the Meetings of the First and Second Committees, U.N. Conference on Consular Relations, at 249, U.N. Doc. A/CONF.25/16 (1963). 12 hundred years. And as the population of Mexican nationals in the United States has expanded, Mexico’s consular assistance program has become increasingly sophisticated. With 45 consulates, Mexico now has the most extensive consular network of any foreign nation in the United States.'* Mexico’s commitment to the protection of its nationals stems in part from its conviction, born of experience, that most Mexican nationals are poorly equipped to navigate the legal system of a foreign country. See Memorial of Mexico (Mex. v. U.S.), 2003 LC.J. Pleadings (Avena and Other Mexican Nationals) A39, App. 7 ( June 20, 2003) (Declaration of Roberto Rodriguez Hernandez).'? Many Mexican nationals have little formal education and are desperately impoverished. 2A, para. 6. They have trouble grasping abstract legal concepts, and often fail to understand their rights — even after their lawyers have attempted to explain them. See id. at para. 5. Significant cultural and linguistic barriers impede their ability to communicate effectively with their attorneys and to participate fully in their defense. Id. Mexican consular officers have observed that even 'S Japan has the second largest consular network, with 19 consulates. Canada has only 15 consulates in the United States. U.S. DEPARTMENT OF STATE, CONSULAR NOTIFICATION AND ACCESS, FOREIGN EMBASSIES AND CONSULATES IN THE UNITED STATES (available at http://www.travel.state.gov/law/consular/consular_745.html) (last visited Jan. 17, 2005). '® The declaration of Ambassador Rodriguez Hernandez was provided to the International Court of Justice in Avena, and is appended to this brief. For ease of reference, citations will refer to the appropriate paragraph and page number of the appendix. 13 nationals who have resided in the United States for many years retain a strong connection with Mexican culture. Some never learn to speak English fluently. See id. They face problems assimilating to a foreign culture in which they are not fully accepted. As one commentator has observed,” a Mexican immigrants come to the United States to face grossly incorrect perceptions, negative Stereotypes, both malignant and _ benign prejudices, hostility, and antipathy. J. Palerm, B.R. Vincent, and K. Vincent, Mexican Immigrants in Courts, in IMMIGRANTS IN COURTS 96 (Joanne Moore, ed., 1999). Consular assistance can often help overcome these unique disadvantages. Cultural misunderstandings and linguistic barriers pervade many cases involving Mexican nationals, but these factors take on added significance when the national is facing capital punishment. Given the gravity of the penalty at stake, the Government of Mexico has instructed consular officers to monitor capital cases with particular care. 2A, para. 4. Consular staff receive specialized training so that they can evaluate the quality of the legal representation in each case. 6A at para. 16. The archives of the Foreign Ministry contain files reflecting the involvement of consular officers in death penalty cases in the United States dating back to at least 1920.”° » See also Torres v. State, No. PCD-04-442 (Okla. Crim. App. May 13, 2004), Petition for Writ of Certiorari at 1SSA (Chapel, J., concurring) (noung that Mexico has had a tradition of active consular assistance in capital cases since the 1920s); Two Mexicans Die in Electric Chair, N.Y. TIMES, Jan. 28, 1921, at A3 (discussing unsuccessful battle of Mexican consular officers to prevent executions in New York); William Aceves, The 14 Consular officers provide crucial services to Mexican nationals who are facing the death penalty. In accordance with their training, their principal concern is to ensure the defendant receives qualified and effective legal counsel. 4A, para. 10. Over time, Mexico has concluded that the attorneys assigned to represent Mexican nationals often lack the experience and the resources necessary to provide a vigorous defense. In addition, most of the assigned lawyers do not speak Spanish and rarely enjoy access to Spanish-speaking investigators and- experts. Even when the national speaks English fluently, his family usually does not. Thus, counsel’s inability to speak Spanish presents a substantial impediment to obtaining mitigating evidence from relatives. And invariably, birth records and other critical documents can only be obtained in Mexico. Consular officers are therefore instructed to support the defense by providing funds for investigators and experts; acting as a “cultural bridge” between the defendant and his lawyer; communicating with the defendant’s family members, friends and others who may be able to offer assistance or information vital to the defense; tracking down records and other Vienna Convention 2n Consular Relations: A Study of Rights, Wrongs and Remedies, 31 VAND. J. TRANSNAT’L L. 257, 272 n.2 (1998) (citing a 1934 case in which Mexican consular officials sought access to a national held in a California jail); Raymond Bonner, U.S. Bid to Execute Mexican Draws Fire, N.Y. TIMES, Oct. 26, 2000, at A20 (describing consular involvement in a Florida capital prosecution, and noting Mexico's reported involvement in 261 death penalty cases since 1994); Valdez v. State, 46 P.3d 703, 710 (Okla. Crim. App. 2001) (concluding that Mexico would have intervened in a 1989 capital murder prosecution to assist with a Mexican national’s defense and to provide resources to ensure that the defendant received a fair trial and sentencing hearing). 15 documents; and identifying and transporting family members and other witnesses to the United States. 4A-5A, paras. 11-13. If consular officers conclude that the defense attorney is not able to provide high quality representation, they attempt to secure more effective legal counsel, a function that is entirely consistent with the rights of consular officers under article 36(c) of the Vienna Convention: Sometimes this is accomplished by providing funds so that experienced counsel may be retained. On other occasions, Mexican consular officers assist in locating experienced defense counsel who are able to represent nationals on a pro bono basis. Sometimes, consular officers can persuade judges to remove an unqualified lawyer and appoint more qualified counsel to replace him. 6A, para. 15. Experience has taught the Government of Mexico that consular intervention is most effective prior to trial. Early consular intervention often persuades prosecutors to refrain from seeking the death penalty. 5A at para. 14. Consular officers commonly search all archives and databases in Mexico to determine whether a defendant has a criminal record, and provide documentation of such searches to the prosecution. Consular officers can also obtain birth, school and medical records that provide proof of a defendant’s physical or mental condition. /d. at para. 12. This sort of evidence has influenced the outcome of dozens of cases. Statistics maintained by the Mexican Foreign Ministry demonstrate that in at least 59 cases since September 2000 where consular officers were informed of the Mexican national’s detention prior to trial, prosecutors 16 waived the death penalty. Finally, early intervention enables consular officers to advise Mexican nationals and their counsel of the importance of challenging at the trial level violations of the Vienna Convention. Criminal attorneys in the United States are often unaware of the obligations imposed by Article 36 As a result, they often fail to assert Vienna Convention claims or preserve them for appeal. Consular officers seek to educate defense attorneys about the significance of the treaty and the vital role of consular assistance. Through these efforts, they can increase the likelihood that Mexican nationals will not be prejudiced by any violation of their Article 36 rights, and that Vienna Convention claims will not be waived. 4A, para. 10. In light of the services described above, it is not surprising that the United States government has acknowledged that the consular assistance Mexico provides its nationals in capital cases is “extraordinary.” 1 Counter-Memorial of the United States of America (Mex. v. U.S.), 2063 LC.J. Pleadings (Avena and Other Mexican Nationals) 186 (Nov. 3, 2003). B. The United States Has Been a Forceful Advocate for the Consular Rights of American Citizens Detained in Mexico. United States consular officers have been no less assiduous in seeking to protect the rights of detained United States nationals in Mexico. As a close neighbor and treaty partner of the United States, Mexico fully appreciates that the United States has long been one of the most vigorous advocates of strict compliance with the Vienna Convention. As described above, the United States’ inability to resolve complaints by its 17 nationals in Mexico was one of the factors that led to war in 1846. Even after Mexico settled the claims of United States nationals under the Claims Commission of 1868, the United States continued to advocate at the turn of the century for its citizens who claimed that they had been subjected to wrongful detention and denial of due process. See DUNN, supra, at 308- 11, 401. To resolve these claims, the United States and Mexico ratified a General Claims Convention in 1923. General Claims Convention, Sept. 8, 1923, U.S.-Mex., 43 Stat. 1730. Several of the cases addressed by the Commissioners made reference to the efforts of United States consular officers to protect the rights of their detained nationals. See, e.g., Harry Roberts (United States v. Mexico), Opinions of the Commissioners 100, 101, 104 (1926); B.E. Chattin (United States v. Mexico), Opinions of the Commissioners 422, 446-47 (1926) (Nielsen, Commissioner, concurring). Among the claims adjudicated by the Commission was that of Walter H. Faulkner, who claimed that Mexican authorities had prevented him from communicating with the United States consul for a period of several days. Although the Commission ultimately concluded that the claimant had failed to prove he was deprived of consular access, it held that “a foreigner, not familiar with the laws of the country where he temporarily resides, should be given this opportunity.” Walter H. Faulkner (United States v. Mexico), Opinions of the Commissioners 86, 90 (1926). In 1975, complaints by United States citizens incarcerated in Mexico led to congressional hearings. At those hearings, State Department representatives testified at length regarding the nghts of United States citizens to seek consular 18 assistance: All of us regard consular protection as an inherent right of every citizen. That right is not affected by evidence or findings of guilt... . Providing consular protection to American citizens abroad is a basic historic responsibility of this Department and its consular officers. U.S. Citizens Imprisoned in Mexico: Hearings before the Subcommittee on International, Political and Military Affairs, Part I, 94" Cong. 16 (1975) (Statement of Leonard F. Walentynowicz). Mr. Walentynowicz observed that in order to fully protect the rights of prisoners and prevent abuses, immediate consular access was critical: A particular issue of prime importance is that of denied or delayed consular access. We believe that immediate consular access is the linchpin on which hangs in large measure the solution to many of our problems. With early access to each prisoner we are convinced we can go a long way toward guaranteeing the prisoner against mistreatment and forced statements at the time of arrest, along with making available to him information about responsible legal counsel and judicial procedures. Id., Part I, at 6. Finally, in keeping with the United States’ long tradition of protecting the rights of its citizens in Mexico, the State Department emphasized the need to actively intervene in individual cases to ensure that justice 1s done: 19 [W]e are persuaded that to make progress in protecting the rights of U.S. citizens in Mexico, we must repeatedly present Mexican authorities with the facts, demonstrate how they constitute a violation of Mexican and/or international law and norms, and insist that such violations be corrected and prevented in the future. Id. at 63. Ill. The International Court of Justice Issued a Binding Judgment that Adjudicated the Rights of Individual Mexican Nationals. As the preceding overview makes clear, disputes over the treatment of Mexican and United States nationals have permeated bilateral relations for the last two centuries. This is hardly surprising, in light of this Court’s observation that [o]ne of the most important and delicate of all international relationships, recognized immemorially . as a responsibility of a government, has to do with the protection of the rights of a country’s own nationals when those nationals are in another country. Hines v. Davidowitz, 312 U.S. 52, 64 (1941). In recent years, Mexico's efforts to protect its nationals have repeatedly been compromised by non-compliance with Article 36 of the Vienna Convention on Consular Relations. 17A-18A, paras. 43-45. Violations of consular rights have been especially troublesome in Capital cases. As described above, Mexican consular officers have provided critical resources to aid in the defense of their nationals facing the death penalty since long before the trial of Mr. Medellin. Yet because of widespread noncompliance with Article 36, Mexico has been unable to come to its nationals’ aid prior to trial, at the time when consular assistance would be most useful. Mr. Medellin’s case is illustrative. Mexico learned of his detention only after the Texas Court of Criminal Appeals had already denied his direct appeal. Memorial of Mexico, Annex 7, App. A, para. 235. Texas authorities had made no attempt to comply with their Article 36 obligations, even though Mr. Medellin informed them that he was born in Mexico and had not obtained U.S. citizenship. Joint App. at 15; Petition for Writ of Certiorari, App. 165A. Had Mexico learned of Mr. Medellin’s detention in a timely manner, it would have been able to provide the range of consular services it routinely makes available to Mexican nationals facing capital charges. These services would have been of particular use to Mr. Medellin, given the several and substantial ways in which his trial attorney’s performance, particularly at the sentencing phase of his trial, fell below the high standards of representation that consular officers routinely insist upon. Indeed, trial counsel was suspended from the practice of law for ethics violations during the pre-trial proceedings in Mr. Medellin’s case, when he should have been preparing for trial. Memorial of Mexico, Annex 7, App. A, para. 232. The core of counsel’s meager, two-hour penalty phase defense was the testimony of a psychologist, Dr. Wendell Dickerson, whom counsel had not asked or enabled to interview Mr. Medellin. S. F. vol. 35 at 294-348. The assigned defense lawyer made no inquiry into Mr. Medellin’s life history in order to provide a mitigating explanation for his role in the crime — the most elemental 21 component of effective capital case advocacy. See Williams v. Taylor, 529 U.S. 362, 395-97 (2000) (finding counsel ineffective for failing to investigate defendant’s background); AMERICAN BAR ASSOCIATION, STANDARDS FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES, Guideline 10.7 (2003). At the first possible opportunity, Mexican consular officers assisted Mr. Medellin’s post-conviction lawyers in raising the violation of the Vienna Convention in state court. Even though Mr. Medellin had not been informed of his article 36 rights at the trial level, and had no reason to know that he should invoke those rights, the state court found that the Vienna Convention claim was procedurally defaulted. Respondent’s Proposed Findings of Fact, Conclusions of Law, and Order, No. 675430-A, at 19 (339th Dist. Ct., Tex. Jan. 22, 2001) (Petition for Writ of Certiorari, App. 34A). The state court’s treatment of Mr. Medellin’s claim has been replicated in numerous other cases. See Memorial of Mexico at 94-95, paras. 227-253. Mexico has repeatedly sought to obtain redress for these nationals in the United States. It has filed amicus curiae briefs in state and federal courts, both at the trial and appellate levels. It has filed suit against local authorities. United Mexican States v. Woods, 126 F.3d 1220 (9th Cir. 1997). It has obtained an advisory opinion from the Inter-American Court on Human Rights. OC-16/99, Inter-Am. Ct. H.R. (Oct. 1, 1999). And it has repeatedly lodged diplomatic protests with the United States. 12A-15A, paras. 34-39. None of these efforts have succeeded in vindicating the rights of Mexico or its nationals. By the end of 2002, Mexico concluded that it had to to reached an impasse. At that point, Mexico decided to assert its rights under the Optional Protocol to seek resolution of the dispute in the International Court of Justice. On January 9, 2003, Mexico invoked the Optional Protocol and brought suit in the ICJ on behalf of Mr. Medellin and other Mexican nationals. See Mexico’s Application Instituting Proceedings (Mex. v. U.S.), 2003 LC.J. Pleadings (Avena and Other Mexican Nationals) (Jan. 9, 2003). In reviewing the claims of Mr. Medellin and the other Mexican nationals, the International Court of Justice was called upon to ascertain the underlying facts of each case and to undertake a legal analysis of the treaty’s provisions. Mexico accordingly presented the facts surrounding the violation of the Vienna Convention in each case. Mexico provided, inter alia, copies of state and federal court decisions, affidavits, and transcripts relating to violations of Article 36 where available. See Memorial of Mexico, Annexes 35-65. In the case of Mr. Medellin, Mexico supplied the International Court of Justice with the Texas trial court’s findings of fact and conclusions of law from state post-conviction proceedings,”’ and provided a separate summary of the Texas court’s reasons for rejecting Mr. Medellin’s Vienna Convention claim. Memorial of Mexico at A-103, Annex 7, para. 238. For its part, the United States presented its own rendition of the facts of each case, made extensive legal arguments, and submitted over 2,500 pages of diplomatic correspondence, judicial opinions, law review articles, affidavits, and transcripts. Regarding Mr. Medellin, the United States submitted an account of state and federal post- conviction proceedings, including a description of how each *! Memorial of Mexico, Annex 55. 23 court had resolved Mr. Medellin’s Vienna Convention claim.” Counter-Memorial at A-223, Annex 2, App. 38, para. 7. The ICJ’s final judgment reflects its careful consideration of these materials. The Court analyzed the procedural posture*® and the facts of each case in determining whether the United States had violated its obligations under Article 36. In particular, where the facts were contested, the Court made detailed findings based on the extensive documentary evidence submitted by the parties. See, e.g., Avena Judgment at para. 57 (addressing United States’ claim that certain Mexican nationals could have dual citizenship); id. at paras. 66-74 (evaluating United States’ assertions that certain Mexican nationals had claimed to be U.S. citizens upon arrest); id. at para. 89 (reviewing facts of one case in response to United States’ contention that the authorities had complied with their Article 36 obligations). The Court also distinguished between those cases in which the United States had violated ail of its obligations under Article 36 — such as the case of Mr. Medellin — and those in which the United States violated only some of its provisions.” This is most apparent in the Court’s discussion of *° This account included a graphic description of the crime for which Mr. Medellin had been convicted, facts regarding Mr. Medellin’s schooling in the United States and prior arrest record, an account of his confession, and an explanation of how state and federal courts had concluded (in the alternative) that he had not been harmed by the Vienna Convention violation. Counter-Memorial at A-222-23. * See, e.g., Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 LCJ. 128, para. 20 (Mar. 31) [hereinafter “Avena Judgment’) (referring to the different stages of direct appeal and post-conviction review). For example, in the case of Ramiro Hernandez Llianas, the Court concluded that the United States had violated its obligation to inform the 24 Article 36(1)(c), which provides that consular officers may “arrange for [the] legal representation” of their nationals. The Court observed that in 16 cases, Mexican consular officers had learned of their nationals’ detention before trial, either through notification by United States authorities or by other means, with sufficient time to arrange for their legal representation. Avena Judgment, para. 104. In these cases, the Court concluded that the United States had not violated Article 36(1)(c). It recognized that even though the United States had failed to comply with its obligations to notify the 16 nationals of their consular rights “without delay,” consular officers had nonetheless been able to provide meaningful assistance to their nationals prior to trial. In the remaining 34 cases, however, including the case of Mr. Medellin, the Court found that the authorities’ noncompliance with Article 36, coupled with Mexico’s lack of knowledge of the detentions, had effectively prevented consular officers from arranging for legal representation or providing other resources to improve the quality of the defense. /d. at para. 106(4). ° With regard to Mr. Medellin, the International Court of Justice held that the United States had violated its obligation under Article 36(1) to inform him of his night to consular notification and assistance, as well as the rights of Mexico to communicate with him, render consular assistance, and arrange for his legal representation. Avena Judgment at para. 153(4)- (7). To remedy these violations, the ICJ held that the United defendant, without delay, of his consular nights. Avena Judgment, para. 76. Nevertheless, the Court held that the United States had advised the consular post of Mr. Hernandez Llanas’ detention without delay, in accordance with its obligations under Article 36(1)(b). /d. at para. 97. 25 States had to provide “review and reconsideration” of Mr. Medellin’s conviction and sentence by fully assessing the prejudice caused by the Vienna Convention violations. /d. at para. 153(9). The ICJ rejected the United States’ argument that review and reconsideration could be achieved through the clemency process, holding instead that the review must occur “within the overall judicial proceedings relating to the individual defendant concerned.” /d. at 141; see also id. at 140. The Avena Court set forth specific requirements for effective review and reconsideration. First, the Avena Court held that procedural default doctrines may not be invoked where it was “the failure of the United States itself to inform” the national of his Article 36 rights that impeded his ability to raise the violation at trial. /d. at paras. 112-13. This holding reflects the Court’s recognition that when detained nationals are unaware of their treaty rights, and consular officers are effectively precluded from advising them of these nights prior to trial, the defendants may not be blamed for inadvertently waiving Vienna Convention claims. Second, the ICJ emphasized that review and reconsideration had to be “effective” and “guarantee that the violation and the possible prejudice caused by that violation . . . be fully examined and taken into account:”” [In a situation of the violation of rights under Article 36, paragraph 1, of the Vienna Convention, the defendant raises his claim in this respect not as a case of “harm to a particular right essential to a fair trial” — a concept relevant to the enjoyment of due process * Avena Judgment at para. 138; see also id. at para. 131. 26 rights under the United States Constitution — but as a case involving the infringement of his rights under Article 36, paragraph 1. The rights guaranteed under the Vienna Convention are treaty rights which the United States has undertaken to comply with in relation to the individual concerned, irrespective of the due process rights under United States constitutional law. In this regatd, the Court would point out that what is crucial in the review and reconsideration process is the existence of a procedure which guarantees that full weight is given to the violation of the rights set forth in the Vienna Convention, whatever may be the actual outcome of such review and reconsideration. Avena Judgment, para. 139 (emphasis added). Third, the Avena Court explained that review and reconsideration must be conducted by a court that is empowered “to examine the facts, and in particular the prejudice and its causes, taking account of the violation of the rights set forth in the Convention.” Jd. at para. 122. The ICJ clearly contemplated that the United States courts would scrutinize the nature of Mexico’s consular assistance and the difference that such assistance could have made in the context of each individual case. See id. at para. 104. Although it would be appropriate for the lower courts to consider the issue of prejudice in Mr. Medellin’s case in the first instance, Mexico believes that there will not be far to look before prejudice is found. In short, the Court’s final judgment was both cautious 27 and balanced. Although the Court vindicated Mexico’s claims that the United States had violated its international legal obligations in the case of Mr. Medellin and 50 other Mexican nationals, the Court rejected several arguments advanced by Mexico. In doing so, it took pains te respect ongoing capital proceedings in the United States. The Court rejected Mexico’s request for a remedy that would have obligated the United States to vacate each national’s conviction and sentence without inquiring whether the Article 36 violation affected the fairness of the underlying proceedings. Instead, the Court called upon the United States judiciary to provide a fair process by which the Vienna Convention violations could be fully considered and remedied, on a case-by-case basis. IV. The United States Is Obligated to Fully Implement the Avena Judgment. When the United States and Mexico ratified the Vienna Convention on Consular Relations and its Optional Protocol, they exchanged solemn promises to abide by the terms of those instruments. The binding character of the commitment the United States made in the Optional Protocol is reinforced by the United Nations Charter, also ratified by both the United States and Mexico. U.N. Charter, opened for signature Jun. 26, 1945, 59 Stat. 1031, T.S. No. 993. By ratifying Article 94(1) of the Charter, the United States expressly agreed to “comply with the decision of the International Court of Justice in any case to which it is a party.” U.N. Charter, art. 94, para. 1. And by ratifying Article 59 of the Statute of the International Court of Justice, which forms part of the Charter, the United States expressly agreed that judgments of the Court have “binding force” upon it in cases to which it is a party. Statute of the 28 International Court of Justice, art. 59, 59 Stat. 1055, T.S. 993. In keeping with those promises, the United States must now fulfill its obligations to Mr. Medellin, the Government of Mexico, and the International Court of Justice. Without the United States’ express consent, the International Court of Justice could not have heard the Avena case or rendered its judgment. Having given its consent, and having fully participated in the proceedings, the United States must now abide by the result. The modest scope of the judgment reflects the Court’s respect for the United States judicial system. The ICJ did not mandate the reversal of convictions and death sentences.”° Indeed, it did not order substantive remedies in any of the 51 cases. Rather, the International Court of Justice called upon the United States to implement the judgment within its existing judicial framework. To satisfy the United States’ obligations to comply with the judgment, the courts need only provide full and fair review of the violations in each national’s case, in accordance with the criteria set forth by the ICJ. With respect to the ICJ’s judgment regarding the operation of procedural default rules, Mexico fully appreciates this Court’s need to consider its earlier decision in Breard v. Greene, 523 U.S. 371 (1998). But the petitioner in Breard, unlike Mr. Medellin, did not have the benefit of a binding adjudication of his rights by the International] Court of Justice at the time he sought review of his Vienna Convention claim. © While the ICJ did not mandate a particular outcome in any case, it left open the possibility that United States courts covld order new trials or sentencing hearings after reviewing the violations. 29 Mexico tnitiated proceedings before the ICJ at a time when no Mexican national was facing imminent execution to avoid the situation created by Paraguay’s tardy filing before that Court. See Breard, 523 U.S. at 378. The binding nature of the Avena Judgment is undisputed, unlike the provisional measures order whose legal status was uncertain at the time this Court decided Breard. See Brief of International Law Experts and Former Diplomats in Support of Petitioner at 6. This difference is crucial, and compels reconsideration of the Breard dictum regarding procedural default. The United States leads by example. Just as it has invoked the rule of law to protect its own nationals abroad, it should abide by the rule of law when the interests of foreign nationals in the United States are at stake. Mexico respectfully requests that this Court uphold the promises the United States made to Mexico and the world community by ordering the review and reconsideration mandated by the International Court of Justice in Avena. CONCLUSION Amicus curiae the Government of Mexico respectfully urges this Court to reverse the decision of the Court of Appeals. Respectfully submitted, 30 Sandra L. Babcock Counsel of Record 2520 Park Avenue South Minneapolis, Minnesota 55404 (612) 871-5080 International Court of Justice Avena and Other Mexican Nationals (Mexico v. United States of America) DECLARATION OF RO D HERNANDEZ I, Roberto Rodriguez Hernandez, solemnly declare upon my honour and conscience that the following declaration is the truth, and that this declaration is in accordance with my sincere belief: 1. I am the Director General for Protection and Consular Affairs in the Mexican Ministry of Foreign Relations, a position I have heid since 2001 under the administration of President Vicente Fox. I currently hold the rank of Ambassador of Mexico. I was educated as a lawyer at Morelos State University in Morelos, Mexico. I am a career foreign service officer, having been in the service since 1977, and have held several positions as Consul of Mexico within the United States, specifically in Arizona, Puerto Rico, California and Texas. In my current post, I am responsible for the oversight of Mexico’s far-reaching consular protection program. Over the course of my career, I have, of necessity, become knowledgeable about Mexico’s practice of providing extensive consular assistance in capital cases. 1A The Nature of Mexico’s Consular Assistance 4. The Government of Mexico is committed to providing its citizens incarcerated in the United States with the highest level of consular assistance, particularly when they are facing capital charges. In Mexico's experience, early intervention by consular officers can often prevent the imposition of a death sentence. . To that end, Mexican consular officers have spent considerable time, energy, and resources on capital cases. In these cases, their overriding concern is to ensure that each national understands the nature of the United States’ criminal justice system and otherwise makes informed choices with regard to his rights. Mexican nationals often misapprehend their legal rights, even after living in the United States for years. Most nationals speak Spanish as a first language, and they communicate most effectively with someone who understands Mexican idiomatic expressions and even Mexican slang. There are. several Mexican nationals on death row who have lived in the United States for years, yet still do not speak English well enough to converse in that language. . Most Mexican nationals facing the death penalty come from extremely poor families, and have limited education. The average educational level of the Mexican nationals listed in Mexico’s Application is less than seven years — roughly the equivalent of a primary school education. At least seven of the Mexican nationals on death row have gone to school for less than three years. Many suffer from brain damage and other cognitive impairments stemming from exposure to 2A pesticides, substance abuse, and traumatic head injuries. Others are mentally retarded or mentally ill. . Mexican consular officers are specifically trained to recognize mental impairments, and take special care in those cases to explain the national’s legal rights so that he does not make poor decisions. In several cases, consular officers have detected signs of mental illnesses or other impairments when the national’s attorney had failed to recognize them. At least five Mexican nationals facing the death penalty have been found to be mentally retarded in the last three years alone, after Mexico alerted defense counsel to the need for psychological testing and/or referred defense counsel to competent, bilingual experts: Virgilio Maldonado, Ramiro Ibarra Rubi, José Calderon Palomino, Francisco Gonzalez Reyes, and Daniel Angel Plata. In three of those cases, Mexico provided the necessary funds for testing and/or investigation, since defense counsel had no resources to retain a mental health expert. . In my experience, Mexican nationals often trust consular officers more than their own lawyers, due to their shared culture and language, and due to the time consular officers spend with detainees who are facing the death penalty. Frequently, consular officers spend more time with detainees than their lawyers, many of whom do not speak Spanish. For example, in the cases of Ramiro Ibarra Rubi and Daniel Angel Plata, both of whom are on death row in Texas, the lawyers who represented them in state post- conviction proceedings never even met them. . Mexican consular officers also ensure that Mexican nationals are generally treated fairly and in a non- 3A 10. discriminatory manner in the proceedings. Whenever consular officers detect an atmosphere of bias against a Mexican defendant because of his nationality, they are instructed to raise their concerns with the appropriate authorities. In addition, Mexican consular officers make certain that the national receives an adequate legal defense from competent and vigorous defense counsel. Mexico has found that the quality of attorneys representing indigent defendants in the United States is uneven, at best. For this reason, consular officers are instructed to monitor and support defense counsel’s efforts, confer regularly with the defendant national and his family, and attend court proceedings. In many cases, Mexican consular officers assist in gathering evidence in preparation for the guilt and penalty phases of capital trials. Also in many of the cases, Mexican consular officers educate defense counsel about the requirements of article 36 of the Vienna Convention and assist counsel in raising violations of article 36 at the appropriate time in the criminal proceedings. . Mexico also provides funds for expert and investigative assistance. For instance, Mexican consular officers are often instrumental in locating and funding experts relating to the presentation of “mitigation evidence” on behalf of the national during the penalty phase. Such evidence is invariably crucial in assisting the national to avoid the death penalty. Mexico regularly obtains documents from schools, hospitals, and other institutions in Mexico, conducts searches for criminal records (and provides proof of the defendant’s lack of criminal record, where appropriate), 4A 13. 14. provides logistical support to attorneys traveling in Mexico, and supports their efforts to identify and interview witnesses in our country. . In Mexico’s experience, it is essential that consular officials begin the process of gathering documents and locating witnesses as quickly as possible, because it may influence plea negotiations and affect trial counsel’s decisions to retain mental health experts. Locating witnesses and records in Mexico is often very time-consuming, given the necessity of locating witnesses in remote areas without telephone service, and the diificulty in obtaining visas and providing transportation to indigent witnesses with no independent means of transportation. When given adequate notice, Mexican consular officers routinely obtain visas for defense witnesses living in Mexico, so that they may enter the United States. The consulate often provides funding for the transportation of these witnesses. In some cases, witnesses live in rural areas of Mexico, and have never traveled outside of their own communities. In those cases, employees of the Foreign Ministry have personally escorted the witnesses from their homes to the courthouse in the United States where they will testify. Mexican consular officers closely monitor the cases of Mexican nationals facing the death penalty, and often appear before judges and prosecutors to advocate for the imposition of a lesser punishment. They have played an active role in plea negotiations in several cases, with very positive results. They have, on many occasions, provided interpretation services for defendants and have monitored SA the performance of official court interpreters. 15. Finally, consular officers support defendants’ attempts to obtain more qualified counsel. Sometimes this is accomplished by providing funds so that experienced counsel may be retained. On other occasions, Mexican consular officers assist in locating experienced defense counsel who are able to represent national defendants on a pro bono basis. Sometimes, consular officers can persuade judges to remove an unqualified lawyer and appoint more qualified counsel to replace him. 16. The Mexican Foreign Ministry provides training to all consular officers, on a regular basis, so that they are prepared to provide all of the services outlined above. 17. Mexico's goal is not to interfere with the judicial process in the United States, but rather to ensure its nationals receive the protection to which they are entitled under domestic and international law. Pursuant to this mandate, Mexican consular officers have assisted attorneys in innumerable capital cases. The modes of assistance described above represent Mexico's consistent consular practice in capital cases and that practice has not changed during the period of my service. Mexico’s Historical Consular Assistance 18. My government's involvement in these cases stems from its long-term commitment to the protection of Mexican migrants to the United States. The nearly two century-long history of Mexico's consular presence in the United States 6A attests to that commitment. 19. The very first reference to the duty of the Mexican consuls to provide protection to Mexican nationals abroad is found in the 1829 governing law of the Mexican foreign service. Subsequently, several laws and regulations governing the Mexican Foreign Service during the nineteenth century included the obligation for Mexican consular agents to provide protection and assistance to fellow nationals abroad. ' 20. In the first decades of the twentieth century, legislation regulating the Mexican Foreign Service enacted in 1910, 1923 and 1934 expressly established the obligation to protect the rights and interests of Mexican nationals, as one of the main responsibilities of Mexican consular officers.” ' Relevant legislation included the 1831 Law on the Establishment of Legations in Europe and America (Ley sobre el Establecimiento de Legaciones de Europa y America), 1834 Law on the Establishment of Consulates (Ley sobre el Establecimiento de Consulados), 1853 Decree Governing Law of the Mexican Diplomatic Service (Decreto Ley Organica de! Cuerpo Diplomatico Mexicano), 1865 Governing Law of the Diplomatic Service and Governing Law of the Consular Service (Ley Organica del Cuerpo Diplomatico y Ley Organica del Cuerpo Consular), 1871 Regulations to the 1834 Law (Reglamento a la Ley de 1834), 1888 Regulating Law of the Diplomatic Service (Ley Reglamentaria del Cuerpo Diplomatico) and 1896 Governing Law of the Mexican Consular Service and its Regulations (Ley Organica del Cuerpo Consular Mexicano y su Reglamentio). > 1910 Governing Law of the Mexican Consular Service (Ley Organica del Cuerpo Consular Mexicano), and its regulations, 1923 Governing Law of the Mexican Consular Service and its Regulations (Ley Organica del Cuerpo TA os, _——-. . During this period, the consular policy of Mexico was characterized by the promotion of bilateral commerce and the establishment of Mexican consulates, especially in border cities. In addition, during this time, consular protection activities were carried out by consuls in response to the increased migration of Mexican nationals to the United States. Over these three decades, Mexico established the foundation for an extensive and sophisticated program of consular assistance to Mexican nationals residing in the United States. At that time, no treaty existed between the two countnes that formalized consular relations. Nevertheless, consular access to nationals in foreign prisons had long been accepted as a rule of customary international law. 23. In 1942, Mexico and the United States signed a Consular Convention memorializing the right of each country’s consular officers to “address the authorities, National, State, Provincial, or Municipal, for the purpose of protecting the nationals of the State by which they were appointed in the enjoyment of mghts accruing by treaty or otherwise.” Consular Convention Between the United Mexican States and The United States of America (1942). This Convention, signed twenty-one years before the Vienna Consular Mexicano y su Reglamento) and 1934 Law of the Foreign Service Governing the Diplomatic and Consular Services and its Regulations (Ley del Servicio Exterior Organica de los Cuerpos Diplomatico y Consular Mexicanos y su Reglamento). 8A 24. 25. 26. Convention on Consular Relations, codified existing customary law and formalized consular relations between Mexico and the United States. In 1963, Mexico and the United States both attended the Conference on Consular Relations convened by the United Nations General Assembly. The conference culminated with Mexico’s signing and ratification of the Vienna Convention on Consular Relations, the most important instrument governing consular relations around the world. Three years later, in 1966, Mexico’s Congress approved a new Governing Law of the Mexican Foreign Service (Ley Organica del Servicio Exterior Mexicano), which made reference to consular protection activities. The law was expanded and updated in 1982, and again in 1994, 1999, and 2002. Currently, under Article 2(II) of the Law of the Mexican Foreign Service, diplomatic and consular officers are obligated to protect the dignity and fundamental rights of all Mexicans abroad, in accordance with principles of international law. Article 44(I) requires heads of consular missions to protect the interests of Mexico and the rights of Mexican nationals, and imposes a duty to notify the Mexican Foreign Ministry of the condition of Mexican nationals. All of these principles have been part of the law governing the foreign service since 1982. The obligations of Mexican consular officers to protect the rights of nationals are reiterated in the regulations corresponding to the Law of the Mexican Foreign Service (Reglamento de la Ley del Servicio Exterior Mexicano). Article 53 of the Reglamento establishes the “primary obligation” of protecting the rights of Mexicans abroad, and 9A 29. requires Mexican consular officers to assist Mexican nationals in their relations with local authorities, advise nationals of their rights and obligations im the foreign state, visit Mexicans who are detained in prisons, and represent those Mexicans who cannot personally defend their interests. . By 1981, there were 40 Mexican consulates located in major metropolitan areas throughout the United States. That year, the Mexican Foreign Ministry created a special category of consular officers, whose sole purpose was to protect the rights of Mexican nationals abroad. At the same time, Mexican consulates were given increased budgets for consular assistance. By 1983, every consulate in the United States had at least one consular protection officer. .In 1986, the Mexican Foreign Ministry established a Program of Legal Consultation and Defense for Mexicans abroad. The Program sent selected career foreign service officials to American law schools to study the American judicial system. In this way, Mexico began to establish a cadre of consular officers specializing in American law, for the express purpose of assisting American attorneys representing Mexican nationals in complicated legal proceedings. During this time, consular officers also provided assistance to the small but growing number of Mexican nationals facing capital charges. Mexico has continued to make enforcement of the Vienna Convention a priority in its relations with the United States. Indeed, on 7 May 1996, Mexico and the United States signed a Memorandum of Understanding on Consular Protection of Mexican and United States Nationals. In this 10A 30. 31. 32. 33. document, both nations promised to comply with article 36(1) of the Vienna Convention. In September 2000, Mexico established the Mexican Capital Legal Assistance Program in order to enhance the quality of legal representation provided to Mexican nationals in capital cases, train Mexican consular officers to more effectively assist defense counsel, and to increase compliance with international law. To date, the Program constitutes the sole capital legal assistance program established by a foreign government in the United States. The Program is staffed by ten experienced capital defense lawyers and a paralegal. Since September 2000, Mexican consular officers and Program attorneys together have played a decisive role in preventing the imposition of the death penalty in forty-five cases. In thirty-eight of those cases, prosecutors have 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. Program attorneys have filed, in the name of Mexico, sixteen amicus curiae briefs, and have offered important legal assistance to defense counsel in sixty-seven other cases. Through the Program, Mexico has provided funds for experts, mitigation specialists, or investigators in twenty-two cases. I am familiar with Mexico’s efforts in the cases of Felipe Petrona Cabafias, Carlos Jahuey Carillo, Francisco Gonzalez Reyes, Ernesto Baylon Mendoza, Liliana Pifia, 11A Nicolas Solorio Vasquez, and Ernesto Esteban Rarnirez Anguiano, and can attest that the description of those cases in Mexico’s Memorial is accurate. Mexico’s Diplomatic Demarches In Recent Capital Cases 34. Over the past six years, Mexico has filed diplomatic notes 36. in at least twenty capital cases on behalf of Mexican nationals facing execution in the United States. In my various Capacities as Consul of Mexico in Arizona, Deputy Director General of Consular Affairs, and my current position as Director General, I have become familiar with the diplomatic efforts made by the Mexican government on behalf of Irineo Tristan Montoya, Mario Benjamin Murphy, Miguel Angel Flores, Gerardo Valdez and Javier Suarez Medina, as well as the responses of the United States to Mexico's overtures in these cases. The following information augments the facts established by the numerous diplomatic notes filed in these cases by Mexico, as cited in the Memorial. .In the case of Mr. Montoya, the United States failed to respond to any of the notes filed by Mexico, even refusing to allow a temporary stay of the execution to consider the acknowledged Vienna Convention violation. Instead, Mr. Montoya was executed by the state of Texas on 18 June 1997 and the United States apologized for the execution on 9 July 1997. In the case of Mr. Murphy, the United States Assistant Secretary for Inter-American Affairs, Jeffrey Davidow, told 12A 38. the Mexican Ambassador to the United States at the time, Mr. Jesus Silva-Herzog, that the United States was of the opinion that the Vienna Convention violation had not affected the outcome of Mr. Murphy's case. In response to this statement, Ambassador Silva-Herzog sent a letter dated 10 September 1997 to the United States, urging the United States to join Mexico in requesting a commutation based on the violation. There was no response by the United States, and Mr. Murphy was executed on 18 September 1997 by the State of Virginia. After Mr. Murphy's execution, the United States apologized to Mexico. .In the case of Mr. Flores, Mexico sent diplomatic representatives to meet with the Chairman of the Texas Board of Pardons and Paroles to advocate on behalf of Mr. Flores and press for the review of the acknowledged violation of the Vienna Convention. The governments of Argentina, Chile, Honduras, Panama, Poland, Spain, Switzerland and Uruguay, as well as the European Union, joined Mexico to intervene diplomatically on Mr. Flores’ behalf. As before, however, there was no response by the United States. Mr. Flores was executed on 9 November 2000 by the State of Texas, after which the United States issued a formal apology. In the case of Mr. Valdez, Mexico first learned of Mr. Valdez’s arrest when one of his relatives contacted the consulate in April 2001, only two months before his scheduled execution date. Upon learning of his impending execution, Mexico retained experienced counsel, an investigator and a bilingual neuropsychologist. Mexico's investigative efforts uncovered new evidence that was 13A subsequently presented to the Oklahoma Board of Pardons and Paroles. Mexican consular representatives attended the Board's public hearing, at which the Board recommended that Mr. Valdez’s death sentence be commuted to life imprisonment. Oklahoma's Governor Frank Keating granted a 30-day reprieve to consider the Board's recommendation at the request of President Vincente Fox. Mexico sent a diplomatic envoy to meet with Governor Keating to discuss the Vienna Convention violation and other aspects of the case. Despite Mexico's efforts and the issuance of the LaGrand ruling during the 30-day reprieve, Governor Keating rejected the Board's recommendation and demied clemency. Ultimately, an Oklahoma court vacated Mr. Valdez’s death sentence based upon a finding that Mr. Valdez’s trial counsel provided deficient legal representation. 39. Finally, in the case of Mr. Suarez Medina, Mexico again sent a diplomatic delegation to communicate its concerns to the Texas Board of Pardons and Paroles as well as the Texas Secretary of State. Again, President Fox communicated directly with the Texas Governor to request areprieve. The attention received by Mr. Suarez Medina’s case was international in scope. In addition to the petition filed in the Inter-American Commission on Human Rights. which issued precautionary measures, diplomatic efforts were made on behalf of Mr. Suarez Medina by Argentina, Brazil, Chile, Columbia, Costa Rica, Ecuador, E] Salvador, Guatemala, Honduras, Panama, Paraguay, Poland, Slovenia, Spain, Switzerland, Uruguay, Venezuela, the Holy See, and the European Union. Despite all of these efforts, Mr. Suarez Medina was executed on 14 August 2002 by the 14A State of Texas. In protest, President Fox cancelled his official visit to Texas. The United States has not yet issued a formal! apology in Mr. Suarez Medina’s case. Cases Of Mexican Nationals Currently Facing Death Sentences in the United States 40. In my capacity as Director General for Protection and Consular Affairs in the Mexican Ministry of Foreign Relations, I have supervised a review of consular files, court documents, and other records pertaining to each national on death row whose Article 36 rights were violated. Attached to this affidavit as Exhibit A are summaries of the relevant facts revealed in the investigation of each of the 54 capital murder cases named in Mexico’s Memorial, including the additiona! case of Enrique Zambrano Garibi, who has only recently come to my attention as a Mexican national tried, convicted, and sentenced to death in proceedings that did not comport with the Vienna Convention. These summaries are based largely upon Mexico's internal files and selected court documents. Consulate Survey 41. The Mexican Foreign Ministry is in constant contact with its forty-five consular offices located in the United States regarding the protection of Mexican nationals detained in U.S. jails and prisons. 2 ISA 42. As part of its ongoing efforts to ascertain whether U.S. authorities are complying with Article 36, Mexico has requested information from each of its consulates located in the United States to evaluate the authorities’ recent practice on consular notification and access. In response, each of the forty-five consulates’ provided a qualitative assessment of the authorities’ level of compliance with Article 36 in their respective jurisdictions. In addition, the consulates provided concrete examples of Mexican nationals arrested after 27 June 2001,’ and charged with serious crimes,” who wets not apprised of their rights under Article 36. The consulates’ reports were based upon numerous sources, including arrest reports and other case documentation, interviews with defense attorneys, interviews with the * The consulates participating in the survey were: Consulmex Houston*, Consulmex Indianapolis, Consulmex Eaglepass, Consulmex Orlando*, Consulmex Nueva York*, Consulmex Kansas, Consulmex Seattle, Consulmex Douglas, Consulmex Omaha*, Consulmex Lazedo, Consulmex San Antonio*, Consulmex Raleigh*, Consulmex Las Vegas*, Consulmex Yuma, Consulmex Sacramento*, Consulmex Oxnard*, Consulmex Auanta’*, Consulmex Calexico, Consulmex San Franciso*, Consulmex Del Rio, Consulmex Detroit*, Consulmex Los Angeles*, Consulmex Dallas* Consulmex San Bernardino, Consulmex Fresno*, Consulmex Albuquerque’, Consulmex Presidio*, Consulmex San Diego*, Consulmex Chicago’, Consulmex Philadelphia*, Consulmex Dallas*, Consulmex Denver, Consulmex Austin*, Consulmex E] Paso*, Consulmex Portland*, arid [ }. CHECK THIS. * This was the date of the Court's decision in LaGrand. * Serious crime cases were defined as violent felonies in which the national faced either a significant term of imprisonment such as life in prison or the death penalty. The vast majority of the cases involve a charge of first-degree murder. 16A 43. 45. nationals themselves, and interviews with local, state, and/or federal authorities operating in the consulates’ respective jurisdictions. Together, the consulates identified no fewer than 102 cases of Mexican nationals arrested on serious criminal charges after 27 June 2001, all of which involved violations of the Vienna Convention. In 89 of the cases, nationals have been charged with homicides. In thirty-six of these cases, Mexican nationals could potentially be sentenced to death. The remaining cases involve charges such as attempted murder, assault, and kidnapping. In each of these cases, there is no record of any notification to the national or the consulate. Instead, the relevant consulates became aware of the cases either through media reports, contact by the detained national’s family or friends, and/or by taking the initiative to review weekly arrest lists supplied by law enforcement authorities in order guess at Mexican nationality. Each case is detailed in Exhibit B. . The cases cited in Exhibit B by no means represent the entire universe of cases in which the authorities have violated Article 36; indeed, Mexico has purposely excluded cases of documented violations unless they arose in a case involving the most serious crimes, where, if convicted, the national would face a lengthy term of incarceration or the - penalty of death. As a general matter, the consulates concluded that compliance with article 36 of the Vienna Convention by the competent authorities of the United States is haphazard, at 17A 46. best. On the whole, eleven consulates” report that article 36 compliance is practically nonexistent, twenty-five consulates report mixed compliance, while only eight consulates® report that consular notification by competent authorities is routine.” A summary detailing the information gathered, categorized by state and consulate, is appended as Exhibit B. The survey also shows that compliance by the relevant authorities depends upon specific factors, including (1) whether local, state, or federal authorities are involved, and (2) the severity of the charge against the detained national. For instance, in the majority of consular districts, federal authorities — particularly immigration authorities — have a better record of notification than their local or state counterparts. This is true even though federal authorities are involved in far fewer serious criminal prosecutions involving Mexican nationals, which arise primarily in local and state jurisdictions. Examples abound of this trend. As detailed in Exhibit B, the Presidio and Detroit consulates * These consulates are located in Los Angeles, San Jose, Presidio, Las Vegas, Oxnard, Omaha, Detroit, Chicago, Raleigh, Orlando, and Fresno. ” The consulates are located in San Bernardino, Santa Ana, Austin, Houston, San Antonio, McAllen, Brownsville, Miami, Portland, Philadelphia, Boston, E] Paso, Del Rio, Sacramento, San Francisco, San Diego, Calexico, Albuquerque, New York, Phoenix, Atlanta, Dallas, Kansas, Washington D.C., and Salt Lake City. * These consulates are located in Yuma, Tucson, Nogales, Albuquerque, Seattle, Eagle Pass, Laredo, and Douglas. * One consulate, in Indianapolis, opened in November 2002, and could not provide sufficient data regarding compliance. 18A 47. indicate that only federal immigration authorities appear to be complying with Article 36. The Las Vegas consulate reports that only the United States Department of Homeland Security and one of the local juvenile detention centers appear to be complying with their obligations. Further, the survey showed that compliance with Article 36 is better in cases involving minor criminal charges. Consulates in Los Angeles, San Antonio, and Sacramento all report that competent authorities are far more likely to provide notification in cases involving miner charges, such as Driving While Intoxicated, than in cases involving serious crimes such as murder. FURTHER AFFIANT SAYETH NOT. 13/06/2003 —S/_ Date Roberto Rodriguez Hernandez 19A = - ° = - 2 -_ — - - -- O_O TTT te 2 - —_—< —_— --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0112%3A25. Public record. Not legal advice.