Petition for Writ of Certiorari — Sanchez-Llamas v. Oregon
Supreme Court brief2006
Ask Donna
What actually matters in this document.
Text
In The
Shsprome Court of the United Skates
MOISES SANCHEZ-LLAMAS
- Petitioner
VS.
STATE OF OREGON
Respondent
On Writ of Certiorari
To The Supreme Court of Oregon
PETITION FOR WRIT OF CERTIORARI
PETER OZANNE
Executive Director
PETER GARTLAN
Chief Defender
Counsel of Record
SUSAN F. DRAKE
Senior Deputy Public Defender
Office of Public Defense Services
1320 Capitol St. NE, Suite 200
Salem, OR 97303
Telephone: (503) 378-3349
QUESTIONS PRESENTED
I. Does the Vienna Convention convey individual rights of consular notification and access to a foreign
detamee enforceable in the Courts of the United States?
\
2. Does the state's failure to notify a foreign detainee of his rights under the Vienna Convention result
in the suppression of his statements to police?
3. Do police violate an intoxicated foreign detainee’s rights under the Fifth and Fourteenth
Amendments to the United States Constitution when they obtain custodial statements from that
detainee after he has been beaten, continually questioned for 11 hours and not informed of his
nights to consular notification and access?
\
\
LT
TABLE OF CONTENTS
CF re PUR ee POR FE ns .ns cece es seevesscccssciescnsenccecnntevscepvessssonsasenisues
ee TET Sudiicnsscsivhchecsdeiinintinseesnsieiteiigpigcistlapteinpcsibcapiiinteadbiiciliad nes tdainaidaniellaiaetediatald T
Ne Fe er ioicctietnsiscetnesatcadiinntepictrvphabheenmieheliociantcdnicciistabisianmmaaiailonio TT
OPINIONS AND ORDERS BELOW ..... Daaaiel fe teaedicehaa ate leotuiauatdalannied
EE Pe ERENT MESS SMI os Card AT eT o NeS |
CONSTITUTIONAL AND STATUTORY PROVISIONS ..00...00..0.0.0.0.600005 tideiaiud |
IIE OU EI ata ch asad ichecalscpintilabbalcedaspandhadiitnbaiabcibtnantasdigndiaaidbadieibankel 3
Facts from Pretrial Motion to Suppress .....................:ccsccsesscessseeesseeeeceeseeeessesseeeesceseed
SITIES Ss iscitieitsediiietnindaciinsicoaieodelacilnabiceeiepcieiisanindepidaddcathinabaseinbialiinineashiaeitiagiaatiaith 9
a ra I ini ncn dh sanincisce seneetdicataiapecbahapebuiraienapactbetiaigdégeciisodbessions 1]
REASONS FOR GRANTING THE WRIT... Soiehdiikcbasaiecnideenidibantgnalinnn cae 12
I. Petitioner's post-arrest statements were obtained in violation of the
Vienna Convention and should be suppressed ................cccccccesceseeseeeeseeeeseeseeseeseeneeaeeseenees 12
FR: I nies disiiieenvesaccledieinseteinitinsensiningdilenincsaiibiinelasaiesiniibsniaiubiianisavibaidindiduidiaiiteliiarad 12
B. Article 36 1s self-executing and constitutes the “law of the land” .................... 13
C. The decision of the ICJ concluding that individual rights exist
under Article 36 should control as a matter of judicial comity
Re IID: csstinticsndecciniemisentiapintitainninaieastimeipeivingacienseaniosin 4
D. This court should interpret the treaty to provide individual rights .................... 16
E. Police violated petitioner's rights under Article 36. .............ccccccccccteeesseeeneeeteees 18
F. Suppression is required under the United States Constitution .............0..0....... 19
I]. Petitioner's statements were nof voluntary and must be suppressed 2000.00... 22
A. The nght to remain silent must be voluntarily and
knowingly waived : ; a sie covsiwtila
B. Petitioner's statements were not knowingly and
WOUURRTNEY GDS. ...0.5:ccsnccseicnennenseress siichgshipaddaaiasiiaiignrdbemelipsiant aan selvenncivahedieabebpaldéalalesdenih 24
C. Prejudicial Error Analysis .........:.....00000.000e00-n OS ONGC ICL OO Te 25
CONCLUSION: itelbiiicairaliibaidaliccataeniseasaeaadishan heehigapibihasdhinisnash dcccctuisitelh aedinbbeliian Ryatacte 27
APPENDIX ; ‘2
ee UIT inca wiscsaii ercunaneguinahincsinmaasnetepeisiesipinhtnaiin App 1-9
Findings and Order on Motion to Suppress ...........:.ccccccccceeeeeeseseeeeeseeees App 10-11
Oregon Court of Appeals Decision .................... Beek rs iisidisesbalieaachici App 12
Oregon Supreme Court Order Allowing Review ................0.0ccccccccceeeseeeneees App 13
Opinion of the Oregon Supreme Court .................ccccccccseeveseseeseseeeeveseeees App 14-23
Order Granting Motion to Stay Issuance of
PRE CUEIIIITTD sshosiitossininsensesthiostioenniicelbnbuanicleneisivonitenvtsniicsnieehiaaasiteaesasuennle App 24
September 21, 2001 Letter from Mexican Consulate 2.0.0.0... cee App 25-29
TABLE OF AUTHORITIES
Federal Cases
tknengeseleschaft v. Schlunk, 496 U.S. 694, 699,
Ee Se Bs ee ON Os CG A PA CR Sago scovccsecduccpeenes typeset (etd cdewhiabarives
frizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185,
I a a a a ae
frizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246,
Po ITE es ee Sn NEE Gee EK eMTS
Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443,
SI On a cleeedaciie uaeiesnenibabeabianenetiaeaasibaniciadediahanal
Colombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860,
REE Pc RE Os AENEID a DIEM Doses irom Yat
~ 9
eee eee eee ee eee _—
Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 1602,
as ey SII voir. icauss daulectridensaggbioaseshtnienbiiandindecentettddenessliattoegindaes 19, 20, 21
Eastern Airlines, Inc. v. Floyd, 499 U.S $30, 11 S.Ct. 1489,
See As HEED MET UITITTD Kn dithinre stincchnasictictic ddtcsapaaenlocpioasiampearhdabeebeedasncsceiicieanibaiedeedaiebionas
Edye v. Robertson (“Head Money Cases "), 112 U.S. 580, 5 S.Ct. 247,
BF PTD iniccditcinkichestsitcsieciibiiasiebdcccceidesiatimnatandidiobahnahdiniedaciascibdantiaimseiineniitiaine
Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L. Ed. 95 (1895)
Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L. Ed. 2d. 618 (1972) eee. 22
Malloy v. Hogan, 378 U.S. b, 84 S.Ct. 1485,
Se al ne MU sctcacicscsicsssnntschnctentieipbasstidletansstieihseesecichbegiinicbiseihe.npnbeinacalsiiecbidiidaeiostai
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
ep ice Nn a PITTED ..s cteishptdceinientianumnetidtaliieisntbbsiinammebéebineiannie
Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135,
es A Ae IIE suri bcniscakeds iserincinethapsaisonitaxtenpnehpiendteh aaj chnencertigevientoiics qedanseanincnhoiee
Olvmpic Aways vo Husain, 540. US. 044, 1248. Ct. 1221
bog ee renee S aonadbacguainiedndasebed
19, 20, 21, 23, 24, 25
\
Rogers v. Richmond, 305 U.S. 534, 81 S.Ct. 735,
RR ae RO a eo Te re Ra Med Sete? en SP LON Ramee Rect ee 23
Schneckloth v. Bustamonte, 412 U.S. 218,93 S.Ct. 2041,
A a a ae ae eae Ae 23
United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188,
i: as I a i es 13
Uniued States v. Caceres, 440 U.S. 741,99 S.Ct. 1405,
i od 19
United States v. Chaparro-Alcantara, 226 F.3d. 616 (7"" Cir),
OE Se Ee, SII ciistadcienitndiansttio icine cstaiendaclins Lda niglpd iit obedience! 20
United States v. Gantt, 194 F.3d. 987 (9" Cir 1999 REE Be Ae ESE a Ry Ee Cee 19
United States v. Li, 206 F.3d. 56 (1" Cir.),
re Ce I «ces sinccdsbescstdichtninstbabickemndintelcainidebigidiaathtdh dente. 13,17, 18, 20
United States v. Lombera-Camorlinga, 206 F.3d. 882 (9"" Cir),
I, Tae RE I EET jekvishctndies dinetisenioieadebcumadidaiclidodiobdasenadiedds adlinn dideuciads 19, 20
State Cases
Biches wo Cats, SOE Gir, G4, BOO .e Te vrcscicstciinitetdcheinisitnnbitlostareciceicsacocnituianieanacs 21
State v. Sanchez-Llamas, 191 Or. App. 399, 84 P.3d. 1133 (2004) 2000000 111
State v. Sanchez-Llamas, 337 Or. 34, 93 P.3d. 71 (2004) .............. ccc cee ccs eeeeeceee sees l
State v. Sanchez-Llamas, 338 Or. 267, 108 P.3d. 573 (2005) .............. 0000 cc cece eee 1,11
International Cases
Avena and Other Mexican Nationals (Mex. v. U.S),
ee nye I BUTE cnchhchasidvtinedccsdgtenpcatingeipicdicenisndcddicitabedbdadebansuetnbachinsotdeieiuias 12, 14, 15
LaGrand Case (Germany v. United States of Amertca),
ee ae es I NE as idee oehchno weadade dadicsddtndedeadibhesl bs ati dedeael 14,15, 18
Medellin v. Dretke, u).S. , 73 a lL. Ed. 2d
2005 WL 1200824 (May 23, 2008) 00... i 2 | . cece Bee oe
I
Constitutional Provisions
United States Constitution, Amend. V ... is . meen ST,
United States Constitution, Asmend. XUV ..............c0..:ccccccccccecccceerecessscceseceeees 2, 3, 12, 20, 22
United States Constitution, Article 111, Section 2 .............c ccc ccccccc ee ccceceececceeceeseeeseeseceeeeceerees |
ES SEE IO Be AES RIL EE ee |
Treaties and Federal Statutes
28 U.S.C. 1257(a) .......... SES Ap SC Om EE ape, NaS SEN Ae Nt eh |
Vienna Convention on Consular Relations, Art. 36,
I A a acest nen liieetsnaptnbeibens passim
Optional Protocol Concerning the Compulsory Settlement of Disputes
to the Vienna Convention, Art. 1, 21 U.S.T. 326, T.LA.S. No. 6820 2.000000... 2,15
Miscellaneous Authorities
Mark J. Kadish, “Article 36 of the Vienna Convention on
Consular Relations:A Search for the Right to Consul,”
as ss ensecdgpesbasitbireiepenenditieneesenciabein 18
Report of the United States Delegation to the United Nations Conference
on Consular Relations, reprinted in Vienna Convention on Consular
Relations and Optional Protocol, S. Exec Doc. # 91-9, 41 (1969) 0. i4
OPINIONS AND ORDERS BELOW
The Circuit Court for the State of Oregon entered an unpublished criminal judgment
against petitioner. The Oregon Court of Appeals affirmed petitioner's conviction without
opinion. That decision is reported at State v. Sanchez-Llamas, 191 Or. App. 399, 84 P.3d. 1133
(2004) (App 12). The Oregon Supreme Court order allowing review ts reported at State v.
Sanchez-Llamas, 337 Or. 34, 93 P. 3d. 71 (2004) (App 13). The Supreme Court opinion
affirming petitioner's convictions is reported at State » Stintiienns: 338 Or. 267, 108 P, 3d.
573 (2005) (App 14-23). The Oregon Supreme Court subsequently ordered the final appellate
\
judgment to be held in abeyance pending United States Supreme Court action on this petition for
writ of certiorari. That order was not reported and is attached at App 24.
STATEMENT OF JURISDICTION
The Oregon Supreme Court issued its decision is this case on March 10, 2005. This court
has jurisdiction pursuant to Article III, Section 2, of the United States Constitution, and 28
U.S.C. 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS
Article VI of the United States Constitution provides in pertinent part:
“This Constitution and the Laws of the United Sates * * *;
and all Treaties made, or which shall be made, under the Authority
of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.”
The Fifth Amendment to the United States Constitution provides in pertinent
part:
tw
~
"No person shall be * * * compelled in any criminal case to be a
witness against himself * * *.”
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides in pertinent part:
“* * * nor shall any state deprive any person of life, liberty, or property
without due process of law * * *”
Article 36 of the Vienna Convention on Consular Relations, 2! U.S.T. 77,
100-01 (hereinafter “Vienna Convention”), provides:
“(1) Witha view to facilitating the exercise of consular functions
relating to nationals of the sending State:
(a) consular officers shal! be free to communicate with nationals of
the sending State and to have access to them. Nationals of the sending State
shall have the same freedom with respect to communication with and access
to consular officers of the sending State;
“(b) if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State if, within
its consular district, a national of that State is arrested or committed to
prison or to custody pending trial or is detained in any other manner. Any
communication addressed to the consular post by the person arrested, in
prison, custody or detention shall also be forwarded by the said authorities
without delay. The said authorities shall inform the person concerned
without delay of his rights under this sub-paragraph;
“(c) consular officers shall have the night to visit a national of the
sending State who is in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation. They shall
also have the nght to visit any national of the sending State who is in prison,
custody or detention in their district in pursuance of a judgment.
Nevertheless, consular officers shall refrain from taking action on behalf of
a national who is in prison, custody or detention if he expressly opposes ~
such action.
“(2) The rights referred to in paragraph Tf this Article shall be
exercised in conformity with the laws and regulations of the receiving State.
subject to the proviso, however, that the said laws and regulations must
enable full effect to be given to the purposes for which the nghts accorded
under this Article are intended.”
The Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna
Convention, 21 U.S.T. 326, T.LA.S. No. 6820 provides:
“Disputes arising out of the interpretation or application of the
Convention shall be within the compulsory jurisdiction of the
International Court of Justice.”
STATEMENT OF THE CASE
Facts from Pretnal Motion to Suppress Statements
Defendant was charged with numerous counts, inciuding two counts of attempted
aggravated murder due to the fact that the victims were police officers. Prior to tral, petitioner
moved to suppress his statements to police on two grounds. First, petitioner argued that his
statements were made unknowingly and involuntarily in violation of his rights under the Fifth
and Fourteenth Amendments to the United States Constitution as well as the Oregon
Constitution. Second, petitioner argued that his statements were obtained in violation of the
Vienna Convention, thereby violating his right to Due Process. A copy of petitioner's motion is
attached at App 1-9. The following facts summarize the hearing on that motion.
Petitioner speaks little English. (Tr 76, 108, 136) Shortly after 3:00 a.m., on December
18, 1999, petitioner shot at two police officers and wounded one of them. (Tr 16-27, 36-46, 52-
67) After the shooting, Misty Senter saw petitioner run along the back of a row of duplexes in a
confused manner, like he was “going around in circles.” (Tr 88) Out of sight of police officers,
petitioner put the two handguns he was carrying on the ground. (Tr 29, 46, 50-51, 67-68, 70, 88
90) Police officers located petitioner and told him in English to show his hands and to come out
from behind the building. (Tr 27-28, 30, 46-47, 68, 88, 90, 94, 104-105) There were at least 10
officers present at the time of the arrest. (Tr 33)
After first showing the officer his hands, one at a time, methihenes came out with his hands
up, stopped and turned around as instructed, but did not zo down on his knees as instructed. (Tr
47, 69-71, 90, 111-13) One officer, fearing that petitioner still had a gun, tackled petitioner,
knocking him face-down to the ground. (Tr 47-48, 71, 106) Three other officers joined in to
subdue and handcuff petitioner who was struggling. (Tr 34, 48, 71, 96-96, 106-07) The
arresting officers administered punches and“ focus blows” with a flashlight to his face, back and
arms to effect the arrest. (Tr 49, 91, 106)
At 3:48 a.m., petitioner was examined by a paramedic at the police department. (Tr 75)
She asked him in English if he was in pain, if he wanted to go to the hospital and if he wanted
her to treat him. (Tr 76-77) Petitioner just shook his head and said, “No.” (Tr 77) He told her,
“Bang, Bang,” and mimed being hit on the head and chest. (Tr 81-82) Although she could only
communicate with petitioner in a limiteu way, the paramedic concluded that petitioner was alert,
onented to person, place, time and events and “capable of understanding and making appropriate
decisions.” (Tr 79-81) ce
Police detective Wil!iam Ford began interrogating petitioner at 4:36 a.m. (Tr 123)
“Community Service Officer” Arturo Vega acted as interpreter. (Tr 118, 175) Those two
officers, a third officer and petitioner sat in a room measuring 11 feet by 10 feet. (Tr 118-20,
122-23; Exh. No. 7) Ford testified that petitioner appeared “heavily intoxicated” but also
appeared “coherent” and able to communicate “effectively.” It did not appear as if petitioner
could not understand what was going on. (Tr 124-25, 176)
Petitioner was advised of his Miranda rights in Spanish and English. (Tr 122) Petitioner
indicated that he understood his nghts. (Tr 123) In pertinent part, petitioner told the police that
he was walking to his brother's house when he first saw the police across the street. (Tr 147) He
admitted that he had a black .357 magnum revolver. (Tr 148) He saw the police running behind
the duplexes. (Tr 150) As he was crossing the street, he heard someone shooting, but did not
think the police were shooting at him. (Tr 150) After he saw the police and heard the shots, he
got scared and got nd of the gun. (Tr 125, 150, 205) He heard the police tell him to raise his
hands. (Tr 151) He did not resist the police. (Tr 151) Petitioner denied firing the gun. ” 126,
148, 151) He denied possessing a second gun. (Tr 149)
At 5:55 a.m., the officers took a ten-minute break. (Tr 126) Oregon State Police
detective Barthel joined Ford and Vega. They resumed the interview and brought a tape-
recorder. (Tr 126-27) Petitioner began cc uplaining of being dizzy and in pain, and he wanted
to lie down on the floor. (Tr 128-29) At 7:00 a.m., they took him to the hospital. (Tr 129)
At the hospital, at 7:15 a.m., petitioner was examined by a nurse and a doctor. (Tr 129,
163) Nurse Beatrice Martinez is fluent in Spanish. (Tr 161) She testified that petitioner was
“slurry”, lethargic and not “fully alert.” (Tr 162-65) She felt that he was “sort of just coming off
the alcohol, so to speak, sort of like a mening hangover type when you’re sort of lethargic and
not totally with it, but not out of it.” (Tr 165) -
At 7:33 a.m., while petitioner while was lying on a bed waiting to be x-rayed, Ford, Vega
and Barthel resumed their interrogation. (Tr 129-30) Petitioner was re-advised of his Miranda
rights in Spanish and English. (Tr 129) He said that he understood them and was feeling better.
(Tr 129-30) Police continued the interrogation with a few short breaks for medical attention.
Petitioner continued to deny shooting at police. (Tr 130-34)
At 9:00. a.m., petitioner was taken back to the police station. (Tr 134) The officers
resumed their interrogation at 9:45 a.m. in an office measuring 10 feet by 10 feet. (Tr 120, 135,
Exh. No. 8) The three officers, Ford, Vega and Barthel, were joined by a fourth officer, Teresi.
(Tr 135) Barthel, through Vega, told petitioner that he must be honest with the officers “because
you are not going to have many chances to tell us.” (Tr 135, 152; Exh. No. 1, p 1) Vega told
petitioner that he “is going to go a lot further being, honest with [the police] than lying to [the
police)” and that the “police are going to find out anyway, so it’s better that you talk now. Better __
than * * * later, they go after you more, ok?” (Tr 179-80; Exh. No 1, p 6)
In this phase of the interrogation,' petitioner said that “they” shot at him first, that he was
not doing anything and that he did not know why they were shooting. (pp 2, 7, 8, 15) When he
shot back, he was shooting up in the air. (p 3) After being told it did not matter how many guns
he had, he admitted having a second gun. (pp 4-5) he said he did not pull out the second gun
until he left it on the ground. (pp 8, 12) He only fired with one gun. (pp 7, 12)
When challenged as to how he could hit an officer if he were only firing into the air,
petitioner demonstrated that he fired the gun as he was bringing it up. (pp 16-17) He said that
he only fired two shots with the first gun. (pp 17-18) When the officers repeatedly asked
petitioner if he could have fired more than two shots, petitioner said that he might have fired
more shots with the other gun. (pp 16-19) The officers then suggested that, “When you were
shooting in the air with the chrome one is when you pulled out the black one?” (p 20) Petitioner
agreed, but then said that he did not shoot much with the black gun. (pp 20-21) When asked
how many bullets he fired with the black gun, petitioner told them three or maybe four.” (pp 21,
24, 50) The officer persistently asked petitioner if he fired the shots from the black gun straight
ahead. (Ex No |, pp 22-24) Petitioner first said yes, and then denied it. (pp 21-22)
* The following page citations all refer to Exhibit No. 1, the transcript of the -
interrogation submitted at the hearing on the motion to suppress. That transcript
covered most of that phase of the interrogation beginning at 9:45 a.m. and lasting
until 11:00 a.m.
* Evidence at trial established that petitioner fired five or six shots from only one
gun, the chrome .357 magnum revolver. (Tr 485, £84-85, 719-20, 730, 771)
~
Eventually, after police told petitioner that it did not matter whether he had shot at police
or civilians, petitioner admitted that he shot into the air because he did not want-to damage the
officers. (pp 38-50) Near ihe end of this phase of the interrogation, the officers asked petitioner
to describe his Miranda rights. (Tr 61-64) Petitioner said, “that it would be better if I told the
truth and everv*hing”. (p 64) He then asked if that was nght. (p65) When asked if the police
promised him anything, petitioner said, “No” and that he did not remember. (pp 65-66) When
asked if the police had fnghtened him in any way, petitioner said he did not remember and then,
when pressed, said, “Yes, that, that, that, | was going to, to be, ah, locked up longer. That's what
I remember that you told me, right? That, that, that | was going to have more, more trouble,
that’s all * * * af, if, if 1 didn’t tell the truth, you told me.” (pp 66) When asked if he was being
honest with the police, petitioner said, “Yes, right now, right now, I have told you everything, |
have, because you told me to, nght?” (p69) When asked if he made his statements voluntarily
and because he wanted to, petitioner said, “Yes, well, to you all, because you told me that if |
didn’t you-know-what, didn’t you tell me that? I, I, that’s why, that’s why I told you the whole
truth, better you told me. That's right, I, I better tell you everything right now.” (pp 69-70)
The interrogation stopped for lunch at 11:00 a.m. and resumed at 11:45 a.m. (Tr 137-38)
At that time, Barthel had left. (Tr 138) The interrogation continued until 12:45 p.m. with a 10-
minute break in the middle.> (Tr 138-39). :
After the interrogation was over, Ford and Vega put petitioner in a police car and drove
around town so that petitioner could point out his brother’s house and his truck. (Tr 139) They
had him sign a consent form to search his truck. (Tr 139-40)
* Statements made in that phase of the interrogation were not included in the
transcript submitted at the hearing on the motion to suppress. (Tr 12; Exh. No. 1)
The pertinent portion of that interrogation is summarized in the tnal facts below.
At 2:30 p.m., eleven hours after his arrest, petitioner was jailed. (Tr 142, 155-56) He
had been in handcutts the entire time. (Tr 157)
, Defense expert Dr. Jose LaCalle is a clinical psychologist who specializes in “cross-
cultural Hispanic” forensic psychology. (Tr 186-90) He evaluated petitioner and found him to
be “low average” in intelligence. He has poor language ait on in his native language,
Spanish. (Tr 191-96)
Reviewing the translation of the Miranda rights used in this case, LaCalle noted that one
needed an 8th or 9th grade level of education to understand the construction of the Spanish
sentences. (Tr 2220-21) He further explained that it is one thing to understand the language of
the Miranda nights and another to understand the concept of the nghts. In many Latin American
areas, including petitioner’s native rural Mexico, that concept is completely forei gn. The
population has great fear of the police. In petitioner's case, his native fear of the police was
greatly actualized by the beating he received from police officers. (Tr 196-98, 219-20)
Reviewing the transcript of the nicimaaahi, LaCalle believed that petitioner never
understood that he could tell the police that he did not want to talk to them. (Tr 201-06) In sum,
in LaCalle’s opinion, petitioner did not voluntarily waive his Miranda rights. (Tr 206)
LaCalle opined that given petitioner’s low intelligence, his native fear of the police, his
beating at arrest by the some pengie who were interrogating him, his lack of sleep, his earlier
substance abuse and the length of the interrogation, petitioner's ability to understand what the
police were telling him was very limited. His ability to resist the pressures of a very skillful
interrogation was also very limited. (Tr 199-200) Given all that, LaCalle believed that petitioner
was manipulated through adept and suggestive police questioning into admitting certain
statements that were not true. (Tr 206-21], 222-24)
9
—————
The trial court ruled that that petitioner’s statements were voluntary. (Tr 231-34) The
court advised defense counsel that it would not help to argue the Vienna Convention issue and
summarily denied the motion to suppress on that basis. (Tr 231-32) A copy of the court’s order
denying petitioner's motion to suppress is attached at App 10-11.
Facts from Trial
Petitioner consumed a large quantity of alcohol. (Tr 381-84, 692-94) Around 3:00 a.m.,
he went to his girlfriend's duplex and repeatedly demanded to sce her although her roommates
repeatedly told him that she was not a home. (Tr 338-49, 355-59, 390-98) Petitioner threatened
the roommates with one or two guns. /d. am
At 3:11 a.m., two of the girlfriend's roommates called 911 from a pay phone at a nearby
market. At least six police officers responded. (Tr 366, 453-54, 497) Uniformed officers
Michael Strouse and Scott Clauson worked their way around the duplexes in the dark to an area
at the back of the duplexes. (Tr 456-57, 477, 483, 764, 767-68) They saw a person crouched
down, with his back to the officers, peeking around a duplex. (Tr 458, 768-69) It was petitioner.
(Tr 459, 480)
Clauson shined his flashlight on petitioner, saw a gunn his hand, identified himself as a
police officer and said, “Drop the weapon.” (Tr 460, 769) At the moment Clauson shined his
flashlight on petitioner, petitioner spun around and began firing his chrome Rossi .357 magnum
revolver. (Tr 460-61, 769, 723-27, 732, 775) Strouse and Clauson fired back. (Tr 461-62, 770)
Petitioner’s bullet hit Clauson in the upper part of his leg, and he fell. (Tr 462, 465, 726, 735)
According to Clauson, he was hit by petitioner's second or third shot. (Tr 770)
Strouse changed his location, shined his flashlight on petitioner and both men
simultaneously fired at each other. (Tr 462-63) Something whizzed past Strouse’s ear. (Tr 462-
10
63, 480) A bullet from the .357 magnum revolver was later recovered at about chest height from
a nearby tree. (Tr 709, 724-25, 728) More shots were exchanged, and petitioner ran off. (Tr
463-64, 492)
The entire exchange of gunfire happened within 10 seconds. Although Strouse described
the shooting as almost continuous, the other officers at the scene described the shooting as
happening in two volleys. (Tr 459, 463, 484-86, 499, 534-35, 550, 563-64, 571-72) A police
detective later questioned Clauson as to who had fired first: Clauson or petitioner. Clauson at
first said that he was not sure. After the detective talked Clauson through the episode, Clauson
said, “Well, I think he must have shot first.” At the time of trial, Clauson was sure petitioner had
fired first. (Tr 775-76; Exh. No. 101) All told, between 24 and 30 rounds had been fired.
Petitioner had shot cff five or six rounds and all from his chrome .357 magnum revolver. (Tr
485, 584-85, 719-20, 730, 771)
Strouse later spotted petitioner crouched down behind a duplex. (Tr 466) As soon as he
was spotted, petitioner ran off. (Tr 466-67) Misty Senter’s description of petitioner’s actions in
her backyard was essentiaHy the same as her pretrial testimony. (Tr 433-44) Further testimony
regarding petitioner’s arrest was substantially similar to that given at the hearing on the motion
to suppress. (Tr 435-40, 445-46, 468-71, 507, 536-59, 552-58, 566-69, 576, 578-79)
At the police station, ‘ “drug recognition evaluator” evaluated petitioner and believed
petitioner was under the influence of a stimulant, but not to the point where he was really high.
(Tr 596, 599-600, 602-04) Blood and urine samples given at 8:52 a.m. tested positive for
methamphetamine and amphetamine and showed that petitioner’s blood alcohol content was 03
percent at that ime. (Tr 594, 614)
1]
Testimony regarding petitioner's extended interrogation was substantially similar to that
given at the hearing on the motion to suppress and included additional statements. In those
additional! statements, petitioner consistently maintained that the police fired first and that he was
not trying to kill them. However, he sometimes stated that he knew that he was shooting at
police and sometimes stated that he did not know. (Tr 510-16, 522, 608, 610-16, 619, 622, 624,
627-29, 602-03, 630-72, 757-59; Exh. Nos. 41-45, 51, 62, 105)
The jury acquitted petitioner of resisting arrest. It found him guilty of all remaining
charges except Count |, attempted aggravated murder. On that count, it convicted him of the
lesser cnme of attempted murder.
Petitioner’s Case on Appeal
On appeal, petitioner argued that his statements should have been suppressed under both
the Oregon Constitution and the Fifth and Fourteenth Amendments to the United States
Constitutions, because they were not voluntarily and knowingly made. He also argued that those
statements should have been suppressed under the Fourteenth Amendment, because they were
obtained in violation of the Vienna Convention. The Court of Appeals affirmed petitioner's
convictions without opinion. Sanchez-Llamas, 191 Or App 399, 84 P.3d. 1133.
Petitioner made the same arguments before the Oregon Supreme Court. Relying heavily
on a presumption against heady enforceable treaties and the State Department's interpretation
that private nghts do not exist, the court concluded that the Vienna Convention does not confer
personally enforceable rights. Sanchez-Llamas, 338. Or at 276-77. It did not address petitioner’s
other claim regarding the voluntariness of his Miranda waiver and subsequent statements. /d. at
7797
1?
a
REASONS FOR GRANTING THE WRIT
I. Petitioner's post-arrest statements were obtained in violation of the Vienna
Convention and should be suppressed
A. Introduction
The Vienna Convention, 21 U.S.T. 77, T.L.A.S. No 6820, is a multilateral treaty to
which both Mexico and the United States are signatories. The treaty was negotiated in 1963
and ratified by this country in 1969. In part, the Vienna Convention requires authorities to
notify a detained foreign national of the detainee’s nght to consular access.
Petitioner is a Mexican national. Police arrested him but did not notify him of his
Vienna Convention rights. He was subsequently interrogated for 11 hours and made
incriminating statements. Police obtained those statements in violation of Article 36 of the
Vienna Convention and the Due Process Clause of the Fourteenth Amendment.
This court granted review in an unrelated case concerning the Vienna Convention in
Medelliny. Dretke, US. , SCt. _, L.Ed.2d.___, 2005 WL 1200824
(May 23, 2005). This court had granted review in that case to consider two questions:
whether the Avena judgment was binding on American courts and whether this court should
give effect to that judgment as a matter of judicial comity and uniform treaty interpretation.
2005 WL 1200824 at 1. Underlying those issues was the question of otuther Article
36(1)(b) created judicially enforceable individual rights. /d. at 7 (O’Connor, J., dissenting).
Mr. Medellin was one of the cases considered by the International Court of Justice
(ICJ) in Avena and Other Mexican Nationals (Mex. v. U_S.), 2004 1.C.J. 1 (Mar 31). The ICJ ‘
held that he and others should be granted a review of their Vienna Convention claims in the
American judicial system. Mr. Medellin eventually sought a writ of habeas corpus before
this Court. In the mean time, President Bush withdrew from the Optional Protocol! and
13
decided to grant Mr. Medellin review in Texas courts in accordance with the Avena
judgment. This Court subsequently dismissed his petition, because he had sought relief in
state court arid because various procedural questions might prove to be hurdles to addressing
the merits of his claims.
Although petitioner was not a party to the Avena case, this case raises the same
question underlying Medellin: whether Article 36(1)(b) creates judicially enforceable"
individual rights. It further presents the question of what remedy, if any, applies when police
obtain statements in violation of that article. Those questions were preserved below and
come to this court on direct review. Therefore, procedural issues do not prevent this Court
from considering the merits of petitioner’s claims.
B. Article 36 is self-executing and constitutes the “law of the land”
The Supremacy Clause of the United States Constitution requires that courts enforce
treaties as the “law of the land.” Thus, treaty provisions are enforceable in American courts
at the request of affected individuals if those provisions are self-executing. United States v.
Alvarez-Machain, 504 U.S. 655, 667, 112 S.Ct. 2188, 119 L. Ed. 2d. 441 (1992) (“The
Extradition Treaty has the force of law, and if * * * it is self-executing, it would appear that a
court muz. enforce it on behalf of an individual regardless of the offensiveness of the practice
of one nation to the other nation.”; Edye v. Robertson (“Head Money Cases"), 112 U.S.
580, 598-99, 5 S.Ct. 247, 28 L. Ed. 798 (1884) (“A treaty, then is a law of the land as an act
of Congress is, whenever its provisions prescribe a rule by which the rights of the private
citizen or subject may be determined.”); United States v. Li, 206 F.3d. 56, 70-71 (1" Cir.)
(Torruella, C.J., dissenting in part), cert den, 531 U.S. 956 (2000)
14
The Vienna Convention is clearly self-executing. See Medellin, 2005 WL 1200824 at
15 (O'Connor, J., dissenting) (“Article 36 of the Vienna Convention ***, 1s, as the United
States recognizes, a self-executing treaty.) It requires no implementing legislation to give it
force. In addition, petitioner is not aware that the federal government has ever taken a
contrary position. Consequently, petitioner will not discuss that point further. Rather, he
will address whether the Convention conveys personal nghts to foreign detainees.
C. The decisions of the ICJ concluding that individual rights exist under Article 36
should control as a matter of judicial comity and consistent treaty interpretation
In both Avena and LaGrand, the ICJ determined that Article 36 creates individual
rights to consular notification and access. LaGrand Case (Germany v. United States of
America), 2001 1.C.J. 466, at § 77 (June 2001); accord, Avena, 2004 1.C J. at $61.
“The clarity of these provisions, viewed in their context, admits of noe
doubt. It follows, as has been held on a number of occasions, thai the Court
must apply these as they stand * * *. Based on the text of these provisrous,
the Court concludes that Article 36, paragraph |, creates individual ngbts,
which, by virtue of Article | of the Option Protocol, may be invoked in this
Court ** —
LaGrand, 2001 1.C.J. at $77. This court should follow those decisions.
Decisions of foreign courts are entitled to recognition and enforcement in the courts
of the United States on the grounds of comity. In Hilton v. Guyot, 159 U.S. 113, 16 S.Ct.
139, 40 L. Ed. 95 (1895), the Court explained:
“"Comity,’ in the legal sense, is neither a matter of absolute
obligation on the one hand, nor of mere courtesy and good will, upon the
other. But it is the recognition which one nation allows within its terntory
to the legislative, executive or judicial acts of another nation, having due
regard both to international duty and convenience, and to the nghts of its
own citizens or of other persons who are under the protection of its laws.”
ld. at 163-64.
15
The United States agreed to submit disputes “arising out of the interpretation and
application” of the Vienna Convention to the ICJ. It fully litigated before that body in both
the Avena and LaGrand cases. Under those circumstances, the United States courts should
recognize and enforce those decisiens
This court should also follow the ICJ decisions in the interest of uniform treaty
interpretation. One of the purposes of the Vienna Convention was to achieve uniformity
among nations. Report of the United States Delegation to te « ited Nations Conference on
Consular Relations, reprinted in Vienna Convention on Consular Relations and Optional
Protocol, S. Exec Doc. # 91-9, 41 (1969). When a multilateral convention results from an
effort to achieve uniformity, “it is reasonable to impute to the parties an intent that their
respective courts strive to interpret the treaty consistently. Olympic Airways v. Husain, 540
U.S. 644, 660-61, 124S. Ct. 1221, 157 L. Ed. 2d. 1146 (2004) (Scalia, j., dissenting). That
objective would be thwarted if each nation were to insist upon its own interpretation of the
treaty.
A treaty is like a contract — a multilateral contract in this case ~ in which parties agree
to abide by certain terms. Here, the United States agreed to inform a foreign detainee of his
or her right to consular access. In addition, the United States, along with Mexico, agreed
under the Optional Protocol to be bound by the ICJ’s decisions. The United States took full
advantage of its opportunity to litigate before that court. Those countries that still adhere to
the Optional Protocol will continue to be bound by the ICJ’s interpretation of the treaty.
Avena, 2004 1.C.J. at § 151 (stating that the court will apply its interpretation and application
in future cases). Consequently, the goal of uniformity will fail unless this court adopts the
IC J's mterpretation.
16
In addition, the ICJ‘s interpretation of the treaty 1s supported by the principles of
construction employed by this court. Therefore, there 1s no sound justification why this
Court should depart from the well-reasoned decisions of the ICJ.
D. This court should interpret the treaty to provide individual rights
The construction of a treaty begins with the “text of the treaty and the context in
which the written words are used." Eastern Airlines, Inc. v. Flovd, 499 U.S. $30, 534, 11
S.Ct. 1489, 113 L. Ed. 2d. 689 (1991) (quoting Aktiengeseleschaft v. Schlunk, 496 U.S. 694,
699, 108 S.Ct. 2542, 100 L. Ed. 2d. 722 (1988) (internal quotations in orginal). See,
Alvarez-Machain, 504 U.S. at 663-68. General rules of construction may be eguliet to
ambiguous passages. Eastern Airlines, 499 U.S. at 535. Treaties are construed more
liberally than private agreements, and the courts may look to the history of the treaty, the
negotiations, and the practical constructions adopted by the parties. /d/
Article 36 the Vienna Convention provides:
“(1) With a view to facilitating the exercise of consular functions
relating to nationals of the sending State: ‘i
“(a) consular officers shall be free to communicate with nationals of
the sending State and to have access to them. Nationals of the sending State
shall have the same freedom with respect to communication with and access
to consular officers of the sending State;
““(b) if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State if, within
its consular district, a national of that State is arrested or committed to
prison or to custody pending trial or is detained in any other manner. Any
communication addressed to the consular post by the person arrested, in
prison, custody or detention shal! also be forwarded by the said authorities
without delay. The said authorities shall infurm the person concerned
without delay of his rights under this sub-paragraph;
“(c) consular officers shall have the nght to visit a national of the
sending State who ts in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation. They shall
\ 17
also have the night to visit any national of the sending State who ts in prison,
custody or detention in their district in pursuance of a judgment.
Nevertheless, consular officers shall refrain from taking action on behalf of
a national who is in prison, custody or detention if he expressly opposes
such action.
(2) The nghts referred to in paragraph | of this Article shall be
exercised in conformity with the laws and regulations of the receiving State,
subject to the proviso, however, that the said laws and regulations must
enable full effect to be given to the purposes for which the rights accorded
under this Article are intended.”
Vienna Convention, 21 U.S.T. at 100-01 (emphasis added).
Subparagraph (b) first provides that detaining authorities must notify the detainee’s
consulate without delay if “he [the detainee] so requests.” Second, it provides that the same
authorities must also forward any communication from the detainee to the consulate without
delay. Third, it mandates that the detaining authorities inform the detainee without delay of “his
nghts,” «.e., the nghts to notify consular representatives and communicate with them. The clear
wording refers to the detainee 's rights. Those rights may be exercised only at the detained
person's election. Further, paragraph (1c) prohibits consular action if the detained person
“expressly opposes such action.”
The above language unequivocally articulates a rule by which the rights of individual
citizen may be determined. The language is not ambiguous or difficult to understand. If it were a
federal statute, there would be no doubt that Article 36 created individual rights.
However, some authorities have relied upon the treaty’s preamble to suggest that no
private rights were intended. Li, 206 F.3d. at 62. The preamble provides in part:
“The State Parties to the present Convention,
“*e*e* *
“Beheving that an international convention on consular relations,
privileges and immunities would also contribute to the development of
-
18
friendly relations among nations, * * * Realizing that the purpose of such
privileges and immunities ts not to benefit individuals but to ensure the
effictent performance of the functions of diplomatic missions as representing
states,
we eeee
“Have agreed as follows.”
23 U.S.T. at 3230.
The preamble refers to the privileges and immunities of diplomatic representatives in their
roles as diplomatic representatives and does not limit the “rights” of private individuals. Li, 206
F.3d. at 72-73; Mark J. Kadish, “Article 36 of the Vienna Convention on Consular Relations: A
Search for the Right to Consul,” 18 Mich. J. Int'l] Law, 565, 594-96 (1997) (hereinafter Kadish).
The focus of the Vienna Convention was on consulate relations. Kadish, at 594-96. The
“individuals” in the preamble are the individual consulate representatives. The seat simply
clarifies that the privileges and immunities granted consular officials under the Vienna
Convention are meant to aid the consuls in the performance of their duties and should not be used
by consuls as a shield to avoid punishment for wrongdoing. /d.
Although the United States Government does not dispute its duty to perform its obligations
under Article 36, its litigation position is that the treaty confers no personal rights. See e.g.
LaGrand, 2001 1.C.J. at {76> However, that position should be given little weight. Indeed, if the
Executive Department's instant policy were the sole or even primary tool to construe a treaty, this
Court would never truly construe a treaty, but merely defer to the executive construction, which
would change with the political wind.
E. Police violated petitioner’s rights under Article 36
Defense counsel's affidavit in support of the motion to suppress averred: “Petitioner 1s a
foreign national and was not advised of his nght to consult with the Mexican Counsel [sic]. (Rec
a
19
40; attached at App 3). The state agreed that petitioner was a Mexican citizen and that it failed to
inform petitioner of his rights under the Vienna Convention. (Answer to Def’s Mtn to Suppress, at
p 2, Rec 72). Consequently, there is no dispute that petitioner was arrested and that the state did
not comply with its Vienna Convention obligations.
F. Suppression is required under the United States Constitution
Suppression is not always required for nonconstitutional violations. See United States
v. Caceres, 440 U.S. 741, 749, 99 S.Ct. 1465, 59 L. Ed. 2d. 733 (1979) (exclusion was :
inappropriate where agency’s violation of its regulation did not implicate constitutional or
statutory rights). However, this Court has upheld suppression where “the rules were designed
‘to afford [the alien] due process of law’ by providing ‘safeguards against essentially unfair
procedures.” Caceres, 440 U.S. at 749 (quoting Bridges v. Wixon, 326 U.S. 135, 152-53, 65
S.Ct. 1443, 89 L Ed 2103 (1945)), see United States v. Lombera-Cumorlinga, 206 F.3d. 882,
893 n 2 (9" Cir) (Thomas, J. dissenting, citing cases), cert den, 531 U.S. 991 (2000).
The purpose of suppression, at least in regards to illegal search and seizures, is to deter
“future violations of Fourth Amendment nights through the rule’s general deterrent effect.”
Arizona v. Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 131 L. Ed. 2d. 34 (1995). “As with any
remedial device, the rule’s application has been restricted to those instances where its remedial
Aitencnteagnnes dleniaadp apak” 16 111. Tien, toenerenatene
sanctioned suppression of evidence as a rernedy when there is a “deliberate disregard of the
rule” or “if the petitioner was prejudiced.” Lombera-Camorlinga, 206 F.3d. at 893 n 2
(quoting United States v. Gantt, 194 F.3d. 987, 994 (9" Cir 1999)).
A different standard, however, applies to the exclusion of confessions. In those
situations, the remedy’s roots hie in the common law. Dickerson v. United States, 530 U.S.
20
428, 433, 120 S.Ct. 1602, 147 L. Ed. 2d. 405 (2000) (citing cases and holding that warnings
required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Fd. 2d. 694 (1966) are
constitutionally based). Suppression of tainted confessions is required under both the Fifth
Amendment nght against self-incrimination and the Due Process Clause of the Fourteenth
Amendment. Dickerson, 530 U.S. at 433. In more recent years, however, the Court has come
to rely on the Due Process Clause. /d. at 434.
The federal circuit courts that have addressed Vienna Convention violations have not
addressed whether the treaty confers personal rights. Instead, they have held that the suppression
of statements is not an appropriate remedy because the treaty does not specifically require that
remedy. E.g., United States v. Chaparvo-Alcantara, 226 F.3d. 616, 621-22 (7" Cir), cert den, 531
U.S. 1026 (2000); Lombera-Camorlinga, 206 F.3d. at 886-87; Li, 206 F.3d. at 61-62. Petitioner
agrees that the Vienna Convention does not explicitly call for suppression. Instead, given the
signatories’ diverse political structures and systems of justice, paragraph 2 of Article 36 requires
each country to integrate the treaty’s requirements into that country’s legal autem.
Paragraph 36(2) requires that the laws of the receiving state give “full effect” to the
purposes intended for the “rights” established under the treaty. That language is sufficient to
require suppression of statements as a remedy for treaty violations because it is the only remedy
provided by the laws of this pa that would give “full effect” to the purposes of the treaty.
Violations of Article 36 should result in suppression of statements because those rights
constitute procedural protections associated with interrogation and criminal prosecution.
Therefore, they are akin to Miranda rights and serve similar purposes. Miranda warnings are
required in order to even the playing field by ensuring that the suspect understands that he has a
right not to talk and a mght to counsel. Dickerson, 530 U.S. at 435 (citing Miranda, 384 U.S. at
439, 445).
Article 36 also operates to safeguard against unfaimess. Notification of the nght to
consular access is a procedural right granted to foreign nationals who suddenly find themselves
enmeshed in an alien legal system. The right to contact one’s consulate serves an obvious purpose.
Because foreign nationals often have little or no knowledge of a receiving state's criminal system
and principles, they are granted a right to contact their consulate without delay. That enables the
consulate to assist the foreign national in understanding that system and arranging for legal
representation if necessary. Mexico described its range of assistance in a letter it provided to the
Joint Internm Committee of the Oregon State Legislature, and it attached that letter to the amicus
brief that it filed in State v. Chavez, 335 Or. 44, 56 P.3d. 923 (2002) (letter attached to this petition
at App 25-29). Because of the importance of consular notification to procedural fairness,
petitioner is entitled to the suppression of his statements.
Petitioner is also entitled to suppression because of the egregious nature of the police
misconduct. The treaty has been the law for over 35 years. However, violations continue to occur
on a regular basis. The state’s disregard for the treaty plainly illustrates why suppression is the
most likely remedy to secure law enforcement’s compliance with the treaty’s terms. Unless and
until consular notification ont access is enforced by means of suppression, violations will continue
to occur on a regular basis.
Petitioner is particularly entitle? to the suppression of his statements given the lengthy and
coercive nature of his interrogation and his limited abilities to understand the criminal justice
system. As explained in Part II of this petition, given the totality of the circumstance the officers’
failure to properly advise petitioner of his nights under the treaty contributed to an involuntary and
unknowing waiver of his Miranda nghts and subsequent inculpatory statements.
Il. Petitioner’s statements were not voluntary and must be suppressed
The second question in this case presents the issue of whether defendant’s statements
should have been suppressed under the Fifth and Fourteenth Amendments to the United States
Constitution. Petitioner acknowledges that this court has examined the voluntariness of Miranda
waivers under coercive circumstances in the past. However, this case presents that question in the
unique light of the police failure to inform petitioner of his Vienna Convention nghts to consular
notification and access. Consequently, it presents a question of first impression.
A. The right to remain silent must be voluntarily and knowingly waived
The Fourteenth Amendment requires the state to prove by a preponderance of the evidence
that a self-incriminating statement was voluntary, that is, that police conduct did not overbear the
suspect's will or critically impair the suspect’s capacity for self-determination. U.S. Const, Amend
XIV; Colombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L. Ed. 2d. 1037 (1961 (if a
suspect has voluntarily willed to confess, the statement may be used against him; if his will has
been overborne or his capacity fo: self-determination critically impaired, the use of his confession
offends due process and may ent be used); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L. Ed.
2d. 618 (1972)(the state must prove voluntariness by a preponderance of the otines.
The totality of the circumstances determines whether a confession or admission is
voluntary. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L. Ed. 2d. 302 (1991). The
factors informing a voluntarinegs determination may be categorized into three groups. |) the
characteristics of the accused; 2) the conditions of interrogation; and 3) the conduct of law-
23
enforcement officials. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 36 L. Ed.
2d. 854 (1973\(court will assess both the characteristics of the accused and the details of the
interrogation). A confession must not be extracted by any threats of violence or obtained by direct
or implied promises. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1485, 12 L. Ed. 2d. 653 (1964).
Voluntariness is determined without regard to the truth of falsity of a confession. Rogers v.
Richmond, 365 U.S. 534, 540-42, 81 S.Ct. 735, 5 L. Ed. 2d. 760 (1961).
Custodial interrogations, by their very nature, generate compelling pressures which
undermine an individual's will to resist and compel him or her to speak. Miranda, 344 U.S. at 467.
Under the Fifth Amendment, in order to establish that a suspect’s in-custody statements are truly
voluntary, the state must show two things: first, that the suspect was adequately and effectively
apprised of his or her constitutional privilege against self-incrimination and right to counsel before
interrogation and, if exercised,that the exercise of those rights were honored; and second, if
waived, that the suspect knowingly and intelligently waived those rights. /d. at 467-77. The
waiver must have been made with a full awareness of the nature of the nght being abandoned and
the consequences of the decision to abandon it. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct.
1135, 89 L. Ed. 2d. 410 (1986). The waiver is examined in the light of the totality of the
circumstances. /d. Evidence that the suspect was threatened, tricked or cajoled shows that the
suspect did not voluntarily waives his privilege. Miranda, 384 U.S. at 476; Moran, 475 U.S. at 421
(the relinquishment of the nght must have been the product of a free and deliberate choice rather
than intimidation, coercion or deception).
24
B. Petitioner’s statements were not knowingly and voluntarily made
In this case, the evidence was uncontested that petitioner was a man of low intelligence
who came from an area in Mexico where people greatly fear the police and do not believe that they
can refuse to answer police questions. Petitioner, justified or not, was beaten by several police
officers a few short hours before his interrogation. He was suffering from the effects of that
beating during the interrogation. He was also “slurry”, lethargic and “coming off” an alcohol
binge and was deprived of sleep.
The entire interrogation lasted |! hours - from about 3:30 a.m. when he was arrested to
about 2:30 p.m. when he was jailed. Petitioner was in handcuffs the entire time. For most of the
interrogation, except for a visit to the hospital, petitioner was confined to a smal! room with at least
three officers. In the hospital, the questioning persisted between administrations of medical
treatment.
The officers twice read petitioner his Miranda rights in Spanish, but the construction of the
sentences required an 8" or 9" grade level of education to understand. Petitioner had poor
language skills in his native language. At the start of the-“heart” of the interrogation — beginning
at 9:45 a.m. and continuing, with a short break for lunch, until 12:45 — a police officer told
petitioner that the police “are going to find out anyway, so [it’s] better that you talk now. Better
than * * * later, they go ie on more, ok?”
Petitioner proved very suggestible during the interrogation. “is story changed continually.
For the most part, the police only let go of a line of questioning after petitioner had agreed to their
version of the events. Petitioner even admitted to a version of the events that later-acquired police
evidence disproved: that petitioner shot both of his guns and not just one.
25
Midway through this last phase of the interrogation, the pclice asked petitioner to describe
his rights. He described his nghts as follows, “that it would be better if I told the truth and
mien” That is by no means an accurate dsniieiaa of his Miranda nights. When asked if
the police had frightened him, petitioner said, “Yes, that, that, that, | was going to, to be, ah, locked ~
up longer. That’s what | remember that you told me, nght? That, that, that | was going to have
more, more trouble, that’s all * * * if, if, if | didn’t tell the truth, you told me.” Petitioner was
obviously referring to the police officer’s statement that the police “are going to find out anyway,
so [it’s] better that you talk now. Better than * * * later, they go after you more, ok?”
In addition, police violated petitioner's nghts under the Vienna Convention. That police
misconduct should weigh heavily against finding a voluntary and knowing waiver. The failure to
advise petitioner of his rights to contact and communicate with his consulate disavailed petitioner
of the very procedures that were established to ensure that he undentacd his nghts in the
American criminal justice system.
Given the totality of the circumstances, petitioner did not understand and voluntarily waive
his Miranda rights and did not voluntarily give statements to the police.
C. Prejudicial Error Analysis
The admission of coerced confessions obtained in violation of the Fifth Amendment is
subject to a harmless error enaiysie. F tenia 499 U.S. at 310. Before the constitutional error
can be held harmless, the state must show, beyond a reasonable doubt, that the admission of the
confession did not contribute to the petitioner's conviction. /d. at 310-12. An appellate court
should keep in mind that a confession is probably the most probative and damaging evidence, that
the impact on the jury is great and that a yury may be tempted to reach its decision by relying on
that evidence alone. /d. at 296.
26
In this case, there is no question as to whether or not petitioner shot at the police officers
and wounded one of them. He did. The issue at trial was petitioner's intent when he did so.
By the time the interrogating police officers were done with petitioner, he had made some
damaging admissions. He admitted knowing the police were in the area looking for him. He
admitted that he was lying in wait with a gun in his hand. He admitted that if the officers were
going to shoot at him, he was going to shoot back. He admitted knowing that it was the police he
was shooting at. He admitted shooting “straight ahead.”
That evidence surely tipped the scales in favor of petitioner’s convictions. It disproved any
reckless intent. It made petitioner out to be a killer. And if the jury spared him a conviction of
attempted aggravated murder on Count | because it did not believe that petitioner immediately
knew he was shooting at police, the evidence ensured petitioner’s conviction of attempted murder
of that officer and of attempted aggravated murder of the second officer at whom petitioner shot
just seconds later. Further, that evidence ensured petitioner’s conviction for assault in the first
degree.
It cannot be said then that the admission of petitioner’s involuntary statements was
harmless beyond a reasonable doubt. The trial court’s error was prejudicial error. It warrants the
reversal of petitioner’s convictions for attempted murder, attempted aggravated murder and assault
in the first degree.
27
CONCLUSION
The petition for writ or certioran should be granted. With respect to both
issues presented in this petition, petitioner requests that this court remand to the
Oregon Supreme Court with instructions to suppress his statements and remand his
case for a new tnal.
Respectfully Submitted,
PETER OZANNE
Executive Director
eign® Office of Public Defense Services
PETER GARTLAN
Chief Defender
Counsel of Record
SUSAN F. DRAKE
Senior Deputy Public Defender
Office of Public Defense Services
1320 Capitol St. NE, Suite 200
Salem, OR 97303
Telephone: (503) 378-3349
- App |
Robert L. Abel
Robert L. Abel P.C. ‘ G23 8 ge aes
Attorney at Law Poa ge A OL
10 Crater Lake Ave. Suite #21
Medford, OR. 97504
857-1778 Fax 857-1796
IN THE CIRCUIT COURT FOR THE STATE OF OREGON FOR JACKSON COUNTY
STATE OF OREGON, ) Case No.: Case No.: 99-6212-FE
)
Plaintiff, ) MOTION TO SUPPRESS
)
VS. )
)
MOISES SANCHEZ-LLAMAS, )
)
Defendant )
)
i.
Defendant requests oral argument and anticipates the taking of evidence and argument on this motion will
take one day.
2.
Defendant moves the court for an order suppressing all observations of the accused, statements, admissions
or confessions of the accused, and the fruits thereof, upon the following grounds:
1. That the same were obtained in violation of applicable state statutes, the Constitution of Oregon,
and the Constitution of the United States,
2. The lack of voluntariness under the Oregon Constitution and United States Constitution.
u
M
//
//
4900
MOTION LTO SUPPRESS - !
ND
Defendant relies in this motion upon ORS 136.425 (1), Amticle 1, section Sommnttinns
the Fifth Amendment, United States Constitution.
Dated this 19" day of
MOTION LTO SUPPRESS - 2
App 2
590041
App 3
Robert L. Abel
Robert L. Abel P.C.
Attorney at Law
10 Crater Lake Ave. Suite #21 ae
Medford, OR. 97504
857-1778 Fax 857-1796
IN THE CIRCUIT COURT FOR THE STATE OF OREGON FOR JACKSON COUNTY
STATE OF OREGON, ) Case No.: Case No.: 99-6212-FE
)
Plaintiff, ) AFFIDAVIT IN SUPPORT OF MOTION TO
) SUPPRESS
vs. )
)
MOISES SANCHEZ-LLAMAS, )
)
Defendant )
)
THE STATE OF OREGON )
)ss.
County of Jackson )
1, Robert L. Abel, being first duly swom on oath, do hereby depose ands say:
I am the attorney for the above named defendant.
I have read the police reports and talked with the defendant regarding the facts and circumstances
surrounding the interrogation conducted by police officers on December 18,2000.
Based on information and belief from these sources, the facts and circumstances relevant to this Motion to
Suppress are as follows:
1. Defendant is 0 foreign axtional and wes not advised of his right to consult with the Mexican Counsel;
2. Defendant was not properly advised of his Miranda nghts,
3. Statements of the defendant were not made voluntarily.
7]
/
//
AFFIDAVIT IN SUPPORT OF MOTION TO SUPPRESS - ! 990
N40
24
25
I make this affidavit in support of my motion to suppress.
~~
/
SUBSCRIBED AND SWORN TO before me this 19* day of September 2000.
AFFIDAVIT IN SUPPORT OF MOTION TO SUPPRESS - 2
CD
Q
>
N39
24
25
RECEIVEp AND Alp App 5
Robert L. Abel
Robert L.. Abel P.C.
Attomey at Law SEP 19 2000
10 Crater Lake Ave. Suite #21 TRIAL co
Medford, OR. 97504 Dockerep p, ADMINISTRATOR
857-1778 Fax 857-1796 We csc
IN THE CIRCUIT COURT FOR THE STATE OF OREGON FOR JACKSON COUNTY
STATE OF OREGON, ) (Case No.: Case No.: 99-6212-FE
)
Plaintiff, } MEMORANDUM OF LAW IN SUPPORT OF
) MOTION TO SUPPRESS
vs. ~)
)
MOISES SANCHEZ-LLAMAS, )
)
Defendant )
)
DEFENDANT, A FOREIGN NATIONAL, WAS NOT ADVISED OF HIS RIGHT TO CONSULT WITH
THE MEXICAN COUNSEL
Article 36 of the Vienna Convention on Consular Relations and Optional Protocol on Disputes, April 24,
1963, 21 U.S.T. 77-123 (1970), T.LA.S. No. 6820 (hereafter “the Convention”) provides:
“Article 36
“COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
“1. With a view to facilitating the exercise of consular functions relating to nationals of the
sending State:
“(a) consular officers shall be free to communicate with nationals of the sending
State and to have access to them Nationals of the sending State shall have the
same freedom with respect to communication with and access to consular
officers of the sending State;
“(b) if he so requests, the competent authorities of the recetving State shall,
without delay, inform the consular post of the sending State rf, within its
consular district, a national of that State is arrested or committed to prison or to
custody pending tal or is detained in any other manner Any communication
MEMORANDUM OF LAW - I
24
25
App 6
addressed to the consular post by the person arrested, in prison, custody or
detention shall also be forwarded by the said authorities without delay. The said
authorities shall inform the person concemed without delay of his rights under ~
this sub-paragraph,
“(c) consular officers shall have the right to visit a national of the sending State . ae
who is in prison, custody, or detention, to converse and correspond with him and
to arrange for his legal representation. They shall also have the nght to visit any
national of the sending State who is in prison, custody or detention in their
district in pursuance of a judgment. Nevertheless, consular officers shall refrain
from taking action on behalf of a national who is in prison, custody or detention
if he expressly opposes such action.
“2. The rights referred to in paragraph | of this Article shall be exercised in conformity with the
laws and regulations of the receiving State, subject to the proviso, however, that the said laws and
regulations must enable full effect to be given to the purposes for which the rights accorded under
this Article are intended.”
The Vienna Convention was signed by the United States in Vienna in 1963 and ratified on September 24,
1969, taking effect on December 24, 1969. 115 Cong Rec. 30,945 (1969). The regulations of the Immigration and
Naturalization Service provide that “{e}very detained alien shall be notified that be or she may communicate with
the consular or diplomatic officers of the country of his or her nationality,” and that, for some nationalities, the
consul be immediately notified when a foreign national is detained by local authorities. 8 C.F.R. § 242.2(g) (1997).
This section was enacted to ensure compliance with Article 36 of the Convention. United States y. Calderon-
Medina, 591 F.2d 529, 531-32 n.6 (9th Cir. 1979).
The Supremacy Clause, Article VI of the United States Constitution, provides that
“[tJhis Constitution, and the Laws of the United States which shall be made in Pursuance thereof,
the supreme Law of the Land: arid the Judges in every State shall be bound thereby, any thing in
the Constitution or Laws of any State to the contrary notwithstanding” (Emphasis added).
The United States Supreme Court has stated that “[tJhe clear import of treaty language controls unless ‘application off
the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or
expectations of its signatories.“ Sumitomo Shoji America, Inc. y, Avagliano, 457 U.S. 176, 180, 102 S.C. 2374,
2377, 72 L.Ed 2d 765 (1982), quoting Maximov y. United States, 373 US. 49, 54, 83 S.Ct. 1054, 1057 (1963),
Furthermore, “{:}t is axiomatic that the State must adhere to United States treaties as the supreme law of the land.”
MEMORANDUM OF LAW - 2
24
25
G
App ?
ices. 924 S.W.2d 756, 761 (Tex App.-Austin 1996).
(citing to Supremacy Clause).
The drafters of the Article 36 were clearly concerned with the ability of consular officers to speak with
nationals of the sending State imprisoned in the jurisdiction of the receiving State. Sub-paragraph (1 (a) provides a
general nght of communication with nationals of the sending state. Sub-paragraph (1)(b), however, requires
competent authorities who have been notified to do so to inform the consular post if forcign nationals are “detained
in any... manner,” to forward communications between the national and the consul, and to so inform the national.
Sup-paragraph (1)(c) allows consular officials to visit, converse and correspond with the detained nationals, and to
arrange for the national's representation.
Consequently, the text and context of Article 36 implicate rights similar to those which led the Supreme
Court to hold that, because a criminal defendant may not know of his constitutional right to an attorney, the police
must inform the accused of that right so that he may knowingty exercise or waive that right once taken imto custody.
Miranda y, Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed 2d 694 (1966). A foreign national is particularly in need
of such advice. A foreign national accused of crime may be deported if convicted. Legal systems and the availability
of legal protections may differ wildly from those of the sending State, The national may not even speak the language)
of the receiving State, thus being doubly disadvantaged. Article 36 alleviates this problem by requiring the police to
notify the accused of his right to speak with consul, and to notify the consul of the national's detention. Article 36
allows the consul, a person the accused may be more able to trust, to speak with the accused. The foreign nationai
can get information, from a fellow native speaker, regarding the differences between the two legal systems.
Defendants from countries with suthoritarian regimes may fear their own torture, murder, or retaliation for not
cooperating. Thus, common police practices such as feigning anger, raising the voice, cursing, the wearing of
weapons, and isolation of the subject in an interrogation room may invoke a quite reasonable terror in a foreign
national. Furthermore, language difficulties may prevent the foreign sccused from knowingly exercising his or her
Miranda nights
The remedy for a violation of a foreign national's right to be informed of the ability to speak with consul
should be suppression Cf. Montilla v. INS, 926 F 2d 162, 170 (2nd Car. 1991) (invalidating deportation proceeding
appropriate remedy where consttutional or statutory nght implicated) with Waldron vy. INS, 17 F.3d 511, 518
MEMORANDUM OF LAW - 3
24
25
App 8
(1993) (affirming deportation proceeding appropriate remedy where no prejudice results from violation of
administrative rule). The Due Process provisions of the Fifth Amendment of the United States Constitution apply to
foreign nationals. Sce Montilla, 926 F.2d at 166. The Supremacy Clause provides that the Constitution, statute, and
treaties of the United States are the supreme law of the land Consequently, the treaty ai issue herein is more like a
Statutory or constitutional right than the INS regulation at issue in Waldron.
Similarty, exclusion of evidence is the proper remedy for a violation of a person's constitutional nghts.
Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct 341, 58 L.Ed 652 (1914) (excluding evidence appropriate
remedy for violation of 4th Amendment protection against unreasonable searches), Burgett v, Texas, 389 U.S. 109,
88 S.C1 258, 19 L_Ed 2d 319 (1967) (excluding underlying, invalid conviction appropriate remedy for violation of
6th Amendment right to counsel).
“This nation must manifest integrity in our treaties with foreign countnes. To honor the provisions of
Article 36 of the [Convention] .. . mandates a sense of justice and decency. To do amything less is a severe erosive
compromise of our very essence equal if not greater than a Constitutional violation.” United States y. Calderon-
Medina, 591 F.2d 529, 532 (1979) (Takasugi, J., dissenting).
Ol.
Tr The Defendant, Moises Sanchez-Liamas, seeks to have the Court exclude from evidence herein all
statements, admissions and confessions elicited from him during the course of questioning by police officers on
December 18, 1999. Defendant argues that he made the statements involuntarily and without knowingly and
intelligently waiving his Miranda rights and, accordingty, the state's use of the statements violated Article |, section
12, of the Oregon Constitution and the Fifth Amendment. Defendant further argues the confession or admissions are
inadmissible under the provisions of ORS 136.425 (1).
Defendant is a Mexican National who speaks no English On December 18, 1999 at approximately 3.30
a.m he was arrested at or near Columbus Avenue, Medford, Oregon. His arrest followed the shooting of a Medford
Police Officer
MEMORANDUM OF LAW - 4
24
25
App 9
During the course of the arrest the defendant suffered physical injuries. Evidence will also establish that he
had consumed alcohol and used methamphetamine. The defendant was questioned by various officers from 3:45
am. to 12°45 p.m on December 18, 1999.
In State v. Cochran, 72 Or. App. 499, 512 the Court states:
“Wasteaipeeeaemneteteemiy b chein aRams vane wae wietay. eee
v. Bustamonte, 412 U.S.218 (1973). It is the state’s burden to prove that defendant’s actions were voluntary
by the clear weight of the evidence. State y_ Burdick, 57 Or. App. 601 (1983). No single test of
voluntariness is determinative; a court must consider the ‘totality of the circumstances’.”
When considering whether or not a waiver is valid, (i.¢. voluntary, knowing, and intelligent) factors such as
the defendant's age, education, intelligence, cognitive functioning, mental state, length of detention, coerciveness of
police, and the defendant's knowledge of the right to refuse consent, must be examined within the context of culture
and language )
In State y. Corona, 60 Or. App. 500, 506 the court stated:
“The analysis of voluntariness of a confession and voluntariness of a waiver of rights is the same.
State v. Foster, 288 Or. 649 (1980). The proper inquiry regarding imtoxication is whether ‘by reason of
extreme intoxication a confession cannot be said to be the product of a rational intellect and free will’ “
This same analysis would apply to auy of the factors set forth in the preceding paragraph. In the instant
case the Defendant speaks no Engtish, was physically beaten during the process of arrest, interviewed over a period
of nine hours by several different officers, including three Spanish speaking translators. The officers used well know
manipulating techniques such as implanting statements, and circular techniques in which the same question is asked
again and again in the span of several hours. The defendant has a very limited education and a low functional IQ.
Respectfully submitted |
Dated this 17 day of 2
Robert L. Abel
Attorney for Defendant
MEMORANDUM OF LAW - 5
» (541) 774-8181
* 715 West 10th St
JACKSON COUNTY DISTRICT ATTORNEY
Creminal Drasion
Mediord OR 97501
19
NR
oO
mo RD
eq £W®
Nh
a
IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR JACKSON COUNTY
STATE OF OREGON,
Plaintiff, NO. 99-6212-FE
Vv.
SUPPRESS
)
)
)
)
) FINDINGS AND ORDER ON MOTION TO
MOISES SANCHEZ-LLAMAS )
)
)
Defendant.
THIS MATTER having come before the Court for hearing on defendant's Motion to
Suppress on November 16, 2000, the State appearing by Mark Huddleston, District
Attorney, and defendant appearing personally and with his attorney, Robert L. Abel, and
the Court having heard testimony from Detectives Terry Newell and Bill Ford of the
Medford Police Department, Officers Michael Strouse and Curtis Whipple of the Medford
Police Department, Medford Police Community Service Officer Arturo Vega, Nurse Betty
Martinez, Dr. Jeffrey William, Mercy Flights EMT Susan Shelters and Clinical
Psychologist Dr. Jose LaCalle, and the Court having examined the exhibits offered and
having heard statements of counsel and being fully advised in the premises, hereby finds
1. That any violation of the Vienna Convention that may have occurred in this case
does not require suppression of the defendant's statements;
2. The Court finds by clear and convincing evidence that defendant understood his
Miranda rights and knowingly, intelligently and voluntarily waived his right to remain silent
CAPTION(Rev 1/00)
I90075
+ (5419) 774-8181
JACKSON COUNTY DISTRICT ATTORNEY
* 795 West 10th St.
Medford. OR 97501
Criminal Dmision
~ App ll
1} and to have an attorney present during questionining;
2 3. The court finds by clear and convincing evidence, given the totality of the
3] circumsta «2s, that the defendant's statement was voluntary. |
Acccrdingly, defendant's Motion to Suppress is denied in its entirety.
DATED this | day of Nec. , 200
Atul
4
5
6
7 R WY. White —
‘ Circuit Court Judge
9
cc: Robert Abel
10
11 ae
12
13 tal
i Bit sneer
15
16
17
18
19
Lae) nN Nh Ls) nN
psy Ww Le) = oO
{
CAPTION(Rev 1/00)
SONG A
399
CASES AFFIRMED WITHOUT OPINION
(84 P3d 1133)
January 7, 2004
City of Eugene v. Biersdorff et al and Lane County and Boler et al (A1 19418)
Downs, Elizabeth Diane v. McGee (A118454), rev den, 336 Or 615
Hartford v. Department of Human Services (A120738)
In the Matter of Armstrong, Josh, Alleged to be a Mentally Ill Person. State v.
, Josh (A120370)
In the Matter of the Suspension of the Driving Privileges of Carpenter, Cory v.
Oregon t of Transportation, Driver and Motor Vehicle Services
Division (DMV) (A120410), rev den, 336 Or 534
Kamph, John Everett v. Lampert (A) 18256)
May v. Burdick (A117744)
State v. Sanchez-Liamas, Moises (A1 14418)
State v. Thomas, Dee Swiss, [V (A117881-84), rev den, 336 Or 657
Stull v. Lewis & Clark College et al (A113988)
January 14, 2004
Brodkey v. Employment Department et al (A119968)
Davidson v. Clatsop County (A115059)
In the Matter of Herrick, Noah and Herrick, Austin, Minor Children. State ex rel
Juvenile Department of Multnomah County v. Herrick-Carlson (A121889),
rev den, 336 Or 615
In the Matter of Sullivan, Sonya M., Alleged to be a Mentally II] Person. State v.
Sullivan, Sonya M. (A118997)
In the Matter of the Compensation of Gomez, Christopher D., Claimant. Gomez v.
Liberty Northwest Insurance Corporation et al (A119320)
In the Matter of the Marriage of Murphy and Murphy (A120087)
In the Matter of Zongor, Dorothea Rose, Alleged to be a Mentally I!] Person. State
v. Zongor, Dorothea Rose (A117920)
State v. Butterfield, Brian Ken (A1 18098)
State v. Cechmanek, Earl Joseph (A119068)
State v. Sweet, Izear (A116731)
State v. Wright, James Dean (A115345-47)
State v. Zastera, Jerry Lee (A114282/83)
App 12
App 13
34
PETITIONS FOR REVIEW
(93 P3d 71)
ALLOWED
May 18, 2004
Bryant v Walker (A118386%S51067\ 190 Or App 253), dismissed as improvidently
allowed, 337 Or 585
State v Sanchez-Liamas, Moises (A114418%S51289% 191 Or App 399)
DENIED
May 18, 2004
Castellano, Patrick R. v. Schiedler (A117616XS51354x 192 Or App 602)
Castle, Jeffrey Lynn v. Palmateer (A120401XS51318X 192 Or App 602)
Hammer v. Clackamas County (A122139XS51249X 190 Or App 473)
Hertel v. Marquis Companies I, Inc. (A120351S51251 192 Or App 162)
Johnson, Cary Joseph v. Lampert (A115085S51277X 190 Or App 304)
Kamph, John Everett v. Lampert (A118256S51334X 191 Or App 399)
Liberty Northwest Insurance Corporation v. Kemp (A118217S51275x 192 Or App
181). Balmer and Kistler, JJ., would allow.
McLean v. Charles Ellis Realty, Inc. (A112916%S51143 189 Or App 417X petition
of Lemke)
McLean v. Charles Ellis Realty, Inc. (A112916XS51144X 189 Or App 417X petition
of McLean)
McLean v. Charles Ellis Realty, Inc. (A112916XS51189X 189 Or App 417 petition
of Charles Ellis Reality, Inc., and Jensen)
Phiffer, Billy Ray v. State of Oregon (A117527XS51269X191 Or App 306)
State ex rel Department of Human Services v. Lind (A122225S51315 192 Or App
362)
State ex rel Department of Human Services v. Smith (A119798XS51293 190 Or
App 570), denial withdrawn and review allowed, 337 Or 247
State ex rel Juvenile Department of Multnomah County v. Atterberry (A119552)
(S51306 191 Or App 305)
State v. Basargin, Joseph Savin (A117904S51303X 192 Or App 487)
State v. Biagi, Anthony (A118460XS5 1286 190 Or App 399)
State v. Boyd, William Chandler, Jr. (A118957XS51245X 192 Or App 163)
State v. Gannon, Greg Joseph (A118840XS51364X 192 Or App 603)
State v. Herrera-Perez, Armando (A113877XS51322X191 Or App 654)
State v. Jones, Suzan Anne (A116975XS51340X 192 Or App 487)
State v. Jones, William Lee, [I] (A118173XS51307\ 191 Or App 654)
State v. Linville, Richard Abe (A116335S51314X 190 Or App 185)
State v. Martinez, Jennie (A118033XS51333X 191 Or App 653)
State v. Matlock, Tommy L. (A118822XS51324 192 Or App 163)
State v. Miles, Suzanne (A117376XS51332X 191 Or App 654)
State v. Nale, Henry Paul (A118956S51337X 192 Or App 673)
State v. Nunley, Walter D. (A119187XS51230X 191 Or App 653)
State v. Peck, Michael Ari (A117560XS51254\ 192 Or App 364)
State v. Rivera, Timothy (A117982S51355X 192 Or App 362)
State v. Umtuch, George M., III (A117313KS51341X 192 Or App 364)
State v. Westfall, Lance M. (A115193XS51326X 192 Or App 487)
Stryffeler, Darold Allen v. Lampert (A113298XS51308\ 192 Or App 363)
White v. Vocational Rehabilitation Services (A118504XS51120X 191 Or App 306)
No. 12 March 10,2005 ; ~~ 267
| = ae
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
Vv
MOISES SANCHEZ-LLAMAS,
Petitioner on Review.
(CC 996212FE; CA A114418; SC S51289)
En Banc
On review from the Court of Appeals.*
Argued and submitted November 4, 2004.
Susan Fair Drake, Senior Deputy Public Defender,
Salem, argued the cause and filed the brief for petitioner on
review. With her on the brief were Peter A. Ozanne, Executive
Director, and Peter Gartlan, Chief Defender, Office of Public
Defense Services.
Mary H. Williams, Solicitor General, Salem, argued the
cause and filed the brief for respondent on review. With her
on the brief was Hardy Myers, Attorney General.
GILLETTE, J.
App 14
The decision of the Court of Appeals and the judgment of i
the circuit court are affirmed.
* Appeal from Jackson County Circuit Court, Raymond B. White, Judge. 191
Or App 399, 84 P3d 1133 (2004).
Cite as 338 Or 267 (2005) 269
GILLETTE, J.
In this criminal case, defendant contends that the
trial court committed reversible error by refusing to suppress
his post-arrest statements to the police. The Court of Appeals
affirmed the judgment of the trial court. State v. Sanchez-
Llamas, 191 Or App 399, 84 P3d 1133 (2004). We allowed
defendant’s petition for review to consider his contention that
the police violated his right to consular notification and com-
munication, as guaranteed by Article 36 of the Vienna Con-
vention on Consular Relations (VCCR),' and that suppres-
sion of his post-arrest statements is the necessary and
appropriate remedy for that violation.? As we explain below,
we conclude that Article 36 of the VCCR does not create
rights that individual foreign nationals may assert in a crim-
inal proceeding. Accordingly, we affirm the judgment of the
trial court and the decision of the Court of Appeals.
Defendant is a Mexican national. He was arrested in
December 1999 after an incident in which he exchanged gun-
fire with police officers and wounded one officer in the leg.
penne hang maf nn apa | can a pm ny 7 preery tr se
arnings in English and Spanish. The police did not inform
defendant at that time, or at any time thereafter, that he had
any “right” under Article 36 of the VCCR to communicate
with the Mexican consulate and to have the consulate
informed of his arrest. Neither did the police inform the
Mexican consulate of defendant’s arrest.
' As we explain more fully later in this opinion, the VCCR is a multiltera!
treaty that to define the functions of a consulate and the establish -
ment of relations between the signatory nations. United States v.
Emuegbunam, 268 F3d 377, 388 (6th Cir 2001), cert den, 635 US 977 (2002)
(describing treaty). As we explain elsewhere, defendant is a Mexica. nr tional The
United States and Mexico both are signatories. Generally, Article 86 of the VCCR
requires “competent authorities” to inform the relevant consulate when a foreign
national is arrested and to allow the consulate to communicate with the detained
foreign national and vice-versa Article 36 also requires authorities to advise
detained foreign nationals “without delay” of those “rights.”
* Defendant asserts an alternate theory for viz., that the circum-
stances surrounding his arrest and detention show his post-arrest statements,
including his purported waiver of his Miranda rights, were not made voluntarily.
However, we elect to limit our review to the issue that defendant raises under the
VOCR. See ORAP 9.20(2Xcourt’s opinion on review need not address al] questions
raused by petition).
270 State v. Sanchez-Llamas
The police proceeded to interrogate defendant, who
eventually made a number of incriminating statements.
Later, defendant was charged with attempted murder,
attempted aggravated murder, and various other crimes.
Before his trial on those charges, defendant moved to sup-
press his post-arrest statements to the police on the ground,
inter alia, that the police had failed to inform him of his
“rights” under the VCCR to consular access and notification.
The trial court denied the motion, ruling, with respect to
defendant's argument under the VCCR, that “any violation of
the Vienna Convention that may have occurred * * * [did] not
require suppression of defendant's statements.” Defendant
subsequently was convicted of 11 felony counts and sen-
tenced to a total of 246 months in prison. As noted, the Court
of Appeals affirmed the convictions and sentences on defen-
dant’s direct appeal.
Before this court, defendant continues to assert that
his post-arrest statements should have been suppressed in
order to vindicate his rights under Article 36 of the VCCR.
The state responds that that claim fails for at least two rea-
sons: (1) Article 36 of the VCCR does not confer individual
rights that a detained foreign national may assert in a crim-
inal proceeding; and (2) even if Article 36 did confer such
rights, suppression of post-arrest statements to the police
would not be the appropriate or required remedy for their vio-
lation. We focus, in this opinion, on the first argument.
We begin with the VCCR itself—a multilateral
treaty that the United Nations adopted in 1963 and that the
United States Senate ratified in 1969. Among its 79 articles
is Article 36, which provides, in part:
“(1) With a view to facilitating the exercise of consular
functions relating to nationals of the sending State:
“(a) consular officers shall be free to communicate
with nationals of the sending State and to have access to
them. Nationals of the sending State shall have the same
freedom with respect to communication with and access to
consular officers of the sending State;
“(b) if he so requests, the competent authorities of the
receiving state shall, without delay, inform the consular
post of the sending state if, within its consular district, a
App 16
Cite as 338 Or 267 (2005) pose 271
national of that State is arrested or committed to prison or
to custody pending trial or is detained in any other manner.
Any communication addressed to the consular post by the
person arrested, in prison, custody or detention shall also
be forwarded by the said authorities without delay. The
said authorities shall inform the person concerned without
delay of his rights under this subparagraph;
“*etee¢8
“(2) The rights referred to in paragraph 1 of this Arti-
cle shall be exercised in conformity with the laws and reg-
ulations of the receiving State, subject to the proviso, how-
ever, that the said laws and regulations must enable full
effect to be given to the purposes for which the rights
accorded under this article are intended.”
VCCR, Art 36, 21 UST 77, 100-01.
Defendant contends that subparagraph (1b) above
clearly creates an individual right of consular access and
notification, including a personal and enforceable right to be
advised “without delay” of those rights. Defendant notes, in
that regard, that the provision expressly makes consular
notification a matter of personal election by the foreign
national who is detained: It requires authorities to notify the
detainee’s consulate only “if [the detainee] so requests.”*
Defendant points out, also, that subparagraph (1b) explic-
itly refers to “rights” of consular notification and access, and
describes those rights as belonging to the detained individual
(“[t]he said authorities shall inform the person concerned
without delay of his rights under this subparagraph”
(emphasis added)).
Defendant further contends that, as a ratified
treaty, the VCCR is a part of the “supreme law of the land”
* Defendant notes that another subparagraph of Article 36 that is not included
in the quoted material above also makes consular assistance a matter of persona!
election by the person detained: Under subparagraph (1c) of Article 36 consular
officers must refrain from acting on behalf of a detained national! “if he expressly
opposes such action.”
App
17
272 State v. Sanchez-Llamas
and, as such, stands on equal footing with laws that the
national legislature has enacted.‘ In defendant’s view, that
means that Article 36 is enforceable by affected individuals
in the same way and to the same extent as any federal stat-
ute would be. With respect to that latter point, defendant
appeals to the “doctrine of self-execution”—the idea that cer-
tain international treaties are “self-executing,” that is, imme-
diately effective and enforceable by individuals without addi-
tional implementing legislation.
However, that is an issue of federal law, and the fed-
eral cases suggest that treaties are “self-executing,” in the
sense of permitting enforcement by an individual right of
action, oniy when a specific intent to create such individual
rights can be discerned from the treaty as a whole. See, e.g.,
Edye v. Robertson, 112 US 580, 598-99, 5 S Ct 247, 28 L Ed
798 (1894) (“Head Money Cases”) (“A treaty * * * is a law of
the land as an act of Congress is, whenever its provisions pre-
scribe a rule by which the rights of the private citizen or
subject may be determined.” (emphasis added)); Goldstar
(Panama) S.A. v. U.S., 967 F2d 965, 968 (4th Cir 1992)
(“Courts will only find a treaty to be self-executing if the doc-
ument, as a whole, evidences an intent to provide a private
right of action.”).* In fact, the general rule, widely recognized
in the federal courts, is that rights created by international
treaties belong to the signatory state and are not enforceable
in American courts by private individuals. Thus, the United
States Supreme Court has stated:
* So far as it goes, defendant's point in that regard is unassailable. Article V1 of
the United States Constitution provides, in part:
“This Constitution, and the Laws of the United States * * * and all Trea-
ties made, or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Con-
trary notwithstanding ”
(Emphasis added.) Thus, as a ratified treaty, the VCCR is a part of the “supreme
law of the land.” But this case is not about the status of the VCCR,; it is about defen-
dant's status as an arrested national of a signatory state under the VCCR.
* In fact, it is at least arguable that the question whether a treaty is “self-
executing” —enforceable without additional legislation—is different from the ques-
tion whether it is individually enforceable in a judicial proceeding. See U.S. v. Li,
206 F3d 56, 67 (1st Cir 2000) (Selya and Boudin, JJ , concurring) (asserting that
the two questions are different)
App 18
Cite as 338 Or 267 (2005) 273
“A treaty is primarily a compact between independent
nations. It depends for the enforcement of its provisions on
the interest and the honor of the governments which are
parties to it. If these fail, its infraction becomes the subject
of international negotiations and reclamation, so far as the
injured parties choose to seek redress. * * * It is obvious
that with all this the judicial courts have nothing to do and
can give no redress.”
Edye, 112 US at 598. See also Foster v. Neilson, 27 US (2 Pet)
253, 306, 7 L Ed 415 (1829), overruled in part on different
grounds, U.S. v. Percheman, 32 US 61 (1833) (“The judiciary
is not that department of the government, to which the asser-
tion of its interests against foreign powers is confided.”);
Goldstar (Panama) S.A., 967 F2d at 968 (“International trea-
ties are not presumed to create rights that are privately
enforceable.”).
The rationale for the foregoing general rule (which
in substance amounts to a presumption aguinst the creation
of individual, judicially enforceable rights) is obvious. The
United States Constitution separates the various functions of
government among the three branches, generally placing the
powers that relate to foreign relations in the Executive
Branch (with certain oversight powers, including the power
to ratify treaties, in the Legislative Branch). The necessary
and beneficial corollary of that constitutional arrangement is
that, in matters of international relations, the nation speaks
through a single authoritative voice—the president. That
beneficial effect, and the separation of powers principle itself,
would be undermined if the Judicial Branch were to
to enforce treaty provisions on behalf of individuals when its
authority to do so is less than clear.‘
* The concurring judges in Li aptly described the “mischief that could result
from allowing individuals to seek redress through the courts when the Executive
Branch has not intended or contemplated that result:
“There is an elaborate regime of practices and institutions by which the
United States and other nations enforce commitments inter sese or decide that,
in the national interest, promises given by or to another sove: eign should not
be enforced in a specific case. Sometimes this is done purely for reasons of pru-
dence, sometimes for convenience, or sometimes to secure advantage in unre-
lated matters. Incalculable mischief can be wrought by gratuitously introduc-
ing into this often delicate process court enforcement at the instigation of
private parties.”
App 19
274 State v. Sanchez-Llamas
In acknowledging the foregoing general rule, we do
not mean to say that a court never can read a treaty to create
privately enforceable rights. Certainly, the noted presump-
tion can be overcome by explicit wording and even by provi-
sions that necessarily imply a private right of judicial
enforcement. For example, courts have allowed individuals
judicially to enforce treaties that govern the rights of foreign
nationals to inherit property, despite the absence of explicit
treaty wording providing for such individual enforcement,
most likely because the right-granting wording in those trea-
ties makes sense only if it is read to confer an individually
enforceable right. See, e.g., Clark v. Allen, 331 US 503, 507-
08, 67 S Ct 1431, 91 L Ed 1633 (1947) (dealing with such a
treaty). On the other hand, an individual right of judicial
enforcement will not be inferred from the mere fact that a
treaty sets out substantive rules of conduct that, if honored,
would benefit individuals. See, e.g., Argentine Republic v.
Amerada Hess Shipping, 488 US 428, 442, 109 S Ct 683, 102
L Ed 2d 818 (1989) (holding that Geneva Convention on the
- High Seas, which provides thai illegally boarded merchant
ship “shall be compensated for any loss or damage that may
have been sustained,” does not create private right of action
for foreign corporations to recover compensation in United
States courts); United States ex rel Lujan v. Gengler, 510 F2d
62, 67 (1975), cert den, 421 US 1001 (1975) (“[E]ven where a
treaty provides certain benefits for nationals of a particular
(signatory] state—such as fishing rights—it is traditionally
held that ‘any rights arising from such provisions are, under
international law, those of the [signatory] states and * * *
individual rights are only derivative through the [signatory]
states.’”) (quoting Restatement (Second) of the Foreign
Relations Law of the United States § 115, comment e (1965)).
With those considerations in mind, we turn to defen-
dant’s proposed interpretation of Article 36 of the VCCR.
Although defendant is correct that Article 36 expressly refers
to the detained foreign national’s “rights” to consular access
and notification, the mere use of the term “rights” cannot, by
206 F3d at 68 (Selya and Boudin, JJ., concurring.) Those comments would apply
with even more force to the prospect of uneven enforcement in the various state
courts.
App
20
Cite as 338 Or 267 (2005) 275
itself, support an intent to require signatory states to allow
individual detainees to enforce those “rights” in a criminal
proceeding against them—particularly when the treaty does
not specify the nature of the declared “rights” or any remedy
that is required for their breach. In fact, it seems likely that
the treaty refers to a detainee’s “rights” to consular access
and notification purely because that is the most convenient
and comprehensible way of describing what a receiving s8ig-
natory state must tell a foreign detainee in order to meet the
signatory state’s obligations under the treaty. See U.S. v. Li,
206 F3d 56, 66 (1st Cir 2000) (Selya and Boudin, JJ., concur-
ring) (making that point).
Neither does any other wording in the treaty suggest
an intent to create individual rights that are enforceable in a
judicial proceeding. In fact, the purposes stated in the pre-
amble (to “contribute to the development of friendly relations
among nations”) and in the initial clause of Article 36 (“with
a view to facilitating the exercise of consular functions relat-
ing to nations of the sending state”) both suggest that the
treaty and Article 36 are concerned with relationships and
obligations among nations, not with individual rights.’
Finally, there is nothing about the subject matter of
the VCCR that would compel an inference that a private
right of action was intended. In that regard, we think it is
perfectly reasonable to read the treaty as leaving enforce-
ment of Article 36 entirely to the signatory states.
We have described a general presumption that inter-
national treaties speak only to the and obligations of
signatory states and do not confer indi idual rights that are
’ At the same time, we note in that we are unimpressed by the state's
contention that the Preamble to the contains a clear denial of an intent to
create individual rights. The state focuses on the following wording:
“Believing that an international convention oo consular relations, privi-
leges and immunities would also contribute to the development of friendly
VCCR, 21 UST at 79 (emphasis added). It is at least arguabie that the emphasized
clause refers to privileges and immunities of individual consular officials and that,
as such, it says nothing about the rights of individual foreign detainees.
Anno 21
276 State v. Sanchez-Llamas
enforceable in judicial proceedings. We also have noted that,
although Article 36 of the VCCR loosely refers to a foreign
detainee’s “rights” to consular access and notification, it con-
tains no explicit statement or clear implication of an intent to
depart from that general rule. In the absence of any such
clear indication to the contrary, we must conclude that the
obligations that Article 36 describes are enforceable only by
the affected signatory states and not by individual detainees.
That conclusion is confirmed by the fact that, since
at least 1970, the State Department has maintained that the
VCCR does not create enforceable individual rights and that
“the only remedies for failures of consular notification under
the [VCCR] are diplomatic, political, or exist between [signa-
tory] states under international law.” Li, 206 F3d at 63-64
(emphasis supplied); U.S. v. Emuegbunam, 268 F3d 377, 392
(6th Cir 2001) (citing Li).* The State Department’s interpre-
tation of any international treaty is entitled to substantial
weight, because that department of the federal Executive
Branch is responsible for negotiating and administering trea-
ties, and also because it generally is the “single authoritative
voice” through which the Executive Branch speaks. Li, 206
F3d at 67 (Selya and Boudin, JJ., concurring).°
We conclude that Article 36 of the VCCR does not
create rights to consular access or : otification that are
enforceable by detained individuals in a judicial proceeding.
It follows that defendant's suppression motion in the present
case, grounded in the theory that the police had violated his
* It also is confirmed by the fact that, of the one hundred plus nations that have
signed the VCCR, none apparently provides an individual remedy through its crim-
a
at 393.
* Defendant contends that the State ent's position deserves little
weight because it only has taken that position for purposes of litigation. It appears,
however, that the State Department’s announced position has been consistent
since at least 1970. Emuegbunam, 268 F3d at 392.
Defendant also contends that the State Department's nonlitigation position is
quite different. In so arguing, defendant relies primarily on the fact that various
interna! State Department documents and publications refer to an arrested for-
eigner’s “right” to consular access without delay. However, as we have noted above,
338 Or at 274-75, the mere use of the term “rights” does not necessarily convey
acceptance of an individual right enforceable in judicial proceedings.
App 2:
Cite as 338 Or 267 (2005) 277
rights under Article 36 of the VCCR, was not well taken, and
the trial court did not err in denying it.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.'®
the
yy , 268 F3d at 390-94; US. v. Jimenez- Nava, 243 F3d 192, 192, 95-98
(6th Cir 2001), cert den, 633 US 962 (2001); State v. M 7
47, 64, 83 P3d 267, 271-74 (2001), cert den, 5385 US 937 (2002); Kasi v. ss caeme
wealth, 256 Va 407, 419, 608 SE2d 57, 63-64 (1998), cert den, 627 US
661 NW2d 101 (2009); ee aleo Li, 206 Fd at 66-68 (Selya and Boudin, JJ., concur
Anp 23
?
App 24
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON, ) Jackson County Circuit
) Court No. 996212FE
Plaintiff-Respondent, )
Respondent on review, )
) SC $51289
V. ) CA A114418
)
MOISES SANCHEZ-LLAMAS, )
) ORDER GRANTING MOTION TO
Defendant-Appeliant, ) STAY ISSUANCE OF THE
Petitioner on Review. ) APPELLATE JUDGMENT
Petitioner on review’s motion to stay the issuance of the appellate judgment is granted.
The issuance of the appellate judgment is stayed. Upon receipt of notice from petitioner on
review that no other thing has been filed requiring a judicial ruling, ‘he appellate judgment will
issue immediately. If the United States Supreme Court gives notice that a petition for writ of
certiorari has been denied, the appellate judgment will issue forthwith.
Dated this 6n day of April 2005.
Cc: Mary Hazel Williams
~ Susan F. Drake
21 September 2001
The Honorable John Minnis and Max Williams
Joint Interim Judiciary Committee
900 Court Street, N.E.
Salem, OR 97301
RE: Vienna Convention on Consular Relations
Good afternoon Chairs Minnis and Williams, members of the committee.
| am Martha Ortiz de Rosas, Consul General of the Consulate of the United Mexican States
in Portland, Oregon. The Mexican Consulate was established in 1996 and since then has
been earnestly involved in protecting the rights and interests of Mexican nationals. Our
efforts in protecting the rights and interests of Mexican nationals are guaranteed through
international treaties and international judicial opinions interpreting those treaties,
memoranda of understanding between Mexico and the United States, and United States
constitutional provisions and federal legislation.
On behalf of the Mexican government | thank you for this opportunity to provide additional
information to the people of the state of Oregon on the important issue of consular
notification under the Vienna Convention on Consular Relations. We are most interested in
assisting in whatever manner we are able to assist Oregon in effectively adhering to the
mandatory requirement of advising detained foreign nationals of their right to consular
notification and access.
| assure you that as we insist upon adherence to the requirements of the treaty, the United
Mexican States also abides by those requirements. We have worked to preserve these
rights through talks with the United States, resulting in a Memorandum of Understanding on
Consular Protection of United States and Mexican Nationals, dated May 7, 1996. We have
also joined others in seeking additional guidance and clarification in the form of a request
for an advisory opinion from the Inter-American Human Rights Court, dated June 12, and
13, 1998. Our government has continued its efforts in effecting the rights established
under the treaty through the Mexican Federal Court Penal Procedures, chapter I!, special
rules for the practices of diligences article 128-IV, when the foreigner detained does not
. A yw 26
The Honorable Jonn Minnis and Max Williams si
Joint Interim Judiciary Committee
September 21, 2001
Page 2
speak or does not sufficiently understands English, a translator will be designated to let
them know their rights. The detention will be notified without delay to the diplomatic or
consular representation that corresponds. In addition, in the enactment of Agreement
A/008/2000 of the Attorney General of Mexico City on June 12, 2000, setting out in detail
the requirements of the treaty and the procedure to be followed in recognizing those rights,
the United Mexican States is committed to timely affording United States citizens detained
in Mexico their rights under the treaty.
| trust that the tragic case of Jose Santos Victer Mejia Poot, earlier this year in Portland, is
already known to members of this committee. That case, which resulted in Mr. Mejia-
Poot's death, demonstrates the need for effective and uniform implementation of Article 36
of the Vienna Convention on Consular Relations. The Consulate was not notified of Mr.
Mejia-Poot's detention until after his death. We know of many other cases in which
Mexican nationals were not advised of their right to have the Consulate notified of their
detention, including cases in which the ultimate and irreversible penalty of death applies.
Some of those cases are currently pending in the Oregon courts and we continue to be
notified of violations with some frequency.
| assume that this committee has already been provided with copies of the relevant
provisions of the Vienna Convention. The relevant portion, for purposes of our discussion
today, is Article 36 of that convention. There are several points that | would make
conceming the text and meaning of Article 36:
1. Section (b) of Article 36 affords the foreign national individual rights in additional
to the national rights afforded the sending nation. This was conclusively
determined by the International Court of Justice in Germany v. United States on
June 26, 2001. This means that both the detained individual as well as the
sending nation may seek to enforce the provisions of the treaty and may seek
sanctions or remedies for violations of the treaty. We submit this point is
important for this committee's consideration as all of the state and federal court
decisions of which we are aware had erroneously been based upon an
assumption that the treaty's provisions did not establish individual rights.
2. The requirement that law enforcement officials notify a detained foreign national
of the right to have their consulate notified is absolute. The treaty's language is
not discretionary in this regard — authorities in this state shall inform the
detained person of his rights to consular notification. With respect to my
government, the government of the United Mexican States, the decision as to
whether consulate is then notified is left up to the detained individual.
3. Notification of rights is to be done without delay when the foreign detainee is in
the most vulnerable state leading to involuntary confessions. In fact, the Inter
American Court of Human Rights in 1999 interpreted the phrase “without delay’,
The Honorable John Minnis and Max Williams App 2/
Joint Interim Judiciary Committee
September 21, 2001
Page 3
contained in article 36, as requiring notification no later that the time that the
detainee gives his first statement. This is to preserve the detainee rights and
allow the intervention of Consular officials.
4. The notification of rights must be made to any foreign national who is detained in
any manner. We have observed much discussion concerning the point in time at
which notification must be made. Many persons suggest notification be made at
the point of arrest or booking into a correctional facility. However, the plain
language of the treaty extends beyond arrest or booking -- it speaks explicitly of
a foreign national detained in any other manner. The case of Mr. Mejia-Poot,
who was detained civilly but not arrested, shows us the need for implementation
of Article 36 even in cases where there has been no arrest. | note, also, for the
committee, that Article 36 is not limited to certain types of detentions. Thus, a
foreign national detained civilly as was Mr. Mejia-Poot is entitled to the
notification, just as is a foreign nationai detained in a suspected case of a
misdemeanor violation, just as is a foreign national detained in a suspected case
of a felony violation. Additionally, | would like to note, for the committee that the
rights and protections under article 36 extend not only to the beginning of the
detention process, but all the way though that process. That means that consular
intervention is ongoing through the detention process.
5. Sections (a) and (c) of Article 36, dealing with consular rights of access and
communication with foreign nationals, are intertwined with those rights under
section (b), dealing with the notification of rights and consular notification. On
June 26, 2001, in Germany v. United States, the International Court of Justice
explicitly found Article 36 to be an interrelated regime designed to facilitate the
implementation of the system of consular protection. We believe the intervention
of the Consulate at the time of Mr. Mejia-Poot’s detention would have made a
difference and would have averted that tragedy.
Our suggestion to this committee is legislation setting out the requirements of Article 36.
We suggest a legislative solution due to our experiences with continuing failures of law
enforcement to abide by the requirements of Article 36.
Although this committee is much better equipped to evaluate how best to implement the
requirements of the treaty within the context of Oregon law, we suggest a detained foreign
national be advised of their right to consular notification no later than at the point where
Miranda would otherwise required, or, if Miranda is not applicable in a given case, at arrest
or civil detention. Implementation at this point, through use of already established points of
reference, would seem to more easily and effectively accomplish the implementation of the
treaty’s rights. We understand Miranda to be a point of reference which brings with it a
component of detention, exactly what is described in the treaty. We also understand
. App 28
The Honorable John Minnis and Max Williams «
Joint Interim Judiciary Committee
September 21, 2001
Page 4
Oregon law enforcement officers to already be educated and instructed to recognize this
point of reference, thus hopefully making implementation of the treaty's rights smoother.
| understand that, perhaps, this committee may question the advisability of a legislative
solution due to questions of liability. | note for the committee, however, that the
requirements of the Vienna Convention on Consular Relations are obligatory on Oregon.
The question is, | would submit, how Oregon is best to implement those obligatory
requirements.
| also understand that, perhaps, this committee may have concerns about the potential
collateral consequences to a foreign national upon their admission of their foreign status. |
submit that this potential problem is one which can be addressed through careful drafting of
the notification to be made to the foreign national. The Consulate has drafted a working
proposal of the notification which | would be happy to share with the committee.
| would also like to provide information to this committee on the Consulate’s internal
protocol upon notification of the detention of a Mexican national. | provide this information
so that this committee may better understand how consular notification translates into the
protection of foreign nationals’ rights. Consular staff speak the language of the detainee,
they understand the legal system and they explain the rights to the detainee in a manner
that is understandable to the detainee, due to an understanding of the language and
culture. These special qualifications are unique to consular staff and cannot be substituted
by similar intervention by defense attorneys, social workers, district attorneys or the courts.
Failure to notify the detainee of his rights under article 36 can result in the violation of basic
rights, such as the right to a fair trail.
Upon notification of the detention of a Mexican national the Consulate will contact the
detainee and advise him in his native language of the following:
1. Not to make any statements, whether oral or written, regarding his or her case to
anyone and in any setting without having his lawyer or a representative of the Mexican
Consulate present;
2. Not to sign any document without having his lawyer or a representative of the
Mexican Consulate present, especially if written in English and a Spanish translation is
not available;
3. The right to obtain the services of a defense attorney regardless of the detainee’s
financial situation;
4. If necessary, the Consulate will aid the detained national in finding a competent
lawyer; -
‘The Honorable Jun Minnis and Max Williams a ae
Joint Interim Judiciary Committee
September 21, 2001
Page 5
5. That our Consular office will provide assistance to the indicated defense lawyer in his
investigation when collecting information about the detainee’'s case, family, history in
Mexico, witnesses, and other helpful information;
6. That the Mexican Consulate will follow up on the developments of the national’s
case; and
7. That the detained national has the right to be in continuous communication with the
Consulate, including telephonic, written and personal contact.
Immediately following notification of the detention of a Mexican national, by phone or by
fax, personnel from the department of Protection will contact the detainee to advise him of
his rights as | have described, making effort to ensure that those rights are understood by
the detainee. Again, immediate contact with detained Mexican nationals is our highest
priority as we seek to effect the preservation and implementation of those citizens’ rights as
established in this country as well as under international law.
Thank you for the opportunity to appear before this committee and share information as we,
together, work in harmony to protect and promote the rights of Mexican nationals and
Oregonians alike. | look forward to my tenure here in Oregon and look forward to working
with you.
Respectfully yours,
Martha Ortiz de Rosas
Consul General
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.