The Nevada Supreme Court has become the second in the United States to uphold the decision of the International Court of Justice in Avena and Other Mexican Nationals.
In Avena, the ICJ held in March 2004 that the United States had failed to notify 51 Mexican nationals on death row of their consular notification and access rights pursuant to Article 36 of the 1963 Vienna Convention on Consular Relations. To remedy these violations, the ICJ held that the United States courts must review and reconsider the convictions and sentences of the condemned Mexicans to determine whether (and how) these men were prejudiced by the deprivation of their consular rights.
Last week, on September 19, in the case of Gutierrez v. State, the Nevada Supreme Court complied with that holding, on reasoning detailed below.
The only other court in the United States to have granted review and reconsideration is the Oklahoma Court of Criminal Appeals.
The Oklahoma court applied the ICJ’s ruling in the case of Osbaldo Torres. After conducting an evidentiary hearing, it concluded in Torres v. State (September 2004) that Torres had been prejudiced by the Vienna Convention violation. By that time, the Oklahoma governor had already commuted Torres’ death sentences to life imprisonment, based in part on the ICJ’s decision.
But in neighboring Texas, in the case of José Medellín, courts refused to follow Oklahoma’s example.
The U.S. Supreme Court ultimately held, in Medellín v. Texas (March 2008), that the ICJ’s Avena judgment did not preempt state procedural rules that barred prisoners from raising Vienna Convention claims in successive habeas corpus petitions.
In a concurring opinion, however, Justice John Paul Stevens pointed out that nothing prevented the states from voluntarily complying with the ICJ’s judgment. Citing Torres, Stevens (below right) urged Texas to review Medellín's Vienna Convention claim:
Texas was not swayed by Justice Stevens’ plea, however, and José Medellín was executed in August 2008, without ever having received the review and reconsideration to which he was entitled under the Avena judgment. The ICJ subsequently held that the United States had breached its international legal obligations by carrying out his execution.
Then, in 2011, Texas executed Humberto Leal García in violation of Avena’s mandate, after the U.S. Supreme Court refused to review the case. (IntLawGrrls' many opinions on these Vienna Convention cases available here.)
In last week's 5-to-2 decision in Gutierrez (available in full here), the Nevada Supreme Court distinguished the Medellín and Leal cases, noting that petitioner Carlos René Pérez Gutiérrez had presented substantial evidence of prejudice. Specifically:
► He had a sixth grade education, and spoke little English at the time of trial.
► The court interpreter falsified his credentials, and failed to correctly interpret the testimony of a number of witnesses.
In remanding the case for an evidentiary hearing (by a vote of 5 to 2), the Nevada Supreme Court cited Justice Stevens’ concurrence, noting, with emphasis, that while
'without an implementing mandate from Congress, state procedural default rules do not have to yield to Avena, they may yield, if actual prejudice can be shown.'
The court was particularly troubled by the interpreter’s falsified credentials and flawed interpretation. Noting that it remained an open question as to whether consular assistance might have affected the quality of interpretation available to Pérez Gutiérrez, the court concluded:
'What is clear, though, is if a non-Spanish speaking U.S. citizen were detained in Mexico on serious criminal charges, the American consulate was not notified, and the interpreter who translated from English into Spanish at the trial for the Spanish-speaking judges was later convicted of having falsified his credentials, we would expect Mexico, on order of the ICJ, to review the reliability of the proceedings and the extent to which, if at all, timely notice to the American consulate would have regularized them.'Gutierrez – a case I briefed and argued on behalf of an amicus, the government of Mexico – joins just one other decision complying with the ICJ ruling. Nevertheless the judgment of the Nevada Supreme Court in Gutierrez provides important ammunition to foreign nationals seeking review of their Vienna Convention claims in states other than Texas. It also serves to remind lawyers that they should continue to aggressively litigate Vienna Convention violations, particularly in the cases of Mexican nationals subject to the Avena judgment.