Foreigners on Death Rows Denied Rights, U.S. Says

As many as 70 foreign citizens on death rows nationwide, including 17 in California, were held after their arrests in violation of an international treaty that guarantees a person access to his nation’s consulate, according to Amnesty International and State Department officials.

The treaty guarantees that individuals arrested in a foreign country must be told by police “without delay” that they have a right to contact their country’s consulate. If an individual requests it, U.S. law enforcement officials are required to notify the consulate.

The frequent violations of that right are increasingly reaching American courts. They are also disturbing relations with foreign governments, particularly Mexico, which is actively seeking to recruit or train American lawyers to press the issue.

The issue is among those raised in the case of Thai national Jaturan Siripongs, who is the next man scheduled to be executed in California.

Similarly, in Texas the treaty is an issue in the case of Joseph Stanley Faulder, a Canadian who has been scheduled to die today. Faulder won a reprieve Wednesday from a federal district judge, who stayed his execution, citing an unrelated issue, but the state has filed an emergency appeal seeking to go ahead with the execution today. He is one of four people scheduled to be executed in Texas this week.

In Siripongs’ case, state prosecutors argue that he has no valid claim because Thailand has never signed the 1963 treaty. Siripongs’ attorney, Linda Schilling of Costa Mesa, however, argues that “the U.S. has made a promise,” and the fact that Thailand has not signed the treaty is irrelevant.

Seven foreign nationals have been executed in the United States in the last five years, including three from Mexico and one each from Paraguay, the Dominican Republic, Honduras and Cuba.

According to U.S. lawyers and State Department officials, police departments in this country frequently fail to adhere to the treaty, the Vienna Convention on Consular Relations, which has been signed by 140 nations, including the United States. It ratified the agreement in 1969.

Indeed, of 74 foreign citizens on death rows, only four were informed of their rights under the treaty, according to Mark Warren of Amnesty International.

The Los Angeles Police Department in 1996 added a section to its manual of procedures instructing officers about U.S. obligations under the treaty. But some 26,000 police departments exist in the United States, and many do not appear to be aware of the treaty’s requirements, officials say.

Concern Grows Over Americans Abroad

State Department officials are increasingly concerned about the issue for fear that other countries will begin refusing treaty protections to Americans abroad. About 2,500 Americans are arrested overseas each year, including more than 300 from California, according to the State Department.

The importance of quick access to a consulate is not just a theoretical issue, says Elizabeth Coleman-Gray, a North Carolina attorney who has written to Gov. Pete Wilson as part of the pending clemency petition for Siripongs.

While in Peru in 1995 representing two American citizens imprisoned there, Coleman-Gray was taken into custody by Peruvian police “and while in custody was raped and assaulted,” according to an affidavit she sent to Wilson.

Eventually, other police officials in Lima determined that she was a U.S. citizen and called the U.S. Embassy there. “Representatives of the U.S. Embassy came to the police station and rescued me,” Coleman-Gray said. “If those Peruvian authorities had failed to notify the United States embassy, I would not be alive today.”

In the Texas case, Secretary of State Madeleine Albright late last month took the unprecedented step of asking Texas Gov. George W. Bush to give Faulder a 30-day reprieve to permit further time to consider the impact of the consular access issue. Faulder was convicted of killing Inez Phillips, the 75-year-old matriarch of a prominent family in Gladewater, Texas. She was stabbed and bludgeoned to death during a robbery at her home in 1975.

Canada Says It Could Have Aided Defense

Canadian officials argue that if they had been informed of Faulder’s arrest, they would have been able to obtain a lawyer for him who could have provided him a more aggressive defense.

Sandra L. Babcock, Faulder’s current attorney, noted in a brief in his case that in 1992, 15 years after his original trial, the Canadian consulate helped her find 14 witnesses who presented evidence at a state court hearing. The witnesses could have been used in the original trial to justify a sentence of life in prison rather than death, Babcock argued.

The issues in Faulder’s case “are sufficiently troublesome that they may provide sufficient grounds for according discretionary clemency relief,” Albright wrote.

So far, Bush, a firm proponent of capital punishment, has not indicated any sympathy for the argument.

“In general, I will uphold the laws of the state of Texas, regardless of the nationality of the person involved. People can’t just come into our state and coldbloodedly murder somebody,” he has said in several statements about Faulder’s case.

Texas officials argue that Faulder would have been convicted and sentenced to death regardless of whatever the consulate might have done on his behalf. Because of that, they say, the violation of his rights under the treaty did not harm him. In addition, they argue that U.S. courts do not have the power to enforce the treaty’s provisions even though the Constitution makes treaties part of U.S. law.

So far, American courts have been unsympathetic to the contention that failure to inform foreign defendants of their rights under the treaty is a reason to cancel an execution.

In April, Virginia officials executed Angel F. Breard, a Paraguayan national, after the U.S. Supreme Court rejected a last-ditch request for a stay of execution based on a violation of the treaty and other issues. The high court said that Breard had forfeited the right to seek clemency because he had failed to raise the issue earlier in the case.

Despite the lack of receptiveness from U.S. courts so far, the issue of consular access is increasingly being raised by defense lawyers around the country. Knowledge of the treaty has begun to spread as a result of a few high-profile cases and scholarly articles in specialized legal publications.

In addition to Canada, several other countries have taken a particularly strong stance on the treaty issue. In connection with the Breard case, the government of Paraguay sued the state of Virginia for violating its rights under the treaty. A federal court dismissed the suit on the grounds that the Constitution forbids foreign governments from suing a state.

Mexico, whose citizens make up about half the foreign nationals on U.S. death rows, has filed at least two formal diplomatic protests over the issue--one stemming from a case in Virginia and another in Texas.

“This issue is very important to our government,” said Jose Angel Pescador, the Mexican consul general in Los Angeles. Mexico abolished the death penalty--except for treason and parricide--in 1929 and has not executed anyone for years.

The State Department issued formal apologies to the government of Mexico over the failure of Virginia and Texas to adhere to the treaty’s provisions. Federal officials, however, did not attempt to prevent the executions.

William H. Wright Jr., one of the attorneys for Mario Murphy, the man executed in Virginia, said he was deeply disturbed by the State Department’s failure to take a stronger position.

“I just don’t understand. It doesn’t make sense to me,” Wright said. “They say that they think the treaty is important, but if they really thought it was important they would have gone to the Supreme Court.”

State Department officials have stressed that although they are concerned about the treaty violations, they believe the men who have been executed were, in fact, guilty.

In an effort to enforce the treaty rights of their citizens, Mexican consular officials have begun to meet with American defense lawyers about the issue. Those efforts may have yielded some results in at least one case.

Last year, two Oregon attorneys--Dennis Hachler and Mark Rader--took on the case of Horacio Arciga Orozco, a 21-year-old Mexican who was one of four men accused of murdering a store owner in Umatilla County, Ore.

Having heard about the treaty issue from a Mexican consular official, the two lawyers filed motions asserting that Oregon had no right to try Arciga Orozco because he had not been informed of his right to contact Mexican officials after his arrest.

Although a trial judge rejected their motions, prosecutors last month agreed to accept a guilty plea in return for a life sentence for Arciga Orozco. The defense lawyers said they believe the prosecution decision was influenced by the treaty issue. The prosecutor’s office did not return calls requesting comment.

In California, San Diego attorney Anthony J. Dain plans to raise the treaty issue in an appeal on behalf of another Mexican national, Hector Ayala, who has been on the state’s death row for nine years since being convicted of killing three alleged drug dealers in San Diego.

“We really believe there were things the consul could have and would have done,” if he had been notified of Ayala’s arrest, Dain said.