Wednesday, June 29, 2011

The Need for New Jersey to Comply with our Obligations under the Vienna Convention on Consular Relations and the U.N. Charter.

The United States of America is a signatory of the Vienna Convention on Consular Relations. 

Pursuant to Article 36 of treaty upon the arrest of a foreign national within the boundaries of the U.S. and its territories, that law enforcement immediately notify the defendant's embassy of the arrest of one of their citizens.

The treaty which we are obligated to enforce under international law makes no distinction between federal, state and local law enforcement officials.

In 2004 the International Court for Justice in The Hague, in which we are obligated to obey under international law, ruled that a death row inmate in Texas, Humberto Leal Garcia, Jr., and other death row inmates in the United States, must be granted by the American courts “review and considerations” to determine whether their criminal cases were hurt by the failure of local authorities to allow the defendant to consult their respective consular officials.  On May 17, 2004 the United States Congress issued its report regarding the U.S. requirements and implementation of the treaty. http://www.fas.org/sgp/crs/row/RL32390.pdf

In the Leal Garcia murder trial Mr. Garcia was appointed a public defender who did little to defend his client, or attempt to mitigate the penalty portion of the trial to save Mr. Garcia’s life.  Also, in that case the Mexican embassy was never notified of Mr. Garcia’s arrest, and they never had an opportunity to  determine whether to aid in his death penalty trial.

As a practical consideration in New Jersey for all criminal defense attorneys handling post conviction appeals for ineffective assistance of counsel, or other claims or issues, it is essential that in all such cases in which the defendant received a sentence of substantial magnitude that defense counsel examine and investigate this issue to determine whether the failure of law enforcement to notify the defendant’s embassy detrimentally affected their criminal cases.

Unfortunately in New Jersey like most other states law enforcements are not familiar with the requirements of Article 36 of the treaty, and if they are simply ignore it.

Because Texas has blatantly refused to honor the treaty and the judgment by the International Court, the United Supreme Court decided in 2008 ruling that the States were obligated to comply with the treaty and the international law judgment for review of all death penalty cases in which the defendant’s consulate was not informed of the arrest.

However, the Supreme Court also held that the President could not enforce the treaty by executive order without congressional approval.  Although the bill was submitted to the Senate the bill is not yet law, and it is not expected to be signed until after Mr. Leal Garcia is scheduled to be executed on July 7, 2011.  It is now up to the Federal District Court in San Antonio to stay the execution until the bill is passed by Congress.


Law Office of Vincent J. Sanzone, Jr.
Elizabeth,
New Jersey
(908) 354-7006

“If you want peace work for justice.” Pope John Paul, I.

Tuesday, June 21, 2011

The “War on Drugs” Has Been Lost, and It is Time That We Change Direction and Treat the Problem for What it is a Mental Health Problem.

After spending trillion of dollars on the so called “war on drugs” during the last forty-years, we have accomplished nothing.  In fact there are more drug addicts and more illegal drugs flowing into this country now than ever before.  Law enforcement is unable to stop the flow, and with the wars in Iraq and Afghanistan the amount of heroin coming into this country is astounding.  Because of our monetary payments and cooperation in turning the other way to the tribal leaders for help in stopping terrorism, these tribal leaders in Iraq and Afghanistan have never had it better in smuggling heroin into Europe and eventually the United States.

Recently the United Nations Global Commission on Drug Policy took the courageous step and stated that the world war on drugs, especially the one waged in the United States was a “total failure.”  The total consumption of opiates has increased 34.5% in the last forty-years, cocaine, 27%.

The report states that the problem with the war on drugs is that it punishes the users with draconian prison sentences when this money should be spent on treatments to cure the addicts, and thus dry up the demand.  Instead of locking up and prosecuting users, or low level sellers trying to support their habit, law enforcement must concentrate on the violent criminal organizations, starting with our tribal leader friends in Iraq and Afghanistan and their friendly governmental officials.  As former President Jimmy Carter wrote in his Op-Ed in the New York Times on June 17, 2011, at the end of his term in office 1980 there were approximately 500,000 people in prison in the United States, and that number increased in 2009 to 2.3 million.  The vast majority of these incarcerated individuals were there because they were drug users addicted to illegal drugs.

Other countries in Europe, Australia and other places have gotten the message and have decriminalized many drug possession offenses with great results.

Over the last forty years the only people who have benefited from this war on drugs charade are people employed in law enforcement, criminal judicial system and our jails.  

Law Office of Vincent J. Sanzone, Jr., Esq.
Elizabeth, N.J.
(908) 354-7006

Dated: June 21, 2011

Wednesday, June 8, 2011

The Use and Misuse of Child Sexual Abuse Accommodation Syndrome (CSAAS), and Prohibition of the CSAAS Expert Giving the Jury Statistical Data

In the infamous Kelly Ann Michaels case in New Jersey, in which Ms. Michaels conviction was eventually overturned in State v. Michaels, 264 N.J. Super. 579, 598-99 (App. Div. 1993), the Appellate Division held that case that CSAAS testimony can never be used as probative testimony of the existence of sexual abuse in a particular case.

Therefore this expert testimony is permissible only when the testimony does not opine whether the particular child was abused, or “connect the dots”, between the victim’s behavior and the syndrome.

In general CSAAS testimony explains to the jury some of the factors which a child-victim might experience and the particular behavior associated with such abuse which can encompass, secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction.

In the recent New Jersey Supreme Court case State v. W.B., the State’s expert in CSAAS admitted on cross-examination that some children do falsely report sexual abuse, but added, “the great majority of them do not.”  On redirect by the prosecutor the question was asked to “estimate for us in your clinical experience how many children have lied in your experience.”  Over objects of defense counsel the expert stated anywhere between 5% and 10%, but the great majority do not lie, and that children actually under report what happens to them.

The Appellate Division held that such expert testimony which states statistical credibility of victim-witnesses is inadmissible.  It further held that “statistical information quantifying the number or percentage of abuse victims who lie deprives the jury of its right and duty to decide the question of credibility of the victim based on evidence relating to the particular victim and the particular facts of the case.”

Unfortunately, the defendant’s conviction in this case was not reversed because the court believed there was overwhelming evidence for a reasonable jury to conclude the defendant’s guilt beyond a reasonable doubt.

Law Office of Vincent J. Sanzone, Jr.
(908) 354-7006
Elizabeth, New Jersey
Dated: June 8, 2011