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

CriminalDefenseNJ.com

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