{"id":2146,"date":"2012-09-25T21:22:35","date_gmt":"2012-09-25T21:22:35","guid":{"rendered":"https:\/\/live-death-penalty-worldwide.pantheonsite.io\/nevadas-supreme-court-upholds-icj-ruling-on-consular-rights-of-mexicans\/"},"modified":"2020-06-04T10:32:52","modified_gmt":"2020-06-04T10:32:52","slug":"nevadas-supreme-court-upholds-icj-ruling-on-consular-rights-of-mexicans","status":"publish","type":"post","link":"https:\/\/dpw.lawschool.cornell.edu\/fr\/nevadas-supreme-court-upholds-icj-ruling-on-consular-rights-of-mexicans\/","title":{"rendered":"Nevada\u2019s Supreme Court Upholds ICJ Ruling on Consular Rights of Mexicans"},"content":{"rendered":"

On September 19, 2012, in the case of\u00a0Gutierrez v. State,\u00a0<\/em>the Nevada Supreme Court became the second court in the United States (after Oklahoma\u2019s Court of Criminal Appeals) to uphold the decision of the International Court of Justice in\u00a0Avena and Other Mexican Nationals.<\/em>\u00a0 In the
\nAvena\u00a0<\/em>decision, the International Court of Justice (ICJ) held 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 Vienna Convention on Consular Relations.\u00a0 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) they were prejudiced by the deprivation of their consular rights.<\/p>\n

In 2004, the Oklahoma Court of Criminal Appeals applied the ICJ\u2019s ruling in the case of Osbaldo
\nTorres, and after conducting an evidentiary hearing, concluded that he had been prejudiced by the Vienna Convention violation.\u00a0By that time, the Oklahoma Governor had already commuted his death sentences to life imprisonment based in part on the ICJ\u2019s decision.\u00a0 But in the case of Jos\u00e9 Medell\u00edn, the Texas courts refused to follow Oklahoma\u2019s example.\u00a0The United States Supreme Court ultimately held that the ICJ\u2019s\u00a0Avena\u00a0<\/em>Judgment did not preempt state procedural rules that barred prisoners from raising Vienna Convention claims in successive habeas corpus petitions.\u00a0 In a
\nconcurring opinion, however, Justice Stevens pointed out that nothing prevented the states from voluntarily complying with the ICJ\u2019s judgment.\u00a0 Citing the Torres, case, he urged Texas to provide the required review:\u00a0 \u201cOne consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation.
\nTexas’ duty in this respect is all the greater since it was Texas that\u2014by failing to provide consular notice in accordance with the Vienna Convention\u2014ensnared the United States in the current
\ncontroversy.\u201d<\/p>\n

Texas was not swayed by Justice Stevens\u2019 plea, however, and Jos\u00e9 Medell\u00edn was executed in 2008 without receiving the review and reconsideration to which he was entitled under the\u00a0Avena\u00a0<\/em>judgment.\u00a0 The ICJ subsequently held that the United States had breached its international legal obligations by carrying out his execution.\u00a0 Then, in 2011, Texas executed Humberto Leal Garc\u00eda in violation of\u00a0Avena\u2019s\u00a0<\/em>mandate.<\/p>\n

The Nevada Supreme Court distinguished the\u00a0Medell\u00edn\u00a0<\/em>and\u00a0Leal\u00a0<\/em>cases, noting that Gutierrez had
\npresented substantial evidence of prejudice.\u00a0 Gutierrez had a sixth grade education and spoke little English at the time of trial.\u00a0 The court interpreter falsified his credentials and failed to correctly interpret the testimony of a number of witnesses.\u00a0 In remanding the case for an evidentiary hearing, the court cited Justice Stevens\u2019 concurrence i\u00a0Medellin<\/em>, noting that while \u201cwithout an implementing mandate from Congress, state procedural default rules do not\u00a0have\u00a0<\/em>to yield to\u00a0Avena<\/em>, they\u00a0may\u00a0<\/em>yield, if actual prejudice can be shown.\u201d\u00a0 (emphasis in original).<\/p>\n

The court was particularly troubled by the interpreter\u2019s falsified credentials and flawed
\ninterpretation.\u00a0 Noting that it remained an open question as to whether consular assistance might have affected the quality of interpretation available to Perez Gutierrez, the court concluded:
\n\u201cWhat 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,\u00a0 to review the reliability of the proceedings and the extent to which, if at all, timely notice to the American consulate
\nwould have regularized them.\u201d<\/p>\n

Nevada is the only state, apart from Oklahoma, to have complied with the ICJ\u2019s judgment.\u00a0 Nevertheless, the decision 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\u00a0Avena\u00a0<\/em>judgment.<\/p>\n","protected":false},"excerpt":{"rendered":"

On September 19, 2012, in the case of\u00a0Gutierrez v. State,\u00a0the Nevada Supreme Court became the second court in the United States (after Oklahoma\u2019s Court of Criminal Appeals) to uphold the decision of the International Court of Justice in\u00a0Avena and Other Mexican Nationals.\u00a0 In the Avena\u00a0decision, the International Court of Justice (ICJ) held that the United […]<\/p>\n","protected":false},"author":18,"featured_media":943,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[70,74],"tags":[],"class_list":["post-2146","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-access-to-justice-fr","category-news-fr"],"better_featured_image":{"id":943,"alt_text":"alt=\"\"","caption":"Photo by orangesparrow","description":"","media_type":"image","media_details":{"width":1256,"height":942,"file":"2018\/08\/orangesparrow_104_365-a-little-justice.jpg","sizes":{"medium":{"file":"orangesparrow_104_365-a-little-justice-300x225.jpg","width":300,"height":225,"mime-type":"image\/jpeg","source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice-300x225.jpg"},"large":{"file":"orangesparrow_104_365-a-little-justice-1024x768.jpg","width":1024,"height":768,"mime-type":"image\/jpeg","source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice-1024x768.jpg"},"thumbnail":{"file":"orangesparrow_104_365-a-little-justice-150x150.jpg","width":150,"height":150,"mime-type":"image\/jpeg","source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice-150x150.jpg"},"medium_large":{"file":"orangesparrow_104_365-a-little-justice-768x576.jpg","width":768,"height":576,"mime-type":"image\/jpeg","source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice-768x576.jpg"}},"image_meta":{"aperture":"0","credit":"","camera":"","caption":"","created_timestamp":"0","copyright":"","focal_length":"0","iso":"0","shutter_speed":"0","title":"","orientation":"0","keywords":[]}},"post":1995,"source_url":"https:\/\/dpw.lawschool.cornell.edu\/wp-content\/uploads\/2018\/08\/orangesparrow_104_365-a-little-justice.jpg"},"acf":[],"aioseo_notices":[],"external_author":"Sandra Babcock","_links":{"self":[{"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/posts\/2146","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/users\/18"}],"replies":[{"embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/comments?post=2146"}],"version-history":[{"count":1,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/posts\/2146\/revisions"}],"predecessor-version":[{"id":2156,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/posts\/2146\/revisions\/2156"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/media\/943"}],"wp:attachment":[{"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/media?parent=2146"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/categories?post=2146"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dpw.lawschool.cornell.edu\/fr\/wp-json\/wp\/v2\/tags?post=2146"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}