Nevada’s Supreme Court Upholds ICJ Ruling on Consular Rights of Mexicans
On September 19, 2012, in the case of Gutierrez v. State, the Nevada Supreme Court became the second court in the United States (after Oklahoma’s Court of Criminal Appeals) to uphold the decision of the International Court of Justice in Avena and Other Mexican Nationals. In the Avena 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. 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.
In 2004, the Oklahoma Court of Criminal Appeals applied the ICJ’s ruling in the case of Osbaldo Torres, and after conducting an evidentiary hearing, concluded that he had been prejudiced by the Vienna Convention violation. By that time, the Oklahoma Governor had already commuted his death sentence to life imprisonment based in part on the ICJ’s decision. But in the case of José Medellín, the Texas courts refused to follow Oklahoma’s example. The United States Supreme Court ultimately held 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 Stevens pointed out that nothing prevented the states from voluntarily complying with the ICJ’s judgment. Citing the Torres case, he urged Texas to provide the required review: “One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas’ duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current
controversy.”
Texas was not swayed by Justice Stevens’ plea, however, and José Medellín was executed in 2008 without receiving 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.
The Nevada Supreme Court distinguished the Medellín and Leal cases, noting that Gutierrez had presented substantial evidence of prejudice. Gutierrez 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, the court cited Justice Stevens’ concurrence in Medellin, noting 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.” (emphasis in original).
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 Perez Gutierrez, 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.”
Nevada is the only state, apart from Oklahoma, to have complied with the ICJ’s judgment. 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 Avena judgment.