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Article 36 Case Analysis

This is the first Wisconsin case to consider the Vienna Convention in a criminal context, but, as can be seen from the large number of cases cited from other jurisdictions, it is not a novel question, nor is it one that is likely to disappear.

In federal court, the issue has been considered by the Seventh Circuit in several cases, most thoroughly in U.S. v. Chaparro-Alcantara, 226 F.3d 616 (7th Cir. 2000), cert. denied, 531 U.S. 1026 (2000). However, neither that case, nor any other Seventh Circuit case, was even mentioned by the court of appeals in the case at bar.

Instead, the court cited authority from other courts, relying most heavily on a concurring opinion from the First Circuit, U.S. v. Li, 206 F.3d 56 (1st. Cir. 2000), and the Supreme Court of New Mexico, State v. Martinez-Rodriguez, 33 P.3d 267 (N.M. 2001), cert. denied, 535 U.S. 937 (2002), but also citing cases from the Fifth and Sixth Circuit Courts of Appeal.

The reason is that the Seventh Circuit never addressed the issue the court considered — standing — but instead, assumed that individuals do have standing, while holding that, even if an individual right is created by the Convention, the exclusionary rule is not the appropriate sanction for a violation of that right. Chaparro-Alcantara, 226 F.3d at 621.

To date, no published opinion authorizes suppression as a remedy for violation of the Convention, whether it be because of lack of standing, as the court of appeals held, or simply because the exclusionary rule is not the appropriate remedy, as both the Seventh and Ninth Circuits have held.

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Vienna Convention

The U.S. Supreme Court has had numerous opportunities to consider the issue, but has always denied certiorari. Until it does consider the issue, and possibly even thereafter, the issue is not going to go away, and attorneys in criminal law and judges need to be familiar with the case law.

The reason this issue will stay with us is not that foreign nations support a broad application of the exclusionary rule; it is the death penalty.

Among the authorities cited by Navarro was the LaGrand case from the International Court of Justice. Walter and Karl LaGrand were two German nationals convicted of murder in Arizona, sentenced to death, and ultimately executed, provoking Germany to invoke the Convention to try to prevent the executions.

Foreign nations are unlikely to take much interest if a Wisconsin police officer is unfamiliar with Article 36, and fails to inform a foreign drug dealer of its provisions.

However, as long as other states utilize capital punishment, this is going to remain an issue, generating case law, both in the ICJ and other U.S. courts, that may eventually wind its way into Wisconsin courts.

– David Ziemer

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David Ziemer can be reached by email.

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