The court is the first of the circuits to permit damage claims for Article 36 violations.
All have rejected suppression of evidence as a remedy, and two the Fifth and Sixth have expressly held that no individual rights are conferred by Article 36.
Given the conflict between the circuits, and the importance of the issue, the case should be considered a good candidate for potential review by the U.S. Supreme Court.
However that court may ultimately decide the issue, however, police, criminal attorneys and judges need to be aware that the failure to comply with Article 36 when foreign nationals are arrested is no longer a failure without any consequences.
The question is what are the remedies available to the foreign national. Unfortunately, lower courts and attorneys have very little guidance, either from the court, from other jurisdictions, or from commentary on Article 36.
As noted, every circuit in the country has held either that Article 36 confers no individual rights, or that, even if it does, the exclusion of evidence and dismissal of a case are not the appropriate remedies. Those judges that have dissented from the decisions have argued that exclusion of evidence is appropriate, not that civil damages are the appropriate remedy. See U.S. v. Li, 206 F.3d 56 (1st. Cir. 2000)(en banc)(C.J. Torruella, concurring in part, and dissenting in part).
The Seventh Circuit quoted extensively from Judge Torruellas dissent in reaching its conclusion that Article 36 confers individual rights. However, because the judge concludes the appropriate remedy is the exclusionary rule, that dissent will provide no guidance in future civil cases where the issue is damages.
The Seventh Circuit also quoted extensively from a law review article Mark Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search For the Right to Counsel, 18 Mich. J. Intl L. 565 (1997). Like Judge Torruella, however, Kadishs thesis is that violations should be remedied in the criminal case, and thus, the article does not discuss appropriate civil remedies.
Nevertheless, a section of the Kadish article concerning the appropriate standard of prejudice offers some guidance on the issue of causation. Kadish cites an unpublished case from the Southern District of New York, Mami v. Van Zandt, in which the court addressed prejudice.
In the case, a Jordanian citizen claimed that he requested to contact his consulate upon arrest, but was denied access. Nevertheless, the court denied his habeas corpus petition, observing, Mami gives no indication of what the Jordanian diplomatic officials could have done for him, or how he was in any way prejudiced by this.
Kadish disagrees with this line of reasoning, but, in most cases, this reasoning should carry the day, limiting the foreign nationals damages to nominal damages only.
A garden variety criminal defendant is unlikely to obtain any benefit from notification of his consulate, and thus, likely cannot prove any compensatory damages.
Kadish discusses the services that foreign nations, such as Mexico, provide for their arrested nationals, but he uses only capital cases as examples. Kadish, at 607, n. 260. He notes, Mexico has adopted a policy of vigorous intervention when capital charges are lodged against a Mexican national or when Mexican nationals are sentenced to death. Id.
In a state such as Wisconsin without a death penalty such evidence would do nothing to prove causation or damages. So, although the decision allows civil suits for violations of Article 36, it is unlikely to be of practical benefit to most foreign nationals.
– David Ziemer
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David Ziemer can be reached by email.