New Weapon in Defense: Foreign Consulates

After Marco Barrera was charged with beating to death his two young children, a lawyer for the Mexican government made a personal appeal to prosecutors to forgo the death penalty.

When that didn’t work, Mexican officials tried to save Barrera’s life another way: They assisted his lawyer in preparing a defense.

In a growing number of criminal cases, foreign consulates are playing a supporting role in defending their citizens, particularly those facing death. Services vary by country, and range from visiting inmates to filing legal briefs on their behalf.

Attorney Sandra Babcock recently represented the Mexican government in two Los Angeles County murder cases. Babcock asked the district attorney’s office to seek a penalty other than death in Barrera’s case. The Minneapolis attorney also has consulted with the defense lawyer for another Mexican citizen, Israel Cebrera Pulido, who is charged with killing an elderly couple last year in North Hollywood.

In the last few years, Babcock has filed nearly a dozen briefs on behalf of foreign citizens being prosecuted for serious crimes across the nation.

She also was the first to appeal a murder conviction based on a violation of the Vienna Convention on Consular Rights. Although her Canadian client lost that appeal and was executed, Babcock’s research, made prominent in a 1996 appellate opinion, offered criminal defense lawyers a new legal strategy.

The international treaty, ratified by the United States in 1969, requires the 140 signatory nations to notify detained foreigners of their right to contact their consulates.

During the last three years, a few major death-penalty cases have drawn national attention to the Vienna Convention, although none of the appeals has been successful.

In 1998, U.S. Secretary of State Madeleine K. Albright tried unsuccessfully to stop the execution of a 32-year-old Paraguayan man in Virginia because he was not told of his right to contact his consulate.

Then, in June, an Arizona court ignored a ruling by the International Court of Justice in The Hague that found U.S. authorities violated international law by failing to notify the German embassy of two suspects’ arrests in the killing of a bank manager in 1982. After Karl LaGrand was executed on Feb. 24, 1999, the United Nations court issued an injunction to stop the execution of his older brother. Despite the attempt to intervene, Walter LaGrand was put to death the next day.

With those cases, State Department officials grew concerned that the United States’ failure to comply with the Vienna Convention could result in diminished consular rights for U.S. citizens detained abroad.

So Albright began a national effort to educate law enforcement personnel on the rights of detained foreign citizens. As part of the outreach, State Department officials held a seminar on consular rights for law enforcement last summer in Los Angeles.

State Department

Handbook Available

The State Department also offers a 72-page handbook that answers commonly asked questions about the Vienna treaty and provides sample statements of rights in more than a dozen languages on its Web site, www.travel.state.gov .

The handbook urges law enforcement officers to inform foreigners of their consular rights as soon as they are detained but suggests that the notification is “better late than never.” The treaty requires notification “without delay.”

A 1999 California law is more specific. It requires law enforcement to notify foreign citizens of their consular rights upon arrest or within two hours of their detention, but provides no penalty for noncompliance.

Slowly, local authorities are responding, with an increased interest since the Sept. 11 attacks on New York and Washington.

During the first week of October, after a widely distributed Interpol memo mentioned the treaty, the State Department’s Consular Notification and Outreach Division received 60 inquiries from law enforcement agencies seeking advice on what they should do when a foreign citizen is arrested, a State Department official said. More requests are being received daily.

Since the terrorist attacks, more than 1,000 people, most of them people of Middle Eastern descent, have been detained in United States lockups for immigration violations or as material witnesses.

“From what the INS and Department of Justice have told us, all of the people who have been detained have been advised of their right to consular access,” a State Department spokeswoman said.

In Los Angeles County, the Sheriff’s Department has a full-time international liaison whose job it is to contact consulates for inmates.

When inmates indicate on booking sheets that they are foreign-born, they are given a one-page form advising them of their consular rights, sheriff’s Sgt. Josh Thai said. If they want to contact a representative from their homeland, they sign a request that is forwarded to their consulate.

Thai, the department’s international liaison, said he gets two to five such requests each day.

As an added precaution, the department has posted consular phone numbers and small flags from more than 100 countries in holding cells at its Inmate Reception Center, where every inmate arrested in Los Angeles County is processed.

When Thai notifies a consulate, he said, he thinks about how it would feel to be detained abroad. “It would be nice to have someone help me out,” he said.

Experts say consulates can offer significant assistance, including helping a defendant hire a lawyer and paying for investigators and expert witnesses.

Some foreigners do not know they can refuse to answer questions from authorities or be executed for their crimes, Babcock said.

In death penalty cases, consular officials can help defense lawyers secure criminal and medical records from their homeland to provide mitigation in the trial’s penalty phase, Babcock said.

In Barrera’s case, the Mexican consulate aided his attorney, Arthur C. “Skip” Braudrick, in many ways--offering legal advice and bringing family members from Mexico to testify at trial.

Mexican officials arranged police escorts for the defense attorney when he visited Barrera’s hometown and family in rural Mexico. They also gave Braudrick what he called a “juice letter.”

“You show that letter and doors open up for you,” he said. It instructed the reader to provide Braudrick with assistance. “And people pay attention to that.”

Consulate officials also provided Barrera’s parents with passports, and drove them to the airport in Mexico City to fly to Tijuana, where they crossed the border, Braudrick said.

Last summer, his parents testified in a San Fernando courtroom about their son’s life before he left Mexico for the United States.

Despite their testimony, a jury has recommended that Barrera be executed. He is scheduled to be sentenced next month.