GERMANY V. U.S.: THE LaGRAND DEATH PENALTY

Howard Tolley, Jr., University of Cincinnati

Synopsis

In deciding whether to respect the 1999 ICJ decision ordering a delay in Walter LaGrand’s execution, U.S. and Arizona officials confronted the globalization of criminal procedure. Death penalty abolitionists used international treaties binding on the U.S. to challenge the execution of a foreign national denied timely notice of his right to consular assistance. At a time the U.S. finds that Shariah penalties of stoning to death and amputation violate universal human rights, Arizona allowed a German national to choose execution by lethal gas. The LaGrand case challenged the national executive, federal courts, and state government to make policy and legal decisions on compliance with international law. This teaching case might be used as a course module on international or U.S. Constitutional Law, criminal procedure, the death penalty, interest group and NGO litigation strategy, and global human rights. Instructors who wish to arrange an ICJ moot court, a U.S. Supreme Court simulation, Clemency Board role play, or cabinet level debate should consult the appendix listing key decision makers on the ICJ, U.S. Supreme Court, the NGO advocates, and responsible officials from Germany, the U.S., and Arizona. The author solicits feedback on this first draft of the problem in fall 2002 when he plans initial pilot tests as well as preparation of interactive self-assessment items and a Teaching Note. Please address comments and suggestions to Howard.Tolley@uc.edu

Case Outline

The Governor and International Law

A World Court Decision for Arizona

Two German Brothers’ Crimes and Punishment

Affirmed on Appeal

German Diplomacy

Academic and Activist Abolitionists

LaGrand and 1999 ICJ Provisional Measures

Germany v. U.S. in the Supreme Court

Decision Day in Arizona

The U.S. and the ICJ

The ICJ’s 2001 LaGrand Judgment

U.S. Reaction to LaGrand

Discussion Questions

Timeline

Officials and Decision Makers

References

Endnotes

Self Assessment Questions

GERMANY V. U.S.: THE LaGRAND DEATH PENALTY

The Governor and International Law

A World Court Decision for Arizona

Arizona Governor Jane Dee Hull made the final decision whether convicted killer Walter LaGrand, a German national, would live or die by lethal gas on March 3, 1999. Ordering a delay, the International Court of Justice (ICJ) sought time to determine whether failure to notify LaGrand before trial of his right to assistance from the German consulate violated U.S. treaty commitments under the Vienna Convention on Consular Relations.

Calls for a reprieve also came from the Arizona Board of Executive Clemency, human rights organizations, Catholic abolitionists, and Germany’s Chancellor, Justice Minister, Ambassador to the U.S., and a member of parliament. Many others protested further delay, seventeen years after a brutal murder--the U.S. Supreme Court, the state Attorney General, local prosecutors, Arizona Republic editors, the victim’s son, and the victim who survived six stab wounds.

Hull, a sixty-three year old Catholic Republican had been Governor for two years. Born in Missouri, she earned a college degree in elementary education, completed graduate courses in political science, and studied “principled reasoning and ethical decision making” at the Josephson Ethics Institute. A grandmother with four children, she had been the first woman speaker in the Arizona House of Representatives and served as Arizona’s secretary of state.[1] Despite international protests, she had approved the execution of a Honduran the year before. Seven foreign nationals from five countries remained on the state’s death row, and more consular notice claims were certain.[2]

In reviewing Walter LaGrand’s petition for clemency, the governor became the final arbiter of conflicting decisions by the ICJ and U.S. Supreme Court about domestic enforcement of international law and world court orders. The globalization of criminal procedure and human rights raised difficult policy and legal questions for both national courts and state government.

Would LaGrand’s execution be a judicious defense of state sovereignty or an unfortunate precedent enabling other governments to deny consular assistance to American nationals prosecuted abroad?
Should foreign nationals afforded the same Miranda warnings as local citizens enjoy additional rights under international treaties and universal human rights? If not, would U.S. nationals convicted abroad become more subject to summary executions after sham trials and to Shariah penalties of amputation and stoning to death?
Were the ICJ provisional measures calling for a stay of execution binding and enforceable?
Given compelling evidence of LaGrand’s guilt, was Arizona’s failure to provide the required consular notice “harmless error,” or should the sentence be vacated for retrial or re- sentencing?

Two German Brothers’ Crimes and Punishment

Walter Lagrand, his younger stepbrother Karl, and their older sister were born out of wedlock to different fathers of U.S. nationality in Augsberg, Bavaria. Walter believed his father was a Puerto Rican soldier. Their German mother Emma placed the children in a convent in order to work. She brought them home after marrying Masie LaGrand, an African-American serviceman who adopted the children. The family moved to the United States in 1967 when Walter was four. Except for five months of 1974 spent at a U.S. army base in Germany, the LaGrands were raised in the U.S. They were never formally naturalized as U.S. citizens and spent time in foster care as a result of parental neglect and abuse. Masie LaGrand abandoned the boys.[3]

At age nine Karl was arrested for shoplifting, and the delinquent teens set a fire that caused $20,000 in damage when they lived in Texas. In 1981, Tucson authorities charged the 18 and 19 year-old brothers with robbing three supermarkets in a six day period, and they were released on their own recognizance.

While awaiting trial, they took girlfriend’s car from Tucson to rob the Valley National Bank in Marana before it opened on January 7, 1982. Karl bought a toy gun and steak knife that he used to intimidate the first arrivals--Ken Hartsock the 63-year old bank manager and a 20-year old teller, Dawn Lopez. Hartsock had only half the combination required to open the vault, and the LaGrands bound and gagged their two victims in the manager’s office. After Hartsock kicked Karl, the bank manager was fatally stabbed 26 times in the front with the knife, a letter opener or both. Lopez suffered six stab wounds to the head, neck, and side that resulted in a collapsed lung and three week hospitalization.[4]

A suspicious bank employee who remained outside reported the license number of their vehicle, and the LaGrands were arrested in Tucson that afternoon. Both invoked their Miranda rights to remain silent and to be assisted by counsel. Karl appeared in a weak emotional state, and detectives obtained approval from the County Attorney’s office for an immediate interrogation. One detective acknowledged that he had shaken the hyperventilating suspect by the shoulders to calm him down and may have slapped him, but denied causing a bloody nose.[5] During two to three hours of questioning, Karl made an audio taped confession after midnight. Karl insisted he alone did all the stabbing, and that Walter was not in the room at the time.

The brothers did not speak German, but a 1982 pre-sentence report identified each as a “Citizen of Germany--resident alien.”[6] The responsible officials never informed the men of their right to contact the German consulate for assistance, and may not have realized they had a duty to do so. The LaGrands only learned of that right from other German prison inmates in 1992 when they promptly notified the German consulate. At their 1984 trials, unaware of possible help from the German consulate and unable to afford lawyers, the LaGrands were represented by court appointed local defense counsel.

In separate jury trials both men were convicted of first-degree murder, kidnapping, attempted murder and attempted armed robbery. Karl’s confession was inadmissible, although Walter wanted it considered at his trial. The victim Lopez testified that both defendants were present when Hartsock was stabbed, and that one of them repeated: “Just make sure he is dead.” The state argued that one man held Hartsock from behind while the other repeatedly stabbed him from the front. Both juries were dismissed after returning guilty verdicts in February 1984, two years after the killing.

In a 1990 decision, the U.S. Supreme Court had approved post-trial sentencing by the judge without jury review of aggravating and mitigating circumstances. The Pima County trial Judge imposed death sentences in December 1984 based on findings of murder for monetary gain and a “cruel, heinous or depraved” killing. Eighteen years later in Ring v. Arizona, the Supreme Court overruled its 1990 opinion and found that capital defendants have a 6^th Amendment right to a jury’s determination of aggravating factors.

Answer Self Assessment Questions I. Numbers1-4

Affirmed on Appeal

The LaGrands’ unsuccessful appeals took fifteen years, and the men were scheduled for execution just nine days apart in 1999. Karl had new representation at each appellate stage and claimed ineffective assistance of trial counsel. Walter’s trial counsel served him throughout, and he waived his right to claim ineffective assistance. In several proceedings their appeals were consolidated in judgments rejecting common allegations of error such as aggravating circumstances and the felony murder rule. The Arizona Supreme Court affirmed their convictions in 1987 and denied post-conviction review in 1990. The U.S. Supreme Court also denied review despite objections to the death penalty by dissenting Justices Marshall and Brennan

The LaGrands then filed habeas corpus petitions in U.S. District Court. After learning of the brother’s nationality, the German consulate in Los Angeles assisted appellate counsel in challenging Arizona’s failure to provide the LaGrands notice of their right to consular assistance provided under Vienna Convention Article 36(1):

With a view to facilitating the exercise of consular functions relating to nationals of the sending State ... (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. . . . . The said authorities shall inform the person concerned without delay of his rights under this subparagraph....

c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.[7]

The federal court rejected the international law claim by applying a procedural default rule: the U.S. courts will not review a claim unless it was presented in prior state court appeals. That U.S. procedure was deemed consistent with Vienna Convention Article 36(2):

The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

Although the LaGrands’ state appeals were completed before the brothers learned of the treaty violation, ignorance did not justify a waiver of the procedural default rule.[8] The U.S. 9^th Circuit Court of Appeals affirmed their death sentences in 1998 in an opinion upholding the procedural default rule.[9]

The appeals court refused to rule on the LaGrands’ claim that both lethal injection and lethal gas were cruel and unusual punishment, because the brothers had not yet made the choice allowed under Arizona law. After the U.S. Supreme Court declined review, Arizona set execution dates for Karl of Wednesday February 24 and Walter on March 3, 1999. The men chose death in the gas chamber rather than by lethal injection, and then challenged asphyxiation as “cruel and unusual punishment.” On each execution date, the 9^th Circuit Court of Appeals ordered a stay of execution to consider that 8^th Amendment claim; each time the U.S. Supreme Court lifted the stay.

German Diplomacy

Germans were outraged when they learned of the impending executions in Arizona’s gas chamber. How could a state that had condemned genocidal use of lethal gas during the Nazi holocaust allow its use for capital punishment? Five of the 38 states with the death penalty offered lethal gas as an option, and ten of the 500 executed since 1983 had died in the gas chamber.

After an excruciating, eleven-minute asphyxiation in 1992 Arizona required lethal injection; those already sentenced had the option of lethal gas. Members of Germany’s Parliament called for sanctions against the U.S. Two other German nationals were on Arizona’s death row, and another awaited execution in Florida. No Germans had been executed in the U.S. since the World War II hangings of two spies.

West Germany abolished capital punishment in 1949 and East Germany in 1987. German diplomats worked actively to eliminate the death penalty in the European Union and at the United Nations. They lead the campaign for protocols abolishing the death penalty to the European Convention on Human Rights and the International Covenant on Civil and Political Rights. At the U.N. Commission on Human Rights Germany became the leading sponsor of annual resolutions protesting the execution of foreign nationals and calling for a moratorium.[10] The European Court of Human Rights heard a case involving a German national arrested in Britain who resisted extradition to Virginia on murder charges. The Court found that extradition of an accused killer to the U.S. would violate the regional human rights convention, unless assurances were given that capital punishment would not be used.[11] France withheld assistance when the U.S. sought the death penalty for Zacarias Moussaoui, a French national accused in the September 11 terrorist attacks.

Weeks before Karl LaGrand’s scheduled execution, German President Roman Herzog and Chancellor Gerhard Schroeder contacted President Clinton, German Justice Minister Herta Daeubler-Gmelin wrote U.S. Attorney General Janet Reno, and the Foreign Minister Joschka Fischer wrote Secretary of State Albright requesting their support for clemency appeals to Governor Hull. Germany’s Ambassador to the U.S., Juergen Chrobog, met privately with the governor.[12] Along with a member of Parliament, he testified at Karl’s hearing before the Arizona Board of Executive Clemency on February 23. After claiming for years that they had been unaware of the LaGrands’ German citizenship, the Attorney General’s office conceded at the hearing that their nationality had been known since 1982.[13] Based on that admission, but too late for Karl, the German government filed an appeal at the ICJ and U.S. Supreme Court challenging a U.S. violation of the Vienna Convention on Consular Relations.

Thirty minutes prior to his appointed hour on February 24, Karl agreed to lethal injection. His execution was delayed two hours to make the necessary arrangements. Before the needle was inserted, Karl offered an apology and plea for forgiveness.[14]

Answer Self Assessment Questions II. Numbers 5 to 10

Academic and Activist Abolitionists

Germany’s appeal on behalf of LaGrand complemented years of human rights activism by U.S. law professors and attorneys. Twenty-two NGOs and individuals from nine countries wrote Secretary Madeline Albright urging her to raise the consular issue with Arizona officials.[15]

NYU law professor Thomas Franck edited a text urging U.S. judges to show greater respect for international law and less deference to executive authority in foreign policy.[18] With Ford Foundation support, Franck invited Supreme Court Justice Sandra Day O’Connor to co-host a 1995 conference on International Law in National Courts. Justices Stephen Breyer and Ruth Bader Ginsburg attended along with three ICJ judges, and leading tribunal members of U.N., human rights, and national courts from Europe, Asia, and the Americas. Justice O’Connor also facilitated American Society of International Law training sessions for judges, joined the ASIL Executive Council, and publicly urged attorneys and judges to improve their understanding of international law.[19] With substantial U.S. financial support and leadership, the Organization of American Supreme Courts was created to promote the rule of law, improved judicial administration, and transnational cooperation by high court judges. Justices Rehnquist, O’Connor, Breyer, Kennedy, and Scalia all participated in the 1995 inaugural meeting.[20] The U.S. Judicial Conference created a Committee on International Relations that offers assistance to judiciaries in developing countries. The Justices meet regularly with their counterparts on the European Court of Justice.[21] The European Union submitted an amicus curiae brief when the court was reconsidering execution of the mentally retarded.

In the mid 1990s death penalty abolitionists began invoking the Vienna Convention on behalf of more than 70 foreign nationals on death row from 26 countries. Mexicans were the largest national group, about half the total. Ohio State University law professor John Quigley offered counsel to Mexico’s government, filed amicus curiae briefs in three cases challenging states’ failure to provide notice of consular assistance, and publicized his arguments in a half dozen law journal articles.[22] The American branch of the Inter-American Law Association, Amnesty International, Human Rights Watch, Minnesota Advocates for Human Rights and other activists all took up the issue. Amnesty International Canada’s Death Penalty coordinator Mark Warren posted a comprehensive Information Center on the internet and provided vital information to defense counsel.[23]

U.S. judges have dismissed consular notice claims on numerous grounds—procedural default, harmless error, state sovereign immunity, the last in time rule, and lack of individual standing. Between 1993 and 1998, nine foreign nationals, seven from the Americas, were executed in six states. After Virginia and Texas executed two Mexicans in 1997, their government requested an advisory opinion from the Inter American Court of Human Rights (IACHR). Several U.S. human rights nongovernmental organizations (NGOs) and six interested governments, including three with nationals on U.S. death row, successfully urged the court to advise that states failing to provide consular notice could not execute a foreign national. Counsel for the State Department argued that the Vienna convention "does not require the domestic courts of State parties to take any actions in criminal proceedings, either to give effect to its provisions or to remedy their alleged violation."[24] At the U.N. General Assembly, the U.S. cast the only vote against Mexico’s proposal that a Migrant workers treaty take note of the IACHR advisory opinion “regarding the Right to Information about Consular Assistance within the Framework of Due Process Guarantees."[25] The U.S. has not ratified the American Convention on Human Rights or accepted the court’s jurisdiction and objected that the “advisory” process was being improperly used.

As a member of the Organization of American States, the U.S. is subject to review by the Inter American Commission on Human Rights (IACHR). NGOs successfully petitioned the Commission to oppose the execution of juvenile killers, but the U.S. disregarded that opinion.[26] U.S. attorney Sandra Babcock helped a Canadian national on Texas death row with an IACHR petition claiming a denial of the right to consular notice. Professor Richard Wilson’s American University law school students in a human rights clinic helped South American nationals petition the IACHR after U.S. courts rejected their international law claims. Human rights activists in Germany pressed their government to take up the LaGrand case. NGOs also petitioned the Special Rapporteur on Summary and Arbitrary Executions of the U.N. Commission on Human Rights who visited the U.S. in 1997 and mentioned LaGrand in his report.[27]

Commission opinions supporting death row inmates may cause the U.S. political embarrassment, but have not been accepted as legally binding in U.S. Courts or blocked any executions. An International Court of Justice decision might have greater impact. The U.S. had accepted the court’s jurisdiction to decide disputes arising under the Vienna Convention and had won a celebrated ICJ judgment against Iran when consular officials were taken hostage. The government had complained when El Salvador failed to provide consular notice for detained U.S. nationals.[28]

A year before Germany’s LaGrand petition to the ICJ, Paraguay had a similar case argued on its behalf by New York attorney Donald Donovan and two associates from Debevoise and Plimpton. Virginia officials failed to inform Angel Breard of his right to assistance from Paraguay’s consulate. The ICJ issued provisional measures seeking a delay in his execution until the court had time to review the claim.

The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order;[29]

Despite an appeal by Secretary of State Albright, Virginia’s governor refused to grant a reprieve. After Breard was executed, the ICJ heard oral argument from the U.S. agent and from Donovan as Paraguay’s agent. The U.S. subsequently apologized for its violation of the Vienna Convention; Paraguay withdrew its complaint before the ICJ had decided whether Breard’s execution violated the treaty.

Answer Self Assessment Questions III. Numbers 11to 16

LaGrand and ICJ Provisional Measures

Germany requested provisional measures from the ICJ at 7:30 p.m. on March 2, less than 28 hours before LaGrand’s scheduled execution. Noting that the U.S. had ratified a protocol to the Vienna Convention accepting the court’s compulsory jurisdiction, Germany charged a breach of Article 36(1):

Protesting the execution of Karl, Germany asserted a vital interest in saving the life of Walter LaGrand and invoked the right to life provision of the International Covenant on Civil and Political Rights.

All fifteen judges were present at the Hague, Netherlands for other proceedings that were scheduled. Under ICJ rules, each state party is entitled to have one of its nationals sit as a judge in deciding their dispute, but the presiding President must come from a different state. As a result, the Sri Lankan Vice President Christopher Weeramantry became Acting President for the case in place of the U.S. Judge Stephen M. Schwebel. A German national, Carl-August Fleischhauer, was also serving an elected a nine-year term on the 15 member court, so there was no appointment of an ad hoc judge. Judge Weeramantry’s prior opinions on environmental protection and the use of nuclear weapons had endeared him to many NGO activists. He met at 9 a.m. the following morning with U.S. and German representatives, but the ICJ had no time for briefing and oral argument. In an unprecedented application of Rule 75, the ICJ acted immediately on its own motion. At 7:15 that evening, less than 4 hours prior to the scheduled execution, the judges announced:

THE COURT Unanimously,

I. Indicates the following provisional measures:

(a) The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order;

(b) The Government of the United States of America should transmit this Order to the Governor of the State of Arizona.

II. Decides, that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.[30]

In a separate published opinion, Judge Schwebel explained his profound reservations about the procedure. He argued that Germany should not have waited to file until a moment when the U.S. had no opportunity to respond and the Judges were left with no real choice. Judge Oda from Japan objected to the ICJ becoming a court of criminal appeal in death penalty disputes and expressed sympathy for the victims and their families.

The court deferred for subsequent briefing and oral argument a substantive decision on whether U.S. application of the procedural default rule violated the Vienna Convention. The State Department immediately forwarded the ICJ decision to Governor Hull.

Germany v. U.S. in the U.S. Supreme Court

Two hours prior to LaGrand’s scheduled execution, Germany asked the U.S. Supreme Court 1) to dispense with normal printing requirements for petitions, 2) to exercise its original jurisdiction in cases involving a foreign government, and 3) to grant a preliminary injunction against Governor Hull based on the ICJ preliminary measures. The U.S. Solicitor General objected in a letter noting inadequate time to read the materials, claiming that ICJ provisional measures were not a legally enforceable order, and insisting that The Vienna Convention offered no basis for a stay of execution.

For the second time in two years, the nine Justices had to decide whether to enforce an ICJ consular notice decision calling for a stay of execution. In Breard, six justices had rejected the international law claim by applying the procedural default and last in time rules. In the 1996 Anti-Terrorism and Effective Death Penalty Act Congress had restricted federal habeas appeals; any conflict with the 1963 Vienna Convention would be resolved in favor of the more recent statute. The majority also found that the treaty left to state parties the procedural rules for implementation, and that in Breard’s case evidence of guilt was so overwhelming that failure to notify the consulate was harmless error. The court also applied the 11^th Amendment provision barring suits against state government to immunity for Virginia. Justices Bryer, Stevens, and Ginsburg all dissented in Breard and would have granted a stay in order to hear argument on the merits.[31]

The Court swiftly dispensed with Germany v. U.S. in a one paragraph, unsigned per curiam opinion. Seven justices regarded Germany’s tardy petition as too late for consideration and noted that the Constitution’s Article III grant of original jurisdiction only applied in cases affecting Ambassadors, other public Ministers and Consuls. Five Justices also reasoned that the 11^th Amendment granted Arizona immunity from suit by a foreign government. Justices Bryer and Stevens dissented, and Justices Souter and Ginsburg joined their objections to granting immunity under the 11^th Amendment.[32]

Decision Day in Arizona

The day before Arizona’s Board of Executive Clemency had reviewed Karl LaGrand’s final appeal, Governor Hull declared that she would reject any recommendation for a reprieve.[33] In Walter’s case, she awaited the Board’s final recommendation on execution day before announcing her decision. At the hearing “LaGrand apologized for his crime. ‘First of all, I want to say I'm sorry,’ he said, fighting back tears. ‘Second of all, I know the other side now. I haven't had any loved ones in my life but Karl, so I understand what it is to lose a loved one now.’ He also told board members he was ready to die for his crimes.”[34]

On a 2-1 vote, the Board asked the Governor to delay the execution for 60 days to allow the ICJ an opportunity to review Germany’s claims. Chancellor Gerhard Schroeder and Foreign Minister Joschka Fischer both telephoned Governor Hull asking her to stop the execution.

Instead, the Governor announced her belief that LaGrand had enjoyed all the rights to which he was entitled—the same afforded to U.S. nationals. "In the interests of justice and with the victims in mind, I have decided to allow the execution to go forward," she announced, noting a duty to uphold state law. She professed respect for Germany’s law, expressed hope that the German public would respect Arizona law, and did not anticipate any problem for the state’s image abroad.

LaGrand rejected the state’s offer of lethal injection, choosing a more painful death as a protest against capital punishment. In a final statement he said: "To all of you here today, I forgive you and I hope I can be forgiven in my next life." He was pronounced dead 18-minutes after cyanide pellets were dropped in distilled water and sulfuric acid under his chair. A witness reported that LaGrand coughed a few times "Then his head dropped, but the body continued its contortions."[35] Germany’s Justice Minister Herta Daubler-Gmelin declared: "This is barbaric and unworthy of a state based on the rule of law."[36] Ken Hartsock Jr. and Dawn Lopez felt the execution was justly deserved and long overdue.

Answer Self Assessment Questions IV. Numbers 17-21

The U.S. and the ICJ

The ICJ’s 2001 LaGrand Decision

The U.S. formally apologized for violating the treaty and pledged to avoid a recurrence, but Germany did not follow Paraguay’s example by withdrawing from the world court. Pursuing the ICJ claims, Bruno Simma, Professor of Public International Law at the University of Munich, led a six member German legal team that included the N.Y. attorney who had represented Paraguay in Breard. U.S., Swiss, and Israeli international law professors as well as Arizona Attorney General Janet Napolitano assisted the State Department Legal Adviser. Oral argument extended from November 13-17, 2000.

In the 2000 election of five ICJ judges, Judge Weeramantry completed his term and was succeeded as Vice-President by Shi Jiuyong of China. Judge Gilbert Guillaume of France was elected President. International law professor Thomas Buergenthal of the U.S. replaced Schwebel. Buergenthal had authored highly regarded texts on international law and human rights. He had served as President of the Inter-American Court of Human Rights and as an expert member of the U.N. Committee on Human Rights. The European judges on the court were from Germany, Hungary, Netherlands, Russia and the United Kingdom. The ICJ bench also had judges from Brazil, Venezuela, Sierra Leone, Egypt, Madagascar, and Japan.

The fifteen judges made ten judgments in favor of Germany--one unanimously, six rulings with Judge Oda the only dissenter, two with dissents by Oda and a Venezuelan Judge, and one 12-3 decision that provoked a dissent by Buergenthal.

The U.S. acknowledged that its failure to notify the consul was a breach of its obligation to Germany, but lost its argument that individuals had no enforceable rights under the treaty. According to the U.S., no state party to the Vienna Convention allowed individuals to enforce rights in national courts.[37] While the ICJ declined to find that the U.S. procedural default rule was invariably a treaty violation, the court ruled that in the LaGrand case its application had breached U.S. obligations both to Germany and to the brothers. Judge Oda dissented protesting that foreign nationals should not enjoy greater due process rights than local citizens.

Vice President Shi of China expressed reservations about a treaty interpretation that granted rights to individuals and favored a clearer affirmation of state rights. In contrast to the parties and other judges who insisted the case was not about the death penalty, Shi noted the critical need for caution given the severe and irreversible nature of execution.

The court unanimously found that promises the U.S. made to Germany had satisfied demands for non-repetition, and decided 14 to 1 that if another German national received a “severe penalty” without consular notice then: "the United States, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention." ICJ decisions only apply to the governments appearing at the world court and unlike U.S. Supreme Court judgments do not become binding precedents applicable to others. President Guillame nevertheless declared there should be no conflicting treaty interpretation applied to nationals of other countries.

Judge Buergenthal dissent from the court’s judgment allowing Germany to claim that the U.S. violated the 1999 ICJ provisional measures. Like his U.S. predecessor, Buergenthal insisted that Germany engaged in procedural misconduct prejudicial to the U.S. by deliberately creating a rush to judgment that unfairly deprived the U.S. of a chance to respond. Even if the court accepted Germany’s explanation that it discovered critical facts on February 23, that does not explain a filing after the close of business of March 2, the night prior to LaGrand’s scheduled execution.

Buergenthal nevertheless supported the court’s unprecedented finding that ICJ provisional measures are binding orders. U.N. Charter Article 94 provides: “1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” Buergenthal voted with twelve others to find that the U.S. had violated the 1999 ICJ provisional measures by failing to take all measures at its disposal to prevent LaGrand’s execution. After receiving the ICJ’s 1999 decision, no executive branch official urged Governor Hull to delay the execution. Instead, the Solicitor General supported dismissal of LaGrand’s appeal to the Supreme Court arguing that ICJ provisional measures were not binding.

U.S. Reaction to LaGrand

Within a year of the 1999 ICJ Provisional measures, the State Department’s Senior Coordinator for Consular Notification had published and distributed 44,000 instruction booklets and 300,000 cards to local arresting officers, prosecutors, and judicial authorities as well as libraries, criminal defense lawyers and the general public. The Department placed the materials on the Internet and used them in training seminars. Twelve states with large number of foreign nationals and those on the Mexican border received special attention.[38]

The Arizona Attorney General sent to “county attorneys a memorandum advising them of the requirements of the Vienna Convention and providing excerpts from and information about the Department of State's booklet, and has also written to the Chief Justice of the Arizona Supreme Court suggesting a change in the rules of the courts of Arizona that would help ensure compliance.”[39] The Arizona Department of Corrections provided inmates with information about consular officers and new notification procedures.

California adopted a law requiring law enforcement agencies to ensure that policy or procedure and training manuals incorporate language based on the provisions of the 1963 Vienna Convention on Consular Relations. The bill also requires every peace officer, upon the arrest and booking or detaining of a foreign national, to advise the foreign national that he or she has a right to communicate with a consular representative. Notification of consular rights must take place within two hours of the detention.[40]

Cook County, Illinois and several other jurisdictions adopted similar measures under court order. Human rights advocates pressed the U.S. Justice Department to bring the lawsuits against local governments that avoided the 11^th Amendment barrier to suits by foreign states. Federal courts had allowed the national government to enforce U.S. treaty commitments against an Illinois agency that diverted international waters from Lake Erie and against a Virginia tax that violated the Vienna Convention on Diplomatic Relations.[41]

Oklahoma Governor Frank Keating approved the execution of an Iraqi national, but briefly delayed the execution of Gerardo Valdez Maltos to consider objections by Mexico. When he lifted the stay, Keating explained his reasoning in a letter to Mexican President Vicente Fox. The Court of Criminal Appeals in Oklahoma then blocked the Valdez execution in order to review a consular notice claim and ultimately ordered a new sentencing hearing on other grounds.

Following her March 2002 keynote address to the American Society of International Law, Justice Sandra Day O’Connor responded to a question from Professor Quigley by forcefully noting her familiarity with the ICJ’s LaGrand decision. The former Arizona legislator stressed the critical importance of “transjudicialism,” noting her September 11 meeting with Indian judges in New Delhi and the briefs received at the Supreme Court from U.S. diplomats urging the justices to consider international practice when deciding death penalty appeals involving the mentally retarded.[42]

Although Justice O’Connor delighted abolitionists with her June 2002 votes against the death penalty in cases on mental retardation and Arizona’s sentencing procedures, their hopes for enforcement of the Vienna Convention were quickly dashed. The Supreme Court routinely declined to review consular claims without any dissenting opinions. [43] Lower courts have rarely even considered the ICJ LaGrand decisions of 1999 and 2001.

Between March 1999 and September 2002 the number of foreign nationals on death row in thirty-three states had increased to 121, and six more were executed—including three Mexicans.[44] Texas Governor George Bush rejected appeals from Secretary of State Albright on behalf of a Canadian national, insisting that murderers could not escape capital punishment based on foreign citizenship. When he became President, Bush proclaimed a special relationship with Mexico, but the new Republican administration did not oppose the August 14, 2002 execution of Mexico’s Javier Suarez Medina in Texas. Court briefs and letters from 16 nations had urged clemency. Mexican President Vicente Fox promptly cancelled a ranch meeting with President Bush to protest the execution. Ten days later Texas Governor Rick Perry visited Mexico and failed both in his efforts to meet Fox as well as in winning San Antonio’s bid to host the 2007 Pan-American games. Delegates representing the 42 nations that make up the Pan American Sports Organization awarded the 2007 Games to Rio de Janeiro.[45]

In July 2002 Governor Hull convened a special three-day session of the Arizona legislature to revise the death penalty sentencing procedures invalidated by the U.S. Supreme Court. The lawmakers overwhelmingly approved procedures empowering jurors to impose the death penalty, allowing alternate jurors in cases of deadlock, and removing automatic review by the state Supreme Court. The legislators rejected a proposed moratorium or new limits on execution of juveniles. The Arizona Republic announced that it no longer supported the death penalty, despite its prior endorsement of the LaGrand executions. Press accounts make no mention of any legislative debate on the Vienna Convention requirement of consular notice or for responding to the ICJ rulings in LaGrand. Governor Hull promptly signed the emergency statute so the death penalty could be imposed on capital defendants awaiting trial.[46]

As a result of term limits, Hull could not seek reelection in 2002. The Democratic Attorney General Janet Napolitano who had actively supported the LaGrand and other executions won her party’s primary campaign for governor against candidates who opposed the death penalty. The victorious Republican gubernatorial candidate, former U.S. Representative Matt Salmon attacked Napolitano for appointing a Death Penalty Study Commission that recommended a statewide referendum on capital punishment. “In the most recent statewide poll on the death penalty, conducted in April 2001, 81 percent of registered voters supported keeping capital punishment, 14 percent supported eliminating it and 5 percent were undecided. “[47]

Answer Self Assessment Questions V. Numbers 22-27

Discussion Questions

U.S. Policy Interests:

Was LaGrand’s execution a judicious defense of state sovereignty or an unfortunate precedent enabling other governments to deny consular assistance to U.S. nationals prosecuted abroad?

Should foreign nationals afforded the same Miranda warnings as local citizens enjoy additional rights under international treaties and universal human rights? If not, would U.S. nationals convicted abroad become more subject to summary executions after sham trials and to Shariah penalties of amputation and stoning to death?

International law:

Were the ICJ provisional measures calling for a stay of execution binding and enforceable?

In addition to the German government--a state party to the treaty--does a convicted individual such as LaGrand also have standing to claim a denial of rights under the Vienna Convention?

U.S. Constitutional law:

Does the 11^th Amendment grant Arizona immunity from Germany’s claim of a treaty violation?

Given compelling evidence of LaGrand’s guilt, was Arizona’s failure to provide the required consular notice “harmless error,” or should the sentence be vacated pending a new trial?

If LaGrand and his lawyers only discovered the treaty violation after exhausting all other appeals, should his consular notice claim be dismissed under established rules of “procedural default” or should a new appeal be allowed based on international comity?

If the 1996 U.S. Death Penalty Act restrictions on federal appeals conflict with U.S. obligations under the 1963 Vienna Convention, which should control--the statute as “last in time” or the earlier treaty that remains in force?

Decision Makers and Officials

Arizona

Ken Hartsock, Jr. Son of bank manager and murder victim

Jane Dee Hull Republican Governor of Arizona, 1997-2003

Edward Leyva, Chairman, Arizona Board of Executive Clemency

Dawn Lopez Bank teller stabbed during attempted robbery

Janet Napolitano Arizona’s Democratic Attorney General

United States

Madeline Albright U.S. Secretary of State

Catherine Brown Assistant Legal Adviser for Consular Affairs, U.S. State Department

Michael J. Matheson Johns Hopkins University Professor of International Law, Co-Agent of the United States of America, former legal adviser

Janet Reno U.S. Attorney General

James Thessin Acting Legal Adviser, U.S. Department of State

Seth Waxman U.S. Solicitor General

International Court of Justice

Thomas Buergenthal ICJ Judge from U.S. Former Judge Inter-American Court of Human Rights

Shigeru Oda ICJ Judge from Japan, dissented in LaGrand

Christopher Weeramantry ICJ Judge from Sri Lanka, Vice President, Acting President in Germany v. U.S. in 1999 Provisional Measures

Steven Schwebel ICJ Judge from U.S., President of the court 1999

U.S. Supreme Court

Steven Breyer Associate Justice, U.S. Supreme Court

Ruth Bader Ginsburg Associate Justice, U.S. Supreme Court

Sandra Day O’Connor Associate Justice, U.S. Supreme Court

William Rehnquist Chief Justice, U.S. Supreme Court

John Paul Stevens Associate Justice, U.S. Supreme Court

Federal Republic of Germany

Juergen Chrobog German Ambassador to the U.S.,

Joschka Fischer German Foreign Minister

Herta Daubler-Gmelin German Justice Minister

Joschka Fischer German Foreign Minister

Roman Herzog German President

Bruno Simma, Professor of Public International Law at the University of Munich, Agent in Germany v. U.S. 2001oral argument

Claudia Roth Member of German Parliament, attended hearing of Arizona Clemency Board

Gerhard Schroeder German Chancellor

NGO Activists

William Aceves International Law Professor, Western College of Law

Sandra Babcock U.S. attorney representing Faulder, a Canadian in Texas

Donald Donovan N.Y. attorney, co-agent for Paraguay and Germany in ICJ

Thomas Franck Professor of International Law, New York University

John Quigley Professor of International Law, Ohio State University

Mark Warren Amnesty International Death Penalty Coordinator, Canada

Mexico

Vicente Fox President of Mexico

TIMELINE

1962, January Walter LaGrand born in Augsberg, Bavaria, Germany

1967 LaGrand family moves to U.S. with adopted father Masie

1982, January 7 Attempted bank robbery and stabbing death of Ken Hartsock

1984, February Jury trial results in conviction for first degree murder

1984, December 14 Judge imposes death sentence based on aggravating circumstances

1987 Conviction affirmed by Arizona Supreme Court; U.S. Supreme Court declines review

1990 Arizona Supreme Court denies post-conviction appeal

1992 LaGrand brothers learn of treaty violation and notify German Consulate

1995 U.S. District Court affirms conviction, rejects consular notice claim

1998 U.S. 9^th Circuit Court of Appeals affirms conviction, rejects consular notice claim

1999 Germany obtains provisional measures from ICJ

U.S. Supreme Court dismisses Germany’s March 3 petition

Walter LaGrand executed in Arizona Gas Chamber

2001, June ICJ rules in favor of Germany against U.S.

2002, June U.S. Supreme Court invalidates Arizona sentencing procedure

Arizona empowers juries to impose the death penalty

REFERENCES

Articles

Aceves, William J. “International Decision: Murphy v. Netherland” American Journal of International Law 92 (1998): 87-91.

Aceves, William J. “The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies.” Vanderbilt Journal of International Law 31 (1998): 257-324.

Bedjaoui, Mohammed. “The Reception by National Courts of Decisions of International Tribunals.” In International Law Decisions in National Courts, edited by Thomas M. Franck and Gregory H. Fox, 21-35. New York: Transnational Publishers, Inc., 1996.

Bianchi, Andrea. “Overcoming the Hurdle of State Immunity in the Domestic Enforcement of International Human Rights.” In Enforcing International Human Rights in Domestic Courts, edited by Benedetto Conforti and Francesco Francioni, 405-439. Hague, the Netherlands: Martinus Nijhoff Publishers, 1997.

Blackmun, Harry A. “The Supreme Court and the Law of Nations.” Yale Law Journal 104 (1994): 39-49.

Charter of the Organization of Supreme Courts of the Americas, 40 St. Louis L.J. 1131, 1996.

Fitzpatrick, Joan. “The Unreality of International Law in the United States and the LaGrand Case,” , 27 Yale Journal of International Law, Summer, 2002 p. 427

Franck, Thomas M., and Gregory H. Fox. International Law Decisions in National Courts, New York: Transnational Publishers, Inc., 1996.

Franck, Thomas M., and Gregory H. Fox. “Introduction: Transnational Judicial Synergy.” In International Law Decisions in National Courts, edited by Thomas M. Franck and Gregory H. Fox, 1-11. New York: Transnational Publishers, Inc., 1996.

Gisvold, Gregory D. “Strangers in a Strange Land: Assessing the Fate of Foreign Nationals Arrested in the United States by State and Local Authorities.” Minnesota Law Review 78 (1994): 771-803.

Helfer, Laurence R., and Anne-Marie Slaughter. “Toward a Theory of Effective Supranational Adjudication.” Yale Law Journal 107 (1997): 273-328.

Henkin, Louis BREARD: Provisional Measures, U.S. Treaty Obligations, and the States The American Journal International Law October, 1998 p. 679

Henry, Jehanne E., Comment, Overcoming Federalism in Internationalized Death Penalty Cases, 35 Tex. Int'l L.J. 459, 461 (2000)

Kadish, Mark J. “Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul.” Michigan Journal of International Law 18 (1997): 565-612.

Lee, Luke T. Vienna Convention on Consular Relations 10714 (1966).

Lien, Molly Warner The Cooperative and Integrative Models of International Judicial Comity: Two Illustrations Using Transnational Discovery and Breard Scenarios, 50 Cath. U. L. Rev. 591, 638, 646-47 (2001)

G.E. do Nascimento e Silva, The Vienna Conference on Consular Relations, 13 Int'l & Comp. L.Q. 1214, 1214 (1964).

Sandra Day O'Connor, Our Shrinking World: Why Lawyers Need International Awareness, Keynote Address to the Union Internationale des Advocates, Philadelphia, Pa. (Sept. 3, 1997)

Sandra Day O'Connor, Broadening our Horizons: Why American Judges and Lawyers Must Learn about Foreign Law, INT'L JUD. OBSERVER (Int'l Jud. Acad./ASIL), June 1997, at 2 (article adapted from speech given by Justice O'Connor at the 1997 spring meeting of the American College of Trial Lawyers). www.fjc.gov/ www.fjc.gov/STAFEDJUAF/ijo/intobs.html

Ordonez, Sarita, and David Reilly. “Effect of the Jurisprudence of the International Court of Justice on National Courts.” In International Law Decisions in National Courts, edited by Thomas M. Franck and Gregory H. Fox, 335-371. New York: Transnational Publishers, Inc., 1996.

Kevin Reed, Richard J. Wilson, and Joan Fitzpatrick, “Race, Criminal Justice and the Death Penalty,” Whittier Law Review 15 (1994): pp. 400, 402-409.

Quigley, John. LaGrand: A Challenge to the U.S. Judiciary, 27 The Yale Journal of International Law, Summer, 2002 p. 435

Shank, S. Adele, and John B. Quigley. “Foreigners on Texas’s Death Row and the Right of Access to a Consul.” St. Mary’s Law Journal 26 (1995): 719-753.

Shank, S. Adele, and John B. Quigley. “Obligations to Foreigners Accused of Crime in the United States: A Failure of Enforcement.” Criminal Law Forum 9 (1999): 99-142.

Slaughter, Anne-Marie. “A Typology of Transjudicial Communication.” In International Law Decisions in National Courts, edited by Thomas M. Franck and Gregory H. Fox, 37-69. New York: Transnational Publishers, Inc., 1996.

Springrose, Linda Jane. Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 Geo. Immigr. L.J. 185, 195

Tams, Christian. 27 The Yale Journal of International Law, Summer, 2002

Kelly Trainer, Comment, The Vienna Convention on Consular Relations in the United States Courts, 13 Transnat'l Law. 227, 231-234 (2000)

Vagts Detlev F. The United States and Its Treaties: Observance and Breach 95 The American Journal International Law April, 2001, 313

Weinman, Jennifer Lynne The Clash Between U.S. Criminal Procedure and the Vienna Convention on Consular Relations: An Analysis of the International Court of Justice Decision in the LaGrand Case 17 Am. U. Int'l L. Rev. 2002 857,

Wilson, Richard J. “Inter-American Commission on Human Rights Decides U.S. Death Penalty Case,” 1998 ACLU International Civil Liberties Report 26-27.

Michael C. Dorf, FindLaw Forum: When U.S. States Execute Citizens of Other Countries, CNN.com.LAWCENTER, (July 25, 2001) (explaining that litigation over the LaGrand Case and others highlights the conflicts between how the United States views the application of international law to domestic law and how other countries regard the same), available at http://www.cnn.com/2001/LAW/ 07/ columns/ fl.dorf.executions.0725/index.html

U.S. Cases

Breard v. Greene, 523 U.S. 371 (1998)

Breard v. Greene, 523 U.S. 371, 1998 U.S. LEXIS 2465 (per curiam), cert. & stay denying by Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998), aff’g by Breard v. Netherland, 949 F.Supp. 1255 (E.D. Va. 1996).

Breard v. Greene, 523 U.S. 371, 1998 (per curiam), cert. & stay denying by

Republic of Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998), aff’g 949 F.Supp. 1269 (E.D. Va. 1996).

Committee of U.S. Citizens Living in Nicaragua v. Reagan D.D.C. 1987 and 2 F.2d 929 D.C. Cir. 1988.

Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996), cert. denied, 519 U.S. 995 (1996).

State v. LaGrand, (Walter) 153 Ariz. 21, 734 P.2d 563, 565-66 (Ariz. 1987).

State v. Karl LaGrand, 152 Ariz. 483, 733 P.2d 1066 (Ariz. 1987); cert denied. 484 U.S. 872, (1987).

LaGrand v. Lewis, 883 F. Supp. 469 (D. Ariz. 1995), Lethal Injection

LaGrand v. Lewis, 883 F. Supp. 451 (D. Ariz. 1995), Main Appeal

LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998), cert. denied, 119 S.Ct. 422 (1998).

Federal Republic of Germany v. United States, 526 U.S. 111, 111-12 (1999)

Murphy v. Netherland, 116 F.3d 97 (4th Cir. 1997), cert. denied, 118 S.Ct. 26 (1997).

Ohio v. Loza, 1997 Ohio App. LEXIS 4574 (Ohio Ct. App.).

Ohio v. Issa, 752 N.E.2d 904, 935 (Ohio 2001) cert. denied April 1, 2002

Paraguay v. Allen, 949 F. Supp. 1269, 1271 (E.D. Va. 1996), aff'd, 134 F.3d 622 (4th Cir. 1998).

Stanford v. Kentucky, 492 U.S. 361 (1989).

Thompson v. Oklahoma, 487 U.S. 815 (1988).

United Mexican States v. Woods, 126 F.3d 1220 (9th Cir. 1997), cert. denied, 1998 U.S. LEXIS 2563.

Villafuerte v. Stewart, 142 F.3d 1124 (9th Cir. 1998).

International Cases

R v. Abbrederis, (1981) Australia, 36 A.L.R. 109,

Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), International Court of Justice (April 9, 1998) <http://www.icj-cij.org/

icjwww/idocket/ipaus/ipausframe.htm>.

I.C.J., Case Concerning United States Diplomatic and Consular Staff in Teheran (U.S.A. v. Iran) (memorial of U.S.A. at 174).

From United States Diplomatic and Consular Staff in Tehran (USA. v. Iran), I.C.J. Pleadings, at 174, and Memorial of the United States to the International Court of Justice in the Case Concerning United States Diplomatic and Consular Staff in Tehran.

Inter-American Court of Human Rights, El derecho a la informaci n sobre la asistencia consular en el marco de las garant as del debido proceso legal, Opini n consultiva OC-16/99/

de 1 de Octubre de 1999, solicitada por los Estados Unidos Mexicanos [hereinafter Advisory Opinion].

LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. (June 27), available at http://www.icj-cij.org.

Memorial of the Federal Republic of Germany (F.R.G. v. U.S.), I.C.J. Pleadings (Lagrand Case) 139 (March 27, 2000), available at http://www.icj-cij.org

Counter-Memorial of the United States of America (F.R.G. v. U.S.), I.C.J. Pleadings (Lagrand Case) 139 (March 27, 2000), available at http://www.icj-cij.org

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).

Roach and Pinkerton v. U.S., Case 9647, Inter-American Commission of Human Rights, 147, OEA/ser.L/V/II.71, doc. 9 rev. 1 (1986-87).

Soering v. United Kingdom European Court of Human Rights, 1989. 161 Eur.Ct. H.R. (ser.A), 11 E.H.R.R. 439.

The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. C.H.R. (ser. A) No. 16 (1999), 141.

Written Observations of the United States of America, Request for Advisory Opinion OC-16 (on file at Inter- American Court of Human Rights) at 27.

Inter-American Court of Human Rights, Advisory Opinion OC-16/99 of October 1, 1999, The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, para. 122.

Treaties

Article 10, UN Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live (U.N.G.A. Res. 40/144, (1985)).

Article 6(3), UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (U.N.G.A. Res. 39/46, (1984)); Rule 38(1),

Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (U.N.G.A. Res. 43/173 (1988));

Commission on Human Rights, The Question of the Death Penalty, ESC Res. 2000/65, UN ESCOR, UN Doc. E/CN.4/RES/2000/65 (2000);

Commission on Human Rights, The Question of the Death Penalty, ESC Res. 1999/61, UN Doc. E/CN.4/RES/1999/61 (1999).

Statute of the International Court of Justice, June 26, 1945, art. 36, 59 Stat. 1055

UN Standard Minimum Rules for the Treatment of Prisoners (ECOSOC Res. 663 (1957)); Principle 16(2),

U.N. Charter Article 94

Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.

Statutes

Section 834 (c) of the California Penal Code.

Code of Federal Regulations, 28 C.F.R. §50.5(a) and 8 C.F.R. §236.1(e).

Az. R. Crim. P. 32.2 (West 2001) (mandating that a defendant is precluded from relief for any claim "that has been waived at trial, on appeal, or in any previous collateral proceeding.")

Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. 2254 (2001) and 28 U.S.C. 2261 (2001)

Web Sites

Amnesty International On-line, “A Time For Action-Protecting the Consular Rights of Foreign Nationals Facing the Death Penalty,” AMR 51/106/2001, Aug. 22 2001 http://www.web.amnesty.org/ai.nsf/recent/AMR511062001

American University data on foreign nationals. http://www.wcl.american.edu/humright/deathpenalty/vccr.html

Angel Breard briefs and opinions http://www.mwbb.com/breard/breardbriefs.htm

Death Penalty Information Center http://www.deathpenaltyinfo.org/foreignnatl.html

Justices See Joint Issues with the EU, Washington Post , July 8, 1998, at A24.

ENDNOTES