The Post Misses the Point

In its editorial on the rights of foreign nationals facing criminal prosecutions within the United States, the Post opines

THE SUPREME COURT heard arguments last week in the latest salvo in a long-running legal dispute about the proper role of foreign and international law in American adjudication. The case of Mario Bustillo, convicted in Virginia of a brutal murder in Springfield that occurred in 1997, raises anew the question of what happens when American states fail to let foreign nationals accused of crimes contact their consulates, as a treaty requires. Police did not permit Mr. Bustillo, a Honduran, to contact his government after his arrest, and he is serving 30 years in prison. The legal issue presented by his case -- along with another case from Oregon -- is not terribly difficult or compelling. He should lose. Yet there's another issue in this case that has been largely lost amid the high court's fascination with the scope of treaty obligations: Virginia authorities may have prosecuted the wrong man, and they clearly suppressed important evidence suggesting his innocence.

They go on to say that

On the narrow question, yes, the Vienna Convention on consular relations requires that when nations arrest each other's citizens, they tell one another and give the detainee the right to contact his home country's consulate for assistance. But this treaty was designed to gives states certain privileges, not to grant judicially enforceable rights to individuals. So state failures to follow the treaty may create a diplomatic issue between the United States and other countries and potentially raise risks for Americans arrested abroad. But they don't create a basis for an appeal by a person convicted of a crime.

Au contrare . . . .

Isn't that same Vienna Convention (of which the United State is a party and therefore which is enforceable upon State procedings) also capable of ensuring the sanctity of a foreign defendant's sixth amendment right to counsel? A local lawyer, speaking a different language and discussing a legal system not of his own, is at a marked disadvantage in providing counsel to a foreign national. By allowing a defendant to contact his embassy, the defendant is more capable of obtaining a lawyer who not only can communicate with the defendant and can advocate much more forcefully for that defendant.

Last time I checked, denial of the sixth amendment right to counsel is certainly a "basis for an appeal by a person convicted of a crime."

In the immediate case, it appears that police in Virginia suppressed evidence of another individuals guilt, including records that the true perpetrator fled the US and returned back to Honduras. If the Defendant was able to contact his consulate and obtain a Honduran attorney, perhaps this issue could have been fleshed out in a much more effective fashion than it was.