The government has long taken the position that the treaty, the Vienna Convention on Consular Relations, applies to relationships between nations but does not provide enforceable rights to individual criminal defendants.
The court granted two appeals, one from a Mexican who is in prison in Oregon after being convicted of attempted murder in the shooting of a police officer, and another from a Honduran convicted and sentenced to 30 years' imprisonment in a gang-related murder in Springfield, Va., a Washington suburb.
In neither case did officials comply with the Vienna Convention's requirement to advise detained foreign citizens of their right to consult with representatives of their government. There is no dispute that the treaty was violated. In fact, the United States issued a formal apology to Honduras in the case of the Honduran defendant, Mario A. Bustillo.
The question is whether either he or the Mexican defendant, Moises Sanchez-Llamas, can challenge the conviction on that basis. Mr. Bustillo's case, Bustillo v. Johnson, No. 05-51, raises the further issue of whether, even if the treaty is individually enforceable, a state court may nonetheless refuse to consider it in light of a procedural obstacle, like a defendant's failure to raise the issue at the right point in the trial.
These issues reached the Supreme Court last year in somewhat different form in a case brought by José Ernesto Medellín, a Mexican citizen on death row in Texas. Mr. Medellín was one of 50 Mexicans on death row in nine states who had won a favorable ruling from the International Court of Justice, usually known as the World Court, in a case brought there against the United States by the Mexican government.
A federal appeals court had refused to consider Mr. Medellín's Vienna Convention argument because he had not raised it in initial state court proceedings. After the Supreme Court agreed to hear his appeal, Medellín v. Dretke, the Bush administration withdrew the United States from the World Court's jurisdiction in Vienna Convention cases but said that as a matter of American foreign policy, the Texas courts should enforce the World Court's judgment and give Mr. Medellín a new hearing. He then brought a new appeal in the Texas courts, and the Supreme Court dismissed the case by a vote of 5 to 4.
In accepting the two cases on Monday (the other is Sanchez-Llamas v. Oregon, No. 04-10566), the justices did not seek the views of the federal government - presumably in the interests of time, since those views are well known to the court from earlier cases. But the solicitor general's office is highly likely to enter the cases at this point.
The Sanchez-Llamas case raises the further issue of whether a defendant who makes an incriminating statement to the police, in the absence of the notification required by the treaty, has a right to have that statement excluded from the trial.
After his arrest, following an altercation with the police, Mr. Sanchez-Llamas was advised in Spanish of his Miranda rights and then interrogated for several hours. Once convicted, he argued on appeal that his statements should have been suppressed. But the Oregon Supreme Court ruled that the Vienna Convention did not confer personally enforceable rights.
His appeal to the United States Supreme Court, filed by the Oregon public defender's office, argues that suppression of his statements is the proper remedy for the violation of his treaty rights because, 35 years after the United States signed the Vienna Convention, "violations continue to occur on a regular basis" and will keep occurring unless law enforcement agencies have to pay a price for failure to notify foreign defendants of their rights.
Mr. Bustillo's lawyer, Jeffrey A. Lamken, argues that the failure of notification was particularly harmful in his case because his defense to the murder charge was one of mistaken identity. He was denied access "to the assistance of Honduran officials in his effort to show that another Honduran national who had fled to Honduras had committed the offense," the brief explained, adding that "it is difficult to imagine circumstances in which the aid of the consulate could be more critical than it was here."
Mr. Bustillo did not raise his Vienna Convention argument until a second round of appeals in the Virginia state courts. That was too late, the Fairfax County Circuit Court ruled in a decision that the Virginia Supreme Court affirmed.