A Law Prof’s Report on Oral Argument in the Latest Supreme Court Vienna Convention Case

First, it is helpful to recall that the two consolidated cases presented three questions. To paraphrase the questions presented, they are: 1) does article 36 of the VCCR create individually enforceable rights?, 2) is suppression an available remedy? and 3) assuming the answer to question 1 is “yes,” can state courts invoke state procedural bars to preclude remedies for violations of individual treaty rights?

I am confident in predicting that the Court will say that suppression is not an available remedy for VCCR violations. They probably won’t go so far as to say that suppression is NEVER an available remedy, but they may come pretty close to that. This portion of the opinion may well be unanimous.

As to whether article 36 creates individually enforceable rights, I think the most likely outcome is that there will not be a majority opinion providing a clear answer to this question. Scalia and Roberts clearly think that article 36 does not create individually enforceable rights. Thomas and Alito didn’t address the issue, but I’m guessing they’ll agree with Scalia and Roberts on this. My sense is that the other five Justices all think that Article 36 does create individually enforceable rights. However, I’m not at all confident that they will be able to join a single opinion that provides an unambiguous answer to the question presented. In any case, I think it’s unlikely that there will be a majority opinion stating that Article 36 does NOT create individually enforceable rights.

The most difficult issue to predict is how the court will handle the procedural bar question. Even the Justices who are sympathetic to the petitioner in Bustillo seem to be quite reluctant to endorse the idea that the VCCR trumps state procedural default rules. Those Justices – especially Breyer, Souter, and Kennedy – seem to be inclined to channel all VCCR claims through the mechanism of ineffective assistance of counsel claims as a way to bypass state procedural default rules. Under this approach, an individual whose treaty rights are violated could obtain post-conviction relief if, but only if, he satisfied the two-prong Strickland test for ineffective assistance of counsel. (For those of you who are not Sixth Amendment experts, Strickland requires the petitioner to prove: a) that the trial lawyer’s performance was constitutionally deficient; and b) that the attorney’s deficient performance prejudiced the defendant.)

I have several reservations about this approach, but I’ll highlight one of those. Assume that the performance of a trial lawyer who fails to raise a possible VCCR claim at trial is constitutionally deficient, thus satisfying the first prong of Strickland. Assume also that suppression is not an available remedy for VCCR violations. Unless the petitioner can identify some remedy other than suppression that would have been available if he had raised the VCCR issue at trial, it will be impossible for the petitioner to show that he was prejudiced by the counsel’s failure to raise the VCCR issue at trial. After all, what possible prejudice could result from an attorney’s failure to raise a claim for which there is no remedy?