The VCCR and Ineffective Assistance of Counsel

¶ 34 In Proposition 6, Appellant contends that his right to consular assistance was violated. As noted, Appellant is a citizen of Mexico. Both the United States and Mexico are signatories to the Vienna Convention on Consular Relations. This multinational treaty includes provisions relating to contact between foreign nationals in a signatory country (the “receiving State”) and the consulate of their country of origin (the “sending State”). The treaty provides that “consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State.” VCCR, Article 36, ¶ 1(a). To implement this provision, government officials of a receiving State, upon arresting or otherwise detaining a foreign national from a sending State, shall, “without delay,” inform the person of his right to contact his consulate, and likewise inform the person’s consulate that he has been so detained.

¶ 35 After his arrest but before he was interviewed, Appellant was advised by police (1) that he had a right to remain silent and consult with a lawyer, and (2) that as a citizen of Mexico, he had a right to request assistance from the Mexican consulate. Speaking through an interpreter, Appellant not only agreed to talk to police without a lawyer present, but also declined his right to contact the Mexican consulate. On appeal, Appellant concedes that he was timely advised of his right to contact the Mexican consulate, but claims that “other state-sanctioned barriers” effectively denied him the right to consular assistance. Appellant complains that the government of Mexico was not permitted to intervene in his case and participate in his defense.

¶ 36 Appellant’s argument is based on the assumption that a governmental party to the Vienna Convention on Consular Relations has a unilateral right to participate in the criminal prosecution its citizens in another signatory country, even without the citizen’s consent. Appellant offers no authority to support such an assumption. To the contrary, the treaty makes clear that consular assistance cannot be forced on a foreign national: “[C]onsular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.” VCCR, Article 36, ¶ 1(c). In fact, Mexico’s right to unilaterally intervene in Appellant’s criminal proceeding is not squarely before us, because it is Appellant, not Mexico, who is making this claim, and Appellant himself lacks standing to do so. Proposition 6 is therefore denied. However, this does not end our discussion of Mexico’s efforts to participate in Appellant’s defense. While the Vienna Convention did not give Mexico the unilateral right to intervene in Appellant’s case, Mexico’s repeated attempts to offer defense counsel assistance before trial play an important role in our disposition of Appellant’s ineffective-counsel claim, which we turn to now.

¶ 48 Even though Appellant declined an invitation to contact the Mexican consulate on his arrest, consular officials were notified about his case, and they enlisted the help of the Mexican Capital Legal Assistance Program (MCLAP) to communicate with defense counsel. Attorneys working on Mexico’s behalf were in contact with defense counsel in the summer of 2002, offering, among other things, sample motions to seek court funds for experts and other services, including a mitigation investigation.

¶ 49 Despite the voluminous evidentiary hearing, and testimony from all three defense attorneys involved in the case, the actual defense strategy with regard to mitigation remains elusive to us. Several conflicting explanations were offered: (1) that defense counsel did not know the court could be petitioned to provide additional funds for mitigation investigation; (2) that counsel knew additional funds could be applied for, but did not believe the court would approve them; and (3) that no additional funds were sought because counsel believed their mitigation work was thorough and sound. Each of these explanations is belied by the record. As noted, counsel for Mexico had forwarded caselaw and other information to trial counsel on how to seek court funds for mitigation assistance. At a hearing just days before trial, where counsel for Mexico appeared pro hac vice and expressed concern about the course of the second-stage preparation, the court told defense counsel that it would be very accommodating to any properly submitted request for additional funds. None was ever filed….

¶ 54 Counsel does not have an obligation to introduce any and all evidence that might conceivably be considered mitigating. But counsel’s decisions about the nature and quantity of mitigating evidence must be based on reasonable professional judgment, which requires experience, training, and some basic research into what evidence is available and how it might make a difference. We simply cannot discern any real, coherent mitigation strategy in this case. Even if counsel’s brief, eleventh-hour discussion with Appellant’s parents and sister about testifying in the punishment stage could be deemed sufficient witness preparation, it surely does not begin to approach a true mitigation investigation. Counsel were untrained in what to look for and how to go about looking for it. Their assessments of the situation were often inconsistent with each other, and at times internally inconsistent as well. The amount of deference given to counsel’s strategic decisions depends on the amount of investigation that went into them. We find trial counsel’s approach to the mitigation aspect of this case constitutionally unacceptable.