Avena Lives! Supreme Court of Nevada Cites ICJ in Granting Gutierrez Evidentiary Hearing

by Duncan Hollis

On September 19, the Supreme Court of Nevada ordered a new evidentiary hearing for Mexican national Carlos Gutierrez on his ability to overcome the State’s procedural bars to further consideration of his death sentence.  I’ve posted a copy of the court’s order here.

Gutierrez was one of 51 Mexican nationals whose convictions and sentences were the subject of the ICJ’s Avena decision.  Under that opinion, the ICJ found that the United States had violated its obligations under Article 36(1)(b) of the Vienna Convention on Consular Relations by failing to notify Gutierrez of his right to consular assistance.  The opinion directed the United States to provide “by means of its own choosing” judicial review and consideration of Gutierrez’s conviction and sentence to ascertain whether the failure to provide such consular assistance was actually prejudicial to Gutierrez’s conviction or sentence.  As regular readers know, the Supreme Court found in Medellin v. Texas that neither the ICJ’s Avena opinion nor President Bush’s memo directing the States to implement it were directly enforceable federal law that would trump State procedural default rules; a view affirmed in 2011 in Leal Garcia v. Texas.

But — and here’s the interesting part — the Nevada Supreme Court emphasized that nothing in the earlier Supreme Court opinions precluded it from implementing Avena.   Consistent with Justice Stevens’ call in his Medellin concurring opinion that States implement Avena themselves, the Gutierrez court reasoned that “..while, without an implementing mandate from Congress, state procedural default rules do not have to yield to Avena, they may yield, if actual prejudice can be shown.”  And, unlike Medellin or Leal Garcia, this case had a pretty striking ground for finding prejudice — the Court’s interpreter in Gutierrez’s death penalty hearing, Carlos Miguel Gonzalez, later pled guilty to perjury, having entirely made up his credentials as an interpreter.  Moreover, the Nevada Supreme Court found evidence that this lack of credentials may have impacted Gutierrez’s hearing, with transcript reports showing Gutierrez’s interpreter having exchanges with the State’s interpreter over the accuracy of Gonzalez’s interpretations.

The opinion closes with a dramatic appeal to reciprocity.  The Court explains its decision to grant Gutierrez an evidentiary hearing by claiming that

if a non-Spanish speaking U.S. citizen were detained in Mexico on serious criminal charges, the American consulate was not notified, and the interpreter who translated from English into Spanish at the trial for the Spanish-speaking judges was later convicted of having falsified his credentials, we would expect Mexico, on order of the ICJ, to review the reliability of the proceedings and the extent to which, if at all, timely notice to the American consulate might have regularized them.”

Thus, even with Congress having done zero to implement it, Avena seems to have some legs after all.  This in turn suggests that as the remaining Avena defendants see their cases wind through the various state criminal justice systems, we should expect a mixed set of reactions.  I’ve no doubt some courts will continue to simply cite Medellin and decline to consider, let alone enforce, the Avena order. But, Gutierrez, like the Torres case before it, suggests that some State courts can be persuaded by arguments describing U.S. interests in complying with international obligations alongside indications of prejudice in order to obtain the judicial review and reconsideration that Avena directed the United States to provide.

Hat Tip: Ron Bettauer and ASIL’s ILIB


One Response

  1. Response…
    There is a significant error, hwever, because unavoidably, Article VI, cl. 2 of the U.S. Const. requires that “all” (not a few, the one’s a state likes, the one’s that “Congress” likes) treaties are supreme law of the land.  Medellin simply left the responsibility to implement to the States.  31 Suffolk Transnational Law Review 302, 315-24 (2008).
    Moreover, the majority in Medellin was clearly wrong when not addressing fully the language (like “binding”) in U.N. Charter art. 94(1)-(2) and Stat. of the ICJ (which is part of the Charter), art. 59, or quoting such and not understanding the point.   

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