The VCCR and Ineffective Assistance of Counsel

The VCCR and Ineffective Assistance of Counsel

The Seventh Circuit in Osagiede v. United States earlier this month ruled that an attorney’s failure to provide information as to the client’s Vienna Convention rights may constitute ineffective assistance of counsel.

Effective performance by counsel representing a foreign national in a criminal proceeding is reasonable performance “under prevailing professional norms.” … Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 [of the VCCR] and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” The Government does not contest the fact that it failed to notify Osagiede of his right to contact his consulate. This failure to notify violated Article 36 of the Vienna Convention, as well as federal regulations promulgated to ensure compliance with Article 36. The law was on the books; the violation was clear. Simple computer research would have turned it up.

The Government argued however, that ineffective assistance was unavailing because the Vienna Convention does not create a private right of action. The Seventh Circuit disagreed. “[A] reasonable Illinois lawyer would have known that this Court has never held that Article 36 did not create individual rights; instead, we have always assumed that it did. Thus, it was clearly established across the country that either the Vienna Convention created individual rights or courts would proceed as if it did.”

Significantly, the Court relied upon the ICJ’s determinations in LaGrand and Avena to reach this conclusion. “[T]he International Court of Criminal Justice [sic] issued two landmark decisions holding that Article 36 did, in fact, provide the detained foreign national with individual rights. The dramatic legal and political developments that led up to the LaGrand and Avena cases drew widespread attention at local, national and international levels.”

It looks like this is where we are headed with the VCCR. Criminal convictions may not be thrown out using straightforward arguments of VCCR violations, but the ineffective assistance of counsel argument may just have legs.

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Diplomatic Gunboat
Diplomatic Gunboat

The ‘prejudice’ prong of Strickland will still be the greatest hurdle to overcome for VCCR ineffective assistance claims, but the 7th Circuit here cites law review articles for examples of instances where consular assistance did produce a different outcome.  The court does not making a finding of prejudice outright (as Prof. Alford said, it may constitute ineffective assistance), but instead the court remands in order to give the petitioner the opportunity to show prejudice. 

Favorably to the petitioner, the 7th Circuit specifically focuses on the likelihood of a different sentencing outcome (even though the sentence imposed was already below the elevated guidelines) and emphasizes the difficulty of discerning recorded voices with thick foreign accents (an issue with which a consulate might be uniquely able to assist).  Participation and assistance from the particular consulate in these proceedings on behalf of the petitioner, to say what they would have done (and why they didn’t earlier despite their own receipt of notification), may be crucial to the petitioner’s success on remand.

I appreciate the 7th Circuit’s rejection of the argument that the court could not grant this relief because a majority of the Supreme Court has not yet explicitly said it is available.

Vlad Perju


Thanks for emphasizing the point that the Court simply sent it back for an evidentiary hearing.  My post was not sufficiently clear that the Court simply said there “may” be a colorable claim here.

Roger Alford

Tobias Thienel

I wonder: was the ‘International Court of Criminal Justice’ bit a mere oversight on the part of the federal judges, or a snide remark about the ICJ interfering with the domestic criminal justice system? Not that the latter would have anything going for it – or sit altogether well with the rest of the decision.

More to the point, then: might this lead to snide remarks about the meddlesome ICJ (‘the Court interferes with our law, so much so that the 7th Circuit has called it…’)?

Vlad Perju


My bet would be that the Seventh Circuit simply did not know the name of the ICJ and it is nothing more than that.


Phu Nguyen

I am a bit unclear of the question “whether the Nigerian Consulate would have involved if a Nigerian was informed of his right under VCCR”. The Court has correctly approached the situation when taking into consideration the differences in regards of culture, language and legal traditions between countries. Thus, the Court came to the conclusion that the consular assistance can produce a different outcome for the defendant when those differences can be bridged by a consular involvement. It comes to me that the Court in its analysis presumed that a consular possesses sufficient knowledge and skills and also has a will to render assistance to his countrymen who’s in need of help. Therefore, the consular assistance is a right given to any national in time of distress. But then, the Court put up a demand that the Nigerian defendant must prove that if he was informed of the right to consular assistance, this Nigerian Consulate will render the assistance. This demand gave me an impression that the Court had switched his position and created a burden for the Nigerian defendant. At the beginning of the decision, the Court noted that the Nigerian Consulate had received a fax from the State… Read more »