24 Sep 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.