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Particular Issues – Counsel – Ineffective Assistance – Deficient Performance: Lack of Familiarity with Vienna Convention on Consular Relations

Johnbull K. Osagiede v. USA, 7th Cir No. 07-1131, 9/9/08

Issue/Holding: Counsel’s ignorance of VCCR Art. 36 rights available to foreign national client was deficient:

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 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.” Julian v. Bartley, 495 F.3d 487, 497 (7th Cir. 2007); accord Dixon v. Snyder, 266 F.3d 693, 702 (7th Cir. 2001); Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996); Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir. 1992). 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. See 5 28 C.F.R. § 50.5. The law was on the books; the violation was clear. Simple computer research would have turned it up.The Government argues, however, that Article 36 does not create any individual rights that could have been invoked by counsel as a basis for relief. Osagiede’s counsel was not objectively deficient, the Government argues, because any argument she might have raised would be futile. See Rodriguez v. United States, 286 F.3d 972, 985 (7th Cir. 2002). In support of its argument, the Government asserts that no court had ever held that the Vienna Convention created individually enforceable rights in the criminal setting. This is simply incorrect … .

…(T)he Article 36 violation should have rung a bell with a reasonable attorney.

Significant caveats apply (as always! otherwise we’d have much less to do). The crux of this holding is that the VCCR safeguards individual rights, else you’d have a no-harm/no-foul summary affirmance. The 7th was way out in front of the curve on that principle, Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007) (Art. 36 confers individual rights). Because Jogi was decided after Osagiede’s case was litigated in the trial court, it wasn’t determinative on the question of what his attorney should have known. But it certainly shows the 7th’s leanings. And now the court has leaned still further, and determined that even before Jogi, reasonable competence required familiarity with the right to consular assistance. Here’s where it gets interesting, though. Our state courts have taken an entirely different tack, and have held “that the Vienna Convention does not create a private right that a foreign national can enforce in a state criminal proceeding and therefore [he or she] has no standing to assert any remedy pursuant to the Vienna Convention,” State v. Jose Carlos Navarro, 2003 WI App 50, ¶1.

Now what? You’ve got 7th Circuit caselaw distinctly saying that the right is privately enforceable and that therefore counsel must be aware of its potential benefit, so that any failure to assert it is the product of considered strategy. But you’ve also got controlling state caselaw saying that this right is not privately enforceable, and that the defendant therefore doesn’t have standing to assert a violation. Our state courts aren’t (outside of judicial mandate in a specific case) obligated to follow the 7th down this path. Neither Osagiede nor Jogi overrule the holding of Navarro. Technically, then, you might be able to ignore this new development and suffer no consequence. But, of course, that is not the way you want to practice law, nor is it in your clients’ interests. The point to be aware of is that state-court assertion of an Art. 36 violation will require discussion of Navarro (either as a minimalist approach: limiting it to the distinguishable issue of suppressibility of evidence for a “direct” violation; or maximalist: seeking its outright reversal by the supreme court).

Re: VCCR and suppression of evidence, see here.