More on Vienna Convention on Consular Relations

[Source -  ASIL Int'l Law Brief]

Gutierrez v. State of Nevada (Sept. 19, 2012)

 Click here for document (approximately 14 pages) The Supreme Court of the State of Nevada has ruled in Gutierrez v. State of Nevada that Carlos Gutierrez, a Mexican national sentenced to death for the killing of his three-year-old stepdaughter, is entitled to an evidentiary hearing to determine whether he suffered actual prejudice due to the lack of consular assistance during his sentencing hearing. The Court specifically referred to the 2004 decision of the International Court of Justice ("ICJ"), Avena and Other Mexican Nationals, wherein the ICJ found that the United States violated Article 36 of the 1963 Vienna Convention on Consular Relations when it failed to notify fifty-one Mexican nationals on death row, one of whom was Gutierrez, of their consular notification and access rights. While the U.S. Supreme Court subsequently held in Medellin v. Texas that neither Avena nor the accompanying President's Memorandum purporting to implement Avena "constituted directly enforceable federal law," the Supreme Court of Nevada ruled that in cases where actual prejudice can be shown, state procedural default rules "may yield" to Avena.

 According to the Supreme Court of Nevada, "[u]nlike Medellin and Leal Garcia but like Torres, Gutierrez arguably suffered actual prejudice due to the lack of consular assistance." Furthermore, the Court noted that "[i]t is apparent that Gutierrez needed help navigating the American criminal system. At the time of his arrest, Gutierrez was 26 years old, had the Mexican equivalent of a sixth-grade education, and spoke little English." The Court concluded that "[r]easonable minds can differ on whether these errors were prejudicial and that is precisely the reason an evidentiary hearing is necessary."