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  1. #1
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    Alien arrest issue looms

    http://www.reflector.com/news/content/n ... liens.html

    By Corey G. Johnson, The Daily Reflector

    Sunday, March 05, 2006

    Criminal convictions of foreigners are in jeopardy in North Carolina because law enforcement agencies are not adhering to a treaty that governs arrest of aliens, legal experts, U.S. and Mexican officials said.

    Scores of foreign nationals, including people convicted of rape, murder and drug trafficking, could get new trials or be set free if they can show arresting officers did not inform them they had the right to contact their embassy or consulate for assistance.

    Known as an international Miranda right, the notification requirement is spelled out in the 42-year-old Vienna Convention on Consular Relations. The growth of North Carolina's Hispanic population, and the increasing number of Hispanics who run afoul of the law, is revealing ignorance about the treaty among law enforcement agencies, officials said.

    "The only agencies that contact us are the Federal Bureau of Prisons, federal immigration officials and the sheriff's offices in Mecklenburg, Alamance and Wake counties," said Esteban Gonzalez, coordinator of protection and legal affairs at the Mexican Consulate in Raleigh. "That is both very frustrating and frightening. This is international law. It's not just for Mexicans.

    "For example, I was on the phone with a police station yesterday. I told the dispatcher I work for the consulate. She thought we were a bakery."

    Foreign countries such as Mexico and Germany have charged that police are consistently failing to meet the requirement, which must be applied to all suspects who are arrested, whether they are here legally or illegally.

    In 2004, Mexico sued the U.S. in the International Court of Justice over the issue, according to ICJ documents. The court, which oversees all disputes over the Vienna agreement, ruled against the U.S. and mandated that states re-examine all convictions reached without consular notification.

    President Bush withdrew the U.S. from the protocol, preventing any further ICJ oversight after the decision was issued. Then, in a Feb. 28, 2005, memo sent to Attorney General Alberto Gonzales and to Texas judicial officials, the President instructed state courts to comply with the international ruling, known in legal circles as the Avena case.

    More recently, the U.S. Supreme Court decided in November to review the murder convictions of two foreign men who claimed their consular rights were denied – prompting former prosecutors and State Department officials to fret over the possible implications. The cases haven't been scheduled yet but could come up later this year, according to the Supreme Court clerk's office.

    In North Carolina, foreign diplomats said during interviews with The Daily Reflector that state and local agencies need to redouble efforts to educate and train law officers to ensure the rights aren't inadvertently violated.

    Of the 1,225 convicted aliens being held in state prisons in January, 892 came from Mexico, records from the Department of Correction show.

    As of the end of that month, 76 Mexican nationals were in DOC facilities on murder charges; 111 on sexual offenses; and 483 on drug trafficking offenses.


    More than 70 counties in the state have convicted and sent to state prison at least one Mexican national as of January.

    "We're not advocating that everyone charged is innocent. But our job is to ensure due process is followed," Deputy Consul Karla Ornelas of Raleigh said. "We believe that if someone is better advised and has access to better information then their trial is more likely to be fairer."

    Foreigners in America aren't the only ones governed by the treaty.

    Under the agreement, U.S. consular officials have the ability to monitor more than 2,500 Americans arrested abroad every year, provide them food and medicine and, most importantly, provide access to legal representation.

    Local authorities need to abide by the treaty to ensure the courtesies will continue to be extended to Americans, veteran U.S. diplomatic officials said.

    "I can remember going to the lockup in Columbia with a list of lawyers after the local government notified us that an American was arrested on murder charges," said Richard McKee, a U.S. consul general of Pakistan in the 1980s and the executive director of a Washington, D.C.-based, group called Diplomatic and Consular Officers, Retired. "I tell you our involvement made a real difference."

    The home front
    At the Pitt County Detention Center on Feb. 24, 10 confirmed Mexican nationals awaited trial. The consulate in Raleigh knew of none of them.

    Consulate officials added that a check of their most recent records indicated that of the 555 notifications it did receive during 2005, none came from Pitt County.

    Top officials with the Pitt County Sheriff's Office and Greenville Police Department said officers are trained about the notification procedure and routinely inform aliens they arrest about consular notification rights.

    In a meeting with command staff Thursday, several section chiefs nodded their heads when Sheriff Mac Manning inquired about the issue, even citing instances where they called the Mexican Consulate themselves, Manning said.

    "My chiefs told me that many of the suspects arrested are reluctant to agree to notification because they might be penalized back home," Manning said.

    "A lot of suspects are carrying fake IDs and trying to pass themselves off as Americans simply to keep from admitting to being a Mexican."

    Manning and Major Kevin Smeltzer of the Greenville Police Department said they do not keep a log to establish a paper trail that contacts were made. Such logs are required by State Department guidelines.

    To improve foreign nationals' understanding of rights, Manning said he appointed two deputies to develop better ways of communicating. One immediate suggestion was creating bilingual jail release forms, complete with notification procedures and bonding information, Manning said.

    "This is one of those situations that just comes up so infrequently," Manning said. "But I think law enforcement has a general enough understanding to know that if we arrest a foreign citizen, we can check with procedures."

    At the Greenville Police Department, multilingual posters of consular notification statements hang near detectives' cubicles – to remind and assist officers during the arrest of foreign citizens, Major Smeltzer said.

    The posters are remnants of a training session held nearly 18 months ago, at the behest of police attorney Bill Little.

    "When I first started my career 20 years ago, this was something that, to my knowledge, very rarely came up," Smeltzer said. "But we've been dealing with it more and more in recent years, and not just in arresting but with victims, rescue situations and traffic accidents."

    Interviews with other officers here and in counties such as Alamance, Carteret, Cabarrus, Cumberland and Bertie produced a variety of responses.

    Two local officers who regularly assist in the handling of Spanish-speaking assailants said they never heard about the notification procedure. The officers asked not to be identified.

    In Bertie County, Sheriff Charles "Greg" Atkins said he had never heard of the notification procedure.

    "It's never come up around here," Atkins said. "We simply don't have that many Hispanics living here. And the ones who do, don't really cause any trouble."

    Two Mexican citizens, one 24 and another 48, have been convicted in Bertie of second-degree murder, according to January prison data from the Department of Correction. The data did not indicate who arrested the men or when they were arrested .

    Interviews with officials with the Fayetteville Police Department also brought mixed responses. One official in the legal department expressed unfamiliarity with the treaty early Friday. Later, a police spokesman, upon consultation with the legal official, said they were familiar with the treaty. They declined to comment further.

    Chief M.H. Miller of the Graham Police Department said a 2005 Greensboro training session was the first he had heard of the issue. He added he wasn't sure if his officers were logging in notifications.

    One state police leader said the varied responses are typical. She attributed some of it to demographic changes caused by the large influx of Mexican migrants in recent years.

    "There is a lot of confusion about this. We've been so inundated with the explosion of the Mexican population that a lot of smaller counties have been caught without a lot of Spanish-speaking officers," E. Wrenn Johnson, chief of the Morehead City police department and current president of the N.C. Police Executives, said. "I bet if you asked 10 different police departments you could get 10 different answers."

    Legal decisions for years, including a North Carolina Supreme Court ruling in 2002, denied foreigners legal standing on the issue on the grounds that the treaty didn't give individuals binding rights in the U.S., legal documents show.

    But a federal ruling last September in Illinois concluded that reasoning was in error.

    And more serious repercussions could follow later this year in the U.S. Supreme Court, international law specialists and former federal prosecutors said.
    Consequences
    When a Virginia judge presiding over a capital case of a foreign national became leery of police violations of the Vienna treaty, James D. Brown knew law enforcement needed more education on consular notifications.

    "This was easy as heck to do. All you got to do is make a phone call (to the local consulate) and say, 'I got Joe Blow.' Then document that you called," said Brown, the 45-year-old associate director of the Commission on Accreditation for Law Enforcement Agencies.

    He set his agency to working with State Department officials, and over the last two years it has incorporated compliance with the treaty into steps necessary for law enforcement agencies to meet its national accreditation standards, he said.

    Starting in July, all police agencies desiring CALEA accreditation must have a written policy upholding the practice of consular notification.

    "This is a major adoption for CALEA," Brown said. "We're now just waiting on the printing of the new manual, which is scheduled to come out in either March of April."

    A State Department official, permitted to speak with The Daily Reflector but not to be identified, said the CALEA accomplishment was wonderful, but more information about the treaty must be shared with the 18,000-plus U.S. law enforcement agencies.

    The official pointed to a Sept. 27 ruling in Illinois federal court, Jogi v. Voges, which said an Indian man who pleaded guilty to aggravated battery could sue local police for violating his consular rights.

    "It's imperative that we uphold our end of the bargain. I mean this is not rocket science. Notification takes all of five minutes to do it correctly," the official, who trains police across the country on the treaty said.

    The U.S. Supreme Court may soon give police even more motivation.

    Two legal cases, Sanchez-Llamas v. Oregon and Bustillo v. Johnson, are slated to be heard by the U.S. Supreme Court later this year. The court's rulings will have far-reaching implications, according to experts like Ruth Wedgewood, a former federal prosecutor who teaches international law at John Hopkins University, and Curtis Bradley of Duke University and John Norton Moore of the University of Virginia, both former international law advisers to the State Department.

    According to a Supreme Court document, the Justices will listen to presentations in those cases to decide the following:

    Whether the Vienna treaty gives foreign nationals rights that can be enforced in U.S. courts

    Whether failure to notify a foreign national of his rights under the treaty can result in the suppression of prior statements to police

    Whether state courts can refuse to hear violations of the treaty on the basis that it does not give the foreign national rights that can be enforced in U.S. courts, or on procedural bars like the lack of timeliness.

    The court could issue a ruling that would keep foreign nationals at their current legal status, Wedgewood, Bradley and Moore said. The justices also could issue a ruling that would force North Carolina and other states to retry thousands of convicted felons. If old cases have to be retried, issues of misplaced evidence and reluctant witnesses could cause those cases to be thrown out.

    "It would be mayhem," Wedgewood said. "If thousands of murder, rape and other violent crime convictions are overturned because of a five-minute procedure, can you imagine what effect will it have on victims and their families?"

    Local civil rights activist Juvencio Rocha Peralta said sanctions for infringing on rights may be just the incentive police need to uphold the law.

    "There needs to be a penalty because lack of representation has caused a lot of innocent people to be put behind bars," Peralta said. "The police are supposed to know. The judge is supposed to know. Yet, no one tells the Mexican national, and he goes to jail. I'm telling you, that's leaving a bad taste in the mouth of the Mexicans everywhere."

    Chief Johnson of Morehead City said law enforcement officials are eager to get the issue right. She pointed to training held across the state and the newly conducted classes at the N.C. Justice Academy as proof of their commitment.

    "The state of North Carolina is doing training on this topic because just recently two of my lieutenants went to one," Johnson said. "I don't think there is a lack of interest on the part of law enforcement that is causing problems. There's just been a lack of knowledge."

    Pitt County District Attorney Clark Everett said the possibility of convictions being overturned is a concern.

    "At this time, it (notification) has not been a issue that has come up," Everett said. "We'll certainly watch those Supreme Court decisions to see if it becomes an issue."

    Efforts to speak with Gov. Mike Easley's office and Attorney General Roy Cooper's office about the issue were unsuccessful.

    When raising the possibility of overturned convictions in the state, a governor's spokeswoman in December said: "That's a federal issue."

    On Friday, a spokeswoman for Cooper provided eight pages of teaching materials from a recent law enforcement training session on interrogation law. One paragraph covered consular notification.

    "So far, the courts have interpreted the right to belong to nations, not individuals," the document stated. "The issue has not been decided by the United States Supreme Court, but a case raising this argument is now pending. Stay tuned!"

    Corey G. Johnson can be contacted at cjohnson@coxnc.com or 329-9565.
    Join our efforts to Secure America's Borders and End Illegal Immigration by Joining ALIPAC's E-Mail Alerts network (CLICK HERE)

  2. #2
    Senior Member rebellady1964's Avatar
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    Scores of foreign nationals, including people convicted of rape, murder and drug trafficking, could get new trials or be set free if they can show arresting officers did not inform them they had the right to contact their embassy or consulate for assistance
    .

    This is such BS! And even if these criminals were not informed of their right to contact their embassy or consulate, they were still breaking US laws by entering our country illegally. NO WAY should they be allowed to go free
    "My ancestors gave their life for America, the least I can do is fight to preserve the rights they died for"

  3. #3
    Senior Member reptile09's Avatar
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    As of the end of that month, 76 Mexican nationals were in DOC facilities on murder charges; 111 on sexual offenses; and 483 on drug trafficking offenses.
    But wait, our illustrious El Presidente says these people are good hearted folk, hard working, law abiding, salt of the earth type heroes, and anyone who tries to stop the invasion by illegals are the law breaking vigilantes. And of course he must be right, just look at his track record, he has never been wrong on anything before...yeah right. Friggin' monkey-faced smirking buffoon.
    [b][i][size=117]"Leave like beaten rats. You old white people. It is your duty to die. Through love of having children, we are going to take over.â€

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