You, seem to be hell bent on focusing the attention on the individual case. I don’t care about the individual case at all, especially since it didn’t seem at all likely that the AZ’s aim of executing them, was going to be thwarted (tho’ I am against the Dp).
What I do have a problem with is that our country did not abide by the terms of a duly signed treaty. I have a big problem with that, and am surprised/shocked that others here don’t see the potential fallout from that.
You say that you understand my point. If you really did, then you wouldn’t post this:
Nope. My point is that it is far better if we look like we are abiding by the terms of the treaty we signed. too late now, of course.
Snippy? me? hah. the part where you thought I was getting snippy was begging you to look beyond the specifics of the individual case. Your answer, of course, was to repeat specifics about the case. sigh.
A number of folks in Arizona would disagree that the particulars of this case are “irrelevant”. To recapitulate:
The defendants, enraged over the failure of their robbery, were found guilty of stabbing bank manager Kenneth Hartsock 24 times with a letter opener. A teller was severely wounded but lived to testify.
Once again, the LeGrand brothers came to this country as children. As adults, they perpetrated a vicious crime. They were not a couple of hapless German tourists who accidentally got into a scuffle at a bank and wound up signing away their constitutional rights under the impression that they were sending out for beer and sausages.
It’s a legitimate question whether the German government was using this case as a stalking horse for its anti-death penalty position. Lawyers for the U.S. raised this point during the proceedings, in which Germany opened its case by denouncing the death penalty. (And is Pjen in the OP more concerned about a fine point of international law or about the U.S. appearing “to have engaged in an act of murder”?)
If Germany is, as Pjen suggests contemplating a demand for the U.S. to issue a posthumous pardon for the two killers, it’s rather curious. Did they just discover some exculpatory evidence, or will it be another excuse for Uncle Sam-bashing on the death penalty issue?
There’s also the question of how qualified the German government is, after the events of the past century, to lecture us on human rights. But that’s a whole 'nother discussion.
Passing thought: will the Germans now make any additional moves to try U.S. nationals over that U.S. military truck which apparently caused a recent fatal truck-passenger train collision in Germany?
wring, I think what liebfels is saying is that the US did indeed fulfill the obligations in the treaties it signed, aside from the matter of informing the LaGrands of their right to see a consul. According to US law, and in the US’s opinion, also according to all treaties signed by the US, the ICJ has no authority to dictate how the LaGrands are handled. Our only obligation is to allow the ICJ to settle our dispute with Germany, which we seem to be doing, while also proceeding with the LaGrand execution, which is an unrelated matter.
Other nations, especially China and Russia, are probably not going to protest this, because that would put them on record as saying that they believe that the ICJ can intervene in the judicial matters of any signatory of the Vienna Treaty. As mentioned, the ICJ has never before claimed its orders to be legally binding, and many countries would prefer it that way.
The Court based its decision (that its order to stay the execution was legally binding on the US) on Article 41 of the Statute of the International Court of Justice. This states, in its entirety:
Regardless of what the ICJ says, I don’t see in that anything that would indicate that the US has agreed to follow the ICJ’s orders. In my opinion (and IANAL, so this isn’t professional or anything) the US clearly lived up to its treaty obligations, and the ICJ later decided to purposely misinterpret them. Reading through all the material, I think the US acted properly and honorably, while the ICJ is trying to impose its will on sovereign nations in an attempt to make a political statement on the death penalty or something.
It would seem that it’s the ICJ that is perfectly comfortable disregarding what treaties say in favor of what it wishes they said.
I am concerned with, not a fine point of international law, but with a wilful failure to await an outcome of a court judgement to which it had itself assented. An irrevocable act was committed by Arizona whilst the equivalent of a restraining order had been made. My take on this was that the US did not attempt to follow the rule of law thru political expediency- it would be electorally unpopular to admit that the federal governmen had made a treaty that was in effect a counter to the DP. As the US is so pro state killing, it bacome expedient as a politician at any level, to avoid giving any sign of wavering over ones committment to the DP, even when it involves abrogating the rule of law.
The German government is apparently contending that the level of defence available was lower than it would have been had consular access been sought and achieved (most Europeans in DP cases receive extra help (often surreptitiously) from government or quasi-government organizations to organize their defence. It is well documented that the defence arrangements in early stages of poor people’s defences against DP charges is of particularly low quality.
Germany is apparently arguing that because the ICJ has found that the procedure was flawed, the judgements should be overturned. Had this happened before the DP was extracted, of course, a new trial could take place; however, since Arizona had an itchy trigger finger, this cannot now happen.
This has also resulted in the US reviewing the cases of all other people denied consular access- it will be interesting to see how they do this and whether the new procedure meets the requirements set down by the ICJ.
Your comment about Germany and its relationship to human rights issues because of the events of the last century is fine by me- exclude them from commenting on human rights issues because of it; but only if the US is similarly excluded for its treatment (holocaust like) of the Native Americans,and its treatment (Nazi like) of the African-Americans. Sauce for the German Goose is sauce for the American Gander. Let he who is without sin cast the first stone.
But apparently there’s no legal basis in US law for the judgement to be overturned. The ICJ had no authority to order a stay of execution or a new trial.
**
There was no need for a new trial. Nobody said that these men were denied due process according to the laws of the United States. There was no doubt as to their guilt.
**
I’m curious. At what point did these individuals assert that they were citizens of Germany? When did they ask for access to the German consulate?
1/ Although it has no direct legal authority, it may require redress from the US. The US has already set up a consular department to avoid this happenning in future. It will probably have to review all current cases of people of foreign birth (of which there are many):
The court may require that the verdicts be vacated, although this would be unlikely to be requested nor allowed. However, a request to vacate the sentencing phase might placate the Germans.
2/ Due process involves all of US laws being respected. As stated above, the Treaty entered into is pasrt of US law. Had an adequate defence been allowed, the death penalty may not have been invoked.
3/ Immaterial- the fact that the US did not immediately inform the consul is sufficient. The onus is on the state.
from the links provided by **waterj2 ** (thanks BTW)
Germany exercized their right to dispute the lack of consular contact for the 2 brothers. The World Court seems to have jurisdiction in this dispute. They are valid questions under interpretation of a treaty and questions of international law. If there was a breach of international obligation, this court would determine the extent of the reparation.
But this was a criminal case, there’s really no way to make reparations after the execution. It is this breach that concerns me.
(aside to the cheap shot - the fact that I am concerned over our government’s -IMHO- mishandling of this international issue should not be misconstrued as to a lack of concern about the original crime, it’s victims etc. all of the ‘but they were guilty as sin’ stuff = to me 'well, then you shouldn’t be concerned about making sure the process by which their guilt is established was above board.)
question for those who see no problem:
If there was a US citizen facing execution in another country, wouldn’t you want their execution to wait until after assurances that all correct procedures had been done? and assurances by the country executing them wouldn’t be particulary comforting.
Depends on the “correct procedure” that wasn’t followed. Am I supposed to care if a trial was utterly fair and the accused guilty as sin, but the clerk forgot to call the court to order one morning before the trial resumed? In this case, the tell-em-they-can-call-the-consulate rule was every bit as useless. Not to mention, apparently, without any basis in the text of the treaty. If liebfels is correct, nobody thought there was such a thing as the tell-em rule until the early 1990s, a decade after these guys were arrested.
And wring, the ICJ obviously does claim it has jurisdiction and enforcement powers here. The question waterj2 and liebfels have been raising is whether they have any textual basis for that conclusion. If they’re pulling jurisdiction and power out of their butts and not out of the treaties, then I don’t see how anyone could claim that the U.S. is obligated to follow them when we never signed on for that jurisdiction in the first place.
Also, as liebfels points out, the thing the Vienna Convention says should be arbitrated by the court is a dispute betwen two countries over the interpretation or application of the treaty. Now Germany and the U.S. were obviously inn such a dispute. But there was no such dispute between Arizona and the LaGrand bros. The LaGrands are not a country, despite Germany’s apparent belief that it can stand in for its private citizens in a legal proceding. (Do we get to execute Germany if they lose the case?)
** minty** the quotes I pulled from the cites suggest to me that the court does indeed hold juridiction.
the dispute is between the US and Germany over what the US (in the form of the state of AZ) is doing/planning on doing to a German citizen, as is their right under international law. We do this all the time. this is not new at all.
and, if you say that you wouldn’t care about a procedural difference I’ll have to take you at your word. It is, however, an odd position for a lawyer, isn’t it?
Don’t you think that before these two were sentenced the court at least established their identities. I suppose they had to hand over their passport, which was clearly not a issued by the US. (I don’t know what the procedure is, but imagine that it is somewhat like this).
puk the two brothers involved had lived in the US since childhood, so doubt that there were passports involved.
However. In any criminal case, there is an investigation of the person involved, which includes a background check. In every presentence report I’ve ever seen, they gather demographic/biographic data (third child of so and so, currently father deceased etc etc.). Place of birth is standard.
Sure, the ICJ says it has jurisdiction. But on what do they base that decision? I haven’t seen anything in a U.S.-signed treaty so far that says we surrendered that bit of our sovereignty, and liebfels (who seems to know way more about this stuff than I do) says such a document does not exist. I’m not saying it doesn’t exist, just that I’d feel a lot more comfortable about the ICJ’s jurisdiction if I could take something other than their word for it.
As for the niceties of following every legal procedure to the letter . . . Well, sure, if it was my client, I’d argue the heck out of it. But as an attorney, I also have a responsibility to the court and to justice. Neither is particularly well served by requiring reversal every time an i goes undotted or a t goes uncrossed.
I’m a big fan of what we call “the harmless error rule” down here in Texas. AFAIK, every jurisdiction has something similar. It means that even if something got screwed up during a trial, it doesn’t make a bit of difference unless the error affected the resulting judgment. So if the trial wrongly court admits a coerced confession of the defendant, that’s pretty darned likely to have led to a guilty plea, and the defendant gets a new trial. If, on the other hand, the trial court wrongly lets an inadmissible hearsay statement into the record, but it’s the same darned thing that a dozen other witnesses have already stated without the hearsay problem, the error is harmless and there’s no need for a new trial.
In the case of the LaGrand brothers, failing to tell them about the consulate was the epitome of harmless error. The brothers could point to virtually nothing about not talking to the consulate that might have had the slightest impact on the sentences they received (nobody was disputing the convictions on this count). They already had adequate assistance of counsel and were able to put on evidence of mitigating factors. Shoot, they didn’t even raise the Vienna Convention thing until 15 years after the trial, and we generally do not require reversal for an issue that the trial court never got the opportunity to rule on in the first place.
Nope, what this all comes down to is an attempt by Germany to complain about the death penalty. They are, of course, entitled to pitch as many fits as they want about it. They are not entitled to enforce their opinion of it through a wholly collateral attack on the LaGrand brothers’ sentence in an international court with no recognized authority to intervene in a sovereign nation’s internal criminal matters.
Did you read the links posted? We belong to the UN, right? an important part of it, right? I don’t see how we aren’t governed by the world court’s juridiction over international disputes. YM obivously varies.
re: the no harm no foul thing - well, that’s the thing, tho’ isn’t it? and even in your jurisdiction, if some one waves the flag of ‘you didn’t do this little procedure correctly’, don’t they conduct a review to determine if it would have had an effect, then say, yea, well, we shoulda done it that way, but it wouldn’t have mattered anyhow? and isn’t this court review exactly that?
Sure, we belong to the U.N. But the U.N. is a social club for diplomats, not an international government with the authority to make member nations do whatever it wants. Joining the U.N. by no means requires a nation to surrender its sovereignty in international disputes. And again, I haven’t seen anything with the U.S.'s signature on it saying we agree to abide by the decisions of the ICJ.
And on the harmless-error rule, my point is that the only courts with any recognized jurisdiction whatsoever over the LeGrand case looked good and long at the facts and the law and decided there was no error requiring reversal. These guys had seventeen years worth of legal arguments made on their behalf. Even the Ninth Circuit Court of Appeals–by far the most liberal U.S. appeals court in the nation–agreed that their trial was fair and that the Vienna Convention flub was harmless. From what I’ve read of the case, they were absolutely correct in that decision.
and again my point to you is that, given your stance, that the procedural error was insignificant and did not have any appreciable effect on the outcome, why not allow this other procedure to go through it’s motions?
can you not see the other country’s stated position of ‘gee this procedure wasn’t followed corrrectly, can we have a hearing on the issue to insure that it didn’t have an appreciable effect on the outcome’? can you not see the point of ‘we wouldn’t want to rely simply on the sentencing countries self assesment that it was ok’?
if the tables were turned, and we had a citizen sentenced to death in (pick your country here), would we take simply their word that it was all above board, even tho’ we knew that certain agreed upon international procedures hadn’t been followed? I believe that we’d be frothing at the mouth. geez. remember when our guys were being held in China? we were **furious ** that any time elapsed before we were able to see them, even more irate that they were held at all. yea, I know it’s not a perfect analogy, it was our position that they were there accidentally, it was China’s position that they were there illegally and wanted to go through their procedures. Now, had they been charged criminally, do you honestly believe that we’d have sat idily by with a ‘I’m sure the Chinese courts will act appropriately’ ?
Pjen, you have a perfect right to bring up what you feel are human rights abuses by the U.S., present and remote, and to launch an attack on the death penalty through the medium of the LeGrand case.
However, I submit that you do not have a right to make sweeping and inaccurate comparisons to Nazis. If past comments on this board about trivializing the Holocaust and thus showing disrespect for its victims have not reached you, I suggest you do some forum searches on the topic.
Or check out this essay.
And this one.
Incidentally, even the lawyers for Germany recognized they were presenting the case of the LeGrand brothers in the court of public opinion as well as the World Court, and gave passing mention to the facts of the case, expressing regret for the suffering of the victims. It shouldn’t be so difficult to briefly acknowledge them here.
1/ An appeal to ‘right the wrong’ may be made, let’s wait and see what happens in the negotiation of reparation stage, formally and informally.
2/ As stated above, Treaties are part of US law. Courts do not have to rule something as ‘due process violation’ for it to be so; such a ruling is merely confirmatory. The fact the US law (the treaty) stated that aid should have been available from the German consul is good enough for me as a due process violation.
3/ Of course its immaterial. Perhaps you would like to rewrite Mirand so that it says that you only have to be informed of your rights if you know you have such rights and demand them. ;).