“These decisions make it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit—either absolute or qualified—under § 1983. In short, a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury.” Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 166 (1993).

The traditional remedy of the common law for a violation which causes no actual injury (e.g., someone walking across your front lawn) is nominal damages. So, for the violation in Sanchez-Llamas’s case that did not actually change anything, he can sue the cop or the city (if this is a regular practice) for a dollar. But the cop-shooter stays in prison where he belongs.

It is surprising to me how many people matter-of-factly accept suppression of evidence, intentionally causing trials to reach factually wrong results, and who see no problem with expanding this practice into new areas. In an earlier and arguably wiser generation, America’s foremost legal thinkers, such as Benjamin Cardozo and John Henry Wigmore, saw the exclusionary rule for the abomination that it is.

Whatever stare decisis argument may be made for not overruling Mapp, we should certainly not expand it.

Also don’t forget that the 7th Circuit has let a damages action for an Article 36 violation go forward so damages may still be a viable remedy.

Treaty itself says who has the duty, and defense counsel isn’t listed.

Sovereign immunity = can’t sue listed government officials [except cops, who have qualified immunity].

Appointed lawyers aren’t state actors, so can’t sue them either. [Congress wants only retained lawyers for rich diplomats, who know their rights, and have diplomatic immunity, sued? I don’t think so!]

Civil remedies being inadequate, suppression per the exclusionary rule is the only viable remedy.

IMHO,
Screwloose

In Sanchez-Llamas v. Oregon, the defense lawyer was aware of consular notification rights before trial, so lack of consular assistance at trial is not an issue in that case. The only issue is suppression of statements taken near the time of arrest. Since notification of the consulate does not become overdue until several days after arrest (according to the ICJ), there is no causal connection between the prompt obtaining of the statements and the later failure to notify.

Sanchez-Llamas suffered no prejudice and therefore is entitled to no remedy.

More on this in the CJLF brief.

If you go back and read the posts, I think you’ll find my reference to the release of Hamadi was in response to a comment about what should be a matter of American “national pride”. A sharp post, I readily admit. However, the implication of Andreas’ post is no less sharp: if we don’t “live up” to its “commitments” (which I presume is to listen to the Avena court, given Andreas’ mentioning of the ICJ), then we are acting in a manner for which we as Americans should not be proud.

People who toss around statements about “national pride” cannot complain when responses come in kind. Nor can they, I think, claim that they were not lecturing when they framed the argument in those terms.

Your mention of the ICJ was what prompted my 100% compliance remark. As you may be aware, the ICJ decision in Avena (which is remarkable for its stretching of the treaty) does contemplate some interference with our procedures, which could theoretically (if Avena is given precedential effect) lead to the overturning of some criminal judgments. This is what prompted President Bush’s withdrawal from the optional protocol.

Recall that a claim of inefective assistance of counsel requires that the defendant must make two separate showings: deficient performance and prejudice. It’d be relatively easy in most istances to show deficient performance in counsel’s not being up to snuff on the VC. But how could you *ever* show prejudice within the meaning of Strickland v. Washington (in short, whether the deficiency was serious enough to work denial of a fair trial)?

Maybe you could argue that the defendant would have exercised the right to consular access if only counsel had properly advised of this right. But then what? That the defendant’s country of origin would have supplied him or her with a different lawyer? And that that hypothetical lawyer would have done a better job? That seems like way too much of a stretch.

There are certain exceptions to the prejudice requirement, outlined in US v. Cronic, but none strike me, anyway, as plausible candidates in the VC context.

Any ideas about how to get around this problem?

Given your nation’s appalling release of Mohammed Hamadi after he served only 19 years for hijacking a plane and brutally torturing a US serviceman to death, I doubt seriously you’re in any position to lecture the US about what it should or should not do as a matter of pride.

This country has millions upon millions of aliens in its midst. Do you really expect 100% compliance–it is not possible. Moreover, do you really expect us to exclude evidence as a matter of course. Would German courts do so?