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April 14, 1998

Court Weighs Execution of a Foreigner in Virgina

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    WASHINGTON -- The Supreme Court is considering whether to intervene in a Virginia death penalty case that has unusual international implications as well as possibly unsettling consequences for thousands of other cases involving the incarceration of foreign citizens in American prisons.

    In a brief filed late Monday, the Clinton administration told the justices that despite an order last week by the International Court of Justice that the United States "take all measures at its disposal" to stop Virginia from executing a Paraguayan citizen, there was no legal basis for granting requests by Paraguay and the prisoner for a stay of execution.

    The prisoner, Angel Francisco Breard, was convicted in 1992 of murdering a woman in Arlington, Va., and is scheduled to die at 9 p.m. Tuesday. Both Breard and his native country are arguing that the execution would violate obligations of the United States under an international treaty, the Vienna Convention on Consular Relations. Virginia has conceded that it violated the treaty by not informing Breard of his right to the assistance of Paraguayan consular officials.

    The administration's brief, filed by Solicitor General Seth P. Waxman in response to the court's request for the government's views, said that while "there can be no doubt of the irreparable harm to Breard from the carrying out of his sentence of execution," Virginia would also suffer harm "by an order preventing it from carrying out its lawfully entered judgment of execution in a timely fashion."

    At the same time, Secretary of State Madeleine Albright sent a letter to Gov. James S. Gilmore III of Virginia, asking that he voluntarily grant a stay of execution as a way of honoring the country's treaty obligations. In light of the order last Thursday by the Court of Justice, Ms. Albright said, Breard's immediate execution "could be seen as a denial by the United States of the significance of international law and the court's processes in its international relations and thereby limit our ability to insure that Americans are protected when living or traveling abroad."

    Although the brief filed by the solicitor general and the letter sent by Ms. Albright appeared on one level to be contradictory, they were actually part of a coordinated administration strategy to deal with an escalating international incident. That was made clear by Waxman's 52-page brief, which offered the secretary of state's letter as an example of an appropriate response to the Court of Justice, in contrast to judicial intervention, which the brief said was inappropriate within the system of federalism.

    The brief contrasted the "compulsion" of a judicial remedy with the "persuasion" of the secretary of state's letter.

    There was no immediate response from Gilmore. The Virginia attorney general's office did not respond to a request for comment. Virginia has vigorously opposed all efforts to delay the execution, telling the Supreme Court in a brief filed earlier this month that "it would be difficult to exaggerate the ruinous effect" if the court granted a stay of execution to a state prisoner at the request of a third party, Paraguay.

    The Vienna Convention, signed by the United States in 1963 and ratified by the Senate in 1969, requires that a person who is arrested in a foreign country be promptly notified of the right to communicate with the home country's consular officials, who are entitled to visit the person and arrange for legal representation.

    Though the federal government itself complies with the requirements, the great majority of arrests in the United States are made by state and local officials, whose compliance has been spotty at best. A brief filed in the case by a group of international law experts referred to the "consistent disregard" of the treaty, which 160 countries have signed.

    It is undisputed that the Arlington County police never told Breard of his rights under the Vienna Convention and that Paraguay did not learn of the arrest for four years. His lawyers are arguing that Paraguayan officials would have encouraged Breard to accept a plea agreement, which he rejected before trial, and that he would not be on death row if the convention had been honored.

    The question for the various courts involved is whether those facts give Breard the right to a judicial remedy. The United States has long taken the view, which Monday's brief restated, that the treaty is a matter for country-to-country diplomacy and that violations merit a formal apology and a promise to do better.

    The brief said the State Department had reviewed the case last summer and had expressed to the Paraguayan ambassador the government's "deep regret" that Breard had not been advised of his rights under the treaty. The State Department has since intensified its efforts to assure local and state compliance with the notification requirements, the brief said.

    The recent measures have included providing guidelines to each governor and, to each state attorney general, pocket-size reference cards for law-enforcement officers to carry.

    The Clinton administration said in its brief, however, that neither the diplomats who negotiated the Vienna Convention nor the countries that ratified it ever expected that a violation of the treaty could form the basis for a lawsuit, let alone lead to the invalidation of criminal convictions or sentences, as Paraguay is requesting in this case.

    Twelve professors of international law filed a brief with the court today urging that the justices stay the execution and consider the case on its merits. Failure to do so, the professors said, "would work irreparable harm" not only to Breard but "also to the national interest" because the case could "impair the credibility of the United States" before various international organizations.

    Paraguay's efforts to press its case in the federal courts have been rebuffed. The 4th U.S. Circuit Court of Appeals, in Richmond, ruled in January that the suit was barred by the 11th Amendment, which deprives the federal courts of jurisdiction to hear suits against states.

    Whether that is a correct interpretation of the 11th Amendment in this context is the question that is technically before the Supreme Court in Paraguay's appeal, Republic of Paraguay vs. Gilmore, No. 97-1390. Breard has filed his own appeal, Breard vs. Greene, No. 97-8214, challenging the 4th Circuit's conclusion, in a separate ruling, that he was not entitled to challenge his conviction under the Vienna Convention because he had failed to make such an argument in the Virginia courts before seeking federal habeas corpus review.

    Blocked in federal court, Paraguay on April 3 took its case to the International Court of Justice, which promptly agreed to hear the case. The order it issued last week was intended to preserve the status quo until a hearing could begin within a few months.

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