End of Term (1 of 3) - Sanchez-Llamas v. Oregon (04-10566), Bustillo v. Johnson (05-51) and Clark v. Arizona (05-5996)

July 5, 2006 Supreme Court Update

Greetings, Court Fans!
We've gotten the big cases out of the way – Hamdan and Perry – but we still owe you summaries of several other decisions from the end of the Term. Since the last few updates were unbelievably long, we've split the remainder into more digestible chunks. Here's part one of the final three-part series.
In Sanchez-Llamas v. Oregon (04-10566) and Bustillo v. Johnson (05-51), the Court held that foreigners detained by police without access to their consulates cannot invoke the Vienna Convention on Consular Relations to suppress evidence or to avoid procedural deadlines in U.S. courts. The Convention provides that authorities must, upon request, inform a foreign consulate of the detention of its national, and that they must inform the detainee of his right to consular access. Sanchez-Llamas was a Mexican national arrested for murder without notification of his access right, and he moved to suppress his subsequent incriminating statements to police; the Oregon Supreme Court held that suppression was unwarranted because the Convention was among states and did not create a judicially enforceable individual right. Bustillo was a Honduran national similarly arrested for murder without notification of his access right, and he challenged his conviction in a habeas petition claiming (for the first time) that his consulate would have helped him find the man who really committed the crime; the Virginia Supreme Court held that Bustillo waived this claim by not raising it at trial or on appeal.
The Court affirmed both rulings 6-3. While the primary issue in the cases had been whether the Convention created a judicially enforceable individual right to consular access, the Court, led by the Chief, declined to reach that question because, even if the answer was yes, Sanchez-Llamas could not suppress his statements and Bustillo had waived his claim. (This is the second time the Court has ducked this issue, as the Court DIG'd a similar case last Term.) As to Sanchez-Llamas, the Convention did not provide for suppression of evidence, and absent such a provision the Court would not impose a judicial remedy on state courts. In any event, the exclusionary rule is an extraordinary remedy with considerable social costs, and it was not warranted here because the consular access right has little to do with evidence-gathering (together with the decision two weeks ago in Hudson v. Michigan, this does not bode well for fans of the exclusionary rule). On Bustillo's default, the Court held that the case was controlled by its 1998 ruling in Breard v. Greene that the Convention did not trump state procedural rules for raising claims. Bustillo had argued that Breard conflicted with two recent decisions by the International Court of Justice (known as LaGrand and Avena). The Court disagreed, in a ruling that will please all the critics upset at the Court's references to foreign sources of law in other cases. The majority noted that because ICJ rulings are technically binding only on the parties to a particular case, and are not even binding precedent on the ICJ itself, they cannot displace the Court's constitutional duty to "say what the law is." Also, while the United States still adheres to the Convention, it has withdrawn its consent to ICJ jurisdiction over claims based on the Convention, so LaGrand and Avena are not entitled to decisive weight here. The majority then looked to the text of the Convention, which provides that the access right is to be exercised pursuant to member nation's "laws and regulations." In the Court's view, that includes being subject to procedural default rules; if not, then the consular access right would get more protection under U.S. law than Miranda warnings, which seems implausible. Justice Ginsburg concurred in the judgment; she would recognize a judicially enforceable individual right to access, but she agreed that neither Sanchez-Llamas nor Bustillo were entitled to the remedies they sought.
Justice Breyer dissented in an opinion joined by Stevens, Souter and, on the issue of judicially enforceable individual rights, Ginsburg. The dissent noted that the Convention is "self-executing," meaning that it operates of itself with no need for Congress to enact implementing legislation, and it speaks directly to the rights of individuals. Together with the ICJ's interpretation of the Convention, these factors strongly supported the existence of an individually enforceable right. Turning to the procedural default issue, Breyer accepted that LaGrand and Avena were not "binding," but nevertheless he regarded them as "persuasive evidence" of what international law is – for him, the Court's ruling creating a conflict with LaGrand and Avena (which he thought the majority misread) was "unprecedented." He would remand for Virginia to modify its rules to give "full effect" to the access right, perhaps by allowing exceptions where the procedural default is the state's fault rather than the detainee's. On suppression, Breyer agreed that the Convention did not create an automatic right to the exclusion of evidence, but he felt that it was wrong to rule out suppression in all cases: "Much depends on the circumstances."
Next, in Clark v. Arizona (05-5996), the Court upheld Arizona's treatment of the insanity defense against a due process challenge by a paranoid schizophrenic convicted of killing a police officer. He made two arguments: (1) Arizona's test for insanity was too narrow, as it considered only whether a defendant was morally incapacitated (unable to know that what he was doing was wrong), as opposed to cognitively incapacitated (unable to know what he was doing at all); and (2) Arizona law did not allow him to use expert evidence on his insanity as a means to negate mens rea for the intent to kill, but only to excuse it (meaning Clark carried the burden of proof). Justice Souter's opinion for the Court rejected both claims. As to the test, the Court noted that Clark's preferred rule came from M'Naghten's Case, the classic Victorian-era decision recognizing the insanity defense, but it found no indication that it had become a "fundamental principle" trumping a state's authority to define crimes and defenses. If you're interested, Souter walks though the states' various formulations of the insanity defense, the upshot being that there is no "baseline for due process" as to the minimum content of an insanity test. In any event, the Court also held that cognitive incapacity is a subset of moral incapacity, so it was present in Arizona's test anyway – in essence, if you can prove that you didn't know what you were doing, the jury also will probably find that you didn't know it was wrong. As to Clark's mens rea argument, Souter walked through an even longer recitation of the evidence Clark wanted to offer as to what was going though his mind when he killed the officer; the crux of the holding is a distinction between factual "observation" evidence (e.g., Clark told me that he thought the cop was an invading alien) and expert evidence on his cognitive or moral incapacity (e.g., a paranoid schizophrenic likely would have perceived the cop as an invading alien). For the majority, there is no due process violation if a state restricts the latter to a single issue – the affirmative defense as opposed to mens rea – for fear of avoiding jury confusion. Clark did not dispute that Arizona could define an insanity defense and put the burden on him to prove it, and he could not expect the Court to let him do an end-run around that rule by letting him displace the presumption of sanity on mens rea. A state could do that – some states have "bursting bubble" rules that shift the burden to the prosecution upon a showing of some evidence of mental illness – but due process does not require it. Justice Breyer concurred in part. He agreed with the Court's analysis of the mens rea issue, but he would remand the case for the Arizona courts to make sure that their rule conformed to the Court's distinction among the kinds of sanity evidence that could be excluded from a mens rea determination.
Justice Kennedy dissented along with Stevens and Ginsburg. Kennedy did not address the content of Arizona's insanity test, because he would have reversed on the mens rea issue. It's a fairly lengthy dissent, but the point is that Arizona cannot convict Clark of intentionally or knowingly killing a police officer when he was not allowed to offer evidence showing that he did not have that intent or knowledge. Kennedy rejected the distinction between observation and expert evidence, as he thought that expert testimony was necessary to understand how Clark was processing information at the time of the crime. And allowing lay observation evidence, but excluding expert testimony, perversely excludes the most reliable, well-documented psychiatric testimony in favor of mere descriptions of unexplained and uncategorized behavior. Finally, the issue was not whether insanity excused Clark's actions – if it made him unaware that he was shooting a human being, he needs no excuse, and denying him the chance to offer evidence on mens rea thus violated the Due Process Clause.
Parts two and three will follow shortly. Until then, thanks for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400