Justices dubious of extending exclusionary rule for failing to call consulate

Houston Chronicle:

Lawyers for two foreign nationals found guilty of violent crimes tried to convince the Supreme Court on Wednesday that those convictions should be thrown out, because the men were not told they could contact their consulates before talking to police.

But the justices appeared skeptical that the oversight would justify suppressing the evidence that led to the guilty verdicts.

The two cases, which are being considered together by the high court, were brought by Mario Bustillo, a Honduran convicted of killing a Virginia teenager with a baseball bat in 1999, and Moises Sanchez-Llamas, a Mexican found guilty of attempted murder in the shooting of an Oregon police officer in 1997.

Lawyers for both men said the Vienna Convention, a treaty signed by the United States in 1969, required American officials to contact the embassies of foreign nationals "without delay."

It is not enough for arrested foreigners to be told they can remain silent, hire a lawyer or have a lawyer appointed, the Miranda rights extended to Sanchez-Llamas, said his attorney, Peter Gartlan.

"Foreign nationals have a fourth option" — to immediately contact their consulate, Gartlan said. Failure to observe that right, he said, should compel prosecutors to throw out all evidence obtained by police from interrogations.

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Justice Antonin Scalia said the Vienna Convention set up a mechanism for one country to protest the actions of another country toward its citizens, not establish a set of individual rights for foreign nationals.

He also noted that no other country has interpreted the treaty as requiring evidence obtained before consular notification to be suppressed. "It is implausible that we signed a treaty that requires us to suppress (evidence from interrogations), but it lets other countries do what they like," Scalia said.

Justice Stephen Breyer said he was inclined to accept that the men's rights under the treaty had been violated. But he said he doubted that suppressing evidence obtained by police was the proper remedy.

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This is real progress. The exclusionary rule is one of the dumber creations of the court. It is a way to punish society for the glitches of law enforcement in collecting evidence. There are better ways to deal with abuses. You could for example permit the jury to hear about the abuses and decide for themselves if the evidence should be given any weight.