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The Supreme Court of Nevada: Gutierrez v. Nevada, Unpublished Order of Reversal and Remand, No. 53506

Published online by Cambridge University Press:  20 January 2017

Ronald J. Bettauer
Ronald J. Bettauer*
Affiliation:
George Washington University Law School
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Extract

Article 36(1) of the Vienna Convention on Consular Relations provides that a consular officer shall, if requested by a national of the sending state arrested in the receiving state, be informed of the arrest by the authorities of the receiving state ‘‘without delay [and] shall have a right to visit [and assist the arrested] national.’’ It also provides that ‘‘said authorities shall inform the person concerned without delay of his rights’’ to communicate with the consular officer.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 1 , February 2013 , pp. 345 - 353
Copyright
Copyright © American Society of International Law 2013

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References

* This text was reproduced and reformatted from the text available at the World Courts Web site (visited March 4, 2013) http://www.worldcourts.com/ildc/eng/decisions/2012.09.19_Gutierrez_v_Nevada.pdf.

1 Vienna Convention on Consular Relations, art. 36(1), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 26 [hereinafter Vienna Convention].

2 Id. at 36(1)(b).

3 Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I. C. J. 12, 70-73 (Mar. 31) [hereinafter Avena]. The ASIL’s Insights series has extensively covered the ICJ’s activities in this area, see: Peter Bekker & Keith Highet, International Court of Justice Orders United States to Stay Execution of Paraguayan National in Virginia, ASIL Insights (Apr. 1998), http://www.asil.org/Insigh17.cfm; Frederic L. Kirgis, World Court Rules Against the United States in LaGrand Case Arising from a Violation of the Vienna Convention on Consular Relations, ASIL Insights (July 2001), http://www.asil.org/insigh75.cfm; Pieter, H.F. Bekker, World Court Consular Notification and Death Penalty Challenge Revisited: Google Scholar Mexico v. United States, ASIL Insights (Jan. 2003), http://www.asil.org/insigh95.cfm; and William, J. Aceves, Consular Notification and the Death Penalty: The ICJ’s Judgment in Avena Google Scholar, ASIL Insights (Apr. 2004), http://www.asil.org/insigh130.cfm.

4 U.N. Charter art. 94.

5 Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 596 U.N.T.S. 487. After Avena, the United States withdrew from the Optional Protocol. See U.N. Treaty Collection, Optional Protocol to the Vienna Convention on Consular Relations, note 1, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-8&chapter=3&lang=en (last visited April 19, 2013).

6 Medellín v. Texas (Medellín I), 552 U.S. 491 (2008); see also Margaret, E. McGuinness, Medellin v. Texas: Supreme Court Holds ICJ Decisions under the Consular Convention Not Binding Federal Law, Rejects Presidential Enforcement of ICJ Judgments over State Proceedings, ASIL Insights Google Scholar (Apr. 17, 2008), http://www.asil.org/insights080418.cfm.

7 Ex Parte Medellín, 280 S.W.3d 854 (2008).

8 Medellín v. Texas (Medellín II), 554 U.S. 759 (2008) [hereinafter Medellín].

9 See Ronald, J. Bettauer, ABA Adopts ABA-ASIL Joint Task Force Policies on Implementing Treaties under U.S. Law, ASIL Insights Google Scholar (May 6, 2010), http://www.asil.org/insights100506.cfm; see also Am. Bar Assoc. and the Am. Soc’y of Int’l Law, Aba/ASIL Joint Task Force on Treaties in U.S. Law Report (2009), available at http://www.asil.org/files/TreatiesTaskForceReport.pdf.

10 Consular Notification Compliance Act of 2011, S. 1194, 112th Cong. (2011) (introduced by Senator Leahy); see also Fulfilling our Treaty Obligations and Protecting Americans Abroad: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2011).

11 See Uniform Law Commission, Committees, Article 36 of the Vienna Convention on Consular Relations, http://www.uniformlaws.org/Committee.aspx?title=Article%2036%20of%20the%20Vienna%20Convention%20on%20Consular%20Relations (last visited Apr. 19, 2013).

12 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2009 I.C.J. 3, 6 (Mar. 31).

13 Leal Garcia v. Texas, 564 U.S. --, 131 S. Ct. 2866 (2011).

14 Torres v. State, No. PCD-04-442, 2004 WL 3711623 (Okla. Crim. App. May 13, 2004).

15 Gutierrez v. State, 112 Nev. 788, 920 P.2d 987 (1996).

16 Gutierrez v. State, No. 53506, 2012 WL 4355518 (Nev. Sept. 19, 2012).

17 Id. at 4.

18 Id. at 8-9.

19 The case has been discussed extensively in the legal literature, with different views expressed about its soundness and impact. See, e.g., Curtis, A. Bradley, Self-Execution and Treaty Duality , 2008 Google Scholar Sup. Ct. Rev. 131; Carlos, Manual Vásquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties , 122 Harv. L. Rev. 599 (2008)Google Scholar; David, J. Bederman, Curtis, A. Bradley, Steve, Charnovitz, and Carlos, Manual Vásquez, Agora: Medellín , 102 Am. J. Int’l L. 529 (2008)Google Scholar.

1 Gutierrez was sentenced to death by a three-judge panel before the decision in Ring v. Arizona, 536 U.S. 584, 609 (2002), which holds that a sentencing judge, sitting without a jury, may not find aggravating circumstances necessary for imposition of the death penalty. See also NRS 175.554(2) (“the jury shall determine . . . whether an aggravating circumstance or circumstances are found to exist”).

2 The legal status of court interpreters is unclear. Charles, M. Grabau & Llewellyn, Joseph Gibbons, Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation, 30 New. Eng. L. Rev. 227, 287-88 (1996)Google Scholar. The commentary to Canon 3 of the Model Code of Professional Responsibility for Interpreters in the Judiciary (Nat’l Ctr. State Courts 2002) states that ‘‘[t]he interpreter serves as an officer of the court and the interpreter’s duty in a court proceeding is to serve the court and the public to which the court is a servant.’’

3 Gonzalez’s presentence investigation report gives this account of his false testimony during Gutierrez’s death penalty hearing:

On August 8, 1995 ... Gonzalez was called upon to act as an interpreter for the state of Nevada with respect to a death-penalty phase of the capital murder case entitled, ‘‘The State of Nevada vs Carlos Gutierrez”, #CR94-1795 . . . .

. . . .

During direct questioning, and after being duly sworn, [Gonzalez] represented to the Court that he was certified as an interpreter in both the state of California and within the federal system. Mr. Gonzalez also, under direct questioning, informed that he had been educated at the University of Madrid for one year studying Spanish Literature. He went on to report receipt of a Bachelor’s Degree in Spanish Literature with a minor in Computer Science received at the University of Arizona. Lastly, with respect to his education, Mr. Gonzalez reported his possession of a Master’s degree received from the University of San Diego in the field of Linguistics. Additionally, Mr. Gonzalez testified to having served as an interpreter for the Superior Court in California for approximately seven years.

Shortly thereafter, an investigation was initiated by the Washoe County, Nevada, Public Defender’s Office so as to ascertain the defendant’s true credentials. During that investigation it was learned that Mr. Gonzalez had completely fabricated his educational and employment background. [Among other things], it was learned that Mr. Gonzalez had never been certified within the state of California or by any federal entity as an interpreter and therefore could not have worked as an interpreter within the California Court system . . . Mr. Gonzalez did not receive any type of certificate or degree from the educational facilities [he named nor] even attended . . . either the University of San Diego . . . or the University of Arizona.

While NRS 176.156(5) generally provides for the confidentiality of presentence reports, the Gonzalez presentence report is part of the record on this appeal and in the docket, neither of which is sealed.

4 Nevertheless, there is a growing movement that encourages or requires court-appointed certified interpreters. See, e.g., 28 U.S.C. § 1827 (2006); Minn. Gen. R. Pract. § 8.02 (2012); Or. Rev. Stat. § 45.275 (2011); Tenn. S. Ct. R. 42(3) (2012); Tex. Gov’t Code. Ann. § 57.002 (2012). See also Maxwell, Alan Miller et al., Finding Justice in Translation: American Jurisprudence Affecting Due Process for People with Limited English Proficiency Together with Practical Suggestions, 14 Harv. Latino L. Rev. 117, 150 (2011)Google Scholar (recommending certified or qualified interpreters in all stages of the proceedings).

5 In Nevada, criminal defendants who do not understand English have “‘a due process right to an interpreter at all crucial stages of the criminal process.’” Ouanbengboune v. State, 125 Nev. 763, 768, 220 P.3d 1122, 1126 (2009) (quoting Ton v. State, 110 Nev. 970, 971, 878 P.2d 986,987 (1994)). Although an interpreter does not have to perform word-for-word interpretations, errors that fundamentally alter the defendant’s statements or the context of his statements may render the interpretation constitutionally inadequate. Baltazar-Monterrosa v. State, 122 Nev. 606,614-17, 137 P.3d 1137, 1142-44 (2006). Here, Gutierrez’s interpreter’s skills are not challenged. The challenge is to the accuracy of the interpreter who translated the State’s Spanish-speaking witnesses for the court.

1 On the prosecution’s behalf, Gonzalez interpreted for witnesses who needed assistance. Olivia Ynigez was tasked to notify the prosecutor of any translation problems. Margarita Larkin interpreted for Gutierrez when a witness spoke English and listened to Gonzalez’s translation to advise the district court of any problems with the interpretation.