The Kickham Comment - Boston Criminal Attorney Blog
The Supreme Judicial Court ruled this week that foreign nationals, including illegal aliens, must be provided with the opportunity to be in contact with diplomats from their home country when facing criminal charges in Massachusetts. The court ruled that the right is guaranteed by the Vienna Convention, which is an international treaty adopted by the United States in 1969.
More so, the SJC also ruled that foreign nationals who are convicted of a Massachusetts crime will be allowed to seek a new trial if they can satisfy two tests: 1) That they were not informed about this right; and 2) That the lack of this information played a role in their conviction. At least one prosecutor reacted to the decision by saying that it has the potential to unleash a flood of costly litigation. Essex County District Attorney Jonathan W. Blodgett commented that “There is no limit to this, we will be flooded with motions for a new trial.” Blodgett asserted that even though the Vienna Convention is a treaty between sovereign nations, the SJC has made a foreign treaty part of the fabric of individual rights in Massachusetts. Blodgett plans to file legislation asking the Massachusetts Legislature to reverse this decision. On the opposing side, immigration lawyers and criminal defense lawyers say the court’s ruling merely reinforces rules that have already been on the books in Massachusetts for many years.
The unanimous 7-to-0 ruling noted that even though the United States had ratified the Vienna Convention in 1969, the International Court of Justice in The Hague ruled in 2009 that the United States had not complied with the Convention’s rules on diplomatic contact when dealing with Mexican nationals. Justice Robert Cordy wrote that Massachusetts will now take steps to bring the state into compliance with that treaty: “In order to enable the full effect to be given to [the Vienna Convention], we conclude that the notifications it requires must be incorporated into the protocols of the state and local law enforcement agencies of Massachusetts.”
As a Dedham, Massachusetts criminal defense lawyer, I can assure my readers that many of the criminal defendants who appear before the District Courts and the Superior Courts of the Commonwealth, are foreign nationals — whether here legally or not. Therefore, this decision will indeed have a very large impact on police and prosecutorial actions in the future.