ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, November 30, 1996 TAG: 9612020038
SECTION: VIRGINIA PAGE: C-5 EDITION: METRO
DATELINE: RICHMOND
SOURCE: LAURA LAFAY STAFF WRITER
When Virginia officials arrested an Arlington man, tried him for murder and put him in prison to await his death sentence, they weren't just enforcing state law, according to a suit pending in U.S. District Court in Richmond.
They were violating the rights of the Republic of Paraguay.
Now the case of a murderer on death row has spawned an international legal challenge, waged by a South American government against some of Virginia's top officials.
At issue are two treaties between the United States and Paraguay requiring notification whenever one country arrests and detains a citizen of the other. Once notified, embassy officials are entitled to assist their citizen with his or her legal problems.
But in the case of Angel Francisco Breard, a Paraguayan citizen arrested in 1992 for the rape and murder of an Arlington woman, the requirements went unmet.
No one told Breard he could contact the Paraguayan consul. And no one told the consul about Breard's arrest.
Against the advice of his court-appointed attorneys, Breard rejected a prosecutor's offer to plead guilty in exchange for a life sentence.
He also insisted on taking the stand at his 1993 trial to explain that a satanic curse placed on him by his father-in-law had caused him to commit the crime.
The jury, unmoved, sentenced him to death.
Had Paraguayan officials been advised of Breard's predicament, their lawyers argued in U.S. District Court this week, the outcome of his trial might have been different.
In failing to advise Paraguay, the lawyers said, Virginia violated the country's right - conferred by the Vienna Convention of 1970 and the Friendship Treaty of 1860 - to protect the lives and liberty of its citizens.
There is only one way to make it up to Paraguay, the lawyers told U.S. District Judge Richard Williams: Throw out Breard's conviction and death sentence and order a new trial.
Among the 11 defendants named in the suit: Gov. George Allen; Attorney General Jim Gilmore; Prisons Director Ronald Angelone, the warden of the prison where Breard is confined, the warden of the prison where Breard will be put to death; the judge who sentenced him, the prosecutor and the Arlington County police chief.
"The defendants have absolutely no connection to this treaty violation," Assistant Attorney General Don Curry, who represents everyone but the police chief, told the judge this week.
"Their only connection is their sworn duty to carry out the terms of Breard's conviction and sentence."
Calling the lawsuit a "subterfuge" attempt to get Breard off death row, Curry asked Williams to dismiss it. Paraguay has no standing to litigate the validity of Breard's conviction and sentence, he argued. And besides, the 11th Amendment prohibits lawsuits against states.
Lawyers for Paraguay counter that they are asserting the rights of Paraguay, not of Breard, and that they are not suing the state, they are suing certain officials.
There are about 35 foreign nationals on death rows across the United States, according to Amnesty International. Most were not told before trial they had a right to contact their consuls.
Several, including three in Texas, have filed appeals claiming that this failure compromised their individual right to due process guaranteed by the U.S. Constitution. Breard has filed such an appeal. So has Mario B. Murphy, a Mexican national sentenced to death for a Virginia Beach murder in 1992. Both cases are pending.
So far, all of the Texas appeals have failed. The courts have refused to consider the claims because lawyers, unaware of the treaties' provisions, have never brought the matter up in time. One of the Texas defendants, Dominican Republic national Carlos Santana, was executed in 1993.
But all of the challenges have concerned the rights of defendants. Never, until the Paraguay case, has acountry asserted that its rights as a country were violated.
"This is a fairly bold action," said Rick Wilson, an international law expert at American University's Washington College of Law.
"The United States gets away with a lot internationally because governments - particularly smaller and weaker ones - are unwilling to take us on.
"In cases like this, there are political as well as legal questions involved and smaller countries don't want to offend the government of the United States in ways that will, say, impact economic issues. So this is pretty bold."
Governments appoint consuls to assist and serve their citizens and business interests abroad. When American teenager Michael Fay was sentenced to caning for spray-painting cars in Singapore, for example, the American consulate - along with the U.S. State Department and President Clinton - lobbied for clemency on his behalf.
That plea was unsuccessful. But eventually, in what news reports called "a gesture to the United States," the government of Singapore reduced Fay's sentence from six strokes of the cane to four.
Fay was caned in May 1994.
The State Department, traditionally the final arbiter of treaty violation issues between the United States and other countries, has so far lain low in the Paraguay case. However, it could get involved if the case goes to a higher court, said John Forde, attorney adviser in the Office of Consular Affairs.
"Following longstanding policy, the State Department has decided not to file a statement in the case at this level," he said.
Paraguay does not have the death penalty. There are no Americans imprisoned there, said Forde.
The case creates an interesting dilemma for Judge Williams.
On one hand, no one disputes that the terms of the treaties were violated. On the other hand, Paraguay's request that the court vacate Breard's conviction and sentence raises the specter of double jeopardy - the U.S. Constitution's prohibition against putting someone "twice in jeopardy of life or limb" for the same offence.
Double jeopardy does not apply to defendants who ask for a new trial themselves, as in death case appeals. But it does prevent a retrial if the reason is an error by the state, as would be the case in the Breard case.
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