Updated 10:50 am PDT

The Supreme Court today decided in Sanchez-Llamas v. Oregon that suppression of a post-arrest statement is not required as a sanction for the failure of the police to notify a foreign arrestee of his right under the Vienna Convention to have his country's consulate notified. In the companion case of Bustillo v. Johnson, the Court reaffirmed its 1998 ruling in Breard v. Greene that a claim under the Vienna Convention can be defaulted by failure to raise it when required by state procedural rules.

The majority opinion in Sanchez-Llamas shows the same hostility to suppressing evidence that we saw in Hudson v. Michigan earlier this month. The argument for suppression was particularly weak in light of the absence of genuine support in the decisions of any other country or in the International Court of Justice's decision in the Avena case. These points are discussed in CJLF's amicus brief. They also form the basis of Justice Ginsburg's concurrence in the judgment on this point.

Justice Ginsburg's positions were that (1) the Vienna Convention does grant individual, judicially enforceable rights; (2) suppression of post-arrest statements is not required for a Vienna Convention violation alone, although such a violation might be part of a broader voluntariness inquiry; and (3) a violation might be a ground for waiving procedural default in a proper case, but a case such as Bustillo where trial counsel was actually aware of the issue prior to trial is not such as case. As she notes in footnote 5, ineffective assistance remains an available claim where appropriate.

In the Medillin case, Justice O'Connor wrote a dissent joined by the three dissenters in today's decision. If Justice O'Connor were still on the Court, could Justice Ginsburg have quilted together a majority for her positions? Probably, but we will never know for sure.