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Washington—Supreme Court justices appeared skeptical as lawyers for two foreigners convicted of violent crimes in the United States argued that police had violated the men’s rights. Lawyers for the two men — one from Honduras, the other from Mexico — told the court Wednesday that police should have told them they could seek legal help from their countries’ governments, as required by a 1969 treaty. Justice Anthony M. Kennedy asked why police — and not the men’s attorneys — should be required to inform foreign suspects of their treaty rights. “If a Miranda warning is given, it seems to me that comprehends the relief you need,” Kennedy said, referring to the standard police practice of telling suspects they have the right to remain silent and the right to consult an attorney. Presumably, a defense attorney knows or should know that foreign suspects have the right to contact their consulate, Kennedy and other justices said. If a defense lawyer does not inform a client of those rights, that could be the basis for a claim of ineffective representation — not a violation of the treaty, said Justice Stephen Breyer. But Mark Stancil, a lawyer representing Mario Bustillo, a Honduran convicted of killing a Virginia teen with a baseball bat, said a defense lawyer may have a conflict of interest. “The first words out of the mouth of the consulate (official) could be, ‘Fire this guy and get a new lawyer,’” Stancil said. The 1969 Vienna Convention requires “competent authorities” to tell a consulate when a foreign national is arrested and to allow the consulate to communicate with the detained person and advise the suspect “without delay” of his or her rights. U.S. citizens have the same rights if they are arrested in one of the 168 countries that signed the treaty. The court was asked whether failure to advise a foreign suspect of the Vienna Convention rights can be used to overturn a conviction. The court’s decision, expected before July, could affect the appeals of thousands of foreign citizens in U.S. prisons and jails. Peter Gartlan, a lawyer representing Moises Sanchez-Llamas, a Mexican convicted of attempted murder for wounding an Oregon police officer in a 1999 gunfight, asked the justices to place themselves in the shoes of an American held abroad in Damascus, Syria. “If you are given a dime and you can call a local attorney assigned by the court, or the U.S. consulate, you are going to call the consulate,” Gartlan said. “It’s more comfortable, more familiar” to deal with a fellow American. Similarly, he said, foreigners in this country should be allowed to seek help from their governments. Justice Antonin Scalia challenged that, saying although talking to a countryman may be more comfortable, the consulate may be less helpful than a local attorney, who should be more familiar with local law. Police in the United States do not routinely tell arrested foreign nationals they can call their consulate. Some legal experts say requiring them do so could amount to expansion of so-called Miranda rights. Mary Williams, Oregon’s solicitor general, said law enforcement agencies are “getting better” at informing foreign suspects of their rights, but she conceded under questioning that such information is not routinely given out. “I don’t see why it’s so complicated,” Kennedy retorted. Justice David Souter agreed, saying police could ask standard questions: What’s your name? And are you a U.S. citizen? “It seems easy,” he said. But William Thro, Virginia’s solicitor general, said police were not obligated to help criminal suspects. “In America we give all criminal defendants a lawyer to represent them. Their lawyer should know their client’s rights,” including Vienna Convention rights, Thro said. Sanchez-Llamas was sentenced to nearly 20 years in prison for wounding a Medford, Ore., police officer. Although police told Sanchez-Llamas in English and Spanish he had a right to a lawyer, they did not say he had a right to contact the Mexican consulate in Portland, about 270 miles away. Sanchez-Llamas claims his pretrial statements to police should not have been allowed as evidence. The Oregon Supreme Court disagreed, ruling last year that treaty rights under the Vienna Convention can only be enforced by signatory governments, not individual suspects. Bustillo is serving a 30-year prison sentence in a 1997 slaying outside a fast-food restaurant in Springfield, Va. His new lawyers are trying to win a new trial. The cases are Bustillo v. Johnson, 05-51, and Sanchez-Llamas v. Oregon, 04-10566.

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