                                                                        FOURTH DIVISION
                                                                        FEBRUARY 22, 2007




No. 1-05-0845


THE PEOPLE OF THE STATE OF ILLINOIS,                            )       Appeal from the
                                                                )       Circuit Court of
        Plaintiff-Appellee,                                     )       Cook County.
                                                                )
                v.                                              )       No. 00 CR 9450 (04)
                                                                )
OSCAR MARTINEZ,                                                 )       Honorable
                                                                )       Dennis A. Dernbach,
        Defendant-Appellant.                                    )       Judge Presiding.


        JUSTICE CAMPBELL delivered the opinion of the court:

        Following a bench trial, the circuit court of Cook County found defendant Oscar Martinez

guilty of armed robbery and sentenced him to 20 years in prison. Defendant now appeals,

arguing that: (1) the trial court erred in failing to suppress his statements to the police, despite the

State's failure to notify him of his right to contact the Mexican consulate; (2) the trial court erred

in failing to suppress his statements to the police, where the Miranda warnings were not

completely given; and (3) the trial court abused its discretion in sentencing him to 20 years in

prison, when a codefendant was sentenced to 10 years for the same offense.

        The following facts are relevant to this appeal. On February 13, 2000, Frederick Jamison

was fatally shot in the head in connection with a faked drug transaction and arranged robbery. In

the transaction, a group of men lured Frederick and others to a specified location on the premise

of selling them a large quantity of marijuana and then robbed Frederick and the others of the
1-05-0845


money while pretending to be police officers. Martinez was to bring fake marijuana to the

location, with his appearance being a signal to begin the robbery.

       Defendant was taken into custody on February 13, 2000, and later charged in a 38-count

indictment for felony murder based on aggravated vehicular hijacking and felony murder based

on armed robbery; and also with five counts for the armed robbery and aggravated vehicular

hijacking of Roderick Jamison, Corey Brown, John Smith, Jonathan Stevenson and Leroy

Presley. Maurice Taylor, Ventura Alvarez, George Rivera, Gilbert Roman, David Guevara and

Alvin Harris were charged as codefendants.1

       Prior to trial, defendant filed motions challenging the admissibility of statements he made

to police: an oral statement to Chicago police detectives Velez and Rodriguez; an oral statement

to Chicago police detective Velez and Assistant State's Attorney Stevens; an oral statement to

Chicago police sergeant Pena and Assistant State's Attorney Luis Martinez; and a written

statement to Chicago police sergeant Pena and Assistant State's Attorney Martinez. Defendant's

first motion alleged that the police failed to properly give him the Miranda warnings, particularly

given that defendant was not fluent in the English language. Defendant's second motion repeated

these alleged failings, adding that the State's interrogations violated the terms of the Vienna




       1
           This appeal does not address the cases of codefendants. Taylor's appeal was disposed of

in a nonpublished order (No. 1-04-0239, June 24, 2005); Roman's appeal was dismissed on his

own motion (No. 1-04-2493, February 23, 2006); Rivera's appeal was disposed of in a

nonpublished order (No. 1-04-2164, November 16, 2006). This court has no information

regarding the appeals, if any, of the remaining defendants.

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Convention on Consular Relations (Vienna Convention on Consular Relations, opened for

signature April 24, 1963, art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261).

       At a hearing on the Miranda motion, the State called Detectives Velez and Pena as

witnesses. Detective Velez testified that on February 14, 2000, he and his partner interrogated

defendant. Detective Velez testified that he is fluent in Spanish. Detective Velez did not have a

Spanish Federation of Police book or any form containing the Miranda warnings in Spanish.

Detective Velez testified that at the start of the first interrogation he advised defendant in Spanish

that he had the right to remain silent, that anything he said could be used against him, that he had

the right to an attorney, and that if he could not afford one, an attorney would be appointed.

Defendant then agreed to speak and gave an inculpatory statement to the police.

       Detective Velez testified that on February 16, 2000, he acted as an interpreter for an

interrogation of defendant by Assistant State's Attorney (ASA) Stevens. Detective Velez

testified that he admonished defendant "the same way as [he] did it last time." Defendant again

agreed to speak and gave an inculpatory statement to the police.

       Sergeant Pena testified that she was asked to act as the translator for two interrogations of

defendant by ASA Luis Martinez. Sergeant Pena testified that she is fluent in Spanish. Sergeant

Pena testified that Spanish Miranda forms were not used. Sergeant Pena testified that she

advised defendant that he had the right to remain silent, that anything he said could be used

against him in a court of law, that he had the right to an attorney and have him present during any

questioning, and that if he did not have money, an attorney would be appointed. Sergeant Pena

admitted that she could not say whether those were the exact words used. Defendant's written

statement was in English and was translated to Spanish by Sergeant Pena for defendant's

signature.

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       The trial court denied defendant's Miranda motion.

       At the hearing on defendant's other motion to suppress, defendant testified that he was

born in Mexico City, Mexico, and had never been a citizen of the United States. The parties

stipulated that during none of the four interrogations at issue did the police advise defendant that

he had certain rights under the Vienna Convention, specifically the right to have someone from

the consulate speak with him, the right to an attorney supplied by the consulate, and the right to

have an impartial interpreter. The State so stipulated with the caveat that it did not believe

defendant had a right to an impartial interpreter. The parties also stipulated that the police did

not contact the consulate on their own to inform the consulate that defendant was in custody.

Rita Vargas, who worked for the Mexican Consulate, testified that pursuant to the Vienna

Convention, one of her functions was to explain to Mexican nationals differences in the United

States and Mexican legal systems. Typically, Vargas would not tell nationals to remain silent,

but would advise them to await an attorney.

       The trial court denied the motion to suppress, ruling that defendant had no remedy under

the Vienna Convention.

       At the bench trial, defendant's inculpatory written statement was introduced into

evidence. The State also called Roderick Jamison and John Smith as witnesses; their testimony

regarding the offenses was similar to the account given in defendant's written statement. Both

Roderick Jamison and John Smith identified defendant as the man who carried the bag of

supposed marijuana into Ventura Alvarez's repair shop, where the robbery took place.

       The trial court ultimately found defendant guilty of five counts of armed robbery,

acquitting him on the remaining charges. The trial court then merged the armed robbery counts

into one conviction. Following the denial of defendant's posttrial motion, the trial court

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sentenced defendant to 20 years in prison. The trial court denied defendant's motion for

reconsideration; this appeal followed.

                                                  I

       This court first turns to address defendant's claim that the trial court erred in failing to

suppress his statements to the police because the Miranda warnings were not completely given.

In Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612 (1966),

the Supreme Court held that before conducting a custodial interrogation, law enforcement

officers must administer warnings to the defendant sufficient to inform him of his privilege

against self-incrimination. The four essential elements of the warning that is required to be given

to a defendant in custody before questioning are: (1) the defendant must be told of his right to

remain silent; (2) that anything he says may be used against him; (3) that he has the right to have

counsel present before and during questioning; and (4) that he is entitled to have counsel

appointed if he cannot afford one. Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86 S. Ct. at

1630 ; California v. Prysock, 453 U.S. 355, 358-59, 69 L. Ed. 2d 696, 700-01, 101 S. Ct. 2806,

2809 (1981); United States v. Espinosa-Orlando, 704 F.2d 507, 514 (11th Cir. 1983).

       However, the Supreme Court has never insisted that Miranda warnings be given in the

exact form described in that opinion. Duckworth v. Eagan, 492 U.S. 195, 202, 106 L. Ed. 2d

166, 176, 109 S. Ct. 2875, 2880 (1989). The Miranda Court merely stated that "[t]he warnings

required and the waiver necessary in accordance with our opinion today are, in the absence of a

fully effective equivalent, prerequisites to the admissibility of any statement made by a

defendant." (Emphasis added.) Miranda, 384 U.S. at 476, 16 L. Ed. 2d at 725, 86 S. Ct. at 1629;

see also Prysock, 453 U.S. at 359, 69 L. Ed. 2d at 701, 101 S. Ct. at 2809 (per curiam) ("[N]o

talismanic incantation [is] required to satisfy [Miranda's] strictures"). Nevertheless, Miranda

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warnings must reasonably convey to a suspect his rights. Duckworth, 492 U.S. at 203, 106 L.

Ed. 2d at 177, 86 S. Ct. at 2880.

       In this case, defendant argues that the warnings were fatally defective because the State

did not inform him that he had the right to have counsel present during questioning and the right

to consult with counsel prior to questioning.

       This court has held, however:

               "While the better practice would be for the police to make explicit

               that defendant's right to consult with a lawyer may be both before

               and during any police interrogation, we hold that the language used

               in this case was sufficient to imply the right to counsel's presence

               during questioning. We note that, as opposed to Duckworth, no

               restrictions were stated by the police in the present case as to how,

               when, or where defendant might exercise his right 'to consult with

               a lawyer.' " (Emphasis omitted.) People v. Walton, 199 Ill. App.

               3d 341, 344-45 (1990).

Accordingly, defendant has failed to show that the trial court erred in denying his motion to

suppress under Miranda.

                                                 II

       Defendant next argues that the trial court erred in failing to suppress his statements to the

police, despite the State's failure to notify him of his right to contact the Mexican consulate. The

Vienna Convention, drafted in 1963, is intended to "contribute to the development of friendly

relations among nations, irrespective of their differing constitutional and social systems." Vienna

Convention on Consular Relations, opened for signature, April 24, 1963, art. 36, 21 U.S.T. 77,

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1-05-0845


596 U.N.T.S. 261. The United States, upon the advice and consent of the Senate, ratified the

Convention in 1969. 21 U.S.T. at 372, 596 U.N.T.S. at ____. Article 36 of the Convention,

which addresses consular officers' access to their nationals detained by authorities in a foreign

country, provides in part as follows:

                       "1. With a view to facilitating the exercise of consular

               functions relating to nationals of the sending State:

                               (a) consular officers shall be free to

                       communicate with nationals of the sending State

                       and to have access to them. Nationals of the sending

                       State shall have the same freedom with respect to

                       communication with and access to consular officers

                       of the sending State;

                               (b) if he so requests, the competent

                       authorities of the receiving State shall, without

                       delay, inform the consular post of the sending State

                       if, within its consular district, a national of that

                       State is arrested or committed to prison or to

                       custody pending trial or is detained in any other

                       manner. Any communication addressed to the

                       consular post by the person arrested, in prison,

                       custody or detention shall also be forwarded by the

                       said authorities without delay. The said authorities



                                                   7
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                      shall inform the person concerned without delay of

                      his rights under this sub-paragraph;

                              (c) consular officers shall have the right to

                      visit a national of the sending State who is in prison,

                      custody or detention, to converse and correspond

                      with him and to arrange for his legal representation.

                      They shall also have the right to visit any national of

                      the sending State who is in prison, custody or

                      detention in their district in pursuance of a

                      judgment. Nevertheless, consular officers shall

                      refrain from taking action on behalf of a national

                      who is in prison, custody or detention if he

                      expressly opposes such action.

                      2. The rights referred to in paragraph 1 of this Article shall

               be exercised in conformity with the laws and regulations of the

               receiving State, subject to the proviso, however, that the said laws

               and regulations must enable full effect to be given to the purposes

               for which the rights accorded under this Article are intended." 21

               U.S.T. at 100-01, 596 U.N.T.S. 261.

Defendant argues that Article 36 grants him individual, fundamental, judicially enforceable rights

and that the violation of these rights should be remedied in a state criminal proceeding by

applying an exclusionary rule and suppressing the statements he made to the police.



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       The United Sates Supreme Court recently addressed an Article 36 claim raised in a state

court. Sanchez-Llamas v. Oregon, 548 U.S. ___, 165 L. Ed. 2d 557, 126 S. Ct. 2669 (2006).

The Court assumed, without deciding, that Article 36 granted a foreign national individual's

enforceable rights. Sanchez-Llamas, 548 U.S. at ___, 165 L. Ed. 2d at 574, 126 S. Ct. at 2677-

78. However, the Court ultimately denied the claim that the state court was required to apply

suppression rule in cases of Article 36 violations:

                       "Of course, it is well established that a self-executing treaty

               binds the States pursuant to the Supremacy Clause, and that the

               States therefore must recognize the force of the treaty in the course

               of adjudicating the rights of litigants. See, e.g., Hauenstein v.

               Lynham, 100 U.S. 483, 25 L. Ed. 628 (1880). And where a treaty

               provides for a particular judicial remedy, there is no issue of

               intruding on the constitutional prerogatives of the States or the

               other federal branches. Courts must apply the remedy as a

               requirement of federal law. Cf. 18 U.S.C. § 2515; United States v.

               Giordano, 416 U.S. 505, 524-525, 94 S. Ct. 1820, 40 L. Ed. 2d 341

               (1974). But where a treaty does not provide a particular remedy,

               either expressly or implicitly, it is not for the federal courts to

               impose one on the States through lawmaking of their own."

               Sanchez-Llamas, 548 U.S. at ___, 165 L. Ed. 2d at 576, 126 S. Ct.

               at 2680.

       In this case, defendant acknowledges that this court has repeatedly held that suppression

of statements is not an available remedy for violations of Article 36 of the Vienna Convention.

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People v. Griffith, 334 Ill. App. 3d 98, 111 (2002); People v. Hernandez, 319 Ill. App. 3d 520,

531 (2001); People v. Villagomez, 313 Ill. App. 3d 799, 809-12 (2000). Defendant argues that

we should depart from this precedent, based on article I, section 12, of the Illinois Constitution of

1970, which states:

                       "Every person shall find a certain remedy in the laws for all

               injuries and wrongs which he receives to his person, privacy,

               property or reputation. He shall obtain justice by law, freely,

               completely, and promptly." Ill. Const. 1970, art. I, §12.

However, our supreme court has repeatedly held that the remedy and justice provision of the

Illinois Constitution of 1970 is merely an expression of a philosophy and not a mandate that a

certain remedy be provided in any specific form. Segers v. Industrial Comm'n, 191 Ill. 2d 421

(2000); DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57 (1992); Sullivan v. Midlothian Park

District, 51 Ill. 2d 274 (1972). The provision was "not meant to have a substantive effect on

Illinois law." Huter v. Ekman, 137 Ill. App. 3d 733, 735 (1985).

       Defendant might have argued--though he did not--that he was entitled to greater

protections than federal law provides under article I, section 2, the due process clause in our state

constitution. Ill. Const. 1970, art. I, §2; see, e.g., People v. McCauley, 163 Ill. 2d 414 (1995)

(failing to inform the accused that an attorney retained by the accused's family had arrived and

failing to grant access to said counsel violated state due process guarantee, contrary to the

holding in Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986)).

However, we note that McCauley was in many respects a reaffirmation of preexisting Illinois

case law, whereas the case law here runs against defendant.



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       In addition, this court has held that a party seeking relief under the Vienna Convention is

required to show actual prejudice in order to be entitled to that relief. Villagomez, 313 Ill. App.

3d at 811. The Villagomez court also approvingly discussed United States v. Alvarado-Torres,

45 F. Supp. 2d 986 (S.D. Cal.1999), in which the court considered just how the terms of the

Vienna Convention would be applied when a foreign national was arrested for a criminal offense.

The federal court first noted that the Vienna Convention does not require law enforcement

officers to allow a foreign national to contact a consular representative before they begin an

interrogation. Further, even if the foreign national requests to contact the consulate after being

arrested, the Vienna Convention does not require that the officers delay their interrogation until

contact is made. The federal court looked at the State Department's interpretation of the

Convention. The State Department has indicated that officials comply with the notification

requirement by notifying the foreign national of his right to contact the consulate before he is

booked for detention. Officers would comply with the Convention by contacting the consulate

within 24 hours, or even as late as 72 hours, of the foreign national's request. The State Depart-

ment has noted that the Vienna Convention does not require that the consulate be notified outside

of its regular working hours. Villagomez, 313 Ill. App. 3d at 812, citing Alvarado-Torres, 45 F.

Supp. 2d at 991.

       In this case, defendant was notified of his Miranda rights in Spanish, and he freely

acknowledged that he understood those rights and that he was willing to answer questions in

waiver of those rights. The first interrogation occurred at 6 p.m. on February 14, 2000; there is

no showing that this was during the consulate's regular working hours. The final interrogation

resulted in a written statement taken on February 16, 2000--less than 72 hours later. Given this



                                                 11
1-05-0845


record, defendant could not show any prejudice resulting from the State's failure to inform him of

any rights defendant might have under the Vienna Convention.

       Furthermore, the reasoning of the Supreme Court in Sanchez-Llamas in denying

suppression as a remedy often applies with equal force in the state court context. For example:

                       "Sanchez-Llamas argues that the language of the

               Convention implicitly requires a judicial remedy because it states

               that the laws and regulations governing the exercise of Article 36

               rights 'must enable full effect to be given to the purposes for which

               the rights... are intended,' Art. 36(2), 21 U.S.T., at 101 (emphasis

               added). In his view, although 'full effect' may not automatically

               require an exclusionary rule, it does require an appropriate judicial

               remedy of some kind. There is reason to doubt this interpretation.

               In particular, there is little indication that other parties to the

               Convention have interpreted Article 36 to require a judicial remedy

               in the context of criminal prosecutions. See Department of State

               Answers to Questions Posed by the First Circuit in United States v.

               Nai Fook Li, No. 97-2034 etc., p. A-9 (Oct. 15, 1999) ('We are

               unaware of any country party to the [Vienna Convention] that

               provides remedies for violations of consular notification through

               its domestic criminal justice system')." (Emphasis in original.)

               Sanchez-Llamas v. Oregon, 548 U.S. ___, 165 L. Ed. 2d 576-77,

               126 S. Ct. at 2680.



                                                   12
1-05-0845


Such reasoning tends to run contrary to applying the remedy and justice provision of the Illinois

Constitution of 1970 as more than an expression of a philosophy in this case. It also tends to run

contrary to the argument that due process requires suppression as a remedy in this context.

       Indeed, as the Supreme Court also reasoned, "suppression is not the only means of

vindicating Vienna Convention rights. A defendant can raise an Article 36 claim as part of a

broader challenge to the voluntariness of his statements to police." Sanchez-Llamas v. Oregon,

548 U.S. ___, 165 L. Ed. 2d at 578-79, 126 S. Ct. at 2682. Thus, foreign nationals are not denied

a remedy under the Illinois Constitution of 1970.

       The Supreme Court further raised a larger consideration:

                      "We also agree with the State of Oregon and the United

               States that our authority to create a judicial remedy applicable in

               state court must lie, if anywhere, in the treaty itself. Under the

               Constitution, the President has the power, 'by and with the Advice

               and Consent of the Senate, to make Treaties.' Art. II, § 2, cl. 2. The

               United States ratified the Convention with the expectation that it

               would be interpreted according to its terms. See Restatement

               (Third) of Foreign Relations Law of the United States § 325(1)

               (1986) ('An international agreement is to be interpreted in good

               faith in accordance with the ordinary meaning to be given to its

               terms in their context and in the light of its object and purpose'). If

               we were to require suppression for Article 36 violations without

               some authority in the Convention, we would in effect be

               supplementing those terms by enlarging the obligations of the

                                                 13
1-05-0845


               United States under the Convention. This is entirely inconsistent

               with the judicial function. Cf. The Amiable Isabella, 6 Wheat. 1,

               71, 5 L. Ed. 191 (1821) (Story, J.) ('[T]o alter, amend, or add to

               any treaty, by inserting any clause, whether small or great,

               important or trivial, would be on our part an usurpation of power,

               and not an exercise of judicial functions. It would be to make, and

               not to construe a treaty')." Sanchez-Llamas, 548 U.S. ___, 165 L.

               Ed. 2d at 576, 126 S. Ct. at 2679.

If it is improper for the Supreme Court to enlarge the obligations of the United States under the

Convention, it would arguably be worse for this court to do so.

       In sum, defendant has not offered any persuasive reason for this court to abandon our

prior case law and impose the exclusionary rule in cases of alleged Article 36 violations.

                                                  III

       Finally, defendant argues that the trial court erred in sentencing him to 20 years in prison,

when a codefendant was sentenced to 10 years for the same offense. Sentencing a defendant is a

matter of judicial discretion and, therefore, if within statutory limits, a sentence will not be

disturbed on appeal unless the trial judge abused his discretion. People v. Perruquet, 68 Ill. 2d

149, 153 (1977). The reason we review the sentence under this standard is because after seeing

the evidence and viewing the defendant, the trial judge is "in a better position to determine the

punishment to be imposed." Perruquet, 68 Ill. 2d at 154. This court will not substitute its

judgment for that of the trial court simply because we would have imposed a different

punishment. Perruquet, 68 Ill. 2d at 156.



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No. 1-05-0845
       Generally, similarly situated defendants should not receive grossly disparate sentences;

however, a mere disparity of sentences is not in and of itself a violation of fundamental fairness.

People v. Caballero, 179 Ill. 2d 205, 216 (1997). While defendants similarly situated should not

receive grossly disparate sentences, equal sentences are not required for all participants in the

same crime. People v. Godinez, 91 Ill. 2d 47, 55 (1982); People v. Eubanks, 283 Ill. App. 3d 12,

25 (1996). A difference may be justified by the relative character and history of the

codefendants, the degree of culpability, rehabilitative potential, or a more serious criminal record.

People v. Wolfe, 156 Ill. App. 3d 1023, 1028 (1987). It is not the disparity that controls, but the

reason for the disparity. People v. Coustin, 174 Ill. App. 3d 824, 827 (1988).

       This court has held that codefendants are not similarly situated where they have not been

convicted of the same set of crimes. E.g., People v. Eubanks, 283 Ill. App. 3d 12, 25 (1996). In

this case, defendant was sentenced to 20 years for armed robbery, while codefendant Rivera was

sentenced to 10 years for armed robbery. However, Rivera was also sentenced to 40 years in

prison for murder. Thus, the two defendants were not similarly situated. Accordingly, the trial

court did not abuse its discretion is sentencing defendant to 20 years in prison.

       For all of the aforementioned reasons, the judgment of the circuit court of Cook County is

affirmed.

       Affirmed.

       NEVILLE, J., concurs.

       PRESIDING JUSTICE QUINN, specially concurring:

       I agree that the trial court did not err in denying the defendant's motion to suppress his

statements to the police and in sentencing the defendant to 20 years in prison. I also agree that

Sanchez-Llamas v. Oregon, 584 U.S. _____, 165 L. Ed. 2d 557, 126 S. Ct. 2669 (2006), is


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No. 1-05-0845
dispositive of the defendant's argument based on Article 36 of the Vienna Convention. I write

separately to address a concern raised by justices of our supreme court in their decision in People

v. Madej, 193 Ill. 2d 395 (2000).

       In that case, the court upheld the defendant's death sentence based on his conviction for

first degree murder and rape. The defendant was a Polish national. After arresting the defendant,

the police failed to advise the defendant of his rights pursuant to Article 36 of the Vienna

Convention. Defendant's death sentence was affirmed on direct appeal (People v. Madej, 106 Ill.

2d 201 (1985)). In 1998, the defendant filed a petition for relief from judgment pursuant to

section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (west 1998)) and a petition

for writ of mandamus. The Consul General for the Republic of Poland was granted leave to

intervene in the mandamus proceeding. (People v. Madej, 193 Ill. 2d at 398-400). On appeal

from the denial of his section 2-1401 petition and his petition for mandamus, defendant argued

that the denial of his right to consular notification under Article 36 of the Vienna Convention

rendered his conviction and death sentence void. The supreme court held that the defendant's

claims were procedurally barred as they were made some 14 years after the expiration of the two-

year limitation mandated by section 2-1401. People v. Madej, 193 Ill. 2d at 402.

       Justices McMorrow, Harrison and Heiple dissented, Justice Heiple writing:

                "What is cavalierly dismissed here is that the consular notification

       requirement is meant to ensure that foreign nationals imprisoned abroad

       have adequate legal representation and that they should be tried in accordance

       with principles of justice generally recognized in the international community

       by allowing consular officials to consult with the defendant and with attorneys,

       court officials and prosecutors. It is important to note that this protection


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No. 1-05-0845
        is designed for Americans abroad as well as for foreign nationals in the United

        States. In the instant case, however, the Polish Consul General was not

        even aware of defendant's situation until 1998, some 16 years after his con-

        viction and sentence." People v. Madej, 193 Ill. 2d at 412 (Heiple, J.,

        dissenting, joined by McMorrow and Harrison, JJ.).

        Clearly, the judges and lawyers who deal with the issue of consular notification treat it

very seriously. Unfortunately, this concern is not shared by everyone.

        The Mexican Consulate of Chicago has a listed phone number of 312-855-1380. A

person dialing that phone number at any time of the day or night will hear an automated message

directing the caller to push a button to receive more information regarding specific topics. These

include obtaining vehicle permits, BancoMex, tourism, customs, hours of the consulate,

importing household appliances, transportation of corpses or ashes of deceased individuals and

visas. Contacting the consulate in connection with a Mexican national being in the custody of a

law enforcement agency is not one of the menu choices. No human being answers the phone and

the phone number does not provide any method for leaving a message.

        This information played no part in my decision to concur in this opinion. As I said in the

beginning, Sanchez-Llamas v. Oregon, 548 U.S. ____, 165 L. Ed. 2d 557, 126 S. Ct. 2669

(2006), is dispositive of the issue of the effect of a violation of Article 36 of the Vienna

Convention. I provide this information for the benefit of those people who will read this opinion

and conclude that this court is improperly sanctioning the actions of law enforcement officers

who are trampling on the rights of foreign nationals. I also provide this information for the

benefit of all foreign consulates in Illinois.




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No. 1-05-0845
       The defendant argues that the consulate notification requirement of Article 36 of the

Vienna Convention is meaningless without the "hammer" of the exclusionary rule to back it up.

As discussed by the majority, the Supreme Court has rejected this argument. Sanchez-Llamas v.

Oregon, 548 U.S. at ____, 165 L. Ed. 2d at 579, 126 S. Ct. at 2680. I believe that it is patently

obvious that the consular notification requirement is indeed meaningless when the consulate does

not provide a means to be contacted.

       While the Mexican consulate's failure to provide a means for anyone to contact them has

not played a part in the decision of this case, it may properly be considered when made part of the

record in future cases. It would appear to be relevant to the issue of whether a defendant can

establish that he was prejudiced by the failure to advise him of his right to contact his national

consulate. See People v. Villagomez, 313 Ill. App. 3d 799, 811 (2000).




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