Does your client have ties to foreign countries? Could they have a claim to foreign nationality? If so, Reprieve can help…

Reprieve is a group of international charities dedicated to assisting in the provision of effective legal representation and humanitarian assistance to impoverished people facing the death penalty at the hands of the state; to producing and publishing information about the use of the death penalty and to raising awareness more generally concerning human rights.

Neil Revill was born in County Durham, in the northern part of the UK, in August 1972. He spent his school years traveling between Royal Air Force bases in Germany and England, where his father was stationed. By 1988, he was living in Los Angeles. In October 2001, a small-time drug dealer named Arthur Davodian and his girlfriend, Kimberly Crayton, were stabbed to death. Davodian was found decapitated. According to the prosecution, Neil was the last person to be seen with the couple; as such, he was charged with their murder. Neil has always maintained his innocence.

Reprieve, a nonprofit capital defense organization, became involved in Neil’s case. Reprieve worked closely with the British government and Neil’s public defenders to secure an agreement from the prosecution that they would not seek the death penalty. In March 2011, after six days of deliberation, Neil was convicted and sentenced to life imprisonment without the possibility of parole. Reprieve continues to assist on Neil’s case in the course of his appeals.

Could Your Client Be Entitled to Foreign Nationality?

ABA Guideline 10.6A provides that “Counsel at every stage of the case should make appropriate efforts to determine whether any foreign country might consider the client to be one of its nationals,” urging counsel to investigate fully the possibility that some country might be willing to assist the defendant.

Indeed, the determination of nationality may require some effort by counsel. Foreign citizenship legislation can be surprisingly flexible, sometimes allowing a person whose overseas connections go back generations—even to grandparents or great-grandparents—to have their nationality recognized. Some countries have “right of return” clauses to facilitate the reunion of a diaspora. For example, descendants of German nationals who were deprived of their citizenship on political, racial, or religious grounds between 1933 and 1945 can have their German citizenship recognized. Residents of former colonies may be entitled to recognition as a national of the colonizing nation. Linda Carty, for instance, is a British woman on death row in Texas. She was born on the Caribbean island of St. Kitts and Nevis, and her mother was born on the neighboring island of Anguilla, a former British protectorate. Because of this, Linda is a British national, and she has been receiving substantial assistance from the British government.

Opportunities Arising from Foreign Nationality

Foreign nationality brings with it a whole range of unique opportunities for effectively representing your client. Engaging the weight of a foreign government in your client’s case can facilitate access to extremely persuasive mitigation evidence, as well as other resources that can be utilized by the defense team to great advantage.

Many countries place an extremely high priority on their right to provide consular services to their detained nationals, particularly where the individual is facing a death sentence. Consuls have the power to provide a wide range of humanitarian and other assistance. This can include facilitating funds to the defense team, assisting with records collection and investigation abroad, identifying expert witnesses, enlisting the diplomatic assistance of their country to communicate with the State Department and international and domestic tribunals (e.g., through amicus curiae briefs), providing culturally appropriate resources to explain the legal procedures of the detaining country, providing interpreters, arranging for contact with family and friends, and generally acting as a cultural bridge between the detainee and their defense team.

This assistance can bring critical resources to bear on the penalty phase of trial by humanizing the defendant in front of the jury in a culturally sensitive way. Consular officials may also make representations to the prosecutor, asserting the country’s interests in avoiding the death penalty for its national and providing reasons why a death sentence is not appropriate in that particular case. Engaging the consulate can make the difference between a foreign national facing death or a lesser sentence.

The Vienna Convention on Consular Relations

The right to consular assistance is contained in Article 36 of the Vienna Convention on Consular Relations (the “VCCR”), a multilateral treaty ratified unconditionally by the United States in 1969. Under its provisions, an obligation rests on local authorities to promptly inform detained or arrested foreign nationals of their right to communicate with their consulate. At the request of the foreign national, local authorities must contact the consulate and permit consular communication and access.

However, law enforcement authorities frequently fail to comply with their obligations under the VCCR. Any such failure is likely to have both practical and legal implications for a detained foreign national. As a legal matter, a breach of the VCCR can give rise to a claim on behalf of your client. Reprieve can assist counsel in drafting motions that raise these violations. It is also worth noting that diplomatic conflict over international law violations can be a factor the prosecution considers in determining whether to agree to a non-death resolution of a case.

How Reprieve Can Help

In 1999, Clive Stafford Smith, a British-American capital defense attorney who has represented over 300 prisoners facing the death penalty in the southern U.S., moved back to the U.K. and founded Reprieve. Since then, Reprieve has acquired over ten years’ experience providing pro bono assistance to British nationals facing death sentences around the world, helping to coordinate timely and effective intervention by the British government from the pretrial stage to clemency.

Reprieve has since expanded its work to include assisting nationals from other countries. In 2009, Reprieve launched a project, largely funded by the European Commission, to identify and assist individuals facing death sentences in the U.S. with overseas ties: the “EC Project.” As part of the Project, Reprieve is reviewing the entire American death row population for individuals with foreign ties in order to determine whether Reprieve can provide pro bono assistance on their cases. The role that Reprieve plays is decided on a case-by-case basis and is always guided by U.S. counsel.

Some examples of what Reprieve has done in the past include overseas records collection and investigation, applying for formal recognition of foreign nationality, locating cultural experts and other expert witnesses, assisting with international law motions and amicus curiae briefs, and facilitating high-level diplomatic representations by foreign governments and international organizations. As a cost-free resource for U.S. attorneys, Reprieve helps defense teams take advantage of the opportunities arising from representing a foreign national client.

To establish how Reprieve can help in your client’s case, please contact Kate Higham (/ 504.569.8199).

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