Engaging Europe in the US death penalty fight: Can we help on your capital case?

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

In September 2009 Reprieve launched a three-year project funded by the European Commission – theEC Project. The Project works alongside capital defense lawyers to meet their obligations under the ABA Guidelines, to: ‘make appropriate efforts to determine whether any foreign country might consider the client to be one of its nationals (10.6)’.

The EC Project

The EC Project has five full time staff members based in the US. Supported by staff in London they are reviewing the US death row population to determine whether any prisoners have a claim to foreign nationality. The project then works closely with the prisoner’s US legal team to conduct investigation in the US and overseas; litigation assistance, and engagement with foreign governments. We have already identified 24 confirmed or potential European nationals and 3 other non-European foreign nationals.

Why Nationality Matters

Representing foreign national clients sentenced to death brings with it additional complexities and challenges. Foreign clients unfamiliar with the US criminal justice system may feel alienated by proceedings culturally and linguistically different to those in their country of origin. Legal claims may also arise when a foreign national is sentenced to death without being informed of their right to consular notification and access.

Many foreign governments remain staunchly anti-death penalty and provide substantial assistance to their nationals facing the death penalty. Assistance has included facilitating home country mitigation investigations and document searches; filing amicus briefs; supporting clemency pleas; making diplomatic representations; and helping fund the defense.

Nationality Laws

Many foreign nationality laws are surprisingly broad, allowing the State to grant citizenship to those with even a tenuous link to their country. For example, Croatian nationality law allows the State to grant citizenship to descendants of Croatian citizens and those considered to be ethnic Croats. Other countries, such as Italy, can grant citizenship where they have a special interest in doing so. Indeed, the Sicilian Mayor of Palermo granted honorary citizenship to Joseph O’Dell, a US national sentenced to death and subsequently executed in Virginia. The City of Palermo even chartered a plane to fly his body from the US to Palermo, where he was subsequently buried.

Other relatively novel provisions include the Austrian law allowing citizenship to be granted to those who take up employment as a college or university professor in Austria; the German law that allows descendents of Germans deprived of their citizenship on political, racial or religious grounds between 1933 and 1945 to be re-granted German citizenship.; and the fact that individuals of Sephardic Jewish origin may be able to obtain Spanish citizenship under particular circumstances.

We think an extraordinary number and range of prisoners may have claims to foreign nationality as a result of such diversity.

How We Can Help

• Engage foreign governments to assist their nationals facing capital charges or on death row
• Provide litigation and investigation assistance in cases from trial to clemency
• Conduct investigation in the US and overseas, including records collection and witness interviews
• Stimulate legislative reform to establish the nationality of our clients
• Facilitate amicus briefs from foreign governments
• Secure culturally sensitive pro bono expert assistance
• Create partnerships between your legal team and local non-profits and academic experts

Reprieve has assisted foreign nationals on death row for many years, originally with the main focus being on British citizens. Sometimes, as in the case of Kenny Richey, we had to threaten litigation in the UK to bring about a change in the law to establish his British nationality. Once this was achieved, the British strongly backed his case (in coordination with his US lawyers), and after 22 years on death row Kenny returned home to Scotland a free man.

We facilitate the drafting of amicus briefs from the British government, as with the cases of Linda Carty, Krishna Maharaj, and Kenny Richey. We have undertaken investigation and document collection all around the world, to help local counsel with the presentation of their client’s case. We have also secured expert assistance from Scotland Yard, challenging the DNA evidence used in a previous case we worked on. We also put local counsel in touch with a network of allies all around the world, who can help develop their case.

We try to provide assistance to cases at all levels, from trial to clemency. While our original focus was on British nationals, the EC Project allows us to extend this work to nationals of other countries.

To obtain a free full, privileged assessment of your client’s potential claims to foreign nationality, please contact: David Sellwood: Reprieve PO Box 52742 London EC4P 4WS United Kingdom +44 (0)207 353 4640 david.sellwood@reprieve.org.uk. Alternatively, contact: Lucy Larkins: EC Project, The Justice Center, 636 Baronne Street, New Orleans, Louisiana 70113 USA +1 (504) 569 8199 lucy.larkins@reprieve-ecproject.org