Polish national in Illinois

Born in Kielce, Poland in 1959, Gregory Madej was sentenced to death in Illinois in 1982 for sexually assaulting 38 year-old Barbara Doyle and then stabbing her to death.

Although Madej's family had emigrated from Poland to the Unites States when Gregory was still a small child, neither he nor his parents became US citizens. The Madej family joined the large Polish community in Chicago, maintaining strong ties with their native country. At home, Gregory and his mother were subjected to abuse from his father, an alcoholic, with the son intervening on more than one occasion to save his mother from beatings.

On 23 August 1981, Madej, aged 21 at the time, and Barbara Doyle spent the evening together drinking alcohol and smoking marijuana. A violent argument broke out during which Doyle was repeatedly stabbed. Madej was later apprehended by police while driving the victim's car. His clothes were stained with Barbara Doyle's blood and a bloody knife was found in the car together with the victim's bloodstained clothes.

In recordings of their exchange with police headquarters, the officers in the patrol car in pursuit of Madej are heard referring to both a passenger and a driver in the car ahead. This second occupant was never identified, and tapes of the exchange have reportedly been mislaid. At trial, police testimony denied any reference to a second suspect.

Before his trial in August 1992, prosecutors offered Madej a sentence of life imprisonment in exchange for a guilty plea. He turned down the offer, maintaining that Barbara Doyle had been killed in self defence and that the aggravating circumstances which supported a death sentence against him were unfounded.

Waiving his right to sentencing by jury, Madej was condemned to death by a judge after only minutes of deliberation. Madej had not been informed of the One Juror rule, under which a death sentence cannot be handed down in Illinois if even one juror votes against it. The trial attorney later admitted to a series of grave shortcomings in the preparation of the defence, including incorrectly advising his client to testify and failing to present any significant mitigating circumstances.

In June 1997 the Illinois Supreme Court acknowledged that Madej had received inadequate representation at trial, but that this violation of constitutional safeguards amounted to ''harmless error''.

In addition to the Vienna Convention, consular relations between Poland and the USA are regulated by a bilateral treaty requiring notification of the consulate whenever one of their respective nationals is detained or arrested. Nevertheless, the Polish Consulate in Chicago remained unaware of their national's predicament for 17 years, until they were contacted by defence attorneys in May of 1998.

In a motion filed with the state courts, the Polish Consul-General in Chicago noted his government's concerns over the dual violation of consular rights, declaring that international law ''dictates that the failure to obey either the Vienna Convention or the Consular Convention is itself a sufficient injury to require the annulment of legal proceedings carried out with disregard for these treaties''.

In 1999, amicus curiae briefs were also filed in the Supreme Court of Illinois by the governments of Mexico and Germany, as well as by the Bar of England and Wales Human Rights Committee, supporting Poland's claim and calling for Madej's sentence to be overturned in accordance with the international treaty principle of restituo in integrum.

Following a meeting in February 1999 with the Polish Consul-General and attorneys from the Center for International Human Rights, the District Attorney for Cook County, Illinois, announced new procedures to ensure that foreign nationals facing charges have been informed of their consular rights by the time of their first court hearing.

Barbara Doyle's husband has stated in an affidavit that, had he been called to testify for the defence, he would have urged the sentencing court not to impose a death sentence.

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.

Marc R. Kadish (submitted), Mayer, Brown, Rowe & Maw, Chicago, IL, for Petitioner.Marie Quinlivan Czech, Office of Cook County State's Atty., Criminal Appeals Div., Chicago, IL, for Respondent.

Illinois sentenced Gregory Madej to death for a murder committed in 1981.   In 2002 the district court issued a writ of habeas corpus requiring Illinois to give Madej a new sentencing hearing within 60 days.  United States ex rel. Madej v. Gilmore, 2002 WL 370222, 2002 U.S. Dist. LEXIS 3807 (N.D.Ill.), reconsideration denied under the name Madej v. Schomig, 223 F.Supp.2d 968 (N.D.Ill.2002).   The effective date of this order is September 24, 2002, when the court denied the state's request for reconsideration and the decision became final.   Hence the hearing had to be held by November 25, 2002.   The state filed a notice of appeal, No. 02-3796, which it dismissed on November 8, 2002, with prejudice.   See Fed. R.App. P. 42(b).  Madej dismissed his cross-appeal at the same time.

The deadline for resentencing passed without action.   On January 10, 2003, the Governor of Illinois commuted Madej's capital sentence to life in prison without possibility of parole.   The Attorney General of Illinois asked the state's highest court to annul this commutation;  that court held it valid.   See People ex rel. Madigan v. Snyder, 208 Ill.2d 457, 281 Ill.Dec. 581, 804 N.E.2d 546 (2004).   By then 16 months had passed since the district court's order, and the state still had not provided Madej with a new sentencing hearing.   At a status conference in state court on February 17, 2004, counsel for Illinois took the position that the state is entitled to disregard the federal court's writ, because the commutation gave Madej all the relief to which he is entitled.   The state judge expressed skepticism about this position and asked the prosecutor to take the issue up with the federal judge.

Illinois then asked the district judge to vacate the writ as moot. He declined, observing that at a new hearing Madej would be entitled to seek a term lower than the natural-life sentence that the Governor substituted for the death penalty.   Now Madej's custodian (we have substituted the current warden of his prison) asks for a writ of mandamus that would compel the district judge to vacate the writ of habeas corpus.   The petition was filed jointly by the Attorney General of Illinois and the State's Attorney of Cook County.

Mandamus is unavailable, because the judge entered an appealable order.   The state's motion was functionally under Fed.R.Civ.P. 60(b), asserting a change in circumstances, though the state neglected to mention that rule (or indeed to supply any authority for the relief it sought).   An order denying relief requested under Rule 60(b) is final and appealable.   The state's petition for mandamus contains the information required by Fed. R.App. P. 3 for a notice of appeal, so we treat the document as a notice of appeal.

Review of a decision under Rule 60(b) is deferential, see Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826 (7th Cir.1985), and the district judge did not abuse his discretion.   The court held in 2002 that Madej had received ineffective assistance of counsel at sentencing.   The outcome of a properly conducted proceeding could have been a sentence as low as 20 years' imprisonment.  (Madej has been convicted of a single murder, and under Illinois law only multiple murder convictions foreclose the possibility of a sentence to a term of years.  720 ILCS 5/9-1(b)(6), 730 ILCS 5/5-8-1(a)(1)(a).)   A full remedy for the constitutional shortcoming at the original sentencing hearing entails allowing Madej to seek that lower sentence now.   Although the state contends that the Governor's commutation bars that option as a matter of state law, the Constitution supersedes any incompatible state principles.

Illinois should count itself lucky that the district judge did not hold the warden (or perhaps the prosecutor) in contempt of court. The district judge ordered the state to act by November 25, 2002, yet to this day the order has not been carried out.   It is irrelevant that the state believes the order ineffectual.   It is for the federal judiciary, not the Attorney General of Illinois, to determine the force of such orders, and even erroneous directives must be obeyed while they are outstanding.   See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 439-40, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).

The order is indeed mistaken in one respect.   A writ of habeas corpus directs the petitioner's release from unconstitutional custody.   When the constitutional error is curable, the court often issues a conditional writ, of the form:  “Release the petitioner unless you do X within Y days.”   The district judge may have meant to issue such a writ, but the actual language reads:

[The court] orders that the state resentence [Madej] in a manner that comports with the individualized sentencing requirements of the Eighth Amendment within sixty (60) days of the date of this order.

This language does not leave the state the option of releasing Madej or reducing his sentence;  instead it directs the state to hold a new hearing whether it wants to or not.   Yet the writ of habeas corpus is designed to free persons wrongly held, not to ensure that criminal prosecutions continue in full vigor.   A proper conditional writ would have provided something along the lines of:

Within 60 days, the state must either reduce Madej's sentence to the minimum term provided by state law for murder or hold a new sentencing hearing.

That language would have made it pellucid that the commutation does not avert the need for resentencing.

When it dismissed its appeal with prejudice, the state surrendered any opportunity to have the order's language converted to a standard conditional writ.   Illinois must comply with the unconditional order the district court has entered.   The order denying the state's request for relief under Rule 60(b) is affirmed, without prejudice to Madej's opportunity to ask the district judge for supplemental relief (through the contempt process, a conditional writ of the kind mentioned above, or both) if the state's obduracy continues.

EASTERBROOK, Circuit Judge.

Docket Nos. 87574, 87725, 87726, 87752 cons.-Agenda 8 -May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v. 
GREGORY MADEJ, Appellant
(Consul General for the Republic of Poland in Chicago, Appellant).

Opinion filed August 10, 2000.

JUSTICE RATHJE delivered the opinion of the court:

Defendant, Gregory Madej, appeals from the decision of the circuit court of Cook County denying his petition for relief from judgment (see 735 ILCS 5/2-1401 (West 1998)) and denying his petition for writ of mandamus (see 735 ILCS 5/14-101 et seq. (West 1998)). Intervenor, Consul General for the Republic of Poland in Chicago, also appeals from the dismissal of the petition for writ of mandamus. Moreover, the Consul General appeals the trial court's denial of the Consul General's motion to intervene in the section 2-1401 proceeding.

BACKGROUND

Original Criminal Proceedings

This case began in 1981 when the police arrested defendant after he led them on a car chase through Chicago. When the officers arrested defendant, his hands and head had blood on them, and his shirt, pants, and undershorts were heavily stained with blood. Defendant also had deep scratches on his face and scratches on his chest, arms, and back.

Shortly thereafter, Barbara Doyle, the owner of the car in which defendant fled from the police, was found in an alley on the northwest side of Chicago. Doyle was naked and had died from multiple stab wounds. Her missing clothes were found in the car defendant was driving.

After defendant was arrested, he told the police that a friend named Hojamoto was driving the victim's car. Defendant rode around with Hojamoto, who jumped from the car a block before the police overtook the car. At trial, defendant testified that he was in the car with the victim and twice had consensual sex with her. He explained that the victim pulled a knife during an argument over drugs. They struggled, and the victim began bleeding. He then threw her from the car and left the scene.

Defendant was convicted of murder, armed robbery, rape, and deviate sexual assault and sentenced to death. This court affirmed defendant's conviction and sentence. People v. Madej, 106 Ill. 2d 201 (1985). Thereafter, defendant filed a post-conviction petition and amended it in 1993. The trial court dismissed defendant's petition, and this court affirmed that dismissal. People v. Madej, 177 Ill. 2d 116 (1997). Subsequently, defendant sought leave from this court to file a petition for writ of mandamus. This court denied that motion.

Current Proceedings

In July 1998, defendant filed the current action. Defendant filed his section 2-1401 petition in the criminal division. Because of local court rules, defendant filed his petition for writ of mandamus in the chancery division.

Defendant's section 2-1401 petition alleged that his rights under the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, and the Consular Convention of 1972 between Poland and the United States,⁽¹⁾ May 31, 1972, 24 U.S.T. 1231, were violated when the police failed to inform defendant that, as a Polish citizen, he had a right to contact a consular official from Poland. Defendant also alleged that, after he was arrested, the United States had a duty to notify the Polish consular that a Polish national had been arrested and detained.⁽²⁾ Defendant's mandamus petition alleged that he was entitled to relief because his conviction and sentence are void under international law.

In December, the Consul General sought leave to intervene in both actions. Judge Albert Green, who was presiding over the mandamus proceedings, granted the Consul General's petition. Thereafter, Judge Green transferred the mandamus proceedings to Judge Thomas Fitzgerald, who was presiding over the section 2-1401 proceedings. Thereafter Judge Fitzgerald denied the Consul General's motion to intervene in the section 2-1401 proceeding. Subsequently, Judge Fitzgerald denied both petitions. Defendant and the Consul General now appeal.

While this appeal was pending, this court granted leave to the United Mexican States, the Human Rights Committee of the Bar of England and Wales, and the Consulate General of the Federal Republic of Germany in Chicago to file briefs as amici curiae.

ANALYSIS

Section 2-1401 Proceeding

Section 2-1401 of the Code of Civil Procedure provides a method for obtaining relief from a judgment after more than 30 days have passed. See 735 ILCS 5/2-1401(a) (West 1998). A section 2-1401 petition must be filed "not later than 2 years after the entry of the order or judgment." 735 ILCS 5/2-1401(c) (West 1998). Relief sought more than two years after the entry of judgment will not be considered absent a showing that the petitioner was under duress, or a legal disability, or that the grounds for relief were fraudulently concealed. People v. Caballero, 179 Ill. 2d 205, 211 (1997).

Here, judgment was entered in 1982. Defendant filed his petition in 1998, approximately 14 years after the limitation period expired. Defendant and the Consul General acknowledge that the petition is untimely, but argue that this court can consider the merits of the petition because (1) under international law defendant's conviction and sentence are void; (2) the Consul General was never told of the treaty violation and thus could not preserve its rights sooner; (3) the State fraudulently concealed from defendant his rights under the Vienna Convention; and (4) the reliance on a state procedural rule to bar an action violates international law.

Voidness

Defendant contends that the principle restitutio in integrum, which is well established in international law, renders his conviction and sentence void. Restitutio in integrum is defined as:

"In the civil law, restoration or restitution to the previous condition. This was effected by the prætor⁽³⁾ on equitable grounds, at the prayer of an injured party, by rescinding or annulling a contract or transaction valid by the strict law, or annulling a change in the legal condition produced by an omission, and restoring the parties to their previous situation or legal relations. The restoration of a cause to its first state, on petition of the party who was cast, in order to have a second hearing." Black's Law Dictionary 1313 (6th ed. 1990).

Although we acknowledge the important role that restitutio in integrum plays in international law, defendant has not cited any authority to support a conclusion that the principle renders defendant's conviction and death sentence void. Instead, both the quotation from Black's, upon which defendant relies, and the other authorities cited by defendant support the conclusion that restitutio in integrum is an equitable remedy for violations of a treaty. To say that the proper remedy for a treaty violation is to annul the act that caused the violation is a far cry from concluding that the remedy means that a court's decision is void.

This court has explained that an order is void if it was entered by a court that lacked jurisdiction of the parties or of the subject matter or that lacked the inherent power to make or enter the particular order involved. R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309 (1986). Here, the trial court clearly had jurisdiction of the parties and of the subject matter and it had the inherent power to make or enter the orders involved. Consequently, we see no basis upon which to conclude that defendant's conviction and sentence are void.

The Consul General's Knowledge

The Consul General argues that the trial court erred in denying its motion to intervene in the section 2-1401 petition. It further argues that the limitation period does not apply to bar its claim because it "only recently became aware that the State of Illinois had tried and sentenced its national to death." If we accept, without deciding, that the Consul General can intervene in the section 2-1401 petition (a proposition that the State vigorously disputes), we must conclude that the action would be time-barred.

Although a petitioner must demonstrate due diligence to obtain relief pursuant to section 2-1401 (Smith v. Airoom, Inc., 114 Ill. 2d 209, 221 (1986)), a showing of due diligence does not obviate the need to file a section 2-1401 petition within the applicable limitation period. Our case law is clear:

"[T]he two-year limitation mandated by section 2-1401 and its predecessor, section 72 (Ill. Rev. Stat. 1975, ch. 110, par. 72), must be adhered to in the absence of a clear showing that the person seeking relief is under legal disability or duress or the grounds for relief are fraudulently concealed." Caballero, 179 Ill. 2d at 211.

Here, the Consul General does not allege that it was under duress or a legal disability or that the grounds for relief were fraudulently concealed. Consequently, we are unable to conclude that it is entitled to seek relief under section 2-1401 outside the limitation period simply because it did not discover the underlying facts until after the limitation period had expired.

Fraudulent Concealment

Defendant argues that the limitation period was tolled for him because the State fraudulently concealed from him the fact that the Vienna Convention gave him the right to consular assistance. Defendant argues that he has certain rights under the Vienna Convention and that the State had the duty to inform him of these rights. Defendant concludes that the State's failure to inform him of these rights constitutes fraudulent concealment. We disagree.

To toll the limitation period, the alleged fraud must consist of "affirmative acts or representations designed to prevent discovery of the cause of action or ground for relief." Crowell v. Bilandic, 81 Ill. 2d 422, 428 (1980). Here, the fact that defendant was entitled to be informed of his rights under the Vienna Convention is a matter of international law. The rights that defendant asserts the State was obliged to inform him of are rights that are, by defendant's own admission, contained in treaties that are public documents not only in this state, but also in countless countries around the world.

Even if we accept defendant's contention that the State was obligated to inform defendant of these rights, we are unable to conclude that this failure can constitute fraud when the rights are a matter of public record. Consequently, we are unable to conclude that, by failing to inform defendant of his rights, the State fraudulently concealed defendant's grounds for relief.

State Procedural Rule

Defendant also contends that the limitation period must be tolled because a state procedural rule cannot prevent defendant from seeking a remedy for a violation of international law. Defendant acknowledges that the Supreme Court has held that, to determine whether a state's procedural rules govern, a court must look to the treaty's text and drafting history. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 100 L. Ed. 2d 722, 731, 108 S. Ct. 2104, 2108 (1988); see also Breard v. Greene, 523 U.S. 371, 375, 140 L. Ed. 2d 529, 537, 118 S. Ct. 1352, 1354 (1998) (holding that, "absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State").

Here, the Vienna Convention provides that the rights expressed in the Convention, "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 101; see also Breard, 523 U.S. at 375, 140 L. Ed. 2d at 537, 118 S. Ct. at 1355 (reaching a similar conclusion).

Defendant provides no explanation as to how section 2-1401's limitation period prevents "full effect" from being given to the purposes of the Vienna Convention. Defendant had ample opportunity to raise his claim and have it considered on the merits during his trial, on direct appeal, and during the two years following the entry of judgment. We do not believe that a reasonable limitation period designed to preserve the public's interest in the finality of judgments can be construed as a rule that frustrates the purposes of the Vienna Convention. Because the treaty specifically states that the forum court's rules and regulations will govern, we have no basis to conclude that the reasonable limitation period violates international law.

Mandamus Proceeding

In the mandamus proceeding, defendant and the Consul General argue that mandamus relief is appropriate because (1) defendant's conviction and sentence are void; and (2) they raise issues of great public importance and of great importance to the administration of justice.

We have already rejected the argument relating to voidness and need not consider it further.

Mandamus is an extraordinary remedy to compel a public officer to perform a nondiscretionary act. Lewis E. v. Spagnolo, 186 Ill. 2d 198, 229 (1999). This court will not issue a writ of mandamus absent a showing of "a clear, affirmative right to relief, a clear duty of the [public officer] to act, and clear authority in the [public officer] to comply with the writ." Spagnolo, 186 Ill. 2d at 229.

Although this action may involve issues of "great public importance and of great importance to the administration of justice," that, in and of itself, is not a reason to grant mandamus relief. Here, defendant and the Consul General have not demonstrated that they have a clear, affirmative right to relief. Absent such a showing, we will not issue a writ.

CONCLUSION

We affirm the judgment of the circuit court of Cook County. The clerk of this court is directed to enter an order setting Wednesday, November 22, 2000, as the date on which the sentence of death entered by the circuit court shall be implemented. Defendant shall be executed in the manner provided by law (725 ILCS 5/119-5 (West 1998)). A certified copy of the mandate of this court shall be transmitted by the clerk of this court to the Director of Corrections, to the warden of Tamms Correctional Center, and to the warden of the institution where defendant is confined.

Affirmed.

*****

JUSTICE BILANDIC, specially concurring:

I agree that defendant's claim is procedurally barred and that the judgment of conviction is not void. I therefore join the majority opinion. I write separately, however, to address an issue that was raised during oral argument-the repatriation of defendant to the Republic of Poland.

Defendant was born in Poland. However, as the circuit court observed, defendant has lived in this country for all but the first 18 months of his life. Defendant has attended school here, has earned a living here, and has even served in the United States army. Defendant has committed numerous other crimes for which he was imprisoned in the United States. In short, defendant's life history reflects that he would be a stranger in Poland-without immediate family, friends, and social roots.

A significant interest of the Polish government in this case is to spare defendant from the death penalty. At the time of defendant's arrest in 1981 for the rape and murder of Barbara Doyle, Poland employed the death penalty. Poland abolished its death penalty, effective January 1, 1998. Amnesty International Report, The Death Penalty Worldwide: Developments in 1997, ACT 50/04/98, April 1998, at 5-6.

Defendant has received nearly 20 years of due process from the Illinois courts. We have treated defendant in precisely the same manner as we would treat a United States citizen, and we have given defendant every constitutional right and protection that we would give a United States citizen. Nevertheless, I note that, although such a decision is not within the province of this court, I would favor the repatriation of defendant, a convicted murderer and rapist, to Poland. The Polish government, however, has never requested the return of defendant to Poland. It is up to the Polish government to initiate discussions in this regard with the appropriate authorities of the United States government.

*****

JUSTICE McMORROW, concurring in part and dissenting in part:

Like Justice Heiple, I believe that the State's admitted violation of the Vienna Convention on Consular Relations is a serious matter which requires remedy by this court. However, unlike Justice Heiple, I believe that the remedy in this case should be to vacate defendant's death sentence but not his convictions. I therefore concur in the majority's affirmance of defendant's convictions but dissent from the majority's affirmance of defendant's death sentence.

Article 36(1)(b) of the Vienna Convention on Consular Relations provides that

"if the accused 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 shall inform the person concerned without delay of his rights under this sub-paragraph." (Emphasis added.) Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.

The Vienna Convention makes no distinction between resident foreign aliens and recently arrived or visiting foreign nationals. The language of the treaty "is mandatory and unequivocal, evidencing the signatories' recognition of the importance of consular access for persons detained by a foreign government." Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner, J., concurring). Further, "[t]he provisions of the Vienna Convention have the dignity of an act of Congress and are binding upon the states. See Head Money Cases, 112 U.S. 580, 598-99, 5 S. Ct. 247, 253-54, 28 L. Ed. 798 (1884). The Supremacy Clause mandates that rights conferred by a treaty be honored by the states." Breard, 134 F.3d at 622 (Butzner, J., concurring). In the case at bar, there is no question that the State failed to inform defendant, a citizen of Poland, of his right, under article 36(1)(b) of the Vienna Convention, to contact the Polish consulate at the time of his arrest.

Nor is there any issue that the State's failure to inform defendant of his right to consular notification is a serious violation of international law, particularly since a sentence of death was imposed. The Inter-American Court of Human Rights⁽⁴⁾ has recently held that "failure to observe a detained foreign national's right to information, recognized in Article 36(1)(b) of the Vienna Convention on Consular Relations, is prejudicial to the due process of law and, in such circumstances, imposition of the death penalty is a violation of the right not to be deprived of life 'arbitrarily', as stipulated in the relevant provisions of the human rights treaties (v.g. American Convention on Human Rights, Article 4; International Covenant on Civil and Political Rights, Article 6), with the juridical consequences that a violation of this nature carries, in other words, those pertaining to the State's international responsibility and the duty to make reparation."(Emphasis added.) The Right to Information about Consular Assistance Within the Framework of the Guarantees of Due Process of Law, Advisory Opinion OC-16/99 of the Inter-American Court of Human Rights, par. 141.7, October 1, 1999. This holding mirrors this court's own recognition that death penalty cases require "a high standard of procedural accuracy." People v. Walker, 91 Ill. 2d 502, 517 (1982).

Further, a violation of the consular notification provisions of the Vienna Convention affects both the rights of the detainee and the interests of the foreign state, in this case, the Republic of Poland. Unquestionably, Poland has a strong state interest in this case. Poland does not have a death penalty. It, therefore, is justifiably interested in aiding and assisting those of its citizens who are subject to the possible imposition of that penalty while abroad. Indeed, as the Consul General for the Republic of Poland in Chicago has frankly acknowledged to this court, it is solely because the Republic of Poland is officially opposed to the death penalty that the Polish government has intervened on behalf of defendant in this case. According to the Consul General, Poland has no intention of adopting a policy of intervention in non-death-penalty cases.

Moreover, Poland is not alone in its concern regarding violations of the right to consular notification in death penalty cases. In the case at bar, amici the Federal Republic of Germany and the United Mexican States, both signatories to the Vienna Convention, have taken the position that the violation of the consular notification provisions in the instant case must be remedied because of the severity and finality of the death sentence. Before the Inter-American Court, numerous countries, including Mexico, El Salvador, Guatemala, the Dominican Republic, Honduras, Paraguay and Costa Rica supported the principle of judicial enforcement of the Vienna Convention in death penalty cases. See The Right to Information about Consular Assistance Within the Framework of the Guarantees of Due Process of Law, Advisory Opinion OC-16/99 of the Inter-American Court of Human Rights, October 1, 1999.

I am fully aware of the procedural obstacles which confront defendant's claim in the case at bar. But this is an extraordinary case. More is at stake here than the rights of a single defendant. "The protections afforded by the Vienna Convention go far beyond [defendant's] case. United States citizens are scattered about the world-as missionaries, Peace Corps volunteers, doctors, teachers and students, as travelers for business and for pleasure. Their freedom and safety are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example. Public officials should bear in mind that 'international law is founded upon mutuality and reciprocity... .' Hilton v. Guyot, 159 U.S. 113, 228, 16 S. Ct. 139, 168, 40 L. Ed. 95 (1895). *** The importance of the Vienna Convention cannot be overstated. It should be honored by all nations that have signed the treaty and all states of this nation." Breard, 134 F.3d at 622 (Butzner, J., concurring). As Justice Heiple correctly observes, we cannot expect that the citizens of this country, while abroad, will be afforded their rights under the Vienna Convention, or indeed, under any treaty, if we do not afford those same international rights to foreign nationals here in the United States. Through no fault of its own, the Polish government is only now able to assist its citizen in his death penalty defense. It is in our own self-interest to uphold the principle of international comity, acknowledge the notification violation that occurred in the case at bar, and provide a remedy.

Accordingly, because defendant's right to consular notification under the Vienna Convention was, in fact, violated in this case; because that violation is an extremely serious matter under international law; because the sovereign state of Poland has a strong and legitimate interest in aiding and assisting its citizens who are subject to death penalty proceedings; and because it is in the self-interest of the citizens of this state to uphold the rights provided by the Vienna Convention and remedy the error that occurred in this case; I would exercise this court's equitable powers and vacate defendant's death sentence and remand for a new sentencing hearing. I would further hold that, at the remand sentencing hearing, the State may again pursue the death penalty while the Consul General may assist defendant in his defense.

I believe that the unique and compelling circumstances of this case require a remedy for the State's violation of the Vienna Convention. I express no opinion, however, on what effect a violation of the right to consular notification would have outside the context of the death penalty or the facts of this case.

*****

CHIEF JUSTICE HARRISON, dissenting:

I join in Justice Heiple's dissent. I write separately simply to express my view that regardless of the outcome on retrial, defendant cannot be sentenced to death. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, ?2). It is therefore void and unenforceable.

*****

JUSTICE HEIPLE, also dissenting:

Defendant, a Polish citizen residing in the United States as a permanent resident alien, was, along with other offenses, tried and convicted of murder and sentenced to death. This court affirmed defendant's convictions and sentence on direct appeal. Subsequently, defendant filed a section 2-1401 petition for relief from judgment and a petition for a writ of mandamus based upon an alleged violation of his rights under the Vienna Convention on Consular Relations (Vienna Convention). Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.

The Vienna Convention is a binding international treaty to which the United States and the Republic of Poland are parties. Article 36 of the Vienna Convention required the State to inform defendant of his right to contact a Polish consular official at the time of his arrest. This was not done. Upon belatedly learning of the defendant's situation, however, the Polish government has now intervened on defendant's behalf.

Although there is no dispute that the State violated the Vienna Convention by failing to provide defendant the required consular notification, the majority declines to provide defendant any relief for this violation. Because this case raises important issues of international relations and the rights of all persons, domestic and foreign, I respectfully dissent.

The State suggests that a letter of apology to the Polish government would rectify this oversight. Whether this apology would be sent before or after defendant's execution was not specified.

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 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 conviction and sentence.

The question arises, how can we expect protection under this treaty for American citizens abroad if we do not extend equal protection to foreign nationals residing in the United States? The answer is, we cannot. The decision reached in this case thus has implications reaching far beyond the execution of this defendant.

For the breach of this international convention, defendant's convictions and sentence should be reversed and the cause remanded for a new trial in compliance with the solemn treaty obligations of the United States, which, under our constitution, are the supreme law of the land.

For the reasons given, I respectfully dissent.

CHIEF JUSTICE HARRISON joins in this dissent.

*****

1. ¹Unless otherwise noted, we will refer to both treaties singularly as the Vienna Convention.

2. ²Article 36 of the Vienna Convention provides, in relevant part:

"(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 shall inform the person concerned without delay of his rights under this sub-paragraph." 21 U.S.T. at 101.

The Consular Convention provides, in relevant part:

"The appropriate authorities of the receiving State shall immediately inform a consular officer of the sending State of the detention or arrest of any national of the sending State who has not been admitted to permanent residence in the receiving State. In the case of the detention or arrest of a national of the sending State who has been admitted to permanent resident in the receiving State, the appropriate authorities of the receiving State, on the request of such national, shall immediately inform a consular officer of the sending State of such detention or arrest." 24 U.S.T. at 1260.

3. ³A Roman municipal officer who possessed "extensive equitable jurisdiction." Black's Law Dictionary 1175 (6th ed. 1990).

4. ⁴The Inter-American Court was established under the authority of the American Convention on Human Rights, a treaty which entered into force in 1978. Located in Costa Rica, the Court has seven judges, elected for renewable six-year terms by the 24 states parties to the American Convention. See generally T. Buergenthal, The Inter-American Court of Human Rights, 76 Am. J. Int'l L. 231 (1982); T. Buergenthal, The Advisory Practice of the Inter-American Human Rights Court, 79 Am. J. Int'l L. 1 (1985). The State Department of the United States actively participated before the Inter-American Court in briefing and oral argument in the proceedings on Advisory Opinion OC-16/99.

Gregory Madej