Serbia, in a friend-of-the-court brief filed last week in Washoe County District Court in Reno, maintains the notification would have provided Avram Nika with assistance that could have spared him the death penalty.
Nika, 41, is on death row at Ely State Prison for the 1994 killing of a good Samaritan who stopped to help him along Interstate 80 near Reno. He has yet to exhaust his state and federal appeals.
“(Nika was) particularly vulnerable to the denial of consular assistance due to his inability to speak English and his lack of familiarity with the U.S. legal system and culture,” the Baltic country’s brief says.
The failure to notify the consulate caused no mitigating evidence to be presented at his sentencing hearing — such as that he was a hard-working family man who came from poverty and was discriminated against because he was a member of a nomadic ethnic group known as Roma, also called Gypsies, according to the document.
District Attorney Dick Gammick says there was no consulate to contact because the former Yugoslavia where Nika was from was undergoing drastic change at the time. Serbia did not exist as a country then, he said, and other countries in the region came and went.
“If they can be so kind as to tell us which consulate we were supposed to notify we would have an issue,” Gammick told The Associated Press. “There was no one to contact, there was no consulate. It was a physical impossibility for us to do what he demanded us to do.”
It’s not the first time a foreign government has appealed to U.S. courts on behalf of one of their citizens who wasn’t given the benefit of their consulates.
Last month, Mexico’s government unsuccessfully petitioned the U.S. Supreme Court to stay a Texas execution to allow Congress time to consider legislation that would require court reviews for condemned foreign nationals who aren’t offered the help of their consulates. The high court rejected the request 5-4 and the Mexican citizen was executed.
Mexico protested and the United Nation’s top human rights official said the U.S. broke international law when it executed Humberto Leal for a 1994 rape and murder.
The Nevada case marks the first time Serbia has tried to enforce its rights under the 1963 Vienna Convention on Consular Relations, according to the prisoner advocacy group Reprieve based in London.
“The state of Nevada must face up to its deplorable failings in this case and order a new trial,” group spokeswoman Katherine Bekesi said, adding the Serbian consulate could have provided Nika translation, legal advice and key mitigating evidence.
Michael Pescetta, a federal public defender representing Nika, said the courts will have to decide whether Nika was harmed by a lack of access to consular services.
“We are pleased the Serbian government is interested in the case ... and we are certainly hopeful their participation will help,” Pescetta said. “It’s a situation in which enforcement by the country of its rights may be important to the litigation.”
In December 2008, the Nevada Supreme Court denied Nika’s request to overturn his conviction by a 5-2 vote.
In his dissent, Justice Michael Cherry said jurors had “an incomplete depiction” of Nika’s character because of a lack of mitigating evidence about his background. Nika’s trial lawyers should have sought help from the Yugoslavian consulate, Cherry added.
Chief Justice Jim Hardesty, who wrote the majority opinion, said it’s not clear what the consulate could have done to help Nika, especially since the victim’s wounds “evince a calculated, deliberate act” of murder.
Richard Cornell, Nika’s court-appointed lawyer from 1998 to 2008, said a state court rejected the defense’s attempt to secure funds to learn about Nika’s background. Jurors needed to know more about his culture before rendering a verdict, he said.
“The fact he’s a Gypsy is an important fact in understanding why he did what he did,” Cornell said. “All you’re doing is buying 10 more years of litigation with all of this.”
Nika was sentenced to death for shooting Edward Smith in the forehead at point-blank range. Smith was on his way home to Fallon when he stopped about 20 miles east of Reno to help Nika, whose car had broken down.