Notable (and nonsensical?) remedy for Vienna Convention violation

In fits and starts, the Supreme Court has been considering what must be done when foreign nationals claim violations of their consular rights under the Vienna Convention, and it will soon be hearing argument in two cases on these issues.  But yesterday, down the road a stretch, a state court judge in Virginia has taken up these issues through a notable (and groundbreaking?) ruling in a death penalty case.

As detailed in this Washington Post article, a "Vietnamese man accused of strangling a Fairfax County woman and her 22-month-old daughter will not face the death penalty, a Fairfax judge ruled yesterday, because police violated the man's Vienna Convention rights by not informing him that he could contact his embassy."  This ruling by Fairfax Circuit Court Judge Leslie M. Alden, which "came six days before the scheduled capital murder trial of Dinh Pham," is notable in part because it stems from the same jurisdiction as one of the cases to be considered by the Supreme Court.

But this ruling (which I cannot yet find on-line) has me scratching my head because of the remedy selected for the violation of the defendant's Vienna Convention rights.  The article suggests that Judge Alden simply declared the death penalty unavailable, but "rejected the more drastic option of throwing out Pham's statement to police, and he still faces two murder charges and possible life in prison."  Especially without seeing the opinion, it is hard understand the connection between the application of the death penalty and the rights violation here.  Excluding the defendant's statement or perhaps going so far as to bar the prosecution altogether might logically flow from the Vienna Convention violation, but just taking the death penalty off the table seems to be a peculiar (though perhaps safe) response.

UPDATE:  A terrific colleague was able to get me a copy of Judge Alden's ruling in Virginia v. Pham, which can now be downloaded below.  Seeing the ruling clarifies matters considerably, and also make this case even more interesting.  It appears that the defendant's lawyers moved for the preclusion of the death penalty, so arguably Judge Alden simply granted the limited remedy sought by counsel. 

In addition, the final section of the opinion speaks expressly to the appropriateness of the remedy in this case, and that section builds a fascinating (and somewhat compelling) argument based on Virginia Governor Mark Warner's recent decision to grant clemency to death row defendant Robin Lovitt.

Download phan_order_striking_dp.pdf