411.65 Palumbo, Rosolino/21
The Secretary of State to the Governor of Louisiana (Allen)
Sir: Reference is made to your letter of September 28, 1933, and its enclosures,32 regarding the death of Rosolino Palumbo in New Orleans on May 10, 1932.
Permit me to thank you for the documents you have submitted which have served to enable the Department to perceive the precise character of the questions of fact and of law involved in the claim presented by the Italian Government on behalf of the widow and minor child of the deceased. The essential facts as related by the Italian Ambassador in his note of July 14, 1932, are established by the evidence you have submitted. It appears that Rosolino Palumbo was taken into custody by the competent local authorities in good physical condition, that his death was a result of violence inflicted while in the lawful custody of such authorities and that the authorities responsible for his death have not been indicted. The question of international law involved is, therefore, whether there rests upon the competent authorities of the State of Louisiana the obligation to do more than has already been done in this matter.
It would seem to be clear from the statements made by the Italian Ambassador and from the evidence you have submitted that the Italian Government will not be disposed to consider the State of Louisiana has discharged its full responsibilities in the premises until it has succeeded in apprehending and prosecuting the persons responsible for the death of Palumbo, and until an appropriation of funds is made for the payment of a suitable indemnity to the widow and minor child of the deceased.
In a memorandum of July 14, 1932, enclosed with the note of July 15, 1932,33 from the Italian Ambassador, a copy of which is enclosed, Mr. Augusto P. Miceli, attorney for the Royal Italian Consul at New Orleans, expressed the opinion that notwithstanding the fact that the Grand Jury returned a verdict of a “no true bill” against the two detectives, the District Attorney under the Code of Criminal Procedure could, if he so desired, file a bill of information for manslaughter and bring the case to the courts for trial.
In his letter of April 4, 1933, the District Attorney, without citing any applicable statutes or pertinent cases, states:
“Since the Grand Jury returned “No True Bills” on all the Bills submitted by me as District Attorney to that body, as I stated in my letter of June 27th, 1932, to Honorable Richard W. Leche, Secretary to the [Page 600] Governor of the State of Louisiana, the State of Louisiana is barred from prosecuting before the Criminal Courts of the State the parties alleged to be responsible for the death and beating of the said prisoners, as, once a Grand Jury returns a “No True Bill” in a case, a District Attorney is powerless to bring the matter before the Trial Courts, as the finding of the Jury is conclusive and final against the State.”
The pertinent part of the letter of June 27, 1932, referred to by the District Attorney in the above quotation, reads:
“I beg to advise that the State is barred from further action in the matter, and according to the Louisiana law the cases are closed.”
In view of the difference of opinion I should be pleased to receive from you for transmission to the Italian Ambassador a considered legal opinion by the Attorney General of your State, approved by you, covering in a complete and convincing manner the precise legal question presented.
In the event the State of Louisiana is, as stated by the District Attorney, barred from prosecuting the persons alleged to be responsible for the death of Palumbo, may I express the hope that you will be disposed to bring the facts to the attention of the proper authorities of the State and to recommend that an appropriation of funds be made for the payment of a suitable indemnity to the legal representatives of the deceased.
The rule of international law in such cases is clear. Reference might be made to the case of Francisco Quintanilla et al. v. The United States decided on November 16, 1926, by the Commission established pursuant to the Convention of September 8, 1923, between the United States and Mexico,35 a copy of the decision in which case was enclosed with the Department’s letter of February 7, 1933. The opinion in the case reads in part as follows:
“… A foreigner is taken into custody by a State official. It would go too far to hold that the Government is liable for everything which may befall him. But it has to account for him. The Government can be held liable if it is proven that it has treated him cruelly, harshly, unlawfully; so much the more it is liable if it can say only that it took him into custody—either in jail or in some other place and form—and that it ignores what happened to him.
“4. The question then arises whether this duty to account for a man in Governmental custody is modified by the fact that the custodian himself is accused of having killed his prisoner and, as an accused, can not be made to testify against himself. The two things clearly are separate. If the Government is obligated to state what happened to the man in its custody, its officials are bound to inform their Governments. It might be that the custodians themselves perish in a calamity together with the men in their custody, and therefore can not furnish any information. [Page 601] But if they are alive, and are silent, the Government has to bear the consequences. The Commission holds, therefore, that under international law and under Article I of the Convention of September 8, 1923, the respondent Government is liable for the damages originating in this act of a State official and resulting in injustice.” (Opinions of the Commissioners under the Convention of September 8, 1923, between the United States and Mexico, pages 138–139.)
Reference might also be made to the decisions rendered in the case of Janes v. Mexico and in the case of Galván v. The United States. In the opinion rendered on November 16, 1926, in the Janes case the Commission stated:
“… The international delinquency in this case is one of its own specific type, separate from the private delinquency of the culprit. The culprit is liable for having killed or murdered an American national; the Government is liable for not having measured up to its duty of diligently prosecuting and properly punishing the offender. The culprit has transgressed the penal code of his country; the State, so far from having transgressed its own penal code (which perhaps not even is applicable to it), has transgressed a provision of international law as to State duties.…” (Ibid. 115.)
In the Galván case decided on July 21, 1927, the Commission said:
“… This case presents no difficulties. The question at issue is whether it reveals a failure of compliance with the general principle of international law requiring authorities to take proper measures to apprehend and punish a person who appears to be guilty of a crime against an alien. The Commission is bound to conclude that there was a clear failure on the part of the authorities of the state of Texas to act in conformity with this principle.…” (Ibid. 410.)
It is hardly necessary for me to add in conclusion that it is cases of the Palumbo character which make it difficult for the Department to obtain on behalf of American citizens who are similarly mistreated abroad the full measure of protection to which they are entitled under the recognized principles of international law.
I have [etc.]
[On April 13 and July 5, 1934, requests for a reply to the above letter were addressed to the Governor of Louisiana, but no reply has been found in the files of the Department of State. Aside from a note of June 27, 1934, asking whether further information had been received from the Governor of Louisiana, the Italian Government apparently made no further representations with regard to this case.]
- None printed.↩
- Neither printed.↩
- General Claims Convention, Foreign Relations, 1923, vol. ii, p. 555.↩