Posted on 06/15/2007 5:09:53 AM PDT by DogByte6RER
International treaty used in motion to dismiss molestation case
By Daniel Silliman
dsilliman@news-daily.com
Published: June 13, 2007 11:05 pm
Even the defense attorney admitted it was a long shot.
Citing an international treaty, Stephen Mackie argued charges of aggravated child molestation, aggravated battery and cruelty to children should be dismissed because police didnt tell the accused man he could seek advice from the Mexican consulate.
According to the Vienna Convention, signed in 1963, foreign nationals have to be advised of their right to seek legal council from their countrys consulate, when they are arrested.
Mackie said the requirement -- sort an international version of Miranda rights -- said the consulate officer could help the defendant navigate the unfamiliar laws of the country and explain the rights of the individual, such as the right to remain silent.
The United States Supreme Courts rulings on the application of the treaty are mixed, Mackie told Clayton County Superior Court Judge Matthew Simmons. I know the law is against me, as it currently stands, but that could change, Mackie said. A second pre-trial motion, citing the same international treaty, asked to have the defendants statements to police suppressed.
The prosecutor, Deputy Chief District Attorney John Turner, said hed never seen the Vienna Treaty used as a defense in a superior court. Its just something you rarely see, or in my case, never, he said.
The defendant, Eligio Chia-Duran. Chia-Duran, wore a black headset, during the proceedings, and listened to his lawyers arguments through a translator. Wearing a red, Clayton County Jail jumpsuit, he occasionally looked over his shoulder to glance at the two Forest Park Police Department detectives who arrested him the day after Christmas.
Chia-Duran. Chia-Duran, a native of Mexico, is accused of molesting an 8-month-old girl. When the girl was brought to Southern Regional Medical Center, on Dec. 25, she had 30 bruises on her body, her ribs, vertebrae and skull were fractured, leaving her paralyzed. She had blood in her diaper, her brain was bleeding, and physical evidence suggested she had been molested.
Turner said about 100 pages of single-spaced medical records, verified by more than five doctors, is unrefutable evidence against Chia-Duran. Chia-Duran faces a possible maximum sentence of 60 years in prison.
Turner argued there was no evidence of harm or prejudice, because Chia-Duran wasnt told of his right to seek help from the Mexican consulate, and the detectives had no way of knowing the man wasnt an American citizen.
He didnt tell police he was a foreign national, Turner said. The police dealt with him they way they would with any citizen.
Detective Kelvin Jackson said, after the hearing, that he knew foreign nationals had to be told of that right, but the man had a South Carolina drivers license and didnt give him any reason to think of the Treaty of Vienna.
Mackie, a privately-retained attorney from Sandy Springs, Ga., said the argument was only a pretense. The man doesnt speak any English, he said. I think its kind of specious to suggest the police didnt know he was a foreign national.
Judge Simmons ruled against the motion to dismiss the case, and against the motion to suppress Chia-Durans statements to police. He did grant Mackie a month continuance, in the case, to allow him time to review medical records and consult a medical expert.
The prosecution and defense are in talks about negotiating a plea. Turner said the district attorneys office has agreed to a 15-year sentence, if Chia-Duran pleads guilty by Friday, June 22.
The trial is set to begin next month.
Shoot, Shovel and Shutup - I've never heard that expression before. It's a good one.
The sad thing is that today it would have to be quick or he would be out of jail in 3 or 4 years. You know, violins playing, tears streaming - poor, poor man was so mistreated when he was growing up that we have to understand and give him another chance.
So, even if it's quick it's best to send him to God so he can use that ticket he purchased when he harmed that baby. The train's waiting and he has a lot of fellow passengers........
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
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