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 didn’t 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 country’s 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 Court’s 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 defendant’s statements to police suppressed.
The prosecutor, Deputy Chief District Attorney John Turner, said he’d never seen the Vienna Treaty used as a defense in a superior court. “It’s 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 lawyer’s 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 wasn’t told of his right to seek help from the Mexican consulate, and the detectives had no way of knowing the man wasn’t an American citizen.
“He didn’t 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 driver’s license and didn’t 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 doesn’t speak any English,” he said. “I think it’s kind of specious to suggest the police didn’t know he was a foreign national.”
Judge Simmons ruled against the motion to dismiss the case, and against the motion to suppress Chia-Duran’s 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 attorney’s 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.
If ever there was a case for the death penalty for those who molest and abuse children.
That I would gladly do. Or I would find a bunch of normal sensible people who would help me . Enough is enough with our govt ignoring what we the people have asked for. Anyone who commits crimes like this one wouldn’t need to be deported thats for d@mn sure....I would even hate to waste a bullet on scum like this . Let alone all the taxpayers money on a trial. If there is no doubt & DNA proof I would say he is guilty. Is the mother talking? I find it very strange how so many illegals understand enough English to get jobs , figure out money orders & calling cards, but then we cater to them & make it easy enough because everything is in Spanish. I remember years ago going to court in the town next to me which has many Mexicans. They all spoke good enough English outside in the lobby but when they came before the judge it was I no speaka da English... I just don’t buy this BS anymore.
You’re right about the catch 22.
To take it a step further, if all of the open border advocates demand that the police departments operate as “sanctuary cities” then the police would not ask a criminal suspect about his immigration status. If the police cannot ask about immigration status, how can anyone expect the police to know to contact a foreign consulate for a criminal suspect?
This seems like it could be a definite catch 22, although I don’t know if the police in this specific case operate as “sanctuary city.”
Liberals, whether they are open border advocates, criminal apologists, or appeasers for tyranny, apply their standard rule of “Heads I win...Tails you lose” to everybody else.
Lots of Americans don't speak English these days. If the detective had based on an investigation on the fact that he spoke Spanish, he could've been accused of racial profiling.
Yep. And I think a “sliding scale” of punishment with triggers for extenuating circumstances that increase/lessen sentences appropriately, would go a long ways towards that.
She is still alive. This is from another thread:
Illegal immigrant fails to sway judge in sex case
Chia-Duran is charged with aggravated battery and aggravated child molestation involving the then-8-month-old daughter of his girlfriend. The mother, Fabiola Delgado Mata, 20, also is charged. The baby, who is paralyzed from the waist down because of injuries allegedly inflicted by Chia-Duran, is in state custody.
I knew an EMT who worked in NYC. He said the same thing. When he was at the scene of an accident before the police showed up, fluent English was flying everywhere. As soon as the cops arrived, it was *No hablo Engles* and a translator was required.
That situation is a far cry from raping an actual child.
Some people (feminists apparently) need to get their heads out of their butts and realize that anytime it happens to someone below puberty for example, that it should always be considered a crime and IMO, execute the guy, but the girl dating a guy and choosing to sleep with him is a different matter.
This whole tactic of changing one’s mind and crying rape makes me want to puke. I see much of what’s going on in these ambiguous situations as simply an agenda to destroy men encouraged by the feminazis.
Now of course, I know some will come along and accuse me of supporting rapists, which is not the case. If it’s genuine rape, I have no mercy. I just object to the situations where a man’s life is ruined because of false accusations and that seems to happening all too frequently.
That being said, guys could exercise better judgment that hopping in the sack with any female that comes along. If he doesn’t do it, he may still be accused, but there will be no evidence to condemn him, and he is still innocence until proven guilty. Right? Right?
Guys ought to use better judgment. But all too often these days there are girls who are getting guys in trouble for saying they were raped or touched. They wait weeks even months until there is no DNA to prove it. The courts seem to take the girl's word over the guys more & more. I really don't know why.... I've been reading up on how NJ's child sex crimes was on a downward swing before they put Megan's Law into effect. They say its costing millions to have it , which I really don't understand. I read about it in the Asbury Park Press a few weeks ago. I was baffled.
With four sons, 3 of who live home & are 25,24 & 20 as soon as a new girl walks in the door I am like the police. I ask her age, where she lives , what date she was born etc. My sons get mad at me but its my house & my rules. If they don't like it they can move out. I don't even let them drink at home & if they do drink they can't let their little sister see them. I just won't have it.
I plan on avoiding the mistakes I made with my oldest daughter if I can. I want my little one to have a childhood free from as much ugliness as I can. I am too over protective so I am told but the world has gotten uglier then it was when my older ones were growing up. I didn't worry then about letting them play outside alone etc. Having my daughter at 41 yrs old was the shock & surprise of my life. I feel bad when her friends at our campground are allowed to roam all over & she isn't but I would rather her be safe then hurt. I just don't understand how some parents can let a 7 yr old go down to the river & swim by themselves. Maybe its me but I am taking no chances.
ping
That sort of motion is often needed to bind future cases and to prevent opening old ones.
Criminal lawyers are nothing more than well-dressed garbage collectors.
You're kidding, right?
They may be in America, but that don't make them Americans.
I live in the People’s Democratic Republic of Illinois, north of Chicago.
My neighbors are US citizens and don’t speak English.
They are not unique.
Bump.
Is my knife sharp enough for surgery?
If I were the police in these cases I dont know how I’d resist the temptation to shoot shovel and shutup. Except that shoot would be way to quick for this monster.
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