Immigrant sex crime: A native of Mexico, is accused of molesting an 8-month-old girl
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.
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