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The Mexican government plans to intervene this week on behalf of an accused cop killer facing the death penalty. DeKalb Superior Court Judge Gail Flake has granted permission for Mexico to file an amicus curiae brief on behalf of Bautista Ramirez, an illegal Mexican immigrant accused in the May 2000 shooting death of Doraville, Ga., police officer Hugo Arango. Ramirez’s defense attorneys already have asked that their client’s alleged confession be suppressed. At issue in the defendant’s request for suppression and the consulate’s brief is a decades-old international treaty. NOT INFORMED OF RIGHTS? The Mexican government’s amicus brief will argue that when Ramirez was arrested, he wasn’t told that he had the right to have authorities notify the Mexican consulate of his arrest and then consult with a consular representative. Failing to tell him of that right, the brief will contend, violated international law set out at the 1963 Vienna Convention on Consular Relations. Mexico’s brief will support a motion made in November by Ramirez’ defense lawyers, who argue that a Vienna Convention violation warrants a judicial remedy: the exclusion of a confession that Ramirez allegedly gave police shortly after his arrest. In an amended motion filed last Wednesday, however, Ramirez’ defense lawyers asked the judge for an even stronger remedy: Prohibit prosecutors from seeking the death penalty. In support of that, they cite a 1999 opinion from the Inter-American Court of Human Rights, an international tribunal, that concluded capital punishment should be barred when Vienna Convention provisions are violated. Mexico’s local Consul General, Teodoro Maus, says his country became involved in the DeKalb case primarily because Ramirez faces the death penalty. “We don’t believe in capital punishment,” Maus says, adding that preventing the execution of Mexican nationals in this country is a “top priority.” Mexico has no death penalty. Maus’ Jan. 23 letter to Flake seeking permission to file an amicus brief says 45 Mexican nationals face execution in the United States, and most of them were never told of their right to consular notification. “We are not there to judge if [Ramirez] is innocent or guilty,” but to ensure that due process has been followed, Maus says. And following due process, Maus and Ramirez’s defense lawyers contend, includes following the provisions of the Vienna Convention. Article 36(1)(b) of that treaty, signed by more than 140 nations and ratified by the U.S. Senate in 1969, provides that when foreign nationals are detained, the detaining country must notify them of their right to see and communicate with their consular representative “without delay.” PROSECUTORS DISPUTE TREATY EFFECT DeKalb prosecutors acknowledge that Ramirez was entitled to that notification, but they dispute that there is a judicial remedy available when a violation occurs. In the last three years, Article 36, or the “right to consul,” as it is sometimes termed, has been raised in numerous U.S. death penalty cases involving foreign nationals. Alleged violations in specific death penalty cases have sparked suits brought by Paraguay and Germany against the United States in the International Court of Justice. And in Georgia, the same issue is coming up more frequently in the state’s trial courts. Though it is more likely to be cited in death penalty cases, Atlanta Braves shortstop Rafael Furcal tried to get a DUI charge dismissed because he wasn’t notified of his right to consult the consul, says an official with a state prosecutors’ group. In the Ramirez case, what’s at stake is a statement that Ramirez reportedly made to police shortly after his arrest. Doraville police told the Atlanta Journal-Constitution that Ramirez waived his right to a lawyer and confessed to the shooting of Arango. He allegedly said Arango had found a 9 mm handgun while searching him and that he shot the officer out of fear Arango would shoot him. Police have said Ramirez shot the 24-year-old detective four times, “execution-style,” outside the Eclipse nightclub in Doraville, then fled. He was captured in a wooded area of Cherokee County after a huge manhunt by authorities. His current defense lawyers — Dwight L. Thomas and Thomas M. West — claim that, had Ramirez been told he could consult with his country’s officials, he would have done so. Any custodial statement their client made “during his unadvised, uncounseled interrogation by law enforcement officers” should be suppressed, they argue in a Nov. 15 brief. Thomas says the Vienna Convention, like other treaties to which the United State is a party, is the supreme law of the land and must be followed. UNAWARE OF ‘MIRANDA’? Talking to consular officials, Thomas says, can provide a defendant with someone who speaks their language and understands the cultural differences between the two countries. “Some countries,” he says, “think you have to talk to police,” while in America, Miranda rights are “part of our psyche.” When arrested abroad, he adds, “the first thing we [Americans] want them to do is call the embassy.” The Vienna Convention deals primarily with the exchange of consuls between nations, as well as those officials’ duties, privileges and immunities. But Article 36, Thomas and West contend, confers on foreign nationals an individual right that must be respected and enforced as an integral part of due process. And enforcement entails remedies for violations, they argue. Out of the federal district and appellate courts and state trial courts that have considered the issue of remedies for Vienna Convention violations, only one trial judge has suppressed evidence, says Senior Staff Attorney Charles C. Olson of the Prosecuting Attorney’s Council, a state-funded group that assists local district attorneys. Olson says he’s made something of a career recently in opposing a flood of motions raising Vienna Convention violations. The problem, he argues in a brief he co-signed with DeKalb prosecutors, is that defenders incorrectly conclude that remedies available in instances of denials of the right to counsel should be equally applicable in instances of denials of “the right to consul.” Police aren’t obligated to stop their investigation or questioning until a defendant consults with a consular official, Olson argues, nor is a consulate obligated to respond. The only obligation that authorities had, Olson’s brief says, was to inform Ramirez that they would call the consulate if he made such a request. “That is far different,” the brief adds, “than such generally recognized fundamental rights such as the rights afforded to an accused under Miranda v. Arizona.” And, in Ramirez’ case, the state’s brief contends that there may not be a Vienna Convention violation. In a footnote, the brief says that the Mexican consulate was aware of the defendant’s situation and had communicated with police before and after the arrest. VIRGINIA CASE The Vienna Convention issue made international headlines in 1998, in connection with the impending execution of a Paraguayan by Virginia for a 1992 murder. Two weeks before the scheduled execution of Angel Breard, Paraguay filed suit at the International Court of Justice, arguing that because of Vienna Convention violations, Breard should get a new trial. State Department attorneys responded that nothing in the treaty or the history behind its creation contemplated a judicial remedy. The only remedy, they argued, was a diplomatic apology. The world court ruled that the United States should halt Breard’s execution until the tribunal could consider the case. A petition for writ of habeas corpus filed by Breard and an application for a stay filed by Paraguay came before the U.S. Supreme Court. The court declined to stay his execution, and he was put to death on April 14, 1998. The Vienna Convention issue, the court found, was procedurally defaulted because it had not been raised in the trial court. The court rejected Breard’s claim that he was prejudiced by the treaty violation. His argument that, had he talked to consular officials he would have accepted an offer to plead guilty in exchange for a life sentence, was speculative, the court found. The court added that “[e]ven were Breard’s Vienna Convention claim properly raised and proven, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.” Breard v. Greene, 523 U.S. 371 (1998). The case did prompt the U.S. State Department to begin a campaign to inform law enforcement officers of the need to comply with the Vienna Convention’s provisions. The issue has surfaced only once before Georgia’s appellate courts. The Georgia Court of Appeals last year considered the request for an out-of-time appeal on behalf of a Columbian who pleaded guilty to misdemeanor shoplifting years ago, then found himself subject to deportation because of immigration law changes. The court declined to address the Vienna Convention issue because no evidence on the matter was a part of the appellate record. Rodriguez-Martinez v. State, 243 Ga. App. 409 (2000). The 11th U.S. Circuit Court of Appeals has considered the issue, however, in an appeal involving the captain and crew of a ship in which U.S. authorities discovered 46 bales of cocaine. In U.S. v. Cordoba-Mosquera, 212 F.2d 1194 (2000), the court followed the lead of other circuits in refusing to suppress evidence or dismiss the indictment as a remedy for Vienna Convention violations. The panel added, “Even if the remedies requested by defendants may be available in some cases involving Article 36 violations, those remedies are not available absent a showing of prejudice.”

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