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After eight weeks of trial and six days of deliberation, an appeal with international implications may await Mexican national Bautista T. Ramirez. A DeKalb County, Ga., jury convicted Ramirez Monday afternoon of shooting Doraville, Ga., Police Officer Hugo F. Arango to death May 13, 2000, in the parking lot of the Eclipse nightclub on Buford Highway. State v. Ramirez, No. 00CR3159 (DeKalb Super. June 22, 2000). In the fray, Ramirez also shot out the eye of Eclipse manager David Contreras. The jury acquitted Ramirez of malice murder but convicted him of felony murder, two counts each of aggravated battery and aggravated assault, and one count of carrying a concealed firearm. He faces a possible death sentence. The trial featured a small army of interpreters for Ramirez, who speaks little English; allegations of police brutality; and even a little courtroom roughhousing, as attorneys tried to re-enact the scuffle that preceded the shooting. But on appeal, the focus will feature fewer theatrics and more emphasis on international law, specifically Article 36 of the Vienna Convention concerning foreign nationals’ “right to consul.” Ramirez’s lawyers Thomas M. West, Dwight L. Thomas and Keith E. Adams have maintained that nobody told their client that the convention entitled him to contact consular officials and to be informed when police notify the consulate of his arrest. At a hearing in 2001, defense lawyers asked Judge Gail C. Flake to bar the death penalty because of the violation — or at least to suppress the statement Ramirez made to police after his arrest. While acknowledging that Ramirez wasn’t informed of his Vienna Convention rights, prosecutors argued that such a lapse doesn’t create a judicial remedy. Mexico, which has no death penalty and gives high priority to keeping its nationals off death row in the United States, submitted an amicus brief on the issue. With the increasing numbers of Mexican nationals on U.S. soil, the Vienna Convention issue is becoming important. Earlier this year, the Mexican government submitted to the International Court of Justice a list of 54 Mexicans who had not received notification of their consular rights and are now on death row in the United States. The court subsequently ordered the United States to stay the executions of three of them — two in Texas and one in Oklahoma. JUDGE CITES VIENNA CONVENTION Flake denied Ramirez’s motion to bar the death penalty, but when the case reached trial, she did something defense lawyers say may turn out to be more valuable: At defense attorneys’ request, she included a section on the Vienna Convention in the charge packet she issued to jurors before deliberation. Savannah, Ga., lawyer Michael G. Schiavone, who raised a similar complaint in 2001 on behalf of his client Douglas Villegas, said this might be a new method of getting the “right to consul” issue before the courts. “I’ve never heard of that being done,” he said. “I’m pretty amazed that the court would grant that request.” Schiavone, of Jackson & Schiavone, claimed that Gainesville police officers failed to inform Villegas of his right to contact his consulate when they arrested him in connection with a 1998 drive-by shooting. Villegas was convicted and sentenced to life in prison on charges of murder and aggravated assault, among other charges stemming from the incident that was part of a turf dispute between rival gangs. The Supreme Court of Georgia upheld a lower court ruling denying Villegas’ motion for a new trial because he wasn’t informed of his consular rights. Justice George H. Carley cited U.S. v. Page, 232 F.2d 536 (6th Circ. 2000), in which the court held, “As a general rule … international treaties do not create individual rights which are privately enforceable in court proceedings.” Villegas v. State, No. S01A0567 (Sup. Ct. Ga. May 7, 2001). Schiavone said that having the Vienna Convention in the actual jury charge might prompt higher courts to take more notice of the issue. “It’s just pretty much routinely ignored by trial courts, and the appeals courts, as a rule, don’t address it much either,” he said. “It’s going to be interesting to see what the appeals courts do with this.” WHEN AN APOLOGY ISN’T ENOUGH When the higher courts have considered the Vienna Convention issue, they haven’t been especially charitable to the view that the “right to consul” is on a par with the “right to counsel.” In 1998, Angel Breard, a Paraguayan national on death row in Virginia, petitioned the International Court of Justice to order the U.S. courts to grant him a new trial because his rights under the Vienna Convention were violated. State Department lawyers countered that the treaty does not include a judicial remedy. The only available remedy, they said, was a diplomatic apology. The U.S. Supreme Court considered Breard’s argument on his habeas petition, but the court found that the Vienna Convention issue was procedurally defaulted because Breard did not raise it in the trial court. The court also rejected Breard’s contention that his case was biased by the treaty violation. Breard v. Greene, 523 U.S. 371 (1998). The 11th U.S. Circuit Court of Appeals also has refused to suppress evidence or dismiss indictments as a result of Vienna Convention violations. PATRIOTISM FAILS TO SAVE THE DAY Ramirez’s lawyers West, Thomas, and Adams now may have a chance to get the issue before the higher courts. It is an opportunity they hoped never to have. And when the jury stayed out for nearly six days, they began to speculate that an appeal in Ramirez’s case might not be necessary. From the start, the defense team argued that Arango had no reason to stop Ramirez and his cousin outside the nightclub. They said the police officer had been abusive and aggressive, smacking Ramirez on the head with his service flashlight. Ramirez, who thought he was about to be beaten or shot, fired only to get Arango away from him, they claimed. The defense team broke the closing into three sections, and each member of the team handled a portion. Adams began by arguing that this was not a murder case, but an involuntary manslaughter case. Ramirez feared for his safety, he told jurors. “There is certainly no murder or felony murder to be had here,” he said. “I say that with a straight face.” West followed, pointing out that the case should be over because the state’s own experts said the evidence from the scene showed that either the defense or the prosecution’s depiction of the scenario could be true. West scoffed at the state’s argument that Ramirez shot Arango as the officer lay helpless on his back. “Could it have happened that way?” he said. “Yeah. I could have driven here in a Rolls Royce.” Thomas came last and cited a wide array of inspirational and patriotic material, including the words of President Kennedy, Irving Berlin, the national anthem, the Gettysburg Address and “America the Beautiful.” He also referenced Solomon, Woody Guthrie and “My Country ‘Tis of Thee.” Thomas said he would use an expression his father favored to describe the fear Ramirez felt as Arango patted him down and shouted threats and profanities. “If this officer’s cutting the fool right now, what’s he going to do when he finds my gun? He’s going to go off the chain,” he said. Deputy Chief Assistant District Attorney J. Michael “Mike” McDaniel snapped a quick objection. “Is that Mr. Thomas’ father we’re hearing from? Objection,” he said. Flake asked Thomas to move on. Thomas then asked the jurors to do their part to make the United States “a nation that lives by democracy and not by hypocrisy.” And he reminded them of incidents in which law enforcement officers have gone beyond what the law they uphold permits them to do. Ramirez, he said, knew of Rodney King; he knew of Amadou Diallo. “He didn’t have to ask that question: ‘Will a cop kill you?’” Thomas said. McDaniel countered that the defense’s contentions were insulting. And he mocked the argument that Ramirez shot only in self-defense. First, he shot Arango in the leg in self-defense, then in the torso — also in self-defense? Thomas asked. “Then ‘I shot him in the head in self-defense?’ Come on,” Thomas said. The shots, he said, occurred while Arango was helpless at Ramirez’s feet, his leg shattered, his gun in his holster and his badge shattered from a close-range blast. “This isn’t self-defense,” McDaniel said. “This is an execution.” The trial entered its penalty phase Tuesday.

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