What Are Mexico's Courts Hiding? (Includes Documentary "Presumed Guilty")

By Denise Dresser, Reforma; and DD for Borderland Beat

What Are Mexico's Courts Hiding?
Denise Dresser, Reforma 

What would've happened if the trial of Florence Cassez had been public? (French woman who was arrested on kidnapping charges, but released by the Supreme Court earlier this year because of violations of due process in her arrest and investigation)

 If cameras had recorded the process that exonerated Raul Salinas de Gortari (brother of former president Carlos Salinas and millionaire charged with corruption but absolved by the courts)?

 If the outrageous  legal maneuvering against Lopez Obrador (attempt by the Vicente Fox government to remove legal immunity from the leader of the left when he was Head of Government of the Federal District, evidently to cause his disqualification for the 2006 presidential election) had been shown on television?

Something simple, easy and powerful.

Opaque processes would have become transparent. Everyone would have been able to understand the decisions taken by high authorities.

The Judicial Power would have shown how it behaves, for better and for worse. Controversial cases about which no consensus has been reached would be shared certainties, rather than rooted doubts.

The lens would place the accused, police, defendants and judges under the same magnifying glass. Cameras would help create awareness. And culture. And truth. 
 

Truth that comes from watching, step by step, what happens in a trial; considering the prosecutor's arguments; listening to the witnesses versions of events; understanding the judge's final decision.
 

When cameras are present in court, people can see if a judge handles the process well, shows biases or the verdict is impartial.
 

People can learn how the judicial system works in Mexico. A system characterized by its opaqueness, its discretionality, its lack of accountability.
 

Opening the courts to filming would make public something that should already be. Allowing cameras would be a way of upholding Article 20 of the Constitution: the one that says penal processes should be ruled by the principles of publicness. The one that says "every person will be judged in a public hearing"
 

In the United States, for example, the Supreme Court has declared that the objectives of a criminal trial improve when the public gets involved. And the benefits of open trials are obvious. 

They promote impartiality, limit the possibility of lies and perjury in court, and prevent decision based on biases or hostilities.
 

They lead to a community catharsis, like the one Mexico was never able to reach with Florence Cassez or Raul Salinas de Gortari. They satisfy demands for justice in a country were way too often people take it in their own hands. They educate about how the system works.

Perhaps because it is so poorly done in Mexico, resistance to cameras is fierce.
 

Thus, the proposal of a new National Code for Penal Procedures was proposed which prohibits the presence of cameras in court.
 

Thus, a new law that restricts their use, which it considers as dangerous as the presence of firearms.
 

Thus, the reluctance of the Attorney General's Office (PGR) to air, reveal, record or watch.
 

Thus, a new law with old restrictions. Designed by reformers incapable of emulating global best practices, of subscribing to what works in other penal systems around the world; of understanding the public benefits of something they try to lessen. The right to see, the right to know, the right to have the media cover that which concerns Mexicans

Rejecting modernization with childish arguments such as "it would make the witnesses nervous". Or it "affects the witnesses’ ability to remember the events about which they are testifying". Or it “affects witnesses’ privacy".
 

When there are studies that show witnesses would rather participate in a trial covered by the media.
 

When there are studies that show that witnesses do get nervous but would rather have the cameras and it does not affect their ability to remember what happened.
 

When it has been shown that lawyers behave better when cameras are present.
 

When it has been shown that witnesses are more likely to show up at trials where the media will be present.
 

 Quite simply, the benefits outweigh the damages. Quite simply, the PGR does not want Mexicans to see trials they have a constitutional right to see.
 

The PGR and the Senate insist on creating prohibitions when they should be regulating.
 

They insist on treating cameras as if they were as dangerous as firearms.
 

They insist on saying "no" and don't even bother to explain why. And that's only going to result in more trials that are less impartial, less transparent, less scrutinized, less analyzed.
 

The people will remain in the dark, without knowing what happens in the courts they finance with their income taxes.
 

And with the desire to ask every judge, every prosecutor, every attorney general, and every 

Public Ministry agent (investigative police): 

" WHAT ARE YOU HIDING?"
 Source

Here Is What They Are Hiding...And What Happens When You Expose It.

By DD for Borderland Beat 

The Mexican Constitution was amended in 2008 to change the trial system from an inquisitorial one--in which prosecution and defense submit evidentiary documents to a judge who decides, in private, on the accused's guilt or innocence--to an adversarial system of public, oral trials in which the accused is presumed innocent until proven guilty, and in which prosecution and defense present their arguments and witnesses testify. There are no juries. Judges continue to decide cases. By law the adversarial system is to be implemented by 2016; to date, however, it has been implemented in fewer than half the states.

Almost three years ago, the documentary Presumed Guilty revealed a corrupt judicial system. It exposed incompetent judges. Abusive police. False witnesses. Officials of the Public Ministry [investigative police and prosecutors] who accused at random because “it’s their job.” 

The film captured everything wrong with  justice in the nation. It alerted, shook, revealed and marked out the roadmap of what would have to be done so that no more innocent people would be in jail. So that Toño Zúñiga would be the exception and not the rule. So that not a single Mexican would be arrested arbitrarily, judged discretionally, imprisoned unjustly.

 The shock wave was so great that everyone predicted a turning point. Changes of vast magnitude were imagined. The hopes were founded in the authorities’ ability to accept criticism, reform themselves, act differently.

But everything that’s happened since that film was censored by Judge Blanca Lobo proves the opposite. Instead of understanding the message, the courts have chosen to kill the messenger. Instead of pushing essential reforms, such as oral trials in the Federal District [Mexico City], they have preferred to freeze them. Instead of allowing the recording of hearings they have closed public access to them more and more. Instead of changing, the judges have decided to entrench themselves.

The reality today is a system that produces more Toño Zúñigas daily. The reality of a judicial and police system that has a long road to go in order to be trustworthy, professional, transparent. 

According to a interview comparing the State of Mexico and the Federal District, which was recently carried out by Roberto Hernández and Layda Negrete in collaboration with the Center for Research and Teaching in Economics and the National Autonomous University of Mexico, today there are more innocent people in prison than there were before the premiere of Presumed Guilty.

As Denise Dressler so aptly put it in a article in Reforma;

"In both entities torturing continues in spite of the introduction of oral trials in the State of Mexico. 50 percent of people who go through the Public Ministry are required to undress during interrogation. 71 percent of those interrogated are mistreated. 40 percent are deprived of food or water. Women who are arrested are insulted with phrases like “screw your stupid mother” or “if you don’t confess I’m going to screw you” or “you’re stupid if you did commit the crime.”

And instead of fighting these terrible statistics, the Judicial Branch prefers to allow frivolous lawsuits against a film that is carrying the case to the Inter-American Human Rights System, which will lead Mexico to be condemned as Chile was when it attempted to censor The Last Temptation of Christ. 

It chooses to perpetuate stories such as the producers not having permission to film or the witness was a minor or didn’t consent to being recorded, when he knew that the cameras were there and the trial was public.

 It chooses to pass the hot potato from court to court, arguing that there is too high a “workload” or that, as the Supreme Court of Justice declared, the point is “irrelevant and unimportant.” 

It chooses to evade the problem, get away from it, kick it away instead of resolving it today.

And today the police are continuing to make arrests in an unprofessional manner, eyewitnesses are continuing to be arbitrarily presumed responsible, judges are continuing to sentence without even showing up at the sentencing, the prisons are continuing to fill with people who, like Toño Zúniga, ended up there because that’s Mexico. A place where those who denounce end up threatened, those who demand end up arrested, those who are able to imagine a better nation end up crushed by its inertia.”

The producers and reporters of the documentary Presumed Guilty faces claims for more than 3 billion pesos [US$227 million] in damages. These claims will be heard by Mexico City's Supreme Court (TSJDF), the same court whose practices are denounced in the film, which has been offered as evidence against the directors. The case was heard in Civil Court 18 on November 5, and a decision is expected in a few months.

 Initially, Civil Judge 17 had jurisdiction of the case, but he stepped down, later publically admitting that he lacked impartiality to hear the case.

The Director/Reporter Hernandez has received death threats.  "The caller told me to tone things down or else," said Roberto Hernández. "The first threat was veiled, the second directly said they would kill me."

MESSAGE FROM ROBERTO HERNANDEZ, DIRECTOR OF PRESUMED GUILTY:

"A few years ago, together with Layda Negrete, the mother of my two daughters and my partner, I had the opportunity to make a documentary called Presumed Guilty. The documentary tells the story of Toño Zúñiga; a young man unjustly sentenced to 20 years in prison for a murder that he did not commit. 

Toño would still be in jail if Layda Negrete and I had not investigated and filmed his case. The film premiered in cinemas in February 2011, and went on to become the most viewed documentary in the history of Mexico. It also received an Emmy for outstanding investigative journalism the year it was broadcast on television in the United States, where it could be viewed without problem.

However, in Mexico, the Federal Judiciary censured the film three weeks after it premiered, so starting a series of legal processes which, since then, have not ceased. 

To date, Presumed Guilty faces three civil suits seeking a minimum of three billion pesos in damages, together with amparos [orders of protection, i.e. injunctions], that question the right to air the movie on TV, cinema and DVD.

The three civil cases were brought by: Victor Daniel Reyes, the witness who falsely accused Toño Zúñiga; José Manuel Ortega Saavedra, the police officer who detained Toño Zúñiga without an arrest warrant and without evidence and the Reyes family, who complain that the documentary showed photographs, taken by experts from the Attorney General's Office (PGJDF), of the dead body of the young victim, Juan Carlos Reyes Pacheco.

Sadly, instead of changing, the authorities have preferred to use the same judicial system and its inefficiencies, to silence us. Instead of asking themselves how is it possible that Toño Zúñiga ended up in jail when he was innocent, they prefer to deny his innocence. 

Instead of apologizing to Toño for the years of his life that he has lost, the authorities prefer to discredit the movie and use it politically. 

During his re-election campaign as President of the Court, Edgar Elías Azar used the movie to obtain the vote of his colleagues. In a closed-door session with the judiciary of the Supreme Court, Elias Azar said that they should wait until the matter ´cools down´, and then find a way of showing that "this guy" (referring to Toño) had not in fact proved his innocence. 

Publically, Elias Azar has said that the Mexico City´s judiciary are portrayed in a poor light in the documentary due to clever editing.

But the reality is different from what Edgar Elias Azar wants us to believe. We know that Toño Zúñiga was one of thousands of people who have had a trial without a judge, have been accused without evidence, and arrested without an arrest warrant; one of more than 40,000 prisoners who languish in the jails of the city. 

We know, from the results of a survey that Layda and I carried out recently, that 67% of male and female prisoners in the jails of Mexico City in 2012 were sentenced even though, according to them, they are innocent.

THE INJUSTICE OF TOÑO ZÚÑIGA´S CASE

Toño Zúñiga was, together with a gang of small time drug dealers in Iztapalapa, accused of shooting and murdering a young man. Apparently, five people had participated in the murder, but the PGJDF only detained Toño. Unbelievably, they accused him even though his gun powder residue test came back negative.

They also accused him using an eye witness, a young man named Victor Daniel Reyes Bravo, who, after passing the night in a cell in the Attorney General´s office, ´remembered´ that he had seen Toño Zúñiga at the scene of the crime.  But Victor Reyes from the beginning said to the police that he didn't see who fired the weapon. 

Also, when in the trial they asked him how he knew the accused's name, he responded that the police had told him. 

In addition, during a careo, when the accused has a right to ask a witness questions, Toño asked him why he had been able to give a physical description of the other assailants, but not of him, Victor Reyes responded: "I don't want to answer that question."

The only evidence that the Attorney General had against Toño Zúñiga was a witness who did not see who fired the gun. A witness who didn't know the name of the accused, and who had not been able to describe him physically before his detention. And a negative gun powder residue test. With this evidence they accused him of murder. 

Despite the fact that the accusation was unsubstantiated, Criminal Judge 26 of the Supreme Court of the Federal District, a man named Héctor Palomares Medina, sentenced Toño to 20 years in prison.

THE FILMING: AUTHORIZED BY THE SUPREME COURT

Layda and I managed to reopen the case when we realized that the lawyer who had defended Toño Zúñiga had falsified his professional license (DD; They “realized” this after going through thoursands of pages of archives in a LA law library). On this basis, the Fifth Criminal Chamber ordered a retrial. 

A few days later, I met with an advisor of the then Supreme Court President, Guadalupe Carrera Domínguez, to propose that we film the trial. He asked me why we wanted to do this. I answered that Mexicans need to understand their justice system. I said to him that the TSJDF couldn't continue to jail innocent people, and to change this it would be necessary to make a great effort to educate the public. Guadalupe Carrera Domínguez agreed, and we got our permission to film.

A few weeks later we were filming in Criminal Court 26. We hoped that the Police would try their best to defend their investigation, but instead, José Manuel Ortega Saavedra, the police officer who arrested and interrogated Toño said that he didn't even remember the case.

    "And if you were detained by my officers and you are behind these bars, it is because you are guilty.  For some reason you are here."

This was what the officer replied when during a careo, Toño asked him with what evidence they accused him. The public prosecutor, Marisela Miranda Galván, didn't dare explain in public her reasons for accusing Toño. She presented her conclusions on a disk.

 "Because it is my job", was the answer that Toño received when he asked her why she accused him. 

Judge Palomares upheld the sentence of 20 years in prison.

This is how the authorities that decide the scope of our liberty have been, and still are operating. 

It is before the very same Supreme Court of Justice in Mexico City, whose practices we have denounced in Presumed Guilty, that Layda Negrete and I are being sued for 3 billion pesos. 

Judged with the same absurd methods that we criticize in Presumed Guilty, we will litigate for our freedom of expression. We will litigate against those that robbed Toño Zúñiga of his liberty. 

Since March of 2011, to date, there has been not one conviction against us. The long, inefficient, and absurd trial, is the authorities´ way of trying to stop anyone else from questioning them.

The process itself is the punishment.

Meanwhile, thanks to the fact that the Judiciary are not held accountable, Mexico will continue to have police who have guns, but don´t have rules. Police who have orders, but have no laws. Police with patrol cars and uniforms, but mistreated by the Attorney General´s office who commands them. And weak lawyers incapable of holding the police and Public Prosecutors, who arrest without evidence, and who obtain sentences without even having a Judge at the trial, accountable. We will not rest until this reality changes."

                       PBS POV Inerview with Roberto Hernández and Layda Negrete

The film's legal problems mostly stem from complaints from a witness who admits, on camera, that he lied about seeing the street vendor, Antonio Zuñiga, shoot the murder victim, and from the police officer who arrested Zuñiga without a warrant or any obvious grounds for suspicion.

Neither plaintiff disputes the accuracy of the documentary, arguing instead that they never agreed to appear in it and have since been insulted in public places.  

Meanwhile, the ban on showing, broadcasting or selling the film in Mexico appears to be on the point of being revoked – but only because the judge ruled the complainant had not provided "anthropometric proof" (look it up)  that he actually appears in the film.

Even though the ruling may work in his favor by allowing the film to be seen again, Hernandez’s response to the ruling was;

"It is the stupidest thing," Hernandez said. "What we need from the court is an argument about freedom of expression."       

The film-maker has directly accused the Mexico City's judicial hierarchy of secretly driving the cases against Presumed Guilty forward in an effort to exact vengeance for the way the film exposed the entire system.

Edgar Elías Azar, the city's most senior judge, has denied any kind of meddling. "We cannot shut the door to these people (the people who sued the film makers) who are looking for compensation for the exploitation of their story, their life and their image," the judge told reporters.

The issue here is not only about a documentary or what happened to a couple of people or the result of exorbitant lawsuits for 3 Billion pesos (US$227 Million).  It’s about defending freedom of expression.  It’s about defending the practice of critical journalism.  It’s about continuring to pressure a judicial system that ops for opacity instead of transparency.  It’s about issues that concern us all. 

Any Mexican who has faced a corrupt police officer, an incompetent agent of the Public Ministry, a false witness, a judge able to sentence someone but who doesn’t have to appear in court to do so.

That is what is happening every day in the streets and the prisons of the nation.  In its courts and ministries.    

A story of horror that Presumed Guilty had the courage and the decency and the honor to tell. A story that, sadly, still continues.

Trying to bring change to the judiciary  has been a difficult journey for the journalists.

“A man’s laws are written in sand.  His habits are carved in granite” - Plato

Sources (among others);
The Guardian
Mexico Voices
Borderland Beat
Reforma