The judicial system in Mexico (part III)

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I co-wrote this series of articles in 2009 with my mother, N.J. Blake, after being awarded an investigative journalism grant by the AVINA foundation. They were originally published on openDemocracy.net.

 

“Oral trials only protect the criminals.”

This is the conclusion reached by an indignant citizen of Salina Cruz, a coastal city in Oaxaca, regarding the implementation of the centerpiece of Mexico’s judicial reform. He and fellow citizens took to the streets in June 2009 – the second time in the eighteen months since oral trials were implemented in this state. They were demanding justice for a 10 year-old girl, Heidi Yoselin Basilio Gomez, who was murdered, and everyone knows who was responsible. Carlos Villavicencio Miguel killed her, apparently in a fit of rage, and confessed to the heinous crime. The citizens, and mayor, of Salina Cruz marched through the streets carrying signs reading “out with oral trials”, because they feared the defendant was on the threshold of freedom due to the “excessive protection enjoyed by delinquents” under this reformed judicial system. What use is the concept of innocent until proven guilty if there is no way of ever proving anyone’s guilt? The police and the district attorney’s office lack the investigative tools and power to carefully build a case for the prosecution. They are left only with reluctant witnesses and hearsay testimony that could never be proved beyond a reasonable doubt, at least by the standards of an impartial rule of law (which has never existed here). To Salinacrucenses, justice is a matter they don’t have to think of taking into their own hands since that is where it has always rested; and oral trials, accompanied by that foreign notion of the presumption of innocence, only allow the guilty to go free, unpunished. Could this perversion of justice as a result of dysfunctional infrastructure be the true outcome of today’s judicial reform in Mexico?

Oaxaca is a rugged, poor, staggeringly diverse state where sixteen different indigenous languages are still spoken. In 2006, the capital of the state was the site of violent protests demanding higher wages for teachers, as well as the resignation of the state’s widely despised PRI governor, who remains in power despite continued allegations of corruption. Is it surprising then that any attempt to impose a novel legal structure on Oaxaca would be not only highly inconsistent, but also viewed with knee-jerk cynicism by Oaxaqueños?

In Morelos, a state nestled beneath the Estado de Mexico and the Distrito Federal, the attempts to implement reform have been an even more ignominious misadventure than in Oaxaca. In the summer of 2009, police training courses for the new system were suspended after the first oral trial led to the quick release of a presumed car thief; as in the cases of Salina Cruz, oral trials were faulted for leading to injustice and cries of corruption led to paralysis. Even a local judge concluded that the police and district attorneys’ office lack the professional rigor necessary to conduct oral trials. Perhaps other so-called “progressive” states can provide us with a clearer, brighter, picture of this overwhelming process.

The state of Chihuahua was the first in Mexico to implement radical reform of its judicial system in January 2007, and its current civil and criminal code is considered one of the most advanced in Latin America. In fact, the model used in Chihuahua is similar to that employed in the successful, incremental reform of Chile’s judicial system – the enactment and enforcement is by district or region, rather than by type of crime. In the state of Nuevo Leon, on the other hand, the reform is proceeding more slowly as oral trials are being applied first to minor crimes statewide before moving on to serious crimes such as homicide, rape and kidnapping.

Chihuahua has experienced more violence in the past three years than almost any other state; Ciudad Juarez, a bustling city along the state’s northern border with Texas, is one of the most infamously dangerous cities in the country, plagued by murderous drug cartels and kidnapping and extortion rings. The modernized judicial system has in general been welcomed and applauded, but it is still years away from achieving the true efficiency necessary to combat such endemic criminal activity. Only 23 oral trials have been conducted since the reform came into effect, and while the written code is clear and progressive, on the ground it does little to protect or seek justice for the mayors, police chiefs, prison wardens and ordinary citizens who are subjected to the predation of drug cartels and kidnappers. Chihuahua is also confronted with the de facto operation of a parallel rule of law, one imposed by the thousands of soldiers and federal agents dispatched to the state over the past three years of President Calderon’s presidency. Human rights abuses committed by the military and police are increasingly well documented, but justice for the victims is even more elusive than in the usual dysfunctional, corrupt judicial labyrinth.

What is perhaps most revealing and fascinating about these initial experiments – after all, as one journalist recently noted, the judicial reform is “still in diapers” – is the reaction on the part of the citizenry. In Mexico, it would seem that the acquittal of a guilty man ignites more rage and indignation than the incarceration of innocent people, which is a tragic and apparently inevitable commonplace. This is a perversion of the spirit of justice promoted in most advanced democracies, where the rights of the accused are sacred; the maxim we stand by, and assume to be universal, is that we would rather ten guilty men go free than one innocent man be deprived of his liberty. But if we step through the looking glass, disorienting questions arise. Would we hold this concept so dear to our hearts if all we knew of justice was that it can only be bought, that the guilty routinely avoid punishment while the innocent suffer it? Perhaps the loss of one young man accused of robbery to the gaping maw of prisión preventiva (prison awaiting trial) is less psychologically damaging to a community than having a known murderer or rapist walking its streets. After all, “la carcel es para los pobres y los pendejos” according to that ever-quotable Mexican president, Alvaro Obregon – “only the poor and the stupid go to jail.”

Thus, the lack of protestors marching the streets during the eleven years of imprisonment of 79 indigenous men and women from Chiapas for the horrific Acteal massacre, or any number of other injustices of all shapes and sizes. On August 12, the Supreme Court finally reversed the sentences of 22 of these prisoners, admitting that the evidence used against them was falsified, and they will now be released. The story made national headlines for a day, but was quickly edged out by soccer scores, drug murder tallies and the unveiling of a statue of the young boy who is thought to have first contracted swine flu in Veracruz. But Mexican citizens, at least in places like Oaxaca and Morelos, do not hesitate to vociferously demand the full force of the law be applied to those they presume to be guilty. In the words of a journalist for a small local newspaper in Salina Cruz: “in oral trials, a person is innocent as long as one can’t prove the contrary, and meanwhile he enjoys his freedom until guilt can be proven”, which can’t possibly be done beyond any reasonable doubt. In response to this puzzling tautology, he snorts: “¿Hágame usted el re-grandísimo favor?” Are you f–ing kidding me?

Lawyers don’t necessarily have higher hopes or regard for the judicial reform. Lic. Miguel Angel Chagoyan, a law professor in Guanajuato, presented us with a stained type-written sheet when asked about the plan for reform in his home state. The rudimentary diagram shows four stages: investigation, preparatory stage, trial and sentencing, each followed by several bullet points, such as “charge”, “opening of trial”, “demonstration of evidence”, except for the final sentencing stage, which is left ominously blank. This, he told us with a sigh, is essentially the entire plan for overhauling the judicial system in Guanajuato.

The nationwide process of implementation is being overseen by a recently constituted organization with the breathtaking title of Secretaría Técnica del Consejo de Coordinación para la Implementación del Sistema de Justicia Penal (Technical Secretariat of the Committee for the Coordination of the Implementation of the Penal Justice System). Based in Mexico City, this new member of the country’s vast family of bureaucratic acronyms has been granted a shameful budget that includes a monthly rent of $404,000 pesos for spectacular, sparkling new offices on the city’s beautiful Reforma boulevard and a staff of 90 officials whose total annual salaries add up to $51,000,000 pesos. Not to mention the $12,300,000 pesos reported to the Secretaría de Hacienda y Crédito Público (Secretariat of Taxes and Public Credit) for “furnishings”, and a further $60,000 pesos spent on seven coffee machines and six mini-bars.

Aside from enjoying the facilities of their world-class offices, the STCCISJP’s employees are supposed to support the analysis and execution of the reform, which will be carried out by a committee of top politicians, lawyers, police chiefs, judges and members of the academic and private sectors. The committee will be dissolved once its members consider it to have achieved its objective, or when the deadline for implementation is reached. Perhaps they will paraphrase Zhou Enlai when pondering this point, and decide that at least two centuries will be necessary to be able to tell.

Lic. Chagoyan may be pessimistic, but he is not anti-reform; his depiction of the misrule of law today in Mexico is scathing. In his own traditional, colonial state in the center of the country (with a population close to 5 million), there is apparently not a single institution for the long-term care of the mentally insane, therefore many prison inmates are ill men and women who lack proper care. Robbery was recently added to a growing list of serious crimes (delitos graves) by the state legislature, but no differentiations were built into the criminal code. Thus, Chagoyan is currently defending a man in prison awaiting trial for an alleged theft of seven pesos. While lawyers like Chagoyan understand and can passionately articulate the need for change, their skepticism about it becoming reality can lead to paralysis. The seminars held thus far in Guanajuato to re-train lawyers have attracted small numbers, and nearly all attendees are young, with little experience.

Perhaps with time, as lawyers see the reform implemented state by state and can learn from prior mistakes, they will become more active advocates. After five years of implementation in different regions in Chile, most lawyers seem to not only have learned and accepted the new legal system, but embraced it. However, when enforcement of criminal justice reform began there in 2000, there was a national zeitgeist that pushed it forward – “as the country transitioned back to democracy, Chileans were united in their insistence that the judiciary be reformed, especially in the area of criminal justice.” Chileans were also intent to clear away the tragic, corrupt decades of disappearances and murders under the military dictatorship of Pinochet, which had completely subdued the judicial system into a subsidiary of the armed forces. While Mexico has experienced more than its fair share of corruption and human rights violations, none of it was organized enough to inspire the creation of truth and reconciliation commissions or other organs of restorative justice. The PRI’s continued and once again, increasingly dominant, role in national politics also hinders calls for digging deeper into their seven-decade reign. And while Chile coupled regeneration of their criminal justice system with demilitarization of the state and the police, Mexico is in the process of doing the opposite: the war on drugs has, and will, only augment the military’s role in society and its participation in the rule of law.

If asked, Mexicans unanimously agree that change is desperately needed and many express deep concern over growing violence and insecurity, but their unity disintegrates when it comes to discussing solutions. After all, many poorly educated Mexicans still lack even the most basic knowledge of the judicial system and its actors; according to one judge interviewed in the searing documentary, El Túnel, most do not even know the roles played by their defense attorney, the judge and the prosecutor, much less the names of those who could determine their fates. It is challenging indeed to motivate a people to demand, to fight for, the reform of a system whose inner workings are as opaque, mysterious, and immutable, as the will of God. But, to put it simply, if Mexico’s democracy is going to survive the 21st century, someone must.

 

The project that is the source of this piece was the winner of an investigative journalism grant from AVINA. The concepts, opinions and other aspects of the content of the investigation are the exclusive responsibility of the author and/or the publisher.