Pubdate: Sat, 17 Oct 2009
Source: Wall Street Journal (US)
Page: W1
Copyright: 2009 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: David Luhnow

PRESUMPTION OF GUILT

In Mexico's Dysfunctional Legal System, an Arrest Most Often Leads to 
a Conviction. How One Street Vendor, Wrongly Convicted of Murder, Won 
His Freedom.

Mexico City - Antonio Zuniga's life changed when he went for a walk 
on Dec. 12, 2005. As he crossed a busy Mexico City avenue, two burly 
cops grabbed him from behind and shoved him into a patrol car.

So began a nightmarish journey into Mexico's legal system that seems 
lifted from the pages of Franz Kafka. For nearly two days, the street 
vendor was held incommunicado and not told why he was arrested. His 
questions met with hostile stares from detectives, who would say "You 
know what you did." He says in an interview that he only learned of 
the charges after walking into a holding cell and being asked by a 
prisoner: "Are you the guy accused of murder?"

Mr. Zuniga, then 26, was charged in the shooting death of a gang 
member from his neighborhood. Ballistic tests showed Mr. Zuniga 
hadn't fired a gun. Dozens of witnesses saw him working at his market 
stall during the time of the murder, which took place several miles 
away. And he had never met the victim. Still, he was found guilty by 
a judge at trial and sentenced to 20 years in prison.

Mr. Zuniga's case is not unusual in Mexico. Crooked cops regularly 
solve cases by grabbing the first person they find, often along with 
a cooked-up story from someone claiming to be an eyewitness. 
Prosecutors and judges play along, eager to calm a growing public 
outcry over high crime rates and rising violence from Mexico's war on 
illicit drug gangs. In practice, suspects are often presumed guilty. 
More than 85% of those charged with a crime are sentenced, according 
to Mexico's top think tank, the Center for Investigation and 
Development, or CIDE.

Mr. Zuniga's story has a twist. His plight attracted the attention of 
Roberto Hernandez and Layda Negrete, a married pair of lawyers who 
are also graduate students at the University of California at 
Berkeley. The couple took on his case, won a retrial, and in a stroke 
of luck, convinced a Mexican official to let them film the ensuing 
trial, which lasted for more than a year.

The result is a 90-minute documentary called "Presumed Guilty" that 
offers a rare--and chilling--glimpse of Mexico's dysfunctional legal 
system. The film was an official selection at the prestigious Toronto 
Film Festival, and won top documentary honors at Mexico's Morelia 
Film Festival. Festival organizers decided to screen it in the city's 
central plaza, where 2,000 people turned up to watch. At a screening 
in Mexico City on Thursday night, the audience gave a standing 
ovation. Many were in tears.

Unlike the U.S., Mexico's legal system has no jury trials. In the 
majority of cases, there are also no oral arguments, meaning lawyers 
don't stand in front of a judge to plead their client's case. Judges 
usually never meet the accused. Everything is done via paperwork. 
Judges are subject to a Napoleonic code of justice, meaning laws are 
strictly codified, leaving them little room for judgment.

Most Mexicans have no idea what happens in a courtroom. Only specific 
parts of a trial are open to family members and others. The rest, 
including evidence for or against the accused, is sealed to the 
public until the case is closed.

The film offers viewers a front row seat to an ordinary case. The 
result is not pretty. When asked by one of Mr. Zuniga's defense 
lawyers what evidence he has against Mr. Zuniga, the detective in 
charge of the case says: "He's here (in prison), right? He must have 
done something." Asked by the lawyer why she was prosecuting an 
innocent man, the prosecutor says with a weak smile: "It's my job."

Mr. Zuniga lost the retrial. The footage of the proceedings from the 
documentary, however, was so shocking that a panel of judges on an 
appeals court freed Mr. Zuniga. The prosecutor did not respond to 
requests for comment.

Both Mexico City's police department and the Supreme Court said they 
could not comment on Mr. Zuniga's case or judicial matters in general.

For Mr. Hernandez and Ms. Negrete, this is the second time they have 
led to the release of an innocent man. In 2005, they filmed a 
14-minute video about the legal system that featured a young man 
wrongly accused of stealing a car. He was released soon after.

"It's an expensive way to fix injustice in Mexico," says Mr. 
Hernandez, 34. The pair hope to pass a law allowing every criminal 
trial to be filmed. They have a Facebook page called Lawyers With Cameras.

Someone committing a crime in Mexico has only a two in 100 chance of 
getting caught and punished, according to Guillermo Zepeda, a CIDE 
scholar. A big reason is that just 12% of crimes are reported to the 
police, Mr. Zepeda says. In a big deterrent, police ask many people 
who report crimes for money to solve the case or become suspects 
themselves, Mr. Zepeda says.

According to a survey of 400 criminal cases in Mexico City carried 
out by National Center for State Courts, a U.S. nonprofit, in nine of 
10 cases, suspects were found guilty without any scientific evidence 
like fingerprints or DNA. In more than six of every 10 cases, 
suspects were arrested within three hours of the crime, leaving 
little time for serious detective work, according to a study from 
CIDE, a top Mexican graduate school. Almost none were shown an arrest 
warrant, the study said.

Mexican cops lack access to basic forensic equipment, and Mexico 
lacks a comprehensive national fingerprint database. Most police 
officers are judged on the number of arrests they make, not whether 
they arrest the right person. The same goes for prosecutors. "You 
want a good career? Accuse, Accuse, Accuse," one Mexico City prosecutor said.

Simply being accused is bad news. Because Mexico doesn't allow bail 
for serious crimes, an estimated 42% of Mexico's inmates languish in 
jail without having faced trial--some 90,000 people, according to a 
study by the Open Society Institute, the New York based non-profit 
funded by financier George Soros.

The medieval legal system is a major handicap for the country as it 
tries to modernize and bring to heel powerful drug gangs that have 
declared war on each other and the government. An estimated 13,500 
people have died in the carnage since President Felipe Calderon took 
power in December 2006. Mr. Calderon has won praise for deploying 
45,000 army troops to press the war against the cartels. But analysts 
say the offensive will stall without meaningful reform to police 
forces and the court system.

Public Security Minister Genaro Garcia, Mexico's top cop, is 
embarking on the first, with a goal of replacing virtually every cop 
in the next 15 years with college-educated policemen. Last year, 
Congress amended the Constitution to incorporate the presumption of 
innocence into modern Mexican law, as well as allow oral trials in 
most cases. The problem: Mexican states have until 2016 to implement 
the changes.

As part of that reform, the Calderon government won a change allowing 
police to detain suspects without an official warrant for up to 40 
days, from just two days previously. The government argues it needs 
to do this for the drug war. Having won that concession, however, 
advocates say the Calderon government is now dragging its feet in 
implementing the judicial reforms that might make cops and judges 
more accountable.

"Right now, the government is going for security instead of justice. 
But security and justice are linked," says Ernesto Canales, a 
prominent commercial attorney, Mexico's leading crusader for judicial 
reform and the man who sponsored "Presumed Guilty" together with the 
William and Flora Hewlett Foundation and other donors. If ordinary 
Mexicans can grow to trust police and the courts, they are much more 
likely to work with authorities to catch drug gang members, he says. 
And until Mexican cops learn how to investigate, they'll never be 
able to penetrate drug cartels and dismantle them.

Mr. Calderon's office did not respond to requests for comment.

In Mr. Zuniga's case, he was accused of murder based on the testimony 
of a single person and nothing else. That person, it turned out, was 
the cousin of the gang member who had been killed and was arrested as 
a suspect shortly after the shooting.

The suspect, Victor Daniel Reyes, initially told police in two 
separate interviews that his cousin was shot by three other gang 
members, nicknamed Luis, Ojitos (Little Eyes), and Crucitos (Little 
Cross). He said Luis, the gang leader, fired the gun. He never 
mentioned Mr. Zuniga, according to court testimony.

The day after the murder, police took Mr. Reyes to the neighborhood 
to find the three gang members. After hours of searching, Mr. Reyes 
pointed to Mr. Zuniga crossing the street. "He did it," said Mr. 
Reyes, according to court documents.

Only in his third interview with police, after Mr. Zuniga was 
arrested, did Mr. Reyes mention Mr. Zuniga by name as the assassin. 
The three gang members originally described as the murderers were 
never arrested by police, or questioned. The police released Mr. 
Reyes after he named Mr. Zuniga. Mr. Reyes couldn't be located to comment.

"When they first grabbed me on the street, my first thought was 'I'm 
being kidnapped,'" Mr.Zuniga said during an interview at a Mexico 
City restaurant. "I didn't even know they were cops until I heard 
voices on their scanner."

It was during his first police interrogation that Mr. Zuniga says he 
missed his opportunity to get out of his predicament. After he 
repeatedly insisted he was innocent, one of the police sidled up to 
him and suggested he could make the whole thing go away by offering 
them money, and lots of it. But Mr. Zuniga said no, in part out of 
principle and in part because he didn't have much money. "You just 
blew it," the cop said, according to Mr. Zuniga.

In the three months it took for Mr. Zuniga's case to come to trial, 
he was sent to Mexico City's rough Reclusorio Oriente prison. He 
shared a small cell with 20 inmates. He slept on the floor, under a 
cabinet. Cockroaches climbed over his face at night.

His girlfriend, Eva Gutierrez, threw a party to raise money so that 
Mr. Zuniga, who goes by his nickname Tono and left school in the 8th 
grade, could buy food in prison--something most inmates have to buy. 
A local man hired to help with the party turned out to be Marco 
Antonio Arias, the man who won his freedom thanks to Mr. Hernandez's 
first documentary. When Mr. Arias found out what the party was for 
and heard Mr. Zuniga's story from Ms. Gutierrez, he put her in touch 
with Mr. Hernandez and Ms. Negrete.

The couple didn't think they could free Mr. Zuniga, but hoped to 
publicize the case by making a video. "The first thing they told me 
when we spoke on the phone was 'you're screwed,'" says Mr. Zuniga.

Upon reviewing his case, the couple realized that his lawyer at the 
trial was not even a lawyer; he had forged his legal identification. 
That was enough to ask for a retrial. In Mexico, retrials go to the 
same judge as the initial ones.

The documentary footage follows what happens next. The judge, Hector 
Palomares dons his robe this time around and sits behind a makeshift 
desk. Mr. Zuniga says Mr. Palomares never emerged from his office at 
his first trial. Mr. Palomares declined to comment for this article.

At one point, the witness, Mr. Reyes, is asked by one of Mr. Zuniga's 
defense lawyers to describe the three gang members whom he'd 
originally accused. He describes each one. Asked to describe Mr. 
Zuniga, the man he later accused, he can't.

The detectives who arrested the street vendor and handled his case 
testified, but claimed they didn't remember anything. "We have a lot 
of cases," says Jose Manuel Ortega, the lead detective, shrugging his 
shoulders. "I can't remember all of them." Mr. Ortega declined to comment.

At the height of the retrial, Mr. Zuniga confronts his accuser 
face-to-face. As the pair talk in stilted tones and pause so a 
stenographer can transcribe each word, the drama builds. Finally, Mr. 
Reyes admits he never saw who killed his cousin.

But Judge Palomares upheld his initial guilty sentence.

"It was like a kick in the stomach," said Mr. Zuniga in the 
interview. "It was my life they were throwing away." He had been in 
jail for nearly three years at that point.

Mr. Hernandez and Ms. Negrete took the case to the appeals court. 
They showed the footage of the trial. After seeing the footage an 
appeals court judge pushed hard to get him released. Mr. Zuniga was 
freed on April 3 of last year. Other inmates were so amazed that they 
kept asking him to see his release paper, to touch it.

He is not entirely free from his ordeal. A few months ago, he got a 
text message on his cellphone: "Don't worry. We'll soon get you back 
in here where you belong." He says he didn't want to the number back, 
out of fear. He says he has gone into hiding, to protect Ms. 
Gutierrez, who is now his wife, and their baby girl.

Judge Palomares is still on the bench in a Mexico City court. 
Detective Ortega is still an active duty cop.
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MAP posted-by: Richard Lake