Month: September 2015

The Difficulty With Mexican Crime Investigations

I have always wondered exactly how it worked. Mexican law is based on Napoleonic Law, and before that, Roman Law. It is, I have found, an urban legend that in Mexico you are presumed guilty until proven innocent. But if the Public Ministry finds there is enough evidence (and that is a big presumption in the way things work), you will sit in prison while not evidence but “testimony” (sometime coerced) is collected, so a judge can decide by himself/herself whether you are guilty, half guilty.

Or innocent.

Napoleonic Law as practiced in Mexico does not—and I am not a lawyer—does not provide enough protections for the defendant. The accuser(s) can add to existing “evidence” and that evidence in the form of statements accumulates under loose and often incompetent controls. 80 days is supposed to be the legal limit for what is called arraigo, detention without charge. There are many problems with arraigo here in Mexico, and in other countries. There is much room for mischief.

From p. 25 in the fine study done at the University of San Diego, “Detention Without Charge” https://justiceinmexico.org/detention-without-charge-now-available/#.ViQK5m6RHP8.facebook:

“Perhaps the government could not offer a clear requirement (around arraigo) because there is none to be found in either the criminal code or the (Mexican) Constitution. In the prosecution phase of criminal proceedings, the MP (Ministerio Público) has the burden of proving guilt, but with arraigo there is no mention of reasonable suspicion, probable cause, clear and convincing evidence, or proof beyond a reasonable doubt. This lack of a clear standard of required proof makes judicial review for reasonableness impossible.”

You can read more about my visits with my friend at sterlingbennett.com

Here is the clearest explication I’ve seen yet.

By way of Mexico Voices (http://mexicovoices.blogspot.mx/)—an English translation of the article “Mexican Judicial Institutions Don’t Know How to Investigate Crimes” from the Mexican weekly Proceso, by Sara Pantoja.

“Mexico City The Ayotzinapa case (the forced disappearance of 43 students) revealed that Mexico’s law enforcement institutions are not prepared to investigate, and legal case files* are put together not [based] on scientific evidence, but in complete dependence on formal legal statements [by detainees and witnesses].”

Footnote to the article translation by Mexico Voices’ Jane Brundage: “Mexico’s criminal justice system is very different from the U.S. system based on Common Law, where criminal cases are tried before judge and jury, with witnesses questioned and cross-examined in open court. Derived from the Napoleonic Code and Roman Law, criminal proceedings in the tradition of Civil Law are carried out primarily by means of documents submitted to the court, respectively, by the Public Ministry performing its prosecutorial and investigative functions, and (the same for) the Defense Team. The Judge reviews these documents (compiled in a formal legal file, expediente) in private, then issues a series of orders, rulings and resolutions. The Judge’s first orders ground each document in the applicable law, organized in two documents: Penal Code and Federal Code of Criminal Procedures.

When the legal file is complete, the Judge analyzes the documents in the formal legal file (which can run well in excess of 500 pages) in order to determine the Final Resolution of the case: guilt or innocence.”

My friend Don Coulter added a point I should have made (how the law is supposedly changing) in a Comment, which I quote here in full.

Don Coulter

While the footnote by Jane Brundage is accurate, I’m surprised she didn’t point out that Mexico is in a period of transition toward a criminal-justice system more similar to that of the United States. I quote from an article on insightcrime.org earlier this year:

“Mexico is in the midst of implementing criminal justice reforms passed in 2008, substituting inquisitorial court trial proceedings–in which trials are conducted mainly through paperwork and defendants have few opportunities to communicate directly with a judge–with oral-based, accusatorial proceedings more akin to those employed in the United States. The objective is to bring greater transparency to court proceedings, as well as to expand the rights of the accused and institute the presumption of innocence until proven guilty.

“However, the rollout of the reforms has been slow: only four states have completely made the switch, while 25 have made partial changes. All 31 states plus the federal district are expected to implement the reforms by June 2016.” (http://www.insightcrime.org/news-briefs/experts-warn-of-challenges-to-mexico-s-judicial-reform-rollout)

Don Coulter continues: I would add that I think it’s extremely unlikely that the reforms will be fully in place by next June. And even if they are, they will hardly put an end to the institutional incompetence and corruption that plague all levels of Mexican government. One can only hope they’ll be the start of a long-term reform effort.

Sterling continues: A good companion piece to “The Difficulty with Mexican Crime Investigations” might be the September 30, 2015 New Yorker article “Mexico’s Missing Forty-Three: One Year, Many Lies and a Theory That Might Make Sense,” by Francisco Goldman. Mexico, the author suggests, may never have seen the likes of the evidentiary narrative constructed by the team of highly respected independent foreign investigators that been looking into the case. A new forensic model Mexicans may want to adopt.

Keeping Warm in Mexico

Today I got my Honda smogged at Nissan in Guanajuato. Then I drove over to the new Honda dealership and pulled into the Service entrance. A young woman in a jacket came out of an office to greet me. It was 11 in the morning, long after cars had pulled in for service. She held out her hand and said Buenos Días. I reciprocated, bowed a little the way my mother must have taught me, and brought my heels together—maybe from seeing movies. There was no click because I was wearing sandals. I did have to go to dancing school when I was about eight years old. I do thank my mother for that, since it gave me a life-long advantage over male competitors who are reluctant to or don’t know how to dance. Your value as a male leaps when you know how to dance and bow a little. The young woman was a facilitator. I told her one of my lights wasn’t working, on the left side. She went away and came back with a mechanics’ supervisor. I turned on the lights, he nodded and walked away. He came back with a mechanic. I had thought the matter was going to be complicated, involving removing a lot of things under the hood to get at the delinquent bulb. He signaled that I should open the hood. He reached in and in maybe eight seconds had the bulb in his hand. With a look of satisfaction, a detective finding key evidence, he held it up to show us all that it was blackened from the short inside it. The two men went away, the supervisor to the Parts window to inquire about the bulb. I did not expect them to have the bulb. They are a relatively new branch of Honda, plus it is my experience that in Mexico you often have to come back for something you need. I believe that comes from a culture that has learned to avoid the cost of maintaining an inventory that may not be sold. The work area was a high-ceiling shed, with big doors open at either end and a chilly wind passing through the work space. I chatted a little with the young reception woman. I am sure, aside from cleaning people, she is one of the lowest paid employees at the dealership. She had a jacket on and was clearly still cold. I stood in front of the engine looking in. “It’s pretty clean for ten years old,” I said. She agreed. The supervisor came back and said they would have the new bulb the next morning after 9. Maybe, I thought. The engine gave off heat. I was like standing in front of a very warm radiator, the old fashioned steam kind. I mentioned this to her and invited her to join me. We stood with our backs to the motor and chatted. She was a smart person, personable, friendly. And poised culturally and socially that she could stand beside an unknown gringo of years and feel relatively comfortable. If I were head of Honda, I would make sure she rose in the ranks as far as she wanted to go. I just thought I’d mention it. The moment. And where a burned out headlight bulb can lead. 

Inside a Mexican Prison, Twice

When I’m about to have a new Mexican experience, in this case visit a friend inside a Mexican prison, I like to write about it as if the event has already taken place. This way I can explore my frame of mind before the fact.

I write in the voice of my friend.

“I was seized and put in prison for [                 ]. With some pain, I stand most of the day at the door of my cell, looking across at my neighbors. One of them, they say, carried bales of marijuana in the back of his pickup from one dusty village to another, when two young horses bolted in front of him and, even at low speed, got their legs broken and had to be shot. The police came and detained the truck as evidence. When they later came to the driver’s house, they said they had found a package of the illegal herb. He said he didn’t know that hay was illegal. I say he deserved to be in prison for stupidity alone. He also never caught on that the police had taken the whole load for their own purposes, except for the one little package. Later, he received a warning: Say where the marijuana is or pay the consequences. Yesterday, while in line to enter his cell, someone stabbed him in the kidney and he died quickly.

I have to turn around every so often. There are five other men in my part of this tomb, and I have already been raped by two of them, while the other three held me down.

I would kill myself if I had a weapon. After I had put a bullet in each of my five roommates. On the other hand, maybe not. I understand their thinking—a vigilante justice, even if it was delivered through an unjust act.

They give us pills. Mine are small and pink. They lower the stress, but not the fear. When I whispered news of their crime against me, the guard said I needed to smell the shit I had left around me, and that he would slit my throat if I ever came near his family.

The pill makes it hard to link ideas, remember facts, remember anything at all about my alleged crime. I’ve just received my morning pill. I have been spitting them into the toilet for a week now. That is because I need to remember.

The American and his wife came to visit today. I knew they would avoid mentioning the charges against me. It’s better that way. It’s too complicated, there’s too much uncertainty. But the charge was still there, floating in the thick glass between us. Here’s the context. We hold the old phones and look at each other. I am bad, they are good. I appreciate them coming, but they cannot help, cannot lift the shame or save me from my roommates. I think they could see some of my pain and hopelessness. We joked as we always do. Hadn’t I paid my telephone bill? he asked. No, nor the water bill, I replied. I am glad they came and hope they will come again. Though I may not be here. If I remember something and see that I am guilty, I may take action. The only question is what action that will be—if the state wants to take my freedom away from me forever.”

***

This is what actually happened when we visited the prison.

In the parking lot, we left our valuables under the mad collection of things we keep behind the back seat of our car. We hid cell phones, house keys, credit cards, pepper spray and a jackknife. We approached the first gate—a small building, part of the main fence. Just inside the door, on the left, there was a counter, and a young guard standing behind it. Cordial greetings all around. He was friendly and professional, without attitude. As we had been advised, we present our Mexican driver’s licenses. He asks if we had knives, cell phones, any kind of weapon. We said we didn’t. He pointed at D’s black pedal pushers. He said shorts we not allowed. D. said she didn’t think they were shorts. Plus, they’re black, he said. Only guards wear black. Still, he said she might get through the next gate. Across from the counter there was a window, with a woman officer seated behind it. We stepped up to it and presented our driver’s licenses. The woman entered something into a computer. She held up a wand with what looked like an eyeball taped to the top of it and took a photo of each of us through the glass. A kind of grocery store receipt came out of the computer, twice, with our photos on our respective receipts. With those pieces of paper and our licenses, we crossed an open area and entered the main prison entrance.

At something like a wardrobe counter in a museum we gave up D’s car keys, my belt, and one other not too dangerous item, which I’ve forgotten. I stepped into little room marked “H” for Hombres, D. into one marked “M” for Mujeres. An agreeable guard frisked me. He seemed to concentrate on the top of my shoulders and my upper back. He never went down my pant legs. Out of the blue, he asked me how Mexico is treating me. Not anticipating something other than an instruction, I asked him to repeat what he had asked.

“How is Mexico treating you?”

I said I loved Mexico—which I do. He liked that.

I walked out the exit door of the frisking booth. They pointed us to stairs leading below ground. At the bottom, we walked along an underground passageway to where we could see a heavily guarded control booth in front of us. But our way was blocked by floor to ceiling bars. We had to turn right, walk thirty feet along the bars, slip through a narrow opening, then walk back along the bars until we were at the guard booth again.

There was a small square opening a little higher than head level. One at a time, we passed our driver’s licenses and grocery store receipts with photo through the opening. We were allowed to proceed. We climbed stairs and came out in the visiting area, rooms separated by thick glass and bars. A female officer took our passes and licenses through a slit below the glass that enclosed her and placed a call to summon the interno, the prisoner, the friend we were going to visit. She told us to take a seat in a line of chairs against a glass wall. It would be a minute or two.

A middle-aged woman climbed the stairs, showed her pass and sat down beside us. Our friend came through a door, saw us through the glass, beamed and waved.

I went first. A wall of bars slid to one side, just enough so that I could slip through and sit down in front of my friend, separated by thick glass and bars. He picked up his phone. I picked up mine.

“You didn’t pay your rent?” I asked.

He laughed. There was some initial embarrassment on his part and his face flushed a little.

I ask him how he was. He wore a neat khaki uniform, hair and moustache neatly trimmed. Good, he said. In fact, he looked the best I had ever seen him. His eyes were clear, he was slimmer and his color was good. I saw no sign of stress. I asked about his health. He said when he mentioned being a diabetic, they had given him a special diet, and the food was good. I asked him about his safety. No, none of that, he said. You show respect to the people around you, and you’re treated well. He said he was learning guitar, going to various classes, there were weights and a walking area. He had friends. He was in fact the picture of a happy man leading a well-ordered life.

He said he didn’t think he’s going to be in the place very long and that the matter would be cleared up. He said he had not one but two lawyers.

Some of his problem, I realized has to do with legislated changes that have not yet taken place. In practice, the law is still Napoleonic Law. You are guilty until proven innocent. Plus everything moves very slowly.

After something like five or seven minutes, the guard cut the phone and we could no longer hear each other. Continued contact requires some gesture. He put his hand against the glass, I place mine against his. Then my other hand, then his too. It is a curious moment, two men showing closeness and loyalty through thick glass and bars.

Then he visited with D. While I was waiting, several women arrived with shopping baskets packed with full food containers. Matter-of-factly, each time the guard got up and opened her door and took the basket of food and placed it carefully against the wall behind her chair—in common understanding that families should maintain contact, especially through food.

Though there was a choice in the line of waiting area chairs, the women sat down close to me—as if there was a common bond—waiting for their turn to visit.

I wondered how the food was handled. Did they search each container for a pistol? Did the men share the food with each other? How often did the women bring food? Why the drop in security? The guard seemed part of a larger family, opening her high security door and taking the food baskets to hand them on to the prisoners after their loved ones had left.