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Posts Tagged ‘presumption of innocence’

It occurred to me, while walking along through my little colonial city again, that Mexico could be described with a few words: impunity, the absence of just law, corruption, the gracefulness of its people, kindness, cordiality, and the seamless connection with history. My friend is still in prison. There were several dates that he was supposed to have committed his crime. After eight months of captivity, he finally had a hearing. The prosecution dropped all but one of the dates, because of the lack of credible evidence. The one date, for which he could serve ten years, he was off on a cabalgada. That’s when sometimes hundreds of men mount their horses and head off into the mountains on pilgrimages. They camp, talk together, tend their horses, worship at this or that shrine, enjoy each others’ company. These rides can be as large as 1,500 men. It is one reason an invader should think twice about undertaking an infantry incursion into Mexico. One of the meanings of cabalgada is cavalry raid. There are thousands of Pancho Villas and Emiliano Zapatas living in Mexico. My friend is one of them. There is nothing he loves more than to mount his horse (kept in a stall near where our car is parked) and head off with a few of his friends into the mountains that begin five minutes from our house.

The point is that there are a great many witnesses who can testify that he was with other horsemen, many of them his friends, at the time he was supposed to have committed his crime. And yet the State prosecution is reluctant to admit the testimony of these riders and friends. To save face? To keep the prisons full, their jobs necessary? Out of spite? Because they can? Because they are lazy? Because someone has gotten to the judge? The way things work, it could be another eight months before he has another hearing. Mexican judicial procedures were supposed to have been modernized by a law passed in 2008. Cases would be handled by open oral argument, and there would be the presumption of innocence. But things have not changed very much. The State prosecutor collects statements, the hands of the clock turn every so slowly, months go by, there is no speedy resolution with burden of proof on the prosecutor. In fact, over time, and because the prisoners sit in prison, the burden is perceived to have settled on him. After all, he would not be in prison if he weren’t guilty of something.

 

And so my friends is desperate, anxious, feeling trapped, forgotten and feels doomed. His daughters and grandson visit him daily, bringing him food and encouragement and love. They have become his most reliable and, in my opinion, capable lawyers.

He is one of Mexico’s many victims of corrupt law, uncaring law—law without justice.

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There are some who say that Napoleonic Law reigns in Mexico: i.e. the concept that one is just as likely guilty as innocent, until one proves one’s innocence. I thought that might be an urban legend or just a little comparative nationalist propaganda against Mexico. After all, what have we known about Mexico, right from the start, is what we learned from Humphrey Bogart in “The Treasure of the Sierra Madre” – that Mexicans are all uneducated bandits out to cut your throat for stealing their gold.

To settle these matters, I looked up the Mexican Constitution of 1917, Article 20, Section V, which reads: “Se le recibirán los testigos y demás pruebas que ofrezca, concediéndosele el tiempo que la ley estime necesario al efecto y ayudándosele para obtener la comparencia de las personas cuyo testimonio solicite…”

One of the brightest young academics I know here in Guanajuato – in fact, one of the brightest I have ever known anywhere – read the sentence and pronounced it guilty, that is, grammatically wrong. In literal (tortured) English, the sentence would read something like this: “They will be received to him (the accused, or implicated) the witnesses and other proofs which he offers, giving him the time and help he needs to obtain the appearance of persons whose testimony he solicits.”

Something like that. A more conscientious scholar would establish a more flowing translation of this important passage. But it has been 91 years since the sentence was written, and I don’t have the document in front of me at this very moment.

I took the text to my Spanish teacher, person of much education and reading. I asked, “Is testigos, i.e witnesses, nominative or accusative?” Now, some people might despair at that question. I could have asked, “Is testigos the subject or the object of the sentence.” Even this formulation can cause hyperventilating.

My teacher, whom I will call Carolina, began to argue with me, and I with her. She is a lovely woman, and we care for each other a great deal. The quality that recommends her most is her explosive laughter when I read her a truly dumb joke from one of Por Caton’s daily columns in The A.M.

We reach a tentative grammatical truce, and switch to content. She contends that Article 20, Section 5 implies the presumption of innocence. My secret opinion is that it does not – merely that, in the language of 1917, using the abominable impersonal reflexive, “It will be granted to one the opportunity to call witnesses, gather evidence, and confront one’s accusers,” no matter how capricious, malevolent, frivolous, scheming and without merit the accusation. In other words, if someone decides to accuse you of something, you already find yourself in a limbo between guilty and innocent.

I use the words I have learned in order to preserve our friendship. I say, “Me rindo” – I offer my surrender. Right away she sees through my strategy, but accepts anyway.

At home, I write to higher authorities, two professors of Spanish at the university where I used to teach. I asked, “Is testigos the object or the subject of the sentence. One replies. She recounts the history of civil rights between the War of Independence and The Revolution. During those hundred years, one could not call witnesses or present evidence, let alone confront one’s accusers. She suggested I read John Reed about Mexican interest in Russian efforts to write a constitution at that time. She asked me if her reply had changed my thinking.

I wrote back, thanking her and saying what I had wanted to know was whether testigos was nominative or accusative, and that therefore, no she had not changed my thinking. I did not hear from her again. The other professor, an expert on language, did not reply at all. I wrote to my former German Department colleague. He is good in Spanish and deeply interested in the ins and outs of grammar. He did not write back.

I mentioned all this to my wife. I chose a poor time to ask her – before breakfast. She said, “First we have to establish a method for analyzing this sentence.” I had shown her the sentence. I mentioned my suspicion that our former colleagues might not know the answer to my question. I also told her I had to do several things immediately before some workers arrived. But she had already begun reading the sentence.

I am proud of my wife. She has terrier blood and does not let go. “I have to water my seedlings before the workers come,” I said, and left the room. She continued chewing on the sentence. Her field is philosophy, an area of studies that was once not entirely unrelated to philology. Friedrich Nietzsche is a good example of that combination. He was appointed professor of classical philology at the University of Basel at the age of 24.

By now I was one story lower, on the patio, heading for the garden. She appeared in a French door. “Come back here!” she commanded. I could have said, “Me rindo.” But I know she wouldn’t have bought it. Plus, I had no intention of returning. “Take it then!” she said, and threw Article 20, Section V out the French doors, from the level above me.

The sheet of paper, with the impersonal reflexive construction and the unknown case of the word testigos fluttered downward like a lost feather, and onto the patio where I was standing. Her words hung in the air. The workers had just then filed in behind me and had witnessed – as testigos, witnesses – the charged moment, the accusatory tone of my wife, and me as the object of it. I decided to assume that the dignity of my age would protect me from any doubts they might have about my manhood.

I wrote my Mexican writing partner, a bright literary person, asking him the question that so many before him had not been able to answer. He wrote back:
El testigo
Del testigo
Al testigo
Al testigo
showing me that testigo could be any of four grammatical cases. He had declined the word, as if it had been Latin. I wrote back that I had wanted to know its function in the sentence from Article 20, Section 5. He replied that grammar was not one of his strengths.

The grammatical storm between me and my wife blew over quickly. I went on line and found a 40-page academic paper on the history of the impersonal reflexive construction. The astute writer concluded by saying it was still impossible to give a definitive explanation of how it worked. He mentioned scholars had been struggling with it for two hundred years.

That night, in bed, beside my sweet wife, looking for something soporific, I opened one of the books that, added to all the rest, threatens to collapses my night table. It was “Instrucciones para Vivir en México,” by Jorge Ibargüengoitia, a favorite son and rascal of Guanajuato. My heavy, slowly closing eyes moved down the page until they arrived at the bottom and took in the following short passage. “Vamos a suponer que a Veracruz, en vez de llegar Cortés, llegan los pilgrims,” Let’s assume that instead of Cortés arriving at Veracruz, it’s the pilgrims. It continued: “Mi impresión es que la cena de acción de gracias, en vez de comérsela los ingleses, se la hubieran comido los indios, y en vez de guajalote hubieran tenido pilgrim,” My impression is that the thanksgiving feast – rather than being eaten by the pilgrims – would have been eaten by the Indians, and that instead of turkey, the (the Indians) would have eaten pilgrim.

My eyes opened a little, but it was a false alarm. And I hope you will pardon the digression. It was a simple case of the reflexive, not even of the impersonal reflexive – and therefore not sleep disturbing. It was more like “Está para comersela,” “She’s a real dish,” and we’re doing the appreciating.

I showed the pilgrim example to my teacher, and we relished it as the Indians might have relished eating pilgrim at Veracruz.

I showed her another example, closer to the mark. “Did you know,” I said, “you can say either “Se vende naranjas” or “Se venden naranjas – the first verb singular, the second plural? The sentence, either way, means, there are oranges for sale.

We began to argue a little. About naranjas. About whether the first naranjas was the direct object of the sentence, the second the subject. I said I thought that was the case. She said it wasn’t. I am ten years older than her and tried to use that to my advantage, even though it’s her language and not mine. Which canceled out my age advantage. I decided to use my surrender tactic. I said, “Se me aceptará la explicación.” Or, in equally horrible English, “It will be accepted to me (your) explanation,” mirroring the dreadful style of Article 20, Section 5 of the Mexican Constitution – instead of simply, “I accept your explanation.”

She studied me for signs of frivolous ironic intent. While one eyebrow showed patience, the other flicked up in warning. She said, in my case, we might want to consider my behavior suspect until proven innocent.

I said, in my own defense, and to distract her, there was currently a full moon, and there was a male cat, black and white, which prowled over our property, along the garden walls and across the azotea, the roof, pissing and yowling all night long, waking the dead and making the place perpetually reek from his claim on our territory.

“What’s your point?” she said.

“Well,” I said, “the presumption of guilt lies heavily on him. I do not go howling and spraying where he lives.”

“I thought you were against Napoleonic Law,” she said.

“I was,” I said. “But” – and I said this in the style of the 1917 Constitution – “may to me the alley cat pisser he be trapped and the organs that make him howl and spray be deprived to him.”

“Did you know,” she replied, “that on February 27, 2008 the Mexican lower house and the senate introduced a reform that would introduce public open trials and the guaranteed presumption of innocence? The vote passed by 462 to 6. It is a constitutional amendment and now has to be approved in at least 17 of Mexico’s 31 states.”

I was speechless.

“How will that affect the cat? I asked.

“Innocent until proven guilty,” she said.

It had not turned out well. We had settled the grammar question, I think. We called testigos accusative, i.e. a direct object, in an impersonal reflexive, a construction, in my opinion, unworthy of any language at all. I had begun by feeling culturally smug about Mexico’s retrograde Napoleonic Law, which had remained in retrograde for over ninety years. And now this.

“But the cat is trespassing and destroying private property,” I said.

“The cat is not a person,” she said.

“Then the law doesn’t apply to it. There is no presumption of any kind,” I said.

“You won’t take his testicles?” she asked.

“It is not my intention,” I lied.

I went home and told my wife what my teacher and I had discussed.

“We will adopt him,” she said. “She is right.”

“What about?” I protested.

“About the presumption of innocence.”

“What about his testicles?” I squawked.

She gave me a quick seductive kiss. “We’ll only keep yours.”

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