APPEAL OF 2002 MACK CASE SENTENCE

UNCLAS SECTION 01 OF 02 GUATEMALA 001084

SIPDIS

SENSITIVE

HARARE FOR BRUCE WHARTON

E.O. 12958: N/A
TAGS: PHUM PREL KJUS GT
SUBJECT: APPEAL OF 2002 MACK CASE SENTENCE

REF: 02 GUATEMALA 2605


1. (U) Summary: On April 23, the Fourth Court of Appeals
heard the public arguments from both the defense and the
prosecution for the appeal of the Third Sentencing Court's
October 3, 2002 decision in the Myrna Mack murder case, in
which retired Colonel Juan Valencia Osorio was convicted and
sentenced to 30 years in prison, while retired General Edgar
Godoy Gaitan and retired Colonel Juan Oliva Carrera were
acquitted. The tribunal listened to five hours of oral
arguments in a courtroom packed with press and interested
observers, including the Ambassador, and then told the public
they would announce their decision on May 7. End Summary.

Mack Team's Arguments
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2. (U) The public prosecutor Mynor Melgar and private lawyer
for the Mack Foundation Roberto Romero stated that,
throughout the course of the September 2002 trial, the
prosecution proved that Myrna Mack's murder was a political
crime, that Mack was the object of surveillance before her
murder, and that the convicted material author, Noel de Jesus
Beteta, was ordered by his superiors in the Presidential
Military Staff (EMP) to surveil and eliminate Mack. Melgar
and Romero both asked the court to confirm the sentence
against Valencia Osorio and to apply the conviction and
prison sentence to Oliva Carrera and Godoy Gaitan because of
their positions above and below Valencia Osorio in the EMP's
chain of command.

The Defense's Arguments
--------------

3. (U) Valencia Osorio's new legal representation, Francisco
Flores, spent over 90 minutes arguing his appeal before the
judges, who ultimately requested that he make his comments
more concise. Flores questioned the admissibility of the
evidence in the case, especially the testimony of former
inmate Jorge Lemus (aka "El Buki") and the tapes he made of
cellmate Beteta claiming that Valencia Osorio ordered the
murder. Flores also questioned the court's decision to lay
all the blame on Valencia Osorio for what was considered a
political crime, since he was not singularly responsible for
designing the GOG's counterinsurgency policy during the
internal conflict. Flores argued that the Third Sentencing
Court made an erroneous application of the law, that
convictions of this gravity must be based on stronger
evidence, and that his client should be released. Lawyers
for Godoy Gaitan and Oliva Carrera asked the tribunal to
confirm the Third Court's decision finding their clients
innocent.

Helen Mack, Juan Valencia Osorio, and Edgar Godoy Gaitan
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4. (U) Helen Mack asked the tribunal (who also presided in
the Gerardi appeal and decided to annul the Third Sentencing
Court's 2001 conviction, which was subsequently confirmed by
the Supreme Court) to act with integrity and independence.
Mack reminded them that she has worked for justice in this
case for thirteen years, and that the Inter-American Court
also requested that Guatemala take this case seriously, after
years of frivolous dilatory tactics by the defense. Mack
asked that the tribunal confirm the sentence against Valencia
Osorio and to give Oliva Carrera and Godoy Gaitan equal
punishments because she proved that all three were co-authors
of the crime.


5. (U) Valencia Osorio argued that he was innocent and that
Beteta blatantly lied. Valencia Osorio said that direct
communication between a Major (Valencia Osorio's rank in
1990) and a Sergeant (Beteta's rank in 1990) was
inconceivable and that this proved he did not order Beteta to
murder Mack. Godoy Gaitan asked that the tribunal confirm
the Third Court's decision because he, too, was innocent and
had been suffering through the harsh conditions and various
bloody riots in Guatemalan prisons over the past seven months.

Public Presence
--------------

6. (U) The President of the Court said that they would
release their decision in another public audience at noon on
May 7. After the proceedings, the Ambassador was swarmed by
the press, who noted that the USG has consistently placed a
high priority on justice for human rights crimes in
Guatemala. The Ambassador told the press that this case is
important for justice in Guatemala and that his presence was
intended to convey moral support for the participants in the
judicial process, especially judges and others who had come
under threat.

Comment
--------------

7. (U) We will continue to monitor the case closely and show
public support for the judicial process.
HAMILTON