LAST CHANCE FOR JUSTICE IN MACK CASE

C O N F I D E N T I A L SECTION 01 OF 02 GUATEMALA 001596

SIPDIS

E.O. 12958: DECL: 06/19/2013
TAGS: PHUM PGOV MOPS PREL KJUS GT
SUBJECT: LAST CHANCE FOR JUSTICE IN MACK CASE

REF: GUATEMALA 1535

Classified By: Human Rights Officer Katharine Read, reasons 1.5 (B and
D)


1. (C) Summary: On June 19, Helen Mack, the prosecution, and
the defense presented oral arguments before the Supreme Court
for the final appeal in the case against the three retired
military officers allegedly responsible for ordering the
murder of Myrna Mack in September 1990. All three officers
were released from jail by the Fourth Appeals Court on May 7,
and will continue to remain so unless the Supreme Court
convicts them and orders their detention. Representatives
from fifteen different diplomatic missions were present,
including 11 Ambassadors whom the Ambassador personally
recruited to show widespread international support for
securing justice in Guatemalan human rights cases. The
Supreme Court expects a verdict within ten to fifteen days,
though Mack doubts deliberations will be that swift. End
Summary.

Setting the Stage
--------------


2. (U) On June 19, the Supreme Court held the public audience
for the oral arguments in the case against the so-called
"intellectual authors" of anthropologist Myrna Mack's
September 1990 murder. The defendants, (ret.) General Godoy
Gaitan, (ret.) Colonel Valencia Osorio, nor (ret.) Colonel
Oliva Carrera, did not attend the proceedings, but were
represented by their lawyers. Prosecutor Mynor Melgar,
lawyer Roberto Romero, and Helen Mack presented the appeal
(casacion in Spanish) of the Fourth Appeals Court's May 7
decision, which overturned the conviction they won against
Valencia Osorio on October 3, 2002.


3. (C) The Ambassador made calls to resident ambassadors
urging them to attend the trial to demonstrate the
committment of the international community to securing
justice in this long delayed case. Chiefs of Mission from
the United Kingdom, the Netherlands, Argentina, Sweden,
Mexico, Germany, Chile, Norway, France, Canada, and Japan, as
well as representatives from Denmark, Switzerland, and
MINUGUA attended the trial. The international community's
presence was noted in local press and given much fanfare.
The attendance of a number of Latin American ambassadors --
including Mexico -- to a human rights trial in Guatemala was
historic.

The Lawyers Proceed
--------------


4. (U) Prosecutor Mynor Melgar and Mack Foundation lawyer
Roberto Romero argued that the Fourth Appeals Court emitted
an erroneous, illegal sentence that was not based on the
appeals of either the defense of the prosecution. They asked
that the Supreme Court uphold the October 2003 conviction of
Valencia Osorio and also convict Godoy Gaitan and Oliva
Carrera.


5. (U) The defense for Valencia Osorio argued that the
October 3, 2002, sentence was contradictory because it did
not clarify the discrepancy between individual and
institutional responsibility; while admitting that Valencia
Osorio transmitted an order to convicted material author Noel
de Jesus Beteta Alvarez to murder Myrna Mack, the defense
argued that he was not the "author" of the crime. Therefore,
Valencia Osorio's lawyer asked that the Supreme Court confirm
the May 7, 2003, decision of the Fourth Appeals Court and
leave his client free.


6. (U) The defense for Godoy Gaitan and Oliva Carrera argued
that both the Third Sentencing Court and the Fourth Appeals
Court absolved their clients of guilt and that this Supreme
Court appeal (casacion) should not apply to either one.

Helen Mack's Final Words
--------------


7. (U) Helen Mack, as the private plaintiff and family
representative in the case, spoke last. Mack passionately
recounted the thirteen-year quest for justice in her sister's
case, then moved to the need for real reform in Guatemala's
rule of law and access to justice. She said the Supreme
Court had one final opportunity to demonstrate the integrity
of the Guatemalan judicial system by giving out a just
sentence, applying the penal code to the credible evidence
she and her team had presented.


8. (SBU) Sources at the Supreme Court and in the press
speculate that the Supreme Court will reach a verdict within
ten to fifteen days, though Romero and Mack expect the judges
to drag their heels.

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


9. (C) Mack has told us that this is the final stage in the
legal battle she and her team will fight in Guatemala, while
the case remains pending in the Inter-American Court. We
will continue monitoring both processes with great interest
and support.


10. (C) The real challenge for the Supreme Court seems to be
deciding the precedent that their ruling will set. If the
judges rule that Valencia Osorio can be held accountable for
intellectual authorship in the murder of Myrna Mack, this
could have profound repercussions for other cases against
high-ranking military leaders involved in ordering or
transmitting orders for countless murders, massacres, and
disappearances of civilians during the internal conflict.


11. (C) On the other hand, if the judges decide that material
authorship alone constitutes guilt, these individual leaders
will be absolved for acting in line with state policies.
Such a ruling by the Supreme Court would be a setback for
domestic justice in human rights cases involving the internal
conflict, forcing Guatemalan activists to consider other
avenues for reconciliation and reparations.
HAMILTON