GUILTY UNTIL PROVEN INNOCENT: "JUSTICE" AND REFORM IN

UNCLAS SECTION 01 OF 03 GUADALAJARA 000250 SIPDIS E.O. 12958: N/A TAGS: MX PREL PGOV PHUM SNAR EAID SUBJECT: GUILTY UNTIL PROVEN INNOCENT: "JUSTICE" AND REFORM IN JALISCO REF: A. A) 08 MEXICO 001889 ¶B. B) 07 MEXICO 006196 ¶C. C) 07 GUADALAJARA 000226 ¶D. D) 07 GUADALAJARA 000351 GUADALAJAR 00000250 001.2 OF 003 ¶1. Summary: Jalisco state incarceration and court case statistics along with concern over current practices expressed by the Jalisco State Human Rights Commission underscore the urgent need for judicial and penal reform. However, the state faces many challenges in its attempt to implement the federal judicial reforms signed into law last year by President Felipe Calderon, or launch its own program. Governor Emilio Gonzalez Marquez remains committed to judicial reform, but disagreements among political parties, negative perceptions of the reform effort, an entrenched resistance to change present among certain sectors of the judicial establishment, and the increased costs associated with the new system have combined to make any progress slow and uncertain. End Summary. ¶2. CONOFF met with Dr. Guillermo Zepeda, a professor at the Technological and Superior Studies Institute of the West (ITESO) and an associate researcher for 13 years with The Development Research Center (CIDAC),an independent, non-profit research institution dedicated to promoting open debate about law, the economy, social development, and democracy in Mexico. Dr. Zepeda is a keen observer of the judicial system and the various reform efforts. -------------- -------------- Dysfunctional Justice: The Current System -------------- -------------- ¶3. Dr. Zepeda said that unlike the United States where a suspect is first investigated and then, if sufficient evidence exists, is detained, in Mexico a suspect is first detained and then investigated. He explained that after a crime is reported the Public Ministry (MP) - under whose authority fall both the judges and the state attorney's office - determines the charges and presents the written accusation to the judge. Upon being apprehended the suspect is taken into custody by the MP and is held in a cell within its offices for up to 48 hours, during which time an interrogation of the suspect is conducted which contributes in large part to what is called the Preceding Investigation (averiguacisn previa). The Preceding Investigation is considered "prueba plena," a classification of evidence that is given extra weight in the penal and judicial process. The MP typically does not investigate many cases because it relies heavily on confessions obtained during the initial 48 hours of detention. Dr. Zepeda said that these confessions are often obtained through intimidation and in some cases torture. -------------- Human Rights Concerns -------------- ¶4. In the six years between 2002 and 2007 the Jalisco State Human Rights Commission (CEDHJ) documented 22 cases of torture involving 27 victims and 94 perpetrators who were employees of the Public Ministry (MP),including the Jalisco State Public Prosecutor's office and the Investigative Police. Eighty two percent of these cases occurred between 2002 and 2005. The CEDHJ reports identify a variety of torture methods used, including provoked asphyxiation by placing a plastic bag over the head, simulated drowning, electric shock, burns, physical abuse resulting in broken bones, whiplash, prohibited use of the bathroom resulting in self-urination and defecation, and psychological pressure. In Recommendation 17/2008 published on July 23, 2008, CEDHJ stated that "torture continues to be a deeply rooted practice in criminal investigations conducted by personnel of the Jalisco State Attorney's Office [Procuradurma General de Justicia del Estado]." -------------- -------------- Crime and Punishment: The Grim Reality -------------- -------------- ¶5. Dr. Zepeda stated that out of 160 countries, Mexico ranks 13th for most citizens (per 100,000) in jail without being charged, and if the state of Jalisco were a country it would rank 5th out of 160. Based on 2007 Jalisco state statistics a criminal faces only a 1.77% chance of getting caught and placed on trial: only 11% of crimes are reported, 26% of reported crimes are fully investigated, and 62% of investigated crimes end with the apprehension of the criminal. ¶6. Jalisco is the state with the highest rate of imprisonment, GUADALAJAR 00000250 002.2 OF 003 which has nearly tripled in the past 10 years from 5,729 prisoners in 1998 to 15,638 prisoners in 2008. He also said that Jalisco has the highest rate of people incarcerated in pretrial detention. Jalisco prisons are severely overcrowded, currently at 220% capacity. Dr. Zepeda said that most inmates are incarcerated for minor offenses and are not dangerous criminals. He claims that this is supported anecdotally by the fact that very few prison guards are required and there have been no major prison riots in Jalisco - he claims there are approximately 60 guards for the roughly 16,000 inmates, most of whom are poor. Dr. Zepeda pointed out that some call the Mexican prison system "Crime University" because in prison so many poor people serving time for minor offenses meet and learn from the serious criminals. In surveys conducted of crime victims in Jalisco only 13% indicated that the criminal had been armed. ¶7. Dr. Zepeda noted that in the state of Jalisco the average time to process a case in the judicial system is 170 days. In Jalisco 57% of the prison population has been charged with a crime but not sentenced. Statistics show that, 40% of prisoners in Jalisco will be released on the same day that they are sentenced because they will have been found innocent or they will have already served more time in jail than required by their sentence or they will opt to pay a fine rather than serve prison time. For this group, if they had been sentenced in a timely manner they would not have served any time in prison. With 33 percent of the state's security budget going to the penal system, a reduction in the number of prisoners would represent a significant savings that could be used for other pressing needs. -------------- - The Federal Initiative is No Panacea: -------------- - ¶8. The state of Jalisco still faces challenges in harmonizing the federally mandated reform with state interests. Interested parties in Jalisco are looking at the federal plan which includes oral arguments, alternative resolutions (such as mediation, reconciliation, reparations, and suspended sentences),and a greater role for the judge. While the MP will gain a new responsibility in determining whether or not to employ a form of alternative resolution, it will lose the monopoly it once enjoyed on the investigative process by conducting preceding investigations without any checks and balances from other agencies, for the police will now play a greater role in conducting investigations. Also, the legal preference and procedural advantage given to the Preceding Investigation will be reduced in the new system. Under the reform the defense must now include an attorney - under current law any one can carry out a legal defense. The new laws will also demand more professionalism and expertise on the part of attorneys and the police, and crime victims will receive more rights. Some critics allege that the federal reforms do not go far enough in preventing the current widespread abuse of pre-trial detention, especially for those suspected of organized crime activities. Other critics allege that the reform has gone too far by establishing in the constitution itself a catalog of crimes for which pretrial detention is mandatory. -------------- -------------- Obstacles to Judicial Reform in Jalisco -------------- -------------- ¶9. Dr. Zepeda said that the Jalisco state congress has been attempting to come to an agreement on the details of state penal reform legislation since 2006, before the national reform was approved, but the state political parties still have not been able to reach an agreement. Dr. Zepeda explained that there are four main reasons for this: A) Political tension through competing plans from the National Action Party (PAN) and the Institutional Revolutionary Party (PRI). A reform bill backed by the PRI failed in 2007 when it failed to gain the support of the ruling PAN party. Jalisco is also an innately conservative region that has often been relatively slow to change. B) Negative national perception of a similar historical precedent. As a result of the Mexican Revolution in the early 20th century, the judicial system was reformed to include oral arguments and trial before a jury. This was in effect for 15 years, during which time there were several high profile cases that resulted in an innocent verdict and in which the public and media believed that the jury was excessively swayed by how the GUADALAJAR 00000250 003.2 OF 003 defense attorneys presented their arguments rather than on the merits of the evidence presented by the prosecution. As a result, some called oral arguments before juries nothing more than a "public speaking pageant." This two-pronged experiment - oral arguments and trial before juries - was abandoned in 1931 and its memory continues to conjure up negative images of both proposals. The judicial reform of 2008 proposes only to implement an adversarial method of oral arguments to occur before a panel of three judges. Trial by jury has not been proposed and is not included in the 2008 judicial reform. However, the oral arguments proposal is viewed negatively by some in Jalisco simply because of its historical association with the trial by jury experiment in the early post-revolutionary period. C) There exists among some sectors of Jalisco society a view that U.S. lawyers are believed to be attempting to take over the Mexican judicial system - by making it more like the U.S. judicial system - as part of a wider conspiracy that the U.S. is attempting to take advantage of Mexico and Mexican citizens. D) Some believe that the additional costs associated with the implementation of the reform, such as the requirement that three judges preside over each case, rather than only one, and the extensive training that will be necessary for attorneys, judges, and the police forces, will amount to such a significant cost increase that it could be prohibitive. -------------- Comment: Pressing Forward -------------- ¶10. The need for judicial reform is obvious given the dismal performance of the current justice system and an almost total lack of public confidence in it. The challenge is how to bring it about. Informal interviews of trial and defense lawyers suggest that there exists a consensus among Jalisco attorneys that reform is positive but must be implemented slowly to ensure success. While the lawyers that CONOFF spoke with associated the oral arguments provision with the system in the United States they did not view that negatively. Universities such as Universidad Panamericana, ITESO, and TEC de Monterrey are committed to reform. ITESO is already offering graduate level courses to help prepare law students and the TEC de Monterrey in Guadalajara dedicated a new mock courtroom last year designed for oral trials. ¶11. Jalisco Governor Emilio Gonzalez Marquez told the CG in June that he remains committed to promoting judicial reform, and hopes to spur the State Congress to pass a bill later this year, after the July elections. The Consulate has emphasized the importance of judicial reform as a key part of its public diplomacy activities, and many prominent business organizations and Chambers of Commerce have endorsed the effort as a vital part of improving Jalisco's economy and attracting more international investment. The trends are positive, if slow, and we intend to continue our efforts to keep the reform effort moving forward. RAMOTOWSKI