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

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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.

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Dysfunctional Justice: The Current System
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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.

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Human Rights Concerns
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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]."

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Crime and Punishment: The Grim Reality
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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,

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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.

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The Federal Initiative is No Panacea:
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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.

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Obstacles to Judicial Reform in Jalisco
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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

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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.

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Comment: Pressing Forward
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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