Presumption of Guilt

In Mexico's dysfunctional legal system, an arrest most often leads to a conviction. How one street vendor, wrongly convicted of murder, won his freedom.

 

MEXICO CITY (By David Luhnow, WSJ) October 17, 2009 — Antonio Zuņiga's life changed when he went for a walk on Dec. 12, 2005. As he crossed a busy Mexico City avenue, two burly cops grabbed him from behind and shoved him into a patrol car.

So began a nightmarish journey into Mexico's legal system that seems lifted from the pages of Franz Kafka. For nearly two days, the street vendor was held incommunicado and not told why he was arrested. His questions met with hostile stares from detectives, who would say "You know what you did." He says in an interview that he only learned of the charges after walking into a holding cell and being asked by a prisoner: "Are you the guy accused of murder?"

Mr. Zuņiga, then 26, was charged in the shooting death of a gang member from his neighborhood. Ballistic tests showed Mr. Zuņiga hadn't fired a gun. Dozens of witnesses saw him working at his market stall during the time of the murder, which took place several miles away. And he had never met the victim. Still, he was found guilty by a judge at trial and sentenced to 20 years in prison.

Mr. Zuņiga's case is not unusual in Mexico. Crooked cops regularly solve cases by grabbing the first person they find, often along with a cooked-up story from someone claiming to be an eyewitness. Prosecutors and judges play along, eager to calm a growing public outcry over high crime rates and rising violence from Mexico's war on illicit drug gangs. In practice, suspects are often presumed guilty. More than 85% of those charged with a crime are sentenced, according to Mexico's top think tank, the Center for Investigation and Development, or CIDE.

Mr. Zuņiga's story has a twist. His plight attracted the attention of Roberto Hernández and Layda Negrete, a married pair of lawyers who are also graduate students at the University of California at Berkeley. The couple took on his case, won a retrial, and in a stroke of luck, convinced a Mexican official to let them film the ensuing trial, which lasted for more than a year.

The result is a 90-minute documentary called "Presumed Guilty" that offers a rare—and chilling—glimpse of Mexico's dysfunctional legal system. The film was an official selection at the prestigious Toronto Film Festival, and won top documentary honors at Mexico's Morelia Film Festival. Festival organizers decided to screen it in the city's central plaza, where 2,000 people turned up to watch. At a screening in Mexico City on Thursday night, the audience gave a standing ovation. Many were in tears.

Unlike the U.S., Mexico's legal system has no jury trials. In the majority of cases, there are also no oral arguments, meaning lawyers don't stand in front of a judge to plead their client's case. Judges usually never meet the accused. Everything is done via paperwork. Judges are subject to a Napoleonic code of justice, meaning laws are strictly codified, leaving them little room for judgment.

Most Mexicans have no idea what happens in a courtroom. Only specific parts of a trial are open to family members and others. The rest, including evidence for or against the accused, is sealed to the public until the case is closed.

The film offers viewers a front row seat to an ordinary case. The result is not pretty. When asked by one of Mr. Zuņiga's defense lawyers what evidence he has against Mr. Zuņiga, the detective in charge of the case says: "He's here (in prison), right? He must have done something." Asked by the lawyer why she was prosecuting an innocent man, the prosecutor says with a weak smile: "It's my job."

Mr. Zuņiga lost the retrial. The footage of the proceedings from the documentary, however, was so shocking that a panel of judges on an appeals court freed Mr. Zuņiga. The prosecutor did not respond to requests for comment.

Both Mexico City's police department and the Supreme Court said they could not comment on Mr. Zuņiga's case or judicial matters in general.

For Mr. Hernández and Ms. Negrete, this is the second time they have led to the release of an innocent man. In 2005, they filmed a 14-minute video about the legal system that featured a young man wrongly accused of stealing a car. He was released soon after.

"It's an expensive way to fix injustice in Mexico," says Mr. Hernández, 34. The pair hope to pass a law allowing every criminal trial to be filmed. They have a Facebook page called Lawyers With Cameras.

Someone committing a crime in Mexico has only a two in 100 chance of getting caught and punished, according to Guillermo Zepeda, a CIDE scholar. A big reason is that just 12% of crimes are reported to the police, Mr. Zepeda says. In a big deterrent, police ask many people who report crimes for money to solve the case or become suspects themselves, Mr. Zepeda says.

According to a survey of 400 criminal cases in Mexico City carried out by National Center for State Courts, a U.S. nonprofit, in nine of 10 cases, suspects were found guilty without any scientific evidence like fingerprints or DNA. In more than six of every 10 cases, suspects were arrested within three hours of the crime, leaving little time for serious detective work, according to a study from CIDE, a top Mexican graduate school. Almost none were shown an arrest warrant, the study said.

Mexican cops lack access to basic forensic equipment, and Mexico lacks a comprehensive national fingerprint database. Most police officers are judged on the number of arrests they make, not whether they arrest the right person. The same goes for prosecutors. "You want a good career? Accuse, Accuse, Accuse," one Mexico City prosecutor said.

Simply being accused is bad news. Because Mexico doesn't allow bail for serious crimes, an estimated 42% of Mexico's inmates languish in jail without having faced trial—some 90,000 people, according to a study by the Open Society Institute, the New York based non-profit funded by financier George Soros.

The medieval legal system is a major handicap for the country as it tries to modernize and bring to heel powerful drug gangs that have declared war on each other and the government. An estimated 13,500 people have died in the carnage since President Felipe Calderķn took power in December 2006. Mr. Calderķn has won praise for deploying 45,000 army troops to press the war against the cartels. But analysts say the offensive will stall without meaningful reform to police forces and the court system.

Public Security Minister Genaro García, Mexico's top cop, is embarking on the first, with a goal of replacing virtually every cop in the next 15 years with college-educated policemen. Last year, Congress amended the Constitution to incorporate the presumption of innocence into modern Mexican law, as well as allow oral trials in most cases. The problem: Mexican states have until 2016 to implement the changes.

As part of that reform, the Calderķn government won a change allowing police to detain suspects without an official warrant for up to 40 days, from just two days previously. The government argues it needs to do this for the drug war. Having won that concession, however, advocates say the Calderķn government is now dragging its feet in implementing the judicial reforms that might make cops and judges more accountable.

"Right now, the government is going for security instead of justice. But security and justice are linked," says Ernesto Canales, a prominent commercial attorney, Mexico's leading crusader for judicial reform and the man who sponsored "Presumed Guilty" together with the William and Flora Hewlett Foundation and other donors. If ordinary Mexicans can grow to trust police and the courts, they are much more likely to work with authorities to catch drug gang members, he says. And until Mexican cops learn how to investigate, they'll never be able to penetrate drug cartels and dismantle them.

Mr. Calderķn's office did not respond to requests for comment.

In Mr. Zuņiga's case, he was accused of murder based on the testimony of a single person and nothing else. That person, it turned out, was the cousin of the gang member who had been killed and was arrested as a suspect shortly after the shooting.

The suspect, Victor Daniel Reyes, initially told police in two separate interviews that his cousin was shot by three other gang members, nicknamed Luis, Ojitos (Little Eyes), and Crucitos (Little Cross). He said Luis, the gang leader, fired the gun. He never mentioned Mr. Zuņiga, according to court testimony.

The day after the murder, police took Mr. Reyes to the neighborhood to find the three gang members. After hours of searching, Mr. Reyes pointed to Mr. Zuņiga crossing the street. "He did it," said Mr. Reyes, according to court documents.

Only in his third interview with police, after Mr. Zuņiga was arrested, did Mr. Reyes mention Mr. Zuņiga by name as the assassin. The three gang members originally described as the murderers were never arrested by police, or questioned. The police released Mr. Reyes after he named Mr. Zuņiga. Mr. Reyes couldn't be located to comment.

"When they first grabbed me on the street, my first thought was 'I'm being kidnapped,'" Mr.Zuniga said during an interview at a Mexico City restaurant. "I didn't even know they were cops until I heard voices on their scanner."

It was during his first police interrogation that Mr. Zuņiga says he missed his opportunity to get out of his predicament. After he repeatedly insisted he was innocent, one of the police sidled up to him and suggested he could make the whole thing go away by offering them money, and lots of it. But Mr. Zuņiga said no, in part out of principle and in part because he didn't have much money. "You just blew it," the cop said, according to Mr. Zuņiga.

In the three months it took for Mr. Zuņiga's case to come to trial, he was sent to Mexico City's rough Reclusorio Oriente prison. He shared a small cell with 20 inmates. He slept on the floor, under a cabinet. Cockroaches climbed over his face at night.

His girlfriend, Eva Gutierrez, threw a party to raise money so that Mr. Zuņiga, who goes by his nickname Toņo and left school in the 8th grade, could buy food in prison—something most inmates have to buy. A local man hired to help with the party turned out to be Marco Antonio Arias, the man who won his freedom thanks to Mr. Hernandez's first documentary. When Mr. Arias found out what the party was for and heard Mr. Zuņiga's story from Ms. Gutierrez, he put her in touch with Mr. Hernández and Ms. Negrete.

The couple didn't think they could free Mr. Zuņiga, but hoped to publicize the case by making a video. "The first thing they told me when we spoke on the phone was 'you're screwed,'" says Mr. Zuņiga.

Upon reviewing his case, the couple realized that his lawyer at the trial was not even a lawyer; he had forged his legal identification. That was enough to ask for a retrial. In Mexico, retrials go to the same judge as the initial ones.

The documentary footage follows what happens next. The judge, Hector Palomares dons his robe this time around and sits behind a makeshift desk. Mr. Zuņiga says Mr. Palomares never emerged from his office at his first trial. Mr. Palomares declined to comment for this article.

At one point, the witness, Mr. Reyes, is asked by one of Mr. Zuņiga's defense lawyers to describe the three gang members whom he'd originally accused. He describes each one. Asked to describe Mr. Zuņiga, the man he later accused, he can't.

The detectives who arrested the street vendor and handled his case testified, but claimed they didn't remember anything. "We have a lot of cases," says Jose Manuel Ortega, the lead detective, shrugging his shoulders. "I can't remember all of them." Mr. Ortega declined to comment.

At the height of the retrial, Mr. Zuņiga confronts his accuser face-to-face. As the pair talk in stilted tones and pause so a stenographer can transcribe each word, the drama builds. Finally, Mr. Reyes admits he never saw who killed his cousin.

But Judge Palomares upheld his initial guilty sentence.

"It was like a kick in the stomach," said Mr. Zuņiga in the interview. "It was my life they were throwing away." He had been in jail for nearly three years at that point.

Mr. Hernández and Ms. Negrete took the case to the appeals court. They showed the footage of the trial. After seeing the footage an appeals court judge pushed hard to get him released. Mr. Zuņiga was freed on April 3 of last year. Other inmates were so amazed that they kept asking him to see his release paper, to touch it.

He is not entirely free from his ordeal. A few months ago, he got a text message on his cellphone: "Don't worry. We'll soon get you back in here where you belong." He says he didn't want to the number back, out of fear. He says he has gone into hiding, to protect Ms. Gutierrez, who is now his wife, and their baby girl.

Judge Palomares is still on the bench in a Mexico City court. Detective Ortega is still an active duty cop.