Friday, July 26, 2013
A Look at Mexican Law: Z40 is Formally Arrested and Charged
by Chivis Martinez for Borderland Beat
A federal judge today held over for trial and formally charged, Miguel Angel Treviño Morales, aka Z40 , on charges of operations with illegal proceeds, money laundering and weapons charges, including possession of weapons and cartridges exclusive to Mexican armed forces.
The Fourth District Court, based in the city of Toluca, State of Mexico, handed down the ruling at 13:30 hours on Thursday, said the spokesperson of the Council of Federal Judiciary.
The charges against Trevino, the premier leader of the Los Zetas cartel, are considered serious; however, noticeably missing are charges of murder for the killing of 265 economic migrants in San Fernando Tamaulipas. 193 migrants were discovered in mass clandestine graves known as “narcofosas” and 72 migrants found massacred at an abandoned San Fernando ranch.
There are problems with charging Treviño with the murders, since Martín Omar Estrada Luna aka “El Kilo”, pled guilty to being one of authors the murders, and admitted he was only given an order to recruit but “things got out of hand”.
Additionally, there was a Zeta order from the top, after the 72 migrants were killed, to execute those responsible for the slaughter.
On September 5, 2010 the bodies of three alleged Zetas sicarios were dumped in Tamaulipas with a narco message indicating they were directly responsible for the killings.
Given those facts it would seem that a strong case against Treviño is lacking , for being culpable in those specific migrant murders.
The charges filed against him today, though serious, would be a far cry from charges that would keep him incarcerated for the majority of his natural life.
The court is able, and assumedly, will amend/add the charges filed against the cartel leader.
It should go without stating, but in case anyone wonders, Treviño does not qualify for bail.
He is able to file an appeal to contest the charges.
With the ruling issued Thursday, Treviño will continue to be incarcerated, to trial, at the federal maximum security prison of El Altiplano No.1, located in the municipality of Almoloya de Juárez, in the state of México.
THE MEXICAN JUDICIAL SYSTEM-EXISTING AND THE FUTURE
The Mexican judicial system is currently in transition. Mexico has adapted the American style of judicial system and has until 2016 to fully implement the system into practice. Although the US has provided support, such as training of Mexican prosecutors by American federal prosecutors, there has developed a stalling of the process and it is now unclear if all states will be in compliance 2016 date mandated by the Mexican constitution.
It is also unclear what affect the new judicial system, if any, in the prosecution of Miguel Treviño, as he will go to trial in the state of Mexico, one of the 3 states in full compliance and operating under the new system.
The following information was derived from: the State Department, US Consulate, Woodrow Wilson Center and The CRS Report prepared for US Congress.
KEY DIFFERENCES BETWEEN U.S. AND MEXICAN LAW
A fundamental difference between the U.S. and Mexican legal systems is that Mexico is a "civil law" country while the U.S. is a "common law" country. Common law emphasizes case law relying on judges’ decisions in prior cases. In contrast, Mexico's civil law system is derived primarily from Roman law and the Napoleonic Code and focuses more on the text of actual laws than on prior court decisions. In the U.S., even one case can establish a legal principle and lawyers need to analyze many cases to interpret the law.
In Mexico, one studies the law and makes the best argument given the facts.
“GUILTY UNTIL PROVEN INNOCENT"
For an accused person, one of the most critical differences is that under Mexican criminal law, the accused is essentially considered guilty until proven innocent. Mexico does not allow bail on personal recognizance and therefore a cash bail must be posted (which may not be available depending on the potential sentence).
Many activities that are not considered crimes in the U.S. may be crimes in Mexico. Additionally, the role of judges in Mexico is broader than in the U.S. Mexican judges are active in developing a case and gathering evidence. In the absence of jury trials, judges also make the ultimate decisions about the innocence or guilt of an accused.
If you are arrested for a serious crime in Mexico, the police will turn you over to the agente, or district attorney’s office which could be state or federal, depending on the charge (Serious crimes under federal jurisdiction include, for example: drug possession, alien smuggling, certain firearms/ammunition charges, and possession of counterfeit money.
Serious state crimes include: homicide, kidnapping, rape, assault, theft, child pornography, corruption of a minor, driving under the influence breaking/entering, possession of a deadly weapon and property damage.)
The district attorney’s office will then conduct a preliminary investigation to determine if the case should be prosecuted. If they decide to prosecute, the case will be turned over to a judge. The DA’s office, state or federal, can keep you in custody up to 48 hours (unless they receive an extension) before deciding whether to charge you.
By the end of the 48-hour period, the district attorney must turn your case over for prosecution, set bail, or drop the charges and release you. If bail is not set, or if it is set but you can’t pay it, your case will be turned over to a court and you will be moved to a different facility.
Once you are turned over to a court’s jurisdiction, the judge has 72 hours to determine “probable responsibility,” similar to “probable cause” in the U.S. During this period your defense attorney should have an opportunity to present your side of the case. At the end of this period, the judge may release you for lack of evidence, set bail (“fianza,” which may not be available depending on the type of crime), or decide to keep you in custody and continue with court proceedings....continues on next page
Trials in Mexico are quite different from in the U.S. Mexican trials are often split into many separate hearings and testimony and arguments are written rather than live. In the absence of a jury, the judge will decide the case based on the documents presented and impose the sentence. If the maximum potential sentence is less than two years, judges are theoretically required to reach a verdict within 4 months.
If the maximum potential sentence exceeds two years, judges normally have up to a year to resolve cases. In practice, reaching a verdict can sometimes take even longer than this. You have the right to request a meeting with your judge while your case is pending resolution or sentencing.
(Click images to enlarge)
NEW JUSTICE SYSTEM:
.Recent spikes in violence and criminality have overwhelmed Mexico's justice sector institutions, with record numbers of arrests rarely resulting in convictions. On average, fewer than 20% of homicides have been successfully prosecuted with convictions, suggesting high levels of impunity. Over the last five years, Congress has devoted considerable resources—close to $2 billion—and oversight attention to supporting under the Mérida Initiative has increasingly focused on supporting Mexico’s efforts to reform its justice sector institutions in order to reduce corruption and impunity.
Judicial reform is one part of that effort. Policy analysts contend that until Mexico’s judicial system is able to prosecute and punish crime, the effects of law enforcement efforts against criminal groups will be limited.
The U.S. government is providing significant support for judicial reform efforts in Mexico at a time when those reforms are at a critical juncture. Progress has moved forward in many states, but is stalled at the federal level.
Without political will and investment from the new Enrique Peña Nieto Administration, both the federal government and the states may not meet the 2016 constitutional deadline for implementing judicial reforms enacted in 2008. Should the reforms move forward, the U.S. Congress may consider how best to support them. Should the reforms falter, Congress may question the value of continuing U.S. assistance for judicial reform.
Under the traditional system, prosecutors have wide latitude during the investigatory stage of a case to gather evidence however they deem appropriate that is then submitted to judges in a written dossier that is rarely challenged. Dossiers often center on the confession of the accused, with potentially coerced confessions frequently occurring, or on unverified eyewitness identifications. Judges then render their decisions behind closed doors.
Although 85-90% of crimes brought to trial result in a conviction, in fact, less than 25% of crimes in Mexico are reported and, of those, only a small number are investigated and prosecuted, implying that only a small portion of the country’s crimes are seriously addressed. The likelihood of a guilty verdict is particularly high for cases involving poor people who have committed minor offenses.
The Mexican criminal justice system has been widely criticized for being opaque, inefficient, and corrupt. Two of its key actors—police and public prosecutors—are viewed by 66% and 43% of Mexicans respectively as frequently engaged in corruption. The judicial system itself has long been plagued by long case backlogs, high pre-trial detention rates, and an inability to secure convictions for serious crimes
KEY ELEMENTS IN THE REVISED JUDICIAL SYSTEM:
• Investigation. A greater role will be given to police in investigations under the guidance of the public prosecutor; evidence gathered can be contradicted in an oral, public trial, and convictions can no longer be made based upon confessions alone. This phase of the judicial process will be abbreviated and less formal.
Pre-trial detention. The use of this will be limited to violent crimes.
• Creation of new judgeships for each stage of criminal proceedings. This aims to strengthen judicial impartiality by ensuring that the judge who decides that there is enough evidence to send a case to trial (the due process judge) is not the same judge who presides over the trial phase and issues the final verdict (the sentencing judge). While one judge will preside over most trials, some will function as grand juries and have three judges presiding.
The reforms also create a sentencing implementation judge who is to determine when a prisoner has fulfilled the terms of his or her sentence and to monitor processes of restorative justice (including agreements between victims and perpetrators reached through alternative dispute resolution). Individual judges can play all three roles as part of their duties, but not on the same cse.
• Alternative methods of resolving cases. This includes plea bargaining and alternative justice mechanisms that may result in compensation agreements between victims and perpetrators.
• Hearings and trials. Under this reform, hearings and trials are to be conducted in public; attended by judges, prosecutors, and public defenders; based on oral arguments; and videotaped for the record.
• Open trials and decisions. This reform requires judges to render decisions in public based on evidence presented at a public trial rather than issuing decisions behind closed doors based on written dossiers.
• Victim rights. This gives greater procedural rights to victims (including the ability to participate in the prosecution and/or to challenge a prosecutor who has declined to take up a case in court); requires that a victim be consulted before a case is suspended or concluded; makes restitution a requisite for alternative justice to be pursued; creates specialized units to protect and assist victims; and prioritizes efficiency.
• Defendant rights. Introduces the presumption of innocence, prohibits torture, guarantees access to public defenders and requires that those defenders be lawyers, provides that only judges can issue search orders, excludes evidence obtained through illegal means, states that confessions made without the presence of a defendant’s attorney lack evidentiary value, and provides for alternative sentencing (such as probation) with the goal of rehabilitating prisoners and reincorporating them into society.
Provisions on Organized Crime
Mexico’s 2008 constitutional reforms also included a number of measures aimed at strengthening the government’s ability to combat organized crime that paved the way for subsequent legislation allowing wiretapping and asset forfeiture. Article 16 of Mexico’s Constitution defines organized
crime as an organization of three or more individuals whose goal is the commission of crimes in a permanent or repeated way, “as provided by the law on the matter,” a reference to Mexico’s Ferderal
Statute Against Organized Crime. Under the constitutional reforms, those suspected of involvement in organized crime can be held by the authorities for 40 days without access to legal counsel, with a possible extension of another 40 days, a practice known as arraigo which has led to serious abuses by authorities.
The law also permits prosecutors in organized crime cases to submit evidence gathered from witnesses during the investigatory phase of a criminal process; that evidence does not need to be presented in front of the judge and defense attorney at trial.
Some analysts maintain that these new reforms created a system in which “normal” criminal have their rights protected, whereas those suspected of organized criminal activity have few constitutional rights or guarantees.
U.S. rule of law programming is now focusing on supporting Mexico’s transition to an oral, accusatorial justice system and helping Mexico address institutional weaknesses in its justice sector institutions. U.S. assistance is geared toward:
1) helping the federal and state governments adopt legislative frameworks to underpin the reform process;
2) providing in-depth t raining for justice sector operators on their roles in the new system at all levels of government;
3) building support for the reforms in Mexican civil society; and
4) addressing institutional and operational problems at all levels of government that may not directly relate to the reform process.
Borderland Beat Reporter Chivis Posted at 5:02 AM