[Case Study] Presumption of Innocence in Mexico
Imagine that one day the police come to your work, inform you that you are under arrest and whisk you away to prison. You have committed no crime, but someone else alleges that you murdered a man you have never even met. You now must prepare a defense to prove your innocence, but in Mexico you are already assumed to be guilty.
This is precisely what happened to Antonio “Toño” Zúñiga whose case became the story of Presumed Guilty, a documentary by Mexican lawyers turned filmmakers Roberto Hernández and Layda Negrete. Zúñiga was sentenced to twenty years and six months in prison despite the complete lack of physical evidence and an airtight alibi. The 90-minute documentary is a powerful indictment of Mexico’s broken justice system. Denise Tomasini-Joshi of the Open Society Justice Initiative describes it as “an eye-opening film for all those calling for harsher sentences and fewer protections in a system that is all too willing to go through the motions of justice, while incarcerating innocent people and allowing criminals to go free.” In the same blog post Mexican legal scholar Javier Carrasco points out that the film reveals seven specific, widespread violations of the principle that one is considered innocent until proven guilty.
In an effort to confront Mexico’s long-rooted culture of presumed guilt and to take advantage of a nation-wide overhaul of the justice system, the Open Society Justice Initiative along with local partners the Institute for Security and Democracy, Renace, and Reintegra, have launched the Presumption of Innocence in Mexico Project. Together they aim to promote throughout Mexico the principle that one is considered innocent until proven guilty. To start, they are advocating for pretrial services as part of Mexico’s current justice sector reform..
Website: Presumption of Innocence in Mexico Project
Facebook: Proyecto Presunción de Inocencia en México
Flickr: Proyecto Presunción de Inocencia en México’s photostream
The presumption of innocence, or the principle that one is considered innocent until proven guilty, places the burden on the accuser to show, without any reasonable doubt, that the accused is guilty of the alleged crime. It is one of eight commonly held “rights of the accused.” It is also explicitly evoked in article 11 of the Universal Declaration of Human Rights, which states: “Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defense.”
Pre-trial detention is the imprisonment or detainment of the accused before they have had a chance to demonstrate their innocence in a court of law. It is supposed to be used sparingly and only when it is justifiably probable that the accused will flee prior to the court case, or if (s)he presents a serious threat to the victim of a crime or to the community. But in Mexico pre-trial detention is used excessively. More than 40% of all defendants are in pre-trial detention and in 2004 nearly half of Mexico’s prison population (42.7% or 81,947 individuals) had not yet been sentenced. Imprisonment assumes their guilt before they ever have a chance to prove their innocence.
In June 2008 President Felipe Calderón signed into law a national reform of the federal- and state-level justice system. In his announcement of the reform he emphasized the importance of the presumption of innocence and a defendant’s right to a public trial. The series of reforms touch on every aspect of the judicial sector and are to be fully implemented throughout the country by 2016.
The Presumption of Innocence in Mexico Project aims to take advantage of this window of ambitious reform to introduce pretrial services, which establishes an independent body and a set of respected guidelines to determine whether a defendant represents a significant enough of a risk to justify the use of pretrial detention. The concept of pretrial services came about in New York City in the early 1960’s when, according to the Pretrial Justice Institute, “philanthropist Louis Schweitzer and magazine editor Herb Sturz recognized the injustice of a bail system in New York City that granted liberty based on income.” The wealthy were able to easily post bail and prepare their defense from the comfort of their own home while the poor were left in prison where they faced violence and disease. Again, from the Pretrial Justice Institute:
The Vera Institute created the first pretrial screening program in the country – the Manhattan Bail Project. The Manhattan Bail Project sought to assist judges in making consistent, informed release decisions which relied less on release through financial means. The factors considered in the release recommendation included: the defendant’s ties to the area, employment status, education and prior criminal record. Information was gathered through interviews with defendants and that information was then verified by calling references provided by the defendant …
In 1968, the American Bar Association (ABA) published the first set of standards regarding pretrial release decisions. In 1973, the National Association of Pretrial Services Agencies was incorporated. In 1977, the Pretrial Services Resource Center – now the Pretrial Justice Institute – was established as a clearinghouse for pretrial services information.
Today activists in Mexico are now advocating for pretrial services as a concrete mechanism to put the principle of the presumption of innocence into practice. However, they face three major challenges: 1) a disjointed judicial sector in the midst of a major series of reforms, 2) the tendency of Mexican mainstream media to portray defendants as guilty before they are given a fair trial, and 3) a general public that believes that anyone convicted of a crime is most certainly guilty.
The Presumption of Innocence in Mexico Project can be seen as a collection of four separate – but highly interrelated – initiatives:
- Research and investigation that has culminated in the publication of eight books about justice reform, the social costs of pretrial detention, and the implementation of pretrial services programs.
- Consulting and capacity building for the design and implementation of pretrial services programs in the states of Chihuahua, the Federal District, Morelos, Oaxaca, Nuevo León, and Zacatecas.
- A pretrial services pilot project for the juvenile court system in the state of Morelos, which aims to develop a successful model that can be replicated in other states. Ana Aguilar has written about early successes of the pilot project on the Open Society blog.
- A website aimed at facilitating discussion and debate about the implementation of pretrial services and the principle of the presumption of innocence during Mexico’s eight-year judicial sector reform.
Use of Digital Media
The website, which launched in August, uses the popular Joomla content management system and was developed by OtroMexico, the media consulting group of Marco and Ana Lara that also works with other major NGOs such as Fundar, the Mexican Commission in Defense and Promotion of Human Rights, and the Institute for Legal Defense. The website’s basic content gives a good overview of the project and offers links to more detailed explanation and research. So far the website has 14 articles, most of which link to new reports and roundtable events related to pretrial services and judicial reform. Though the style of writing is easily accessible, most of the content is probably of interest to academics and policy experts rather than the general public. So far there are no stories or anecdotes of defendants who were detained and then pronounced innocent, or of successful use of pretrial services, such as the case of Juan from the state of Morelos. Most articles are three to five paragraphs and include links to further resources and related PDF reports. There is also a section on the website which aims to serve as a library of documents related to pretrial services and judicial reform, but so far it is empty. A manual/glossary to help journalists improve their coverage has yet to be developed.
Commenting is not enabled on the website, which does seem to limit its ability to facilitate public debate and discussion, but there are links to related accounts on Facebook, Twitter, and Flickr. 165 users follow the Facebook page, 13 follow the Twitter account, and so far zero people are following the Flickr account which has yet to post content.
It should be stressed that the website for the Presumption of Innocence in Mexico Project just launched last month. Though it has yet to invite much interaction or make much of a presence on social networks, it is clear from the team that doing so is a major part of their strategy. Marco Lara, a veteran journalist who developed the website and volunteers an hour a day on its communication strategy, emphasizes how poorly mainstream media in Mexico are covering violence and crime. He points to online social networks as a valuable alternative channel to challenge the narrative presented by mainstream media and their influence on the genera public:
- Collaborate with local journalism schools to produce short multimedia pieces about the lives of those who have been affected by pre-trial detention. This is a way to both attract support to the movement and also to humanize the impact of pretrial detention.
- Form a content partnership with the Justice in Mexico project based at the University of San Diego to translate key content from the website into English (including the subtitling of videos).
- Highlight both progress and obstacles related to the introduction of pretrial services. Feature the voices of not just civil society leaders and academics, but also lawyers, judges, and police officers to help bridge discussions and offer a more holistic view of the issue.
- Use the website to help recruit volunteers to complete tasks listed on the Presunto Culpable website.
- Presumed Guilty will finally be shown in Mexico in major movie theaters at the beginning of 2011. Organize a special screening and panel of experts, judges, young lawyers, and Toño at Pase Usted in order to get more youth activists involved in the movement.
- Take advantage of Facebook Pages’ many features and automatically import new content from the website to Facebook and Twitter.
- Link to the Facebook Causes page for “Stop Presumption of Guilt in Mexico,” which already has 3,500 members.
- Enable commenting on all articles and blog posts on the website. Moderate comments in batches in the morning and afternoon.
- In the future consider using Ushahidi to map justice violations in the same way that Cuidemos el Voto maps voting irregularities. Again, a partnership with a think tank or academic institution would need to be formed to curate and verify reports.
- Create a YouTube channel to curate and encourage citizen testimonials related to pretrial detention. These videos could also be distributed using a common hashtag on Twitter.
- Publish all PDF reports as individual posts so that each report has its own unique location that can be linked to from social networks. This will also help determine which reports are attracting the most interest. In addition to a link to download the report in PDF format they can also be displayed and further distributed using Scribd.
To funders I recommend that it is now time to support not just research and analysis of the impact of pretrial detention in Mexico, but also outreach and communication to ensure that the conclusions drawn from the research are incorporated into judicial sector reform.