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Perry Mason v Alberto Gonzales: legal reform in Mexico

12 March 2007


There are things to like about the whimsical version of the Code Napoleon used in Mexico.  “Corporations” aren’t persons, per se, like they are in the U.S.  The people in charge are… and tossing them in the slammer for ignoring safety regulations that lead to fatal industrial accidents seems quite reasonable to me. 

But, given that you can be jailed on reasonable suspicion after a denunciacion, and that granting amparos (basically, a restraining order against the police and prosecutor) is hit-or-miss (or…alas… often a question of money and connections), too many people sit in jial for stupid crimes that could be settled out of court.

The Supreme Court recently upheld the right of judges to impose “community service in lieu of fines” for most crimes.  Given the slow progress of criminal trials (mostly by written testimony, and often prepared on manual typewriters), this might cause a jump in the conviction rate… but lower the incarceration rate. 

“Mark in Mexico” made a good point (for once) about jail overcrowding in Mexico City.  The Federal District has been doing a fairly decent job of getting people to report crimes, and prosecuting.  Which means more people sitting in jails, often for petty things like shoplifting or small-time narcotics sales or… in a friend of mine’s case… taking the neighbor’s old lawn furniture (it was on the street and he thought it was trash.  The neighbor thought otherwise).  If people can just plead out and spend a day or two cleaning the street or scubbing toilets in the Delegacion, it beats the hell out of sitting around el reclusio for weeks… or months, waiting for the judge to get around to reading the testimony.

One reform, that’s been implemented in several states, is admitting oral testimony.  One reason courtroom dramas are usually set in Britain or the U.S. is that trials feature the accused and the accusers all telling their story.  Not very often in Napoleonic code trials.  Sometimes the lawyers get histronic (in Latin America) or poetic (in France) or pedantic (in Scandinavia) or operatic (in Italy)… but you usually don’t hear from the witnesses or accused.  That’s all been written down off-stage. 

And, in Mexican courts, reflecting the informality that came out of the Revolution, the trials can be very, very dull.  The accused MIGHT see a court stenographer in the jail hallway.  Even the oral trials are often this way… I’ve seen films of U.S. sailors held in Tijuana on drunk and disorderly charges (hey… doing what sailors are supposed to do in Tijuana) too hung over to realize they’re on trial.  They expect a judge to wear a robe… or at least a tie.  Conjugal vistors aside, nobody dresses up to spend an afternoon in a smelly jailhouse — not even the judge. 

Nobody’s particularly happy with the way things are now, and there has been a push for reform.  The Fox administration proposed (and failed, like it usually did) to push through a new Federal code … though Fox (again typically) also wanted to adopt a version of the U.S. system… which, of course, the opposition rejected.

Calderón is going a step further.  

The judicial changes sought by President Felipe Calderón Hinojosa, which he claims will reform the security system and judicial process in the country, are receiving a mixed review from noted criminal attorneys. The proposed changes would extend the legal authority of Federal Prosecutors (Procuraduría General de la República or PRG for its initials in Spanish) to in install telephone taps, detain suspects and initiate investigations into organized crime without a judge’s authorization.

Four of seven lawyers Jornada consulted yesterday disapproved of the constitutional initiative, describing the reforms as “dangerous for Mexican democracy” since they would grant unlimited powers to District Attorneys ( Ministerio Público, MP ) to “assign blame” and “punish” opponents of the regime.

However, three of the penal law specialists said that Calderón’s proposal did not implicitly threaten human rights violations. The Federal Judiciary, they said, would act as overseer, and the reforms would merely reduce the “bureacratic-legal” nature of investigations, which make it difficult to look into drug trafficking.

Heraclio Bonilla, who defended ex- president Luis Echeverria Alvarez [on genocide charges realting to the 1972 student massacre in Mexico City], worries about the tendency to adapt the U.S. penal system in criminal prosecution and sentencing, in Latin America. In Mexico, this would create a PGR with unlimited powers.

The problem is based, he warns, in differences between the U.S. and Mexican theories of governemtn. Here, there is no “balance of powers,” but would grant powers to the PGR, which is submissive to the Presidency. The intent is to create an “all-powerful” state mechanism: “It’s simple. Blame enemies of the regime for being involved in organized crime. Once you law the foundation, you have the seeds to grow the evidence of any crime you want, even if one’s not been committed.”

(Alfredo Mendez Ortiz, in Jornada, 12-Marzo-2007. My translation)

In Italy, the change to oral testimony came about in the early 1960s thanks to legal reformer Ramond Burr. Nah… but wathcing Perry Mason dubbed into Italian did have a lot to do with it.

Felipe Calderón should watch more old American TV shows, and less Alberto Gonzales news conferences.

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