Presumed Guilty: Oaxaca Justice

Casa de Arraigo

Oaxaca’s new governor, Gabino Cue Monteagudo, holds the unhappy job of cleaning the Augean stables of crime and corruption. He is widely credited with honesty and decency, but initiating and promoting  profound change may require more than one generation.

Casa de ArraigoOaxaca’s new governor, Gabino Cue Monteagudo, holds the unhappy job of cleaning the Augean stables of crime and corruption. He is widely credited with honesty and decency, but initiating and promoting  profound change may require more than one generation. For the justice system, the difficulties include retraining a horde of bureaucrats, police officials, prosecutors, investigators, translators and public defense lawyers; and for the ordinary citizen: stop submitting and refuse to cower. The inability of government structures to make swift changes became more than evident on April 11, 2011, when a USA citizen was brutally murdered in his home in a Oaxaca suburb. Call the cops—almost anyone might be guilty.

On Monday April 11 the disappearance of a man we’ll call Harry Craig[1], along with his computer, Jeep and motorcycle, was discovered. His house had been ransacked, a wall safe pulled loose, blood spilled. Craig was alive on Monday morning. When he was reported missing Monday evening, nobody knew he was already dead. No  vehicle theft was recorded: an important distinction from reported. Close friends waited for a ransom call.

On Wednesday, April 13, two days after the murder, another American, Frank Douglas, was assaulted by plain clothes police and wrestled to the ground in front of his rented home in the town of Tlalixtac. The neighbors ran out in his defense, shouting “Let him go, you bastards!” some wielding machetes, but Douglas was shoved into an unmarked vehicle, losing a tooth in the process. He called his wife in a frantic cry: “I’m being kidnapped!” With his head enclosed in a black bag he was first driven to the small Tlalixtac police station and then he vanished. After a frantic night his wife located him at the lock-up of the District Attorney for the state of Oaxaca (PGJE, in its Spanish initials) in the Judicial Administrative complex called Ciudad Judicial, thirty miles beyond the capital city.

The justice system in Oaxaca follows the Napoleonic code: a person suspected of grave crimes can then be detained initially for a month while the police seek evidence against the alleged culprit, or perhaps manufacture evidence, or the police can remand the suspect to prison with no further investigation — guilty until proven innocent.  The Mexican system resembles others in a most basic way: if you’re poor, you’re screwed. A terrorized Douglas did not well support interrogation; he changed his story several times trying to satisfy the interrogators and finally signed a “confession” although the nature of the crime was not clear. The Oaxaca government offered a public defender accustomed to the presumed guilty method. Douglas was also offered a translator, since his Spanish knowledge is minimal. Both services were rejected by Douglas’s  wife, who is bilingual. She hired an attorney.

On Thursday the body of Craig was found, on his own property, hung in a well. Clearly more than one man was involved in the crime, Craig was a healthy six-footer. He had been shot in the neck with a pistol.

Douglas never was told that he was being investigated for crimes including bribery of a police officer, car theft, murder, narcotrafficking and selling child pornography from the back of a stolen car. His lawyer and the American consul were able to verbally ascertain the charges, but not obtain copies of them. The lawyer was permitted to sit in an office in Ciudad Judicial and read the documents being prepared by the office of Artemio Alvarado, Governor Cue’s new prosecutor for homicide.

Federal experts have called for switching to presumption of innocence across Mexico. Summary judgments in the media, media pressure to influence judges’ decisions, lack of economic resources for the Judicial branch of government, corrupt police with sub-minimal salaries, all were attested to by  a judge of the Superior Court of  Justice in the Federal District (TSJDF in its Spanish initials), along with lawyers, jurists and a federal member of the House of Deputies. In their third month of work organized by the National Network of Civil Organizations, the task force asked for penal justice based on an accusatory, oral and adversarial model: a completely new system.

Information was “leaked” to the local newspaper which supports Cue, almost entirely false. Judge Salvador Ávalos, who convinced two of his colleagues to absolve José Antonio Zúñiga, the protagonist of Mexico’s infamous documentary “Presumed Guilty” (Presunto Culpable) of the homicide charge which kept him in prison for two years, asked the nation to avoid “summary judgments” made daily from a radio microphone or a television camera. Ávalos proposed that the  TSJDF receive budget autonomy to support changing the system, plus reform several articles in the Mexican Constitution. The Mexican Chamber of Deputies has prepared changes to the Federal Penal Code and Federal Penal Procedures which would require judges and courts nationally to video-record all court audiences and guarantee the presumption of innocence. Theoretically, the nation, including Oaxaca, is ready for change. But among the obstructions loom lack of professional training of Public Ministers for Justice and investigative police. It is also necessary to place Mexico’s criminal investigations in the context of a horrendous “war on drugs” which has claimed 40,000 deaths during the present presidential term: fear and lack of public security prevail.

After a week of intensive questioning, Frank Douglas was moved to what is called a Casa de Arraigo, a house for holding prisoners while the search for evidence continues. The police themselves held the vehicle belonging to Craig for more than twenty-four hours, having taken the keys on Tuesday from Douglas, who was thinking of  buying it. Under Oaxaca regulations, a buyer needn’t change the registration for up to a year, Craig’s name was nowhere within the Jeep. Nor had the Jeep been recorded as stolen. The police released Douglas.

In the past six years 6,951 auto thefts occurred in Oaxaca, an increase of 401% in that period. 97.8% of the cases  remain unsolved. Revealingly, data doesn’t correspond among the different government offices: the National System of Public Security from 2008 to 2010 claimed  4, 553 autos were stolen in Oaxaca; however in the records of the PGJE the number was 4, 019. In other words, more than one of each ten vehicles reported stolen vanished among those in charge of prevention, investigation and recovery of vehicles.

As soon as Craig’s body was discovered on his property on Thursday, April 14, the situation intensified. Douglas, still in a cell in Ciudad Judicial,  was tested for gun-power and blood stains which yielded no positives. Nevertheless the police planted “unattributed leaks”, indicating the criminal had been arrested. He was depicted as being an alcoholic and heroin addict. He was charged with homicide. The media, in this case the newspaper in support of Cue, became an accessory to presumed guilty.

When a person is held for investigation the system of visitation privileges is limited to his/her immediate family, who may visit any day they choose after first entering Ciudad Judicial to obtain a pass with proven identification. The pass is a one-day affair, and Ciudad Judicial may be a forty-five minute trip beyond Oaxaca center. Then the visitor carries the pass to the Casa de Arraigo located in Xoxocotlán, half an hour in a different direction. The visitor can bring coffee, soap, toilet paper, (none of these provided) and small sums of money to ask  the guards to purchase extra food. If a visitor is poor, or cannot afford to lose a day’s pay,  the system presents a brutal hurdle.

On Thursday April 21, Douglas’s wife Pam was seized at the Ciudad Judicial complex where she had gone to get a pass to visit her husband. By then Pam was in possession of a state judge’s protection called an amparo, but unknown to Pamela or to her lawyers, the attorney general had escalated the alleged crimes of bribery and car theft to homicide and narco-trafficking, serious crimes.  Pam was driven to her home in Tlalixtac, which was searched. She was subjected to an intimate full body search. Items were taken from their house, and then Pam Douglas was sent to the Casa de Arraigo where her husband was imprisoned. The reunion took place at a distance: men and women are not allowed to communicate, although they share one common bathroom: at that time eighteen men and five women. The couple by now were beside themselves, unable to guess what crimes they might have committed, and exhausted from Oaxaca conditions to which they were not accustomed: inadequate food, a dirty mattress assigned to Pamela in a room with four other women. Douglas had lost about  twenty pounds.

But how lucky they were: a mother and money were available. Americans in Oaxaca may live in modest circumstances by USA standards, but by Oaxaca standards they are relatively well off. The lawyer’s team was now called into double duty. His failure to protect Pam was not his fault; the government switched charges and levels, from common to serious. Perhaps he should have foreseen that it would. And what about the mother?

Adele Mael’s first reaction to the arrests of her family was horror; as a  long time Oaxaca resident she knew that an uncounted percentage of innocent people remain in prison while the prosecutor tries to gather evidence, sometimes up to two years. The USA consular agent assured Mael that Pamela and Frank were “lucky”, that is, the Casa de Arraigo was not a prison with guard towers and bars. She waited, fearful her daughter and son-in-law would be shipped to Ixcotel, the central Oaxaca penitenciary. Josefina Jaime Quiroz, director general for carrying out incarcerations in the state, determined that at the end of March 2011, (it’s now May),  the prison would be modernized to provide better conditions and controls of movement in and out. The system allows, or better say requires, a family bring food, shoes and clothing. A prisoner with no family suffers severe deprivation.

The facility needs a million-peso face-lift, security for the prison population and for those who visit, minimization of drug trafficking and corruption, plus a psychiatric annex. The biggest challenges consist of exchange and sale of drugs, weapons or other dangerous contraband. The 1,394 prisoners (94 women) cram into space meant for 1,150. Expenditure per prisoner is eight pesos and 60 centavos daily, as Jaime Quiroz admits, “which does not buy… food for daily consumption.”

On April 27 a friendly government secretary, newly appointed by Gabino Cue, answered Adele Mael’s alarmed email. They had been acquainted for several years in the context of the 2006 social movement which sought to expel Oaxaca’s deeply corrupt PRI governor. Both recognized that the justice system works to nail a culprit, as had been done with Brad Will’s[2] murder. Mael assured him that her daughter and Douglas were not vagabonds or criminals; they have property and a modest income. No motive to steal and/or murder existed. Mael’s friend arranged a meeting with the newly appointed PGJE Manuel de Jesus López López.

A  meeting of more than two hours occurred the night of Monday, May 2. In Ciudad Judicial’s complex many buildings remained lit up. “Muy trabajador” the guard told Mael, very hard working. Finally she was ushered into an office to meet with López López and Artemio Alvarado, the sub-secretary in charge of homicides. For the first hour, according to Mael, they played out a bizarre script:

Mael: What purpose does it serve to keep people imprisoned after a federal judge has ruled there is no evidence? Is the wife guilty by association?

AA: What judge? What court?

Mael: The federal 8th circuit court.

AA: Child pornography was found on Frank’s computer.

Mael: Piffle

AA: Do you know that Frank is a heroin user?
Mael: piffle

AA: A gun was found in Frank’s house.

Mael: piffle


She complained to Alvarado and Lopez on behalf of the poor that a few thousand pesos had already been spent on taxi rides, to say nothing of the cost of the lawyer. Well, López replied, in your case we’ll make an exception and give you a permanent pass, so you can go directly to the Casa without making the first leg of the trip to Ciudad Judicial.

From Lopez’ office they moved to another, where suddenly three other men appeared. Mael waited for her pass while they tossed out questions. They informed her that at this date there were four suspects in the Casa de Arraigo, two of whom were her son-in-law and daughter. The other two, “Carlos” and “Gonsalvo” had denounced Douglas as an accomplice when he identified the “used car” salesmen..

After two hours Alvarado walked Mael out of the building, and on the front steps asked, “Is it true that Frank owns stocks?” He sounded wistful. On the other hand, her effort to pull strings had failed. The juggernaut was in motion. Their lawyer had offered to obtain court protection called an amparo for Mrs. Mael when Pamela was arrested. Now she understood why.

At the Casa de Arraigo Mael was not permitted to speak with Frank during this “special” visiting arrangement, only with her daughter; another odd Oaxaca recognition: blessed are the mothers. She lugged orange juice, fruit, clean blouses, two books to read.  One month is the legal detention limit, and López had agreed that when Frank was released Pamela would be also. Under the new amparos obtained by their lawyer, the prosecutors could no longer interrogate the prisoners; the court had declared no evidence existed to support any charges. Nevertheless petty officials showed up. One claimed to be a  psychologist. Another pretended to be a doctor. A third wanted signatures from both. Meanwhile one of the Douglas’s neighbors reported that a man with keys had re-entered their house. Panic. They  asked the lawyer if the prosecution would plant new evidence and he replied due to the amparo they could not. Instead, they might assign a new crime.

In this war-weary process no-one trusts or cooperates with any investigation. Badly underpaid police steal to feed their families and buy boots. All police, whether at the prison or  at a house of detention or on patrols, must be rotated to minimize bribery and collusion. Amid various news articles condemning police crime, an article appeared in Noticias Voz y Imagen in which the PGJE showered praise on the work done by the homicide chief, Artemio Alvarado Ramírez. It resembled a counter-campaign to serious prosecutorial failures such as  limiting gangs swollen by unemployed youth. Lopez claims that ten different bands of kidnappers have been brought down, twenty-four murder charges have been made (presuming among them that of Frank Douglas), four house searches carried out and seven people detained awaiting evidence of criminal behavior, with 27 others imprisoned. In the first four months of the new administration 337 car thefts were recorded and 165 retrieved from the six bands which manage car theft.  The PGJE indicated that his department has available trained human resources permitting it to brake criminal activity.

On  May 10 the prosecutor’s office failed to bring requisitioned documents to the federal judge. The hearing was delayed  until May 24. The system does not allow personal testimony or discussion, the PGJE must send officials with proof of guilt, and the lawyer must show there is no, or inadequate, evidence. Under the baroque circumstances, the lawyer was confident. Mrs. Mael paid the Douglas’ phone bill and contacted their landlord. Pam Douglas spent the days with a remaining room-mate painting their fingernails and chatting about the presumed guilty system. The other woman, also arrested for being wife to an alleged criminal, cried a lot. So did Pamela Douglas.

On Sunday night, May 15, Pam and Frank Douglas were abruptly told they could take their belongings and leave. No document or explanation was offered, indeed their house keys and belongings remained in Ciudad Judicial. They packed and took a bus. Pam called their lawyer. He said, go to your mother’s house and stay hidden to avoid re-arrest until another court order  was issued, which occurred on Wednesday, May 18. Meanwhile, the lawyer discovered, another arrest warrant was issued against them both, in other words, serious charges like murder and narcotrafficking have no time limit. The only salvation once again was in the hands of a federal judge who could rule on the couple’s innocence.

Any murder of an American citizen in Mexico takes on imperative overtones. Uncle Sam looks over the shoulder of every government action, and when an American’s death is involved, demands for a culprit, along with emotional, financial, physical and moral damage surge to tsunami levels. The rhetoric for justice has improved, the system has not.


[1] names of Americans have been changed  to protect the families

[2] Brad Will was an Indymendia reporter shot in October of 2006 evidently by local police, but a bystander was arrested. Harry Craig’s death was the fourth foreigner’s murder.