A Free Man Still Looks Over His Shoulder in Mexico

[geomancer]

https://www.nytimes.com/2011/03/05/w...ef=global-home

March 4, 2011
A Free Man Still Looks Over His Shoulder in Mexico
By ELISABETH MALKIN
MEXICO CITY

EVER since he was exonerated for a murder he did not commit and was released from prison, José Antonio Zúñiga has tried to disappear.

He sold his car, so nobody could track his address. He works at home fixing computers, but only for friends. He has no bank account.

“It sounds absurd, but I don’t exist,” he said.

Absurd, indeed, because in the past couple of weeks, hundreds of thousands of Mexicans have watched Mr. Zúñiga’s ordeal unfold on movie screens, turning him into a reluctant symbol of the failings of Mexico’s legal system.

As the star of a documentary, “Presumed Guilty,” that has become a hit here, Mr. Zúñiga, 31, tells much of his own story as the camera tracks his time in prison and records the retrial that ultimately led to his release.

The film puts Mexico’s secretive courts on full display for the first time. With the collaboration of the court’s grimacing judge and its simpering prosecutor, its threatening police officers and its stilted procedures, the criminal justice system seems to manufacture Mr. Zúñiga’s guilt, even though the evidence points toward his innocence.

A free man for two and a half years, Mr. Zúñiga, or Toño to everybody who knows him, is fearful that somebody may take revenge for the film. But just as he seeks protection in the city’s anonymity, he is obsessively recording his presence. He stands in front of security cameras and saves receipts, anything to prove where he was at any moment — in hopes of establishing an iron-clad alibi should he ever find himself in front of a judge again.

“I don’t know if it’s a delirium of persecution,” he said. “But getting out of there, you don’t trust the police, you don’t feel calm, out on the street. There are some things you have lost.”

ON Dec. 12, 2005, three policemen grabbed Mr. Zúñiga as he was crossing the street in Iztapalapa, a warren of working-class neighborhoods jumbled at the city’s eastern edge. After two days in a holding cell, he was told that he was being charged with homicide and sent to prison.

“You get to jail and begin to realize that nobody is interested in what you have to say,” Mr. Zúñiga said. “Nobody is interested whether you have proof that it wasn’t you. Then you begin to realize that you’re a pattern, a number, a statistic.”

He was sentenced to 20 years in jail based on the testimony of a single 17-year-old eyewitness, a cousin of the victim, José Carlos Reyes Pacheco, a young man shot to death in broad daylight in a gang-ridden section of Iztapalapa.

The Mexico City judge in the case — there are no juries in Mexico — convicted Mr. Zúñiga despite tests showing that he had never fired a gun. The judge also disqualified the testimony from all the witnesses who said they saw Mr. Zúñiga throughout the day of the murder working his market stall, where he repaired computers and installed software.

The film about his case unrolls almost like fiction, with unexpected twists, a happy ending and a rap soundtrack composed by Mr. Zúñiga and his friends.

But while the documentary “lends itself to heroes and villains,” the “real challenge is for people to understand that the villain is the system and the institutional design,” said Layda Negrete, one-half of the husband-and-wife team of lawyers who made the film. “To understand that we shouldn’t fire the judge, but change the whole structure in which the judges operate.”

On Wednesday, a federal judge ordered the film to be pulled from movie screens temporarily in response to a complaint by the witness in the case, Víctor Daniel Reyes, who argued that he was filmed without his consent.

The documentary captures Mr. Reyes, who has trouble understanding much of the legal language and frequently looks at the arresting officers for reassurance, as he eventually recants during the retrial.

Mexico’s deputy interior minister, Héctor Villarreal, said Thursday that the federal judge’s ruling was confusing and that the film would likely continue in cinemas while officials asked the judge to clarify her decision.

Lucid and introspective, Mr. Zúñiga is a sympathetic protagonist. But the film has also resonated here because its depiction of the police and courts lays bare the weak links in Mexico’s effort to build the rule of law and fight organized crime.

That is supposed to be changing. In 2008, as part of the government’s battle against drug cartels, Mexico began a sweeping overhaul of its criminal justice structure. As the reforms are phased in over eight years, Mexico’s federal and state courts are expected to replace their paper-choked procedures with oral trials. The police have been given more clearly defined investigative responsibilities. The changes also add safeguards to guarantee a defendant’s right to due process and the presumption of innocence.

A few states have moved ahead quickly with their reforms, but most others, and Mexico City, are still in the early stages.

Legal experts hope that Mr. Zúñiga’s case will give the efforts new energy, though Roberto Hernández, Ms. Negrete’s husband and co-filmmaker, said the reforms needed to go further, particularly with police investigations.

“You can’t combat crime with corrupt police,” Mr. Hernández said. “You had better have a clean police, so at least you know that those few who get caught really did it and also that those few who get caught can’t buy their way out.”

Mr. Hernández and Ms. Negrete have proposed several measures aimed at making trials more transparent: videotaping police interrogations and trials; conducting lineups; and ending the practice of placing the defendant behind a barred window during the trial.

That is where the audience sees Mr. Zúñiga during his retrial.

With the impassioned help of his wife, Eva Gutiérrez, Mr. Zúñiga won a new trial after the filmmakers discovered that his lawyer in the first one had faked his license. But the catch was that Mr. Zúñiga would face the same judge, Héctor Palomares, who convicted him before.

Persuading Mexico City’s chief judge, they won permission to film the retrial, bringing the camera into the courtroom, which is nothing more than a cramped neon-lighted office attached to the prison. At the proceeding, everybody clusters around a small table, while Mr. Zúñiga watches from his tiny holding cell.

It is from behind those bars that Mr. Zúñiga cracks his own case. Mexican law gives defendants the right to question their accusers, and Mr. Zúñiga had prepared for that moment, working to recover the confidence that prison had sucked out of him.

“You stop talking inside,” he recalled. “You feel like you can’t express yourself because nobody will listen to you, so why bother talking?”

In the filmed retrial, Mr. Zúñiga looks squarely at his accuser, Mr. Reyes, repeating his questions until Mr. Reyes haltingly admits that he never saw Mr. Zúñiga kill the victim.

With the prosecution’s only evidence in tatters, release seemed a formality.

But it was not. The judge convicted and sentenced him again. Mr. Zúñiga recalled thinking at that moment: “This trial was worth the trouble. People will be able to see it and ask themselves if this is justice. So the fact that I was sentenced to 20 years again seemed to make sense. Maybe we will be able to change things.”

MR. ZÚÑIGA’S luck finally turned after the filmmakers persuaded one of the three appeals magistrates who reviewed the case to look at the trial video. Convinced of “reasonable doubt,” the magistrate persuaded his two colleagues to release Mr. Zúñiga.

Still, he cannot return to his old life, fearful that somebody angry about the documentary might find him. For now, he feels, the newfound attention protects him. There have been offers — as a motivational speaker, to record his rap music — but he has more mundane concerns: get a high school degree, support his family.

“I don’t have a fixed plan,” he said. “They say that when you design a plan, it doesn’t turn out how you expect.”