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Product Details
| ISBN-13: | 9780520292628 |
|---|---|
| Publisher: | University of California Press |
| Publication date: | 04/25/2017 |
| Series: | Violence in Latin American History , #4 |
| Edition description: | First Edition |
| Pages: | 368 |
| Product dimensions: | 5.90(w) x 8.90(h) x 1.00(d) |
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A History of Infamy
Crime, truth, and justice in mexico
By Pablo Piccato
UNIVERSITY OF CALIFORNIA PRESS
Copyright © 2017 Pablo PiccatoAll rights reserved.
ISBN: 978-0-520-29262-8
CHAPTER 1
From Transparency to Darkness
JUSTICE AND PUBLICITY IN THE MIRROR OF CRIMINAL JURIES
BETWEEN 1869 AND 1929, MEXICO'S capital housed the institution that best embodied the possibilities and limits of the pursuit of truth in crime: the jury system in penal courts. A group of randomly selected male city residents had the power to decide over the facts in felony cases. Attorneys and judges maintained a prominent role in the process, and the voices of witnesses and suspects were also heard during public audiences, but the decision about justice was ultimately in the hands of a few good men who, lacking any direct interest in the conflict at hand, voted with their conscience to represent public opinion. Despite constant criticisms from legal experts, the popular juries, as they were often called, worked with sufficient transparency and independence to achieve considerable authority. By the 1920s, the institution had reached the peak of its influence, but it was abolished in 1929 by a presidential decree that replaced the Federal District's penal code. Criminal processes then followed an inquisitorial system, identical to the one already established in other jurisdictions, which kept most of the work of prosecutors and judges out of the public eye. The reasons for the abolition of the jury system, as we will see, were as much political as juridical. Starting in 1929, in any case, the penal process became completely opaque to common citizens.
During the 1920s, jury trials were prominent in the public sphere as the venue where diverse actors presented narratives and explanations of crime to broad audiences. Famous cases mobilized the rising power of newspapers and the radio. Those cases were particularly fascinating to the public because they exposed the subjectivity of those actors to the public's probing scrutiny while simultaneously channeling criticism of the postrevolutionary regime. Jury trials were the framework for influential debates about femininity, and they in turn contributed to the transformation of the role of women in public life — although, as we will see, not necessarily in a way that empowered them. Jury trials were a key site for constructing criminal literacy, and they catalyzed the emergence of publics that would tackle the problem of violence and impunity in subsequent decades. Studies of criminal juries in other countries stress their role as a space in the public sphere to explore many topics other than justice: emotions, gender roles, privacy, race. Jury trials did look like theater, and it is indeed tempting to see them as a stage where a variety of interesting plots and roles were performed as melodrama. Changing expectations about women in relation to violence and domesticity played out in this theater. In Mexico, however, jury trials were also the main stage for the pursuit of truth and justice. Multiple actors, from lawyers and suspects to audiences and journalists, participated in contentious debates, while jurors considered competing narratives. State agents had only limited control over the process. The result was the emergence of an enduring skepticism toward the law. Looking at how jury trials operated beyond the structure of melodrama shows that women and political adversaries of the government could also use them to challenge their subordination.
After a brief history of the jury trial and its political context, this chapter will describe its operation through the testimonies of its defenders and adversaries. It would seem that nothing about jury trials was serene or balanced: the debates among lawyers about a particular case could be as acrimonious as the disputes on the way the institution worked. The basic question that divided those opinions was whether jurors were easily manipulated by base emotional appeals or hidden interests, or whether they were the custodians of a truly democratic institution. The second part of the chapter will deal with a famous case that marked the zenith of the jury trial's influence in the public sphere, when in 1924 a girl was acquitted after murdering a politician. The third part will consider the fall of the institution, after the trial of the assassin of the president-elect in 1928, and a verdict that was reached in the context of political pressure, religious conflict, and the media's obsessive interest. These two cases exemplify another lasting legacy of jury trials: the open vindication, by members of civil society, of informal justice and extrajudicial punishment as the best ways to deal with the limitations of the state.
Established after half a century of civil war and foreign invasion following independence, jury trials promised an enlightened way to address the conflicts that still riddled the nation at every level of public and private life. Justice Minister Ignacio Mariscal and other liberals who proposed the institution identified it with democracy and progress and offered a prestigious genealogy: the jury was an invention of ancient Rome and Greece, perfected by the English people, codified by the French Revolution, and embraced by the United States. The Mexican 1856 Constitutional Congress, summoned by a liberal coalition, had debated the idea of including criminal juries in the new constitution, failing to approve it by only two votes. After the civil war with conservatives (1857–1861) and the French invasion in support of a monarchy (1861–1867), the same group of liberals returned to the idea. This time they established jury trials in the Federal District through a law that Mariscal proposed, Congress passed almost unanimously and President Benito Juárez signed in April 1869. As a space where the common citizens could, at least in theory, intervene directly in the process of justice, "the popular jury," as it was often called, seemed to be a lively expression of popular sovereignty. There was a Mexican antecedent that Mariscal was reluctant to acknowledge. Journalists had been tried before juries from the 1820s until 1882, with some interruptions brought by political instability. In 1869, however, Mariscal was trying to avoid the impression that criminal juries would have the same flaws as press juries, which many saw as chaotic and biased in favor of suspects.
Proponents of the jury believed that it could teach the public to tackle complex ethical and political situations while redeeming a justice system that lacked authority. Benjamin Constant, a strong influence on early Mexican liberals, argued that the jury was a mainstay of governance because it channeled private citizens' concern about the law. The jury was valuable because it allowed ordinary citizens to not only enforce but also transcend the law, using their common sense to perform a basic function of public opinion in its classic role of judging reputations. Even though they were asked to decide only on the facts of a case, jurors took their common sense further, embracing the emotions of the trial and adopting a negative view of the law when they thought it was flawed. Jurors in criminal cases placed their conscience above the letter of the law and judges' instructions. For old liberal Guillermo Prieto, too much guidance from authorities altered the essence of the jury and turned it into merely another branch of the judiciary. If education could lead to injustice, ignorance was a virtue.
And ignorance was not difficult to attain. By 1869, penal legislation was still a hodgepodge of colonial codes, national laws, and traditional norms. Upheaval and civil war had made magistrates vulnerable to corruption, political pressures, or, among lower-court judges, inexperience. Liberals argued that only the direct participation of citizens could remedy such "judicial putrefaction." The jury's democratic nature helped it to gain the broad support it won early on as a testimony to the struggles that the country had just survived. Writing from El Monitor Republicano, "Juvenal" argued that the people had to claim the power to judge: "Let's not delegate to the hands of power," he admonished, "the very rights that we have been able to take from it only with great effort." Mariscal contended that the jury was a new right of the Mexican people: as a representation of the people, the jury would prevent the politicization of justice and other abuses of power.
More than a right, the jury was an expression of popular sovereignty, a direct representation of the popular will through the conscience of individual citizens. Prestigious liberal ideologue Ignacio Ramírez explained that "the sovereign people" were the quintessential judge, just as they had been in the public square of antiquity and were at the time in the United States. According to the 1869 law, jury verdicts could not be appealed if nine jurors out of eleven were in favor of conviction. A simple majority was enough for a verdict even if it led to a death penalty. In the following years, critics saw this broad authority as an idealistic aberration. Subsequent reforms gave judges authority to hear an appeal against the jury's decision in case of procedural error, but maintained the exception when the vote was close to unanimous. The premise was that only individual citizens could be honest, free from the influence of money and power that so easily corrupted public officials. Each juror decided within the subjective realm of his beliefs, where he was accountable to no one, except perhaps God. Thus, for example, even if a juror was asked to vote on the facts of the case, he was free to rule instead on the basis of his appraisal of the morality of the suspect's action. Unlike the judge, by "applying the moral law that each man carries in his conscience," the juror was above the letter of the law and the intentions of the legislator.
The letter of the law, however, was equivocal about jurors' obligations. The questions posed to them by the judge were restricted to matters of fact ("Is J. Jesús Soto guilty of having taken the life of Marcos Tejeda by inflicting the wound described in the medical certificate?" Or, "Was the death of N caused by peritonitis caused by the wound?"). Yet when jurors began to deliberate, they were sworn "to fulfill the obligations of the jury without hate nor fear and to decide, according to your conscience and your intimate belief, the charges and the means of defense, conducting yourself with all impartiality and firmness." Beyond that subjective demand, the law did not impose any rule as to how jurors should reach their decisions. After all, the jury's authority resided in the individual conscience of each juror: it was not his intelligence or knowledge that mattered but his sincere belief about the moral value of the suspect's actions.
From its inception, the jury trial elicited resistance from sectors of the legal profession. At first, lawyers could see the benefit of a system that enhanced the impartiality of judges. Before juries were tasked with deciding on matters of fact, judges had to carry the double role of prosecutor and adjudicator, gathering evidence and then dictating the sentence. The popular jury, and the special prosecutorial office created to supplement it, would leave the judge to coordinate the process and decide on matters of law, thus preserving his impartiality. But as the legal profession grew in size and expertise, some began to voice criticism of such "democratic improvement" on the administration of justice. Thus, the 1869 law was followed by rulings and legislation that reflected growing skepticism. The Federal District's highest court proposed to eliminate criminal juries as early as 1880. Instead, the 1881 Code of Penal Procedures for the Federal District narrowed the jury's purview to crimes with a penalty of more than two years of jail. A new code of procedures from 1894 further limited the crimes that juries could decide and expanded the role of judges. More crimes, like bigamy, were excluded in 1902, and in 1907 juries were restricted to crimes with penalties of more than six years of prison; juries were also excluded from hearing cases involving dueling, adultery, and attacks on public officials. During those years, other states that had also had criminal juries abolished them. Just before the revolution, jurists augured that the days of the popular jury were numbered. However, Primer Jefe Venustiano Carranza included the popular jury in his project for a new constitution in late 1916, and this time constituent deputies approved it. Regulations for the Federal District remained in effect until 1929, when a new penal code was approved. The possibility of using juries instead of judges remained in the constitution until 2008, but only for a few crimes, like treason and libel.
Critics of the jury system voiced pessimism about the average citizen and his ability to express the popular will. For Santiago Sierra, the illusion of "our democratic experience" had consecrated an institution that was a poor and ephemeral reflection of justice. Forty years later, another Porfirista, Francisco Bulnes, argued that the jury's authority had to be constrained because "we do not deserve justice, because whoever cannot make it does not deserve it." Bulnes described the jury in Mexico as bad parody of august models: "The twenty six just men of the prudish England ... became in Mexico twelve coarse men who congratulated rapists for the good bodies they have enjoyed, mocked husbands who suffered scandalous adulteries, admired the exquisite horror of those who murdered their concubines or public women, exalted in the heroism of the troublemakers, the astuteness of treacherous murderers, the trickery of thieves." The most coherent indictment against the jury, however, came from prominent lawyer Demetrio Sodi, a judge and jurist who acquired considerable influence and wealth during the Porfirian period. Sodi published El jurado en México in 1909, calling for the end of the jury trial, which he believed was imminent: most states had already eliminated it and established "procedures that are in accordance with the scientific advances of penal law." The book echoed the positivist critique against liberalism but stressed the perspective of a legal profession that had already acquired greater prestige by the time. Sodi argued that the jury was not a democratic institution (how could it be, if the lists were arbitrarily produced by government officials?), and he dismissed the idea that juries were necessary because of the flaws of the judicial establishment. Even if most judges were poorly educated, the defects of the jury were such that its abolition was still a better option. Based on his long trial experience, Sodi combined the usual quotations from legal authorities with outrageous anecdotes from actual Mexican jury trials. He listed the many ways in which justice could be undermined. One of the main dangers were lawyers' tricks and rhetoric "because juries decide by impression and not by intimate belief."
Reports of frequent irregularities in the court buttressed calls to abolish jury trials. Courtroom spectators tried to influence the jurors with their vociferous responses to speeches and testimonies. Bribes and threats were discovered in some cases. Jurors often hurried, not taking the time to seriously consider the evidence. Lawyers used sophistry or encroached on the court's roles. The strongest indictment ofjury trials came from a few particularly scandalous cases in which juries acquitted suspects of crimes like homicide. Although newspapers reported most of these instances as routine, a few examples seemed particularly outrageous, prompting early calls for abolishing the institution or temporarily suspending constitutional guarantees. There were plays inspired by such injustices, and extensive coverage of particularly grievous acquittals resulting from jury votes that contradicted the evidence. Even faced with a suspect's multiple confessions, as in the case of accused murderer Felipe Guerrero in 1895, juries did not always deliver a guilty verdict. For critics, the conclusion was plain: the kind of people who served in juries were selfish and therefore sympathized with the criminal, or they were so crass and base that they failed to see the abnormality of crime.
These arguments neglected the fact that in many cases acquittals were supported by strong evidence, and guilty verdicts in others led to the death penalty. A count made in 1929 by judges who presided over jury trials found that of 260 trials, 70 percent resulted in a guilty sentences, 5 percent were "absurd verdicts, mainly because of defects in the way the accusation was formulated" (where prosecutors requested harsh punishment for minor offenses), and the rest were acquittals for "crimes of passion." The numbers, even if partial, contrasted favorably with the data collected in 1880, when juries in a small sample of cases acquitted more than 70 percent of the accused. The improvement, newspapers argued, was the result of their coverage, which had made the operation of the trial more transparent. Even the jury selection could become a public event, with newspapers printing the names and portraits of those chosen.
(Continues...)
Excerpted from A History of Infamy by Pablo Piccato. Copyright © 2017 Pablo Piccato. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
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