For Antonio “Toño” Zúñiga, the nightmare began on the morning of December 12, 2005. Walking to the Mexico City plaza where he sold used video games, Zúñiga was arrested by a trio of police detectives and swept into their car.
Despite the absence of physical evidence and an airtight alibi, he was charged with and later convicted of murdering a young man a half mile from where he worked and sentenced to twenty years and six months in prison.
For Zúñiga, as for so many others caught in the maw of Mexico’s troubled criminal justice system, that would have been the end of it had it not been for two young Mexican attorneys and social science researchers, Roberto Hernández and Layda Negrete.
Working in part with a grant from The William and Flora Hewlett Foundation, Hernández and Negrete, self-described “lawyers with cameras,” produced Presumed Guilty, a 90-minute documentary that used Toño Zúñiga’s story as a vehicle to tell the larger tale of how justice works-or doesn’t-in Mexico.
Funding the documentary is a broader part of the Hewlett Foundation’s long-term strategy in Mexico to strengthen local institutions that provide research relevant to government policymakers. Hewlett-supported think tanks like the Centro de Investigación y Docencia Económicas (Center for Teaching and Economic Research) and Centro de Investigación para el Desarrollo (Center of Research for Development) conduct a broad range of social science research that provides objective information to support governmental reform in Mexico.
“The film provided a very powerful platform for the research data itself,” said C. R. Hibbs, program officer and managing director for Mexico for Hewlett’s Global Development Program. “It provided much wider impact than we would be able to get from funding the research alone.”
A Deeply Flawed System of Justice
In Presumed Guilty, the lawyers-turned-filmmakers recount the workings of a system where there was no presumption of innocence for defendants, no oral trials, and little use of physical evidence. Many, like Zúñiga, were convicted on the word of a single accuser in a written document which, of course, precludes cross-examination. Most never appear before the judge who convicts them. Conviction rates hover around 90 percent.
The International Documentary Film Festival Amsterdam, among the world’s most important venues for documentary film, invited Hernández and Negrete to premiere Presumed Guilty there next November, and it now is being circulated to influential festivals in North America in hopes of finding distribution.
The film was the third for the couple and their first feature-length effort. Like their earlier films, it uses objective data about the criminal justice system that the two researchers helped develop at the Centro de Investigación y Docencia Económicas and elsewhere to demonstrate the need for reforms.
In June, the effectiveness of that approach was clear, when President Felipe Calderón signed a long-awaited constitutional amendment that will allow U.S.-style trials, including the presumption of innocence and the right to oral argument in an open court.
In addition, a judge must be present for all hearings. In the past, a defendant could be convicted and never see or address the judge who convicted him. The reforms also will create a national public security system, with uniform rules for hiring, training, and evaluating the country’s 400,000 police officers. The enacted reforms, which will cost $2 billion to carry out, must be implemented by 2016.
Such reforms had been in the works for more than a decade, but two previous presidents were unable to get them through Congress. At least seventeen of the country’s thirty-one states needed to approve a constitutional amendment before it could be voted on.
“We were frustrated that the data we were generating was not being used in public debates about how to reform the judiciary or the prosecutorial system,” Hernández said.
Trying a New Approach to Get Reform
So Hernández and Negrete embarked on a series of increasingly elaborate visual presentations that used data they they had created with Hewlett support and coupled it with real life stories. The work garnered growing attention and fueled support for reform.
At one point, Negrete said, she and some colleagues at the Centro de Investigación y Docencia Económicas surveyed inmates about their perception of fairness of the justice system, concentrating on whether they thought they had a voice in the process. Among other things, she said, “We asked, ‘Do you think you would be able to escape conviction with money?’ And more than two-thirds said ‘sure.'”
“It turned out that 80 to 90 percent of them never even saw the judge in the courtroom,” added Hernández. “No one knew this.” When the couple presented the slide show to judges and prosecutors in Mexico City, Negrete said, “It was like throwing a smoke bomb in a room.”
Next, with the support of Ernesto Canales, the head of a Mexican organization that lobbies against pre-trial detention, the couple created El Tunel (The Tunnel). Released in 2006, the film was a twenty-seven-minute pastiche of individual miscarriages of Mexican justice interwoven with research facts. There was the man convicted of car theft even though the car’s owner said he didn’t do it. There was the woman jailed for stealing a teddy bear where the only evidence was a photograph of the bear; another woman was sentenced to six years for stealing $20.
The research facts, given life by the stories, were more compelling than the facts alone: 70 percent of those in prison were there for petty theft; the public fails to report three-quarters of all crime because they believe it is a waste of time; and the number of unjustified detentions was rising steadily, up to 60,000 in 2003. And so on.
Hernández and Negrete used El Tunel to broaden the audience for reform, holding a series of breakfasts with civic leaders, powerful businessmen, and leading politicians in Mexico City where they would air the film. “It had impact on the political class rather than the public,” Hernández said. “Sometimes it grew to 50 people. They’d stay and be shocked. … The data was shocking because it made sense. The media began to broadcast it.”
Reform Takes Hold
Ultimately, these civic leaders called on a leading legal scholar, Miguel Carbonell, to write the first draft of the constitutional amendment.
Hernández and Negrete decided to make Presumed Guilty in 2007 as a way to engender public support for the constitutional reforms. It would be the first story they would tell with a happy ending.
The filmmakers’ first stroke of luck came when research revealed that the attorney who defended Zúñiga had forged his license, giving them grounds for a retrial. Some of the film’s most compelling moments come as Zúñiga, standing behind bars in the judge’s office, confronts his accuser-a member of a street gang that was likely responsible for the murder-and the sullen detectives who arrested him.
There’s even a plot twist worthy of Hollywood. After considering the evidence at the retrial, we watch as the original judge rules that Zúñiga is guilty as charged. Hernández said the reconviction was further evidence of how the system, which was driven by written testimony, created the presumption of guilt.
It would not be until Hernández and Negrete acted as Zúñiga’s lawyers for the appeal that the conviction was at last reversed and he was freed. Crucial in that reversal, the two say, was the fact that the appeals judge watched an early cut of Presumed Guilty before rendering his verdict.
Two years had passed since the December morning of Zúñiga’s arrest.
“Toño’s case is very typical,” said Hernández , who today lives in Berkeley, where he and Negrete are working on doctorates in public policy. “It’s something anyone in Mexico can relate to.”