International Justice Monitor

A project of the Open Society Justice Initiative

More Legal Battles in Rios Montt Genocide Trial Even While Trial Remains on Leave Until Tuesday

On Friday, the court was not in session for the trial of former de facto president Efrain Rios Montt and his then head of military intelligence Mauricio Rodriquez Sanchez on charges of genocide and crimes against humanity. Four judgments of the Constitutional Court issued very late on Friday caused a stir, yet none appear to jeopardize the continuation of the trial on Tuesday.

An ancillary appeals court hearing on Friday identified other challenges, with Rios Montt seeking again the annulment of much of the trial even before its conclusion. The appeals court is due to rule on this legal challenge by Monday.

The trial is scheduled to resume Tuesday, May 7, after the trial court on Thursday ordered a five-day suspension to allow a newly appointed public defender to get up to speed. For the past two weeks, the trial has rested precariously on the verge of closing arguments, yet the defense has lodged myriad legal challenges before various judicial authorities seeking to prevent the conclusion of the trial.

New Constitutional Court resolutions

Late on Friday, the Constitutional Court issued four judgments resolving some of the outstanding legal challenges (amparos and ocursos en queja) pending before them. [Links to the judgments forthcoming.]

On their face, none of the Constitutional Court judgments require the suspension of the trial. Yet lawyers for both sides presented dueling depictions of the significance of the judgments. As has been the case various times already since the beginning of the trial, lawyers for the defendants insisted that the Constitutional Court rulings prevent the conclusion of the trial. As vigorously, the civil parties have insisted that the rulings mean no such thing.

All of the Constitutional Court’s judgments released late Friday resulted from defense appeals related to trial court orders from the opening day of the trial. In only one – concerning the trial court’s decision to provisionally admit all of the defense’s evidence – did the Constitutional Court grant the relief requested.

Constitutional Court rules that only a lower court can admit evidence

In a resolution issued Friday, the Constitutional Court ruled that the trial court is not authorized to make judgments concerning the admissibility of defense evidence. The Constitutional Court recognized this authority as exclusively within the competence of the pre-trial, or first instance, judge. (In Guatemala, one judge oversees preliminary pre-trial matters and a three-judge panel oversees the trial.)

This ruling was in response to a challenge by Moises Galindo, attorney for Rodriguez Sanchez, to the trial court’s refusal to suspend the trial on April 5 to allow the pre-trial judge to issue a new ruling on the admissibility of evidence.

The significance of this ruling may be minimal in light of intervening events: On April 26, a pre-trial judge did in fact rule on the admissibility of defense evidence during a period in which the trial was suspended. The judge – Carol Patricia Flores – then returned the case file to the trial court, which in turn reopened the proceedings consistent with the Constitutional Court’s judgments.

The defense has repeatedly raised legal challenges in connection with the decision by Judge Miguel Angel Galvez, on February 4, to reject some of the defense’s proposed evidence and witnesses on procedural grounds. With this issue outstanding at the start of the trial, on March 19, in one of the trial court’s first orders of business, the court accepted provisionally all of the proposed defense evidence despite the more limited decision on February 4 from the court of first instance. Judge Yassmin Barrios, the judge presiding over the trial court, justified this action in light of the ongoing legal challenges; she insisted that these challenges not delay the start of the trial.

On April 3, with the trial advancing, the Constitutional Court eventually ruled that Judge Galvez should have admitted into evidence many of the defense’s proposed witnesses, documents and reports. The Constitutional Court, in this April 3 resolution, ordered the first instance judge – and not the trial court – to revise the February 4 order and then return the case file to the trial court for the continuation of the trial.

The trial court, on April 5, asserted that it did not need to interrupt the trial to send the case file to the pre-trial judge. According to the court, it was already in compliance with the Constitutional Court’s April 3 ruling because of its decision on the opening day of the trial to admit provisionally into evidence all of the defense’s proposed witnesses and documents. In its statement to the Constitutional Court explaining its actions, the trial court also asserted that it was in compliance with the Guatemalan Code of Criminal Procedure which prohibits the court from rolling back (retrotraerse) legal proceedings to already concluded stages.

Constitutional Court denies three legal challenges related to the expulsion of Rios Montt’s attorney from the trial

All three other resolutions issued by the Constitutional Court on Friday concerned questions around the legal representation of Rios Montt on the first day of the trial.

In one ruling, the Constitutional Court rejected the challenge of CALDH, a civil party, to the April 18 order by the Court of Appeals (Sala Tercera de la Corte de Apelaciones) that the trial court reincorporate Francisco Garcia Gudiel into Rios Montt’s defense team after his expulsion on the first day of the trial.

Apparently in relation to this judgment, Prensa Libre reported that the Constitutional Court ordered the trial suspended, though the Constitutional Court’s judgment does not state this. The Constitutional Court did let stand the Appeals Court’s April 18 judgment, which ordered the provisional suspension of the trial until the trial court reinstates Garcia Gudiel (“suspendiendo la audiencia de debate hasta que el amparo se encuentre en estado de resolver”). However, the trial court already did reinstate Garcia Gudiel as attorney for Rios Montt—and he in fact appeared as Rios Montt’s counsel in public hearings before the trial court on April 30 and March 2.

In another judgment, the Constitutional Court rejected on procedural grounds Rios Montt’s challenge (ocurso en queja) to the trial court’s re-opening proceedings on April 30.

Finally, the Constitutional Court rejected a provisional amparo filed by Moises Galindo and Cesar Calderon, Rodriguez Sanchez’ attorneys, concerning their representation of Rios Montt on the first day of the trial. The Constitutional Court rejected this amparo on the ground that it had already ruled on this question on April 23.

On March 19, the opening day of the trial, Garcia Gudiel appeared in court to represent Rios Montt, in lieu of all the other attorneys that had represented Rios Montt up to that point. Garcia Gudiel quickly introduced, and continued to press, numerous legal challenges, including challenges to the constitution of the tribunal. Among other things, he sought the recusal of Judge Barrios, alleging grave personal enmity (enemistad), and of Judge Pablo Xitumul, a member of the three-judge panel, alleging friendship (amistad).

The tribunal rejected the recusal motions and expelled Garcia Gudiel soon after. It further ordered Galindo and Calderon to represent Rios Montt absent Rios Montt identifying another attorney of his own choosing not intent on impugning the integrity of the tribunal. At the time, Galindo and Calderon contested their being compelled to represent Rios Montt.

On the morning of the second day of the trial, Marco Antonio Cornejo appeared in court to represent Rios Montt. Thus, the trial court’s order that Galindo and Calderon represent Rios Montt, despite their objections, lasted for essentially the afternoon of the first day of the trial.

In prior rulings, issued April 22 and 23, the Constitutional Court recognized that the trial court violated Rios Montt’s right to a defense in the expulsion of Garcia Gudiel, and separately, that the trial court violated the rights of Galindo and Calderon in ordering them to represent Rios Montt. In response, when the trial court reconvened on April 30 following a suspension, it reinstated Garcia Gudiel as counsel for Rios Montt and set aside the testimony heard during the time that Galindo and Calderon were ordered to serve as Rios Montt’s counsel.

Appeals Court hearing

Also on Friday, the Appeals Court (Sala Tercera de la Corte de Apelaciones) held a public session to hear arguments concerning the amparo filed by Rios Montt challenging Garcia Gudiel’s March 19 expulsion by the trial court.

The complaint was heard by a three judge panel presided over by Judge Ramiro Contreras. Sergio Lima Morales, one of the other judges on the panel, was in charge of the National Police Identification Unit (Gabinete de Identificacion de la Policia Nacional) from 1970 to 1986, including during Rios Montt’s rule, according to Guatemala’s National Police Archives.

At the hearing, Garcia Gudiel appeared at the defense table alone, representing Rios Montt. Rios Montt was absent as were all other defense attorneys associated with the case.

As noted above, the Constitutional Court has already granted a provisional amparo, ruling in an April 23 decision that the trial court violated Rios Montt’s right to a defense, and that the trial court should “restore” those rights within 48 hours. The Court of Appeals also, in its April 18 decision, ordered the reinstatement of Garcia Gudiel.

When the trial court ended its suspension this week – with public hearings on Tuesday and Thursday – it reinstated Garcia Gudiel as Rios Montt’s attorney in response to these orders. The trial court also set aside the testimony of the first four witnesses, who had testified during the period of Garcia Gudiel’s exclusion and prior to the re-incorporation of attorney Marco Antonio Cornejo into Rios Montt’s defense team.

Thus, the issue in Friday’s hearing was the legal impact of the trial court’s exclusion of Garcia Gudiel.

Garcia Gudiel argued that the appeals court should order the exclusion or annulment of all testimony heard since March 19, when Garcia Gudiel was expelled—in effect taking the trial back to its opening day. In his argument, Garcia Gudiel loudly attacked the prosecution and civil party lawyers for what he described as a profound lack of respect for due process.

The prosecution and the civil parties, for their part, argued against the annulment of much of the trial. Attorney Hector Reyes, from CALDH, insisted that reverting the trial to its opening day would violate the rights of the victims. Reyes lamented that the testimony of the first four victims was already in jeopardy of being annulled by the trial court, and asserted that further actions rejecting testimony would negatively affect the scores of victims who already testified at great personal cost.

Prosecutor Orlando Lopez asked the appeals court to consider that the defense had staged the insertion of Garcia Gudiel, on the first day of the trial, as a tactic to stall and disrupt the process, rather than a good faith effort to mount a legitimate defense for Rios Montt. According to Lopez, if the appeals court supported this amparo, it would be rewarding rather than regulating the defense’s less than honest tactics. Lopez noted, in support of his argument, that Garcia Gudiel has made different claims to the courts regarding when he was called by Rios Montt to represent him—stating on March 19 to the trial court that he had been called at “6 am that same day” to serve, and stating to the appeals court that he had been contracted the previous Sunday.

Attorney Edgar Perez, representing civil party AJR, warned that the excessive use of amparos threatened the integrity of the process. Perez identified the amparo as, historically, an honorable institution intended to protect rights, but argued that its excessive use was abusive and a threat to the system of justice in Guatemala.

Perez observed that the Guatemalan state had been sanctioned numerous times by the Inter-American Court of Human Rights for the use of amparos to deter rather than facilitate justice. Quoting Peruvian author Dr. Francisco Jose Eguigureni, Perez said, “the lawyers and judges have a responsibility to be concerned about the dangers associated with the overuse of these instruments.”

The appeals court will issue its ruling within three days—by Monday, May 6.

Other challenges outstanding

Danilo Rodriguez, another attorney for Rios Montt, also reported to the press that he had filed a separate challenge to the continuation of the trial. Various other challenges remain outstanding.

Activities in other branches of the Guatemalan judiciary are significant to the timeline and outcome of the trial. Any time the trial faces a hearing concerning a legal challenge in another court, this presents a potential for further delays and disruptions. Legal challenges related to the trial can be heard, and decided, while the trial is ongoing, and various of the scores of amparos filed by the defense have threatened repeatedly the smooth progression of the trial, and have also caused confusion (and occasional mis-reporting).

Emi MacLean, Legal Officer at the Open Society Justice Initiative, contributed to the research and writing of this blog.

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