Defense Calls its First Expert Witness

On Tuesday, April 9th, seven additional forensic experts testified on behalf of the prosecution, and – as permitted under the Guatemalan Criminal Procedure Code (Codigo Procesal Penal, or CCP) – the defense called its first expert witness, although the prosecution had not yet completed its presentation of evidence and witnesses in the case.  At the end of the day, Judge Yassmin Barrios indicated that the defense would be calling three additional defense witnesses on Wednesday, and instructed the defense team to provide copies of their expert reports to the prosecution attorneys.

The first three witnesses of the day, José Samuel Suasnavar Bolaños, Deputy Director of the Guatemalan Forensic Anthropology Foundation (Fundacion de Antropologia Forense de Guatemala, or FAFG), Reynaldo Leonel Aceveda Alvarez, and Leonel Estuardo Paiz Diez, FAFG forensic archeologists, testified regarding an exhumation that they helped coordinate in Aldea Chel, Chajul, Quiche, in July 1998. Sixty-eight individuals were reported to have been killed in a military operation conducted in the town in April 1982, when they were taken in pairs to a bridge, killed by machete blows to their necks (or other means), and then thrown into the river.

FAFG was able to locate 60 sets of remains.  The remains of the eight others reported killed are believed to have been lost due to their location near a riverbank, or they may have been removed by animals. Of the 60 remains uncovered, 25 were positively identified, while the identities of another 35 could not be conclusively determined due to the advanced state of decomposition of the bones. Suasnavar indicated that all of those exhumed were Ixil, with local styles of dress and identifiable earrings and other adornments.

Suasnavar ecalled that one of the individuals he interviewed at the time of the exhumation reported: “We are from here, we are Ixil, and here is where they came to kill us.” For five days after the army left the town, survivors of the massacre worked to take the bodies of their family members and friends out of the river and to provide them with traditional burials, placing their bodies with their heads to the west and their feet to the east.  They then fled the town for the mountains, leaving the village abandoned.

Suasnavar used a photo presentation of skeletal remains to show details of injuries inflicted on the victims of the massacre, many of which showed fractured skulls or cut marks across the second cervical vertebra, where their necks had been cut.  Suasnavar said that “most of the wounds found were to the neck and the skull.”  One of the photos showed a skull with “trauma from a sharp instrument on the cranium, and defensive wounds on the finger bones.”

The fourth witness of the day, Erick Oswaldo Duque Hernandez, a forensic archeologist, testified regarding a clandestine cemetery exhumed in August 2005 in Sacsiguan, Santa Maria Nebaj, Quiche.  The exhumation uncovered nine sets of incomplete remains of four adults and five children. Three of the sets of remains showed exposure to fire, and five had been shot, four in the head and one in another part of the body.  Duque was also involved in other exhumations related to the present case: Tujolum I (November 21, 2007); Xechaxuchen (November 27, 2007); Xelocvitz, Vivitz, Xemanzana, Xeo, Xola, and El Potrero de Aldea Sajsiban (February 23, 2009), which he said led him to conclude that the remains disinterred were of “victims of indiscriminate attacks by the Guatemalan army” who either died from injuries directly sustained as soldiers came into their towns or of indirect causes (starvation, parasites, etc.) in the aftermath of their displacement.  One of the exhumations, in Xelocvitz, uncovered the remains of 30 individuals, of whom 23 were female and 7 male. Duque emphasized that the victims were “vulnerable populations” – mostly women and children.

Carlos Leonel Mendez Tejada, a retired military official who is now an attorney and notary public, was the first defense expert witness was . Mendez described changes in the military command structure in the 1940s aimed at reducing the powers of the President. 

After Mendez was called to the stand, but before he began his testimony, defense attorney Carlos Calderon addressed the court, protesting that the court had not complied with the instructions set forth in the April 3, 2013 ruling by the Constitutional Court (Corte de Constitucionalidad) concerning the admission of defense witnesses and documents into evidence.  After listening to Calderon’s arguments, Judge Barrios said: “We’re going to follow the same procedures with the defense witnesses as we have done with the other experts – read the name of the report and then its conclusions, as done in all the other cases, as specified by the [Criminal Procedure Code].” Barrios indicated that Calderon’s claim was without merit, and asked him to be quiet so that the expert witness offered by the defense could begin his testimony.

The prosecution attorneys also filed a formal protest before Mendez could begin testifying, asserting that because Mendez was present in the courtroom for an hour in the morning while other expert witnesses were testifying, his testimony “should be nullified as contaminated.” The court overruled the objection.

When Mendez finally began his testimony, he outlined changes made to the command structure surrounding the President of Guatemala, indicating that during the 1944 revolution the position of the Jefe de Fuerzas Armadas (Chief of the Armed Forces) was created by the Guatemalan Congress, which aimed to reduce the power of the President.  The effect of this change, said Mendez, was that “the entity that held the power in the government was the army.”
 Later, Mendez explained: “when Castillo Armas came into power, the position of the Comandante General del Ejército (Commander in Chief of the Army) was created for the President of the Republic.” At that time, Mendez indicated, under the Ley Constitutiva del Ejercito (Constitutive Law of the Military), the President was one of the members of the High Command of the military, but the President wasn’t to be involved in “tactics” or “operations” of the military.

Following Mendez’ presentation regarding the conclusions of his expert report, prosecutor Orlando Lopez asked: “In 1982 and 1983, were you in service?” Mendez answered: ”Yes.” When Lopez then asked: “Where?” Mendez indicated: “Building roads in the Peten.” As other attorneys continued to press Mendez about what he was doing in the early 1980s, implying that he may have been involved in the abuses that are the subject of the trial, Mendez asked: “Am I being interrogated here?” Judge Barrios responded: “Answer the question.”

Attempting to show that regardless of the changes in the command structure that Mendez spoke of, Rios Montt still had significant legal powers, prosecutors then asked: “Can you indicate who was the maximum authority in [early] 1982?” Mendez answered: “The President of Guatemala.” Exploring whether that was still the case following the coup which brought Rios Montt to power, Mendez was asked: “… and after March 23, 1982… who was the maximum authority?” Mendez responded: “the President.”  When asked, “Do you know who the head of the junta was?” Mendez replied: “Jose Efrain Rios Montt.” 

The final three witnesses of the day were Donaldo Arnulfo Castillo Galvez, an archeologist with the National Forensic Science Institute of Guatemala (Instituto Nacional de Ciencias Forenses de Guatemala, or INACIF), and Erick Raul Garcia Quiñones (a forensic anthropologist), who testified about their analyses of 50 sets of remains removed from an exhumation under a football field in Tujolum in March 2004, and Jose Fernando Alonso Martinez, who worked as both a forensic anthropologist and social anthropologist on exhumations in Aldea Santa Clara, Quiche. All of these witnesses ratified their conclusions set forth in the reports offered into evidence by the prosecution.

Otilia Lux de Coti, an indigenous leader and politician who was a member of the Historical Clarification Commission (Comision para el Esclarecimiento Historico, or CEH), observed Tuesday’s court proceedings.



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