International Justice Monitor

A project of the Open Society Justice Initiative

Defense fails again to produce its witnesses; trial suspended until May 7 to allow new public defense attorney time to prepare

The trial of former head of state Efrain Rios Montt and his chief of military intelligence Mauricio Rodriguez Sanchez re-convened on Thursday for a second day after the lifting of a temporary suspension imposed two weeks ago.

The only item of business remaining in the trial before the closing arguments is the presentation of the outstanding defense evidence. However, on Thursday, the defense continued to delay in the production of its witnesses. The defense’s only evidence presented on Thursday were three short videos depicting war scenes—guerrillas training and wounded soldiers screaming in agony.

Nonetheless, before the end of Thursday’s hearing, the court granted the request of Otto Ramirez, Rodriguez Sanchez’ recently appointed public defender, for a five-day suspension to prepare his defense, ordering the court to resume on May 7.

At the outset of the hearing, Francisco Garcia Gudiel, Rios Montt’s defense attorney, informed the court that the defense witnesses were, once again, unavailable to attend court and that he “did not bring the videos … because the date [at which the videos would be shown] had not been fixed.”

Judge Yassmin Barrios, the judge presiding over a three-judge tribunal, reminded him of her instructions from Tuesday, April 30 to “bring the videos for review” and produce the witnesses. Judge Barrios gave Garcia Gudiel 45 minutes to produce the videos and required that he produce at least one witness by 1 pm.

Garcia Gudiel objected, stating that he lacked time to contact witnesses, and that it was likely that they would fail to arrive in court by 1 pm—some of the witnesses were “outside the capital,” and in El Salvador, and it was “unjust” to ask them to appear in court in the afternoon.

Judge Barrios insisted that he produce the witnesses promptly, reminding Garcia Gudiel that this is not a new request. Rios Montt’s prior counsel, who had abandoned the court in protest on April 18, also knew they were expected to produce the witnesses but failed to do so; Garcia Gudiel was reminded of this obligation on Tuesday, before the Labor Day recess; and the court had already sent public officials to try to locate the missing defense witnesses—discovering in one instance that one of the witnesses had not lived at the address provided by the defense for three years.

Garcia Gudiel was given permission to leave the court to call his office to locate the videos and the witnesses. After 45 minutes, Garcia Gudiel returned and informed the court that he located the videos, but would need to take them to his office to burn them onto DVDs. Judge Barrios told him that the court’s technicians would burn the discs instead: “We are going to do everything we can to help you so that you can present your evidence.”

Meanwhile, Rodriguez Sanchez’ public defender, Otto Ramirez, asked the court again to grant a five-day suspension to allow him time to prepare the defense. He had made a similar motion on Tuesday when the court reconvened with him representing Rodriguez Sanchez for the first time. Rodriguez Sanchez’ prior attorneys walked out of the court in protest, and over Judge Barrios’ determined objections, on April 18.

Earlier in the day, Judge Barrios stated that Ramirez had failed to collect the case files (as instructed on Tuesday). Court officials delivered two massive stacks of papers to the defense table, in a dramatic visual display. Ramirez now motioned to the mound of papers before him to make his case that a suspension was necessary to allow him time to prepare.

Judge Barrios said that the court would rule on the motion to suspend the trial after watching the video evidence and hearing any defense witnesses produced. Ramirez objected, arguing that reviewing the videos signified reopening the trial, and that, by law, the trial should not go forward until he had adequate time to prepare. He was overruled.

The court experienced considerable technical difficulties in showing the video evidence.  When the court’s wall screen failed to function, a smaller screen was brought in and erected in the middle of the court. These ad hoc arrangements meant that the three judges had to come down from the bench, and sit, with their armed guards standing behind them, in front of the public, in order to see the videos.

From the public gallery in the courtroom, the videos were nearly unintelligible. The first, entitled “The Guerrilla,” was a ten-minute montage of scenes of guerrilla forces training and photos of guerrilla commanders. The next two videos (each approximately 5 minutes), were also montages, this time of wounded soldiers from the Guatemalan army.  Viewers could hear moans and screams of pain. The videos were presented without context or verification.

After the video presentations, the court adjourned early (11 am) for lunch, and to await any defense witnesses due at 1 pm pursuant to the court’s order.

During the adjournment, Garcia Gudiel told the press that it was impossible for the defense witnesses to appear at 1 pm, and he classified Judge Barrios’ order to produce the witnesses as unjust, unfair and an example of her arbitrary decision-making—“She can’t just tell someone that they have to be here at one in the afternoon, and expect them to show up.”

At 1 pm, when the court reconvened, Garcia Gudiel told the court that there would be no witnesses appearing. After deliberating, the court ruled that the defense witnesses must appear at the next hearing.

The court then deliberated on, and granted, Ramirez’s request for a five-day suspension, announcing that the next hearing would be Tuesday, May 7. Judge Barrios stated that if the defense failed to produce its witnesses then, the court would make a decision concerning those witnesses at that time.

As Judge Barrios prepared to adjourn the hearing, Garcia Gudiel presented two further challenges.

First, Garcia Gudiel argued that the two days of hearings since the lifting of the suspension—Tuesday and Thursday—should be annulled, because the court was in error to have reconvened the trial. Garcia Gudiel argued that the trial never should have been reconvened in light of Judge Carol Patricia Flores’ April 18 directive to return the case to its status as of November 2011.

Garcia Gudiel further claimed that Judge Barrios, on April 19, had suspended the trial “until the Constitutional Court had ruled on the issue” of the legality of Judge Flores’ annulment order, and since the Constitutional Court had not pronounced itself on Judge Flores’ ruling, the ruling remained in effect.

Second, Garcia Gudiel sought the dismissal of Judge Pablo Xitumul. He stated that it had come to his attention that Judge Xitumul and Otto Ramirez, the new public defender, had worked together in the same branch of the Public Ministry in Salama nearly a decade ago and were friends (amistad), necessitating Judge Xitumul’s recusal.

The judges deliberated for nearly an hour before rejecting both requests.

Judge Barrios explained that the tribunal was acting in compliance with the Constitutional Court orders by reconvening. In its April 3 ruling, the Constitutional Court ordered the admissibility of defense evidence by a lower court and the transfer of the case file back to the trial court for the resumption of the process. The trial reconvened April 30 following Judge Flores’ order to admit the defense evidence, as required.

On the second point, Judge Barrios ceded the microphone to Judge Xitumul. It was the first time Judge Xitumul had addressed the courtroom in the course of the trial. Judge Xitumul insisted that working in the same office ten years prior failed to qualify as a relationship that presented a conflict of interest.

Judge Xitumul said, “I am an ethical person. I say now, to all of Guatemala, that I never shared a friendship with Mr. Ramirez. I have had nothing to do with him since October 2004, when I left the Public Defender’s Office….This accusation has no merit at all.”

Following Judge Xitumul’s statement, Judge Barrios formally rejected the request for his recusal.

Before closing the hearing, Judge Barrios stated that it was clear that measures were being taken to disrupt the process (actos dilatoria). She reminded the participants that lawyers must act with dignity and according to the professional ethics code.

Judge Barrios proceeded to read aloud Guatemala’s Professional Ethics Code for attorneys (Codigo de Etica Profesional). Under the code, as read to the court: (1) the attorney must show strong moral principles, honesty and integrity; (2) the attorney must live with dignity and decency; (3) the lawyer must act with calm judgment in the exercise of his profession; (4) the lawyer must be faithful to justice and his client, which involves, besides the rigorous observance of professional discretion, the honorable respect and consideration for the judge, the authority and the adversary; (5) the lawyer must be independent, in the sense of complete freedom in the exercise of his ministry; (6) the lawyer should scrupulously avoid alteration of the truth; (7) the lawyer should ensure rigorous legitimacy and justice in practice; (8) the practice of law imposes the duty of preparing and efficiency; and (9) in relations with colleagues, the lawyer must keep the highest consideration and respect.

After reading the ethics code, Judge Barrios again sought to conclude the hearing.  Garcia Gudiel, however, objected again, yelling and waving his arms. He demanded to see a (non-existent) Constitutional Court ruling overturning Judge Flores’ April 18 order annulling the trial and reverting the proceedings—“Where is it?  Show it to me!”

The court paused briefly to deliberate on his remarks before Judge Barrios adjourned the trial, stating that there is no real issue requiring a ruling.