Appeals Court to Hear Recusal Motion for Judge in Molina Theissen Case on Wednesday

On Wednesday, the High Risk Appellate Court will hear the recusal motion presented by the defense lawyers of Benedicto Lucas Garcia, Manuel Callejas y Callejas, Francisco Gordillo Martínez, Edilberto Letona Linares, and Hugo Zaldaña Rojas against Judge Pablo Xitumul. Judge Xitumul is the President of High Risk Court “C,” which is hearing the Molina Theissen case.

Five senior military officials face charges of crimes against humanity and aggravated sexual violation against Emma Molina Theissen; three of the officials also face charges for the enforced disappearance of Emma’s 14-year-old brother Marco Antonio in 1981. The five officials were detained on January 6, 2016, and in March 2017, the preliminary judge determined that there was sufficient evidence to send them to trial. The public trial started in Guatemala City on March 1 of this year.

The defense lawyers, led by Jorge Lucas Cerna, presented the recusal motion against the Presiding Judge on April 9. The motion alleges that Judge Xitumul’s father was forcibly disappeared by the Guatemalan military in 1981 and that his remains were exhumed from a military base in Rabinal and identified in 2003. The defense lawyer, who claimed that he learned of the information only on April 7, argued that Judge Xitumul was not acting impartially in the proceedings, favoring the Attorney General’s Office and the civil parties in his decisions and that he had animus towards the Guatemalan military.

The defense lawyers based their claim on screenshots taken from the website of the Forensic Anthropology Foundation of Guatemala (FAFG), which lists the name of Judge Xitumul’s father, Mateo Xitumul Alvarado, as forcibly disappeared after having entered the military base in Rabinal.

The FAFG webpage does have a reference to the enforced disappearance of Mateo Xitumul Alvarado by members of the Guatemalan Army on April 4, 1981. However, the same site notes that more than 150 victims were reported missing, and 74 remains were recovered from the exhumations from the old military base in Rabinal, which currently operates as a school. Only nine of the recovered bodies have been identified, and according to the FAFG website, the judge’s father is not among those identified.

The proceedings are close to concluding, so the timing of the presentation of the recusal motion has raised several questions about the intention behind it. By April 9, when the motion was presented, six expert witnesses, eight eyewitnesses and referential witnesses, as well as the direct victims, had testified. After the trial court initially rejected the recusal motion, an additional five hearings have taken place in which five additional experts and several witnesses have continued to present evidence about the capture, torture, and sexual violence of Emma Molina Theissen and the enforced disappearance of her brother Marco Antonio.

According to Alejandro Rodríguez, who represents the Molina Theissen family: “In the face of overwhelming evidence demonstrating the culpability of the defendants, the defense lawyers are now shifting tactics and are seeking to obstruct the proceedings. They are trying to have the presiding judge removed on false charges, including the absolutely false claim that he is not impartial, which is a clear example of malicious litigation.”

Such tactics have been widely used by defense lawyers representing military officials in human rights trials, the most notorious example being the 2013 genocide trial against José Efraín Ríos Montt and José Mauricio Rodríguez Sanchez, which resulted in the partial suspension of the proceedings and a series of delays before the retrial commenced in October 2017. When Ríos Mont died on April 1, 2018, he was in the midst of his retrial, which was being held behind closed doors because he had been diagnosed with dementia. The proceedings against Rodriguez Sanchez continue in High Risk Court “B.”

A number of international organizations, led by the Center for Justice and International Law (CEJIL) and the Washington Office on Latin America (WOLA), have submitted an amicus curiae brief to the Appellate Court questioning the motivation of the defense lawyers in presenting the recusal motion against Judge Xitumul. The amicus brief notes that according to the law of the judiciary in Guatemala, animus exists between a judge and a party to the proceedings only when the former has harmed or intended to harm said party or parties.

In this circumstance, the defense lawyers have not argued that Judge Xitumul bears animus toward individual defendants in the case but towards the Guatemalan Army, which is not a party to these proceedings. None of the lawyers presented evidence or an argument demonstrating the existence of animus between the judge and the defendants. Moreover, the amicus brief states that none of the defendants served in the military base at Rabinal, noting that the case of the judge’s father has nothing to do with the current case on trial.

The hearing will take place at 10:00 local time on Wednesday, May 2, in Guatemala City.

Jo-Marie Burt is an Associate Professor of Political Science and Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). Paulo Estrada is a human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.

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