Appellate Court Rejects Defense Recusal Motion; Molina Theissen Trial to Continue Next Week

On Wednesday, May 2, the First High Risk Appellate Court in Guatemala City rejected the recusal motion against Judge Pablo Xitumul, who is presiding over the Molina Theissen trial in High Risk Court “C.” The recusal motion was presented by the defense lawyers of Benedicto Lucas Garcia, Manuel Callejas y Callejas, Francisco Gordillo Martínez, Edilberto Letona Linares, and Hugo Zaldaña Rojas.

The defense lawyers reiterated the arguments presented on April 9 when they originally filed the motion against Judge Xitumul. They claimed that Judge Xitumul’s father was forcibly disappeared by the Guatemalan military in 1981 and that his father’s remains were exhumed from a military base in Rabinal and identified in 2003. The defense argued that these circumstances have caused Judge Xitumul to not act impartially in the proceedings, that he favors the Attorney General’s Office and the civil parties in his decisions, and that he harbors animus towards the Guatemalan military. In addition, the representative of the Prosecutor General’s Office (PGN) stated that the state of Guatemala was threatened if it were to be found responsible and required to pay pecuniary damages.

Both the Attorney General’s Office and lawyers representing the plaintiffs contended that there are no grounds for the recusal motion presented by the defense and that Judge Xitumul should continue on the tribunal that is hearing the case.

During the hearing, the wives of the defendants were present, including the wife of Hugo Zaldaña Rojas, who had been expelled from the courtroom for mocking the plaintiffs. Counsel for Zaldaña Rojas stated that his wife was a witness of the alleged discrimination against the defendants by Judge Xitumul.

The appellate court unanimously declared that the two main arguments presented by the defense lawyers lacked merit. The court affirmed that there is no relationship between the alleged enforced disappearance of the judge’s father and the Molina Theissen case because they occurred in different places. Also, the judge’s father cannot be considered a victim, nor can the judge or his family be said to have a specific interest in the case because his father has not been exhumed or identified by the Forensic Anthropology Foundation of Guatemala (FAFG).

Further, the court stated that, based on the arguments and documentation presented by the defense lawyers there is no clear evidence that there was any demonstration of animus or an intent to harm the defendants on the part of the judge. Finally, the court stated that the incidents referred to by the defendants, such as the judge calling attention to the behavior of some of the defendants’ relatives and ordering the removal of Zaldaña’s wife, do not constitute a valid reason for recusing the judge. The court did state that defense counsel has the right to challenge the behavior of a judge but not through a recusal motion.

The court then proceeded to read the text of an amicus curie, in which international human rights organizations, led by the Center for Justice and International Law (CEJIL) and the Washington Office on Latin America (WOLA), outlined a series of arguments based on Guatemalan and international law advising the court to reject the recusal motion.

The court finalized by ruling that there were no grounds to grant the recusal motion and ordered the presiding judge of High Risk Court “C” to continue his participation in the proceedings.

The next hearing is scheduled for Wednesday, May 9.

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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