7 May 2013
This week began with uncertainty as observers of the Rios Montt – Rodriguez Sanchez trial awaited rulings by the Guatemalan Court of Appeals (Sala Tercera de la Corte de Apelaciones) and Constitutional Court regarding some of the legal issues that have consumed the trial over the past two weeks.
The Court of Appeals issued a ruling on Monday afternoon ordering the temporary suspension of the trial. While a representative for the Constitutional Court reported to the press that the Constitutional Court would likely issue another ruling on Monday, the Constitutional Court nonetheless remained silent.
After an earlier Constitutional Court ruling allowed the trial to resume following an April 19 temporary suspension, two hearings were held last week. But the tribunal suspended the trial a second time to provide the defense lawyers time to get up to speed, and a hearing is scheduled for Tuesday, May 7 at 8:30 a.m.
Scores of witnesses have testified and only few remain to be heard. But the trial has nonetheless been virtually stalled in recent weeks in the face of various legal challenges lodged by the defense and circulating through the Guatemalan courts.
Appeals court judgment
Late Monday afternoon, the Court of Appeals ruled on an amparo stemming from the first day of the trial, March 19. Attorneys for the defense had two broad complaints.
First, they argued that Rios Montt’s right to due process and access to a lawyer of his choosing had been violated when his lawyer, Francisco Garcia Gudiel, was expelled from the courtroom on the morning of the opening day of the trial. The defense team thus sought the reinstatement of Garcia Gudiel; annulment of testimony given since March 19, when he was expelled; and a suspension of the trial.
Garcia Gudiel was introduced into Rios Montt’s defense team, replacing all existing counsel, on the first day of the trial. Presiding judge Yassmin Barrios expelled Garcia Gudiel later that day and called on the lawyers for his co-accused to represent him absent Rios Montt introducing new counsel. For the afternoon of the first day, Rios Montt was thus represented by the attorneys for his co-accused, over their strongly stated objections.
The Constitutional Court has since ruled that the trial court violated Rios Montt’s right to a defense and due process by the expulsion of his attorney (and separately, that they violated the rights of the lawyers to the free practice of their profession by forcing them to, temporarily, 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, re-read the indictment in the presence of his lawyer, and set aside the testimony heard during the time that Rios Montt was represented only by the attorneys for his co-accused.
Second, in addition to the questions surrounding Rios Montt’s representation in court, the defense team sought the recusal of judges Yassmin Barrios and Pablo Xitumul on the grounds of enmity and amity, respectively. Garcia Gudiel had sought their disqualification on March 19, but the tribunal did not rule on the substance of the request for their disqualification on the ground that it had fallen out of time, procedurally.
In Monday’s ruling, the Court of Appeals found that there was an obligation to reinstate Garcia Gudiel as Rios Montt’s defense attorney. In addition, the Court found an obligation to recognize and consider Garcia Gudiel’s request that judges Barrios and Xitumul be removed from the tribunal, and ordered that, until this request is firmly and finally resolved, the trial should be suspended.
The appeals court decision seems to accept that it would have been legitimate to force the expulsion of Garcia Gudiel immediately upon his arrival at the court, due at least in part to the possibility of his petition to disqualify two of the three judges on the panel. (Article 201(1) of Guatemala’s Ley de Organismo Judicial prohibits lawyers from intervening in cases where the lawyer’s representation would force the disqualification of a judge. Article 358(2) of the Code of Criminal Procedure authorizes a judge to order the expulsion of lawyers in certain circumstances, and to name a substitute.) But the appeals court found that the trial court’s acceptance of Garcia Gudiel in the initial part of the trial (even for the brief period he served) “legitimized” him, granting him certain rights and creating the obligation for his motions to be responded to in a well-founded manner.
Significantly, Monday’s ruling recognized the rights of the victims. It both recognized that the victims’ rights are implicated in any delayed judgment, and also the need to not further victimize (“no revictimizar”) witnesses who had testified already. More than 100 witnesses have given their testimony.
The appeals court also, importantly, refused to annul the trial. Garcia Gudiel had called for the annulment of the trial in light of his exclusion. However, the appeals court reaffirmed an earlier ruling that it is exclusively the decision of the trial court to determine the issue of when the trial should appropriately begin in order to remedy the violation. It falls to the trial court judges to assess the evidence, guarantee that those who have testified are not re-victimized, and ensure respect of due process guarantees.
Presidential remarks on the trial
Also on Monday, Guatemalan President Otto Perez Molina made further remarks regarding the trial. According to press reports, Perez Molina spoke of the importance that the “trial advance and arrive at a sentence, whether it is in favor or against” Rios Montt. (“Lo importante es que más allá de los amparos, los recursos y todas estas cuestiones, el juicio pueda avanzar y que se llegue a una sentencia, ya sea a favor o en contra”).
He spoke of the historic significance of the case, the importance of justice, and the need to prevent the polarization of Guatemalan society. (“Lo que pedimos es que haya verdaderamente justicia, que no se parcialice para un lado o para el otro, y evitar que la sociedad guatemalteca se pueda polarizar. . . .Hace 10 o 15 años era impensable, sentar en el banquillo de los acusados a un jefe de Estado, un general, y hacerle las deducciones por los delitos que hoy le están juzgando. Es un paso importante en la lucha a favor de la justicia y en contra de la impunidad.”)
A trial moving rapidly, and then in fits and starts
The Rios Montt trial had moved rapidly for the first twenty days of hearings—with horrific accounts by more than 100 prosecution witnesses of massacres and other atrocities, forced displacement, and rape and sexual violence, as well as presentations by forensic, military, anthropological and other experts. The defense presented a few witnesses, and then delayed and obstructed as the trial moved towards its anticipated closure.
Defense attorneys stated repeatedly that their witnesses were unavailable to come to court or impossible to find, and the defense needed more time to locate them. (The trial court attempted to locate the defense witnesses and found that at least one of them had not lived at the address provided to the court for at least the past three years.) This happened for three days in a row, and then on the morning of April 18, practically on the verge of closing arguments, the defense attorneys walked out en masse, in protest and against the strongly stated objections of the judge.
Since April 18, the trial has been operating in fits and starts. It has been suspended temporarily twice—first, from April 19-29, for the constitutional review of the actions of a judge overseeing evidentiary matters; and then, May 3-6, to allow a newly appointed public defender time to prepare, after Rodriguez Sanchez’ prior attorneys walked out in protest.
It appears that the tribunal will convene Tuesday morning as scheduled at 8:30 a.m. Responding to the most recent ruling by the Court of Appeals will likely be the first order of business.
Emi MacLean, Legal Officer at the Open Society Justice Initiative, and Casey Cagley, Research Associate at the Center for Global Studies at George Mason University, contributed to the research and writing of this blog.