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La Semana: Sunday, Sept 4
The week in the Ayotzinapa case and the debate about pre-trial detention
Welcome to the Sunday edition of The Mexpatriate.
In today’s newsletter:
Ayotzinapa: Truth and/or Justice?
Presumption of Innocence in a Context of Impunity
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Ayotzinapa: Truth and/or Justice?
President López Obrador’s first official action when he was sworn into office in December 2018 was the formation of the Comisión para la Verdad y Acceso a la Justicia (Commission for Truth and Access to Justice). The commission (CoVAJ) was tasked with the case of “the 43”, students from the Ayotzinapa rural teacher’s college who disappeared nearly eight years ago in Iguala, Guerrero. The CoVAJ was given the president’s mandate for “unveiling the facts, learning the truth of what occurred and the whereabouts of the students, and finding and bringing those responsible to justice.” On August 18, the commission presented a 97-page report of its findings, and shortly afterwards, former attorney general Jesús Murillo Karam was arrested on charges of torture, enforced disappearance and obstruction of justice.
Some of López Obrador’s detractors have gone as far as to describe Murillo as a “political prisoner”, while others celebrated the arrest of the public face of “la verdad histórica”, or the “historical truth”, as presented at an infamous “case closed” press conference in early 2015. This phrase has become shorthand for government mendacity, akin to “se cayó el sistema” or “the system crashed” during the controversial election of Carlos Salinas de Gortari in 1988. The narrative told by Murillo and the Peña Nieto administration has been repeatedly questioned and undermined by independent investigators and the families of the missing students ever since.
What did the CoVAJ report reveal that wasn’t already public knowledge? How much does it differ from Murillo’s “truth”? It is hard to fully answer these questions since key sections of the report are heavily redacted, including the paragraphs under the headings “Orders to Execute the Students”, “The Disappaearance of the Students”, and “The Government Clean-up”. A statement issued by members of the GIEI (Interdisciplinary Group of Independent Experts) on August 22 appeared to distance the international group—who have been working on the case since 2015—from the CoVAJ report since they were not given prior notice of its publication, nor have been granted access to the critical records of phone calls and text messages found in the blacked out sections. The families of the victims were only notified the day before the report’s release.
As I read through the CoVAJ document, I was struck by two thoughts: first, that this case is like looking for an image hidden in an optical illusion. For a fleeting moment, the image appears so clearly, but then it merges back into the ambiguous bigger picture. The second is a vertiginous sense of peering over a cliff of crimes. This single case has been exhaustively investigated and documented, with the support of foreign forensic experts and painstaking review of 41,000 digitized documents, while hundreds of thousands of cases lack even the semblance of an investigation: 94.8% of crimes remain unsolved.
This latest report shares much in common with the third report published by the GIEI in April of this year. Both provide a context and background for the events of September 26-27 2014: the presence of various drug cartels vying for control in the area (Guerreros Unidos and Los Rojos), their infiltration of local law enforcement and government, and the surveillance by the military of not just criminal activity, but also “la escuela normal” of Ayotzinapa. The Peña Nieto administration has since become notorious for its use of Pegasus surveillance “malware”, bugging journalists, forensic experts and others involved in investigation of the Ayotzinapa case. The CoVAJ report states they reviewed 17,020 audio recordings and 467 screen captures of WhatsApp messages, noting that some additional communication logs were provided by the DEA, who were also monitoring Guerreros Unidos. Both reports also emphasize the significance of the “fifth bus” and its absence in the “historical truth”: this was the bus that investigators today believe was carrying either heroin or cash and that may have been the key motive for attacking the students. It was one of the buses the normalistas tried to commandeer that night, and after the students were forced out of it, the bus passed through 17 checkpoints without being stopped.
The report confirms that one of the 43 was in fact an undercover soldier, Julio César López Patolzin, who was assigned to infiltrate the school in 2012 and who last checked in with his superior the morning of September 26, 2014. Despite one of their own being caught in the attacks and subsequent kidnapping of the students, no efforts to rescue the soldier were attempted. Deputy Secretary of Human Rights, Alejandro Encinas, announced at a mañanera on August 24 that six of the students had been held (alive) for up to four days following the initial attacks and their execution was allegedly ordered by then-colonel José Rodríguez Pérez, who is today a general. There is no official word on whether he will be charged, though 20 of the 83 warrants issued on August 19 are for military personnel.
The report also marks the first official government acknowledgment that the 43 students are almost certainly dead. In their searches for the students’ bodies, they have so far only identified partial remains of three students, though they recovered 27 bodies from clandestine graves, and over 1,000 fragments. It is a tragic echo of those early days of searching for the 43, when police claimed to have found their bodies at a site near Iguala. The families were informed, but genetic testing failed to identify any of the students amongst the corpses. The students had vanished, but bodies were everywhere to be found. In a 2015 article by journalist Luis Hernández Navarro, a witness to a murder carried out by Iguala mayor José Luis Abarca (more below) was quoted: “I would never go back to Iguala, it is hell.”
The “historical truth” was built on a quicksand of confessions obtained through torture and manipulation of crime scenes, orchestrated not only by the former attorney general, but also the former head of the Agencia de Investigación Criminal (Criminal Investigation Agency), Tomás Zerón. The AIC was dissolved in 2018 and Zerón has been a fugitive from Mexican justice since 2019, when he fled to Israel. He has applied for political asylum. The special prosecutor Omar Gómez Trejo—in charge of the Unidad Especial de Investigación y Litigación para el Caso Ayotzinapa (UEILCA) which was established in 2019 to prosecute alleged criminals in the Ayoztinapa case—was conspicuous in his absence during the flurry of activity last week, including the arrest of Murillo Karam. News sources report he is currently in Israel, either making further attempts to negotiate the extradition of Zerón or negotiating with Zerón himself.
While there is ample evidence of the obstruction of justice, ignoring due process and torturing suspects, it is hard to argue that the case as presented by the Peña Nieto admininstration was entirely fabricated. In both 2014 and 2022, most of the characters in this story are the same, as are many plot elements. The mayor of Iguala, José Luis Abarca, whose alleged involvement in the attacks on the students appeared in news outlets very quickly after the crime, is presumed to be a subject listed as “A1” in the CoVAJ report. According to the report, A1 gave the order: “kill them all, Iguala is mine.” Abarca is in prison, convicted for the murder of a social activist in 2013. In that case, he pulled the trigger himself. His wife, María de los Ángeles Pineda—who had familial ties to Guerreros Unidos and other drug cartels—is also in prison on charges of organized crime and embezzlement. Twenty-six people closely related to the investigation have died since 2014, 16 of those since 2018. One salient case is mentioned in the report: the botched arrest of Juan Salgado Guzmán, a leader of Guerreros Unidos, in September 2021. He was “executed” instead of apprehended, wounded by bullets fired into his car and then finished off with a shot to the head.
The CoVAJ was given the mission to clarify the truth of Ayotzinapa, in collaboration with the already thorough investigations carried out by the GIEI. But will justice accompany the revelations? Truth can be sought by many—by families, journalists, forensic experts— but justice can (or should) only be administered by the state. And if after all, this was a “state crime”, is it even possible?
The arrest and subsequent incarceration of Murillo Karam were marked by an unsettling lack of competence on the part of the FGR (Attorney General’s Office). The agents sent to make the arrest mistakenly detained Murillo’s brother briefly, and in a widely distributed video of the moment of the correct Murillo’s arrest, the agent detaining him couldn’t recall the charges or the the rights he was supposed to read. At the pre-trial detention hearing, the judge scolded the prosecutors for being underprepared.
The law enforcement apparatus of today’s government may be no better equipped to bring the perpetrators to justice than its predecessors. “This cannot simply become a memory, recounting the horrors that happened…but should give us a road map to which authorities and which criminal justice processes have to be reviewed, because there is no doubt that it could happen again,” noted analyst Lilian Chapa Koloffon from the World Justice Project.
Many questions remain unanswered. Where are the bodies? Why were some students still alive days after the incident? In the context of so many disappearances, another question comes to mind: Why Ayotzinapa? Why did this case never fade from the national conversation?
I think the answer also points to the reason behind the cover-up, and the impetus for forming the CoVAJ. In some sense, the missing students and the families they left behind have become Mexico’s social conscience. Their history of “lucha social” made them targets for state surveillance and later, symbols of injustice. To some, they are now political pawns in AMLO’s vengeful pursuit of his predecessors—at least some of them. The Peña Nieto presidency was not the first with a desperate desire to leave that Mexico—the poor, lawless, insurgent south—behind, leading to not only a “pact of silence”, but also to atrocity. Time will tell if the “cuarta transformación” marks an historic turning point, and the case of the missing 43 could be its crucible.
Presumption of Innocence in a Context of Impunity
There are 92,595 people in Mexican prisons who have not been sentenced. This statistic is a chilling one for people on either side of the debate on “prisión preventiva oficiosa” (automatic pre-trial detention) that has been in full swing this week: the president and his administration imagine the release of 92,595 criminals on the streets, while those opposed visualize instead the 92,595 mostly poor citizens who have been incarcerated on the basis of accusation, not conviction. The Supreme Court (SCJN) is scheduled to review the constitutionality of automatic pre-trial detention tomorrow, September 5. In the words of a court minister whose proposal to eliminate the practice will be reviewed: “there is no argument in favor of this legal practice that is not linked to the arbitrary use of punitive power.”
According to Adán Augusto López, the Secretary of the Interior, the elimination of this legal tool would “end the security strategy for the country”, which is a somewhat appalling admission of the use of prison as a substitute for rule of law. However, it is important to remember that the presumption of innocence was merely a legal euphemism in Mexico until 2008, when judicial reforms were enacted to implement oral criminal trials. This reform is unfinished business (more on this in an upcoming article), but has always faced some popular resistance. In a country where impunity is the rule, not the exception, there is a deeper reserve of moral outrage against the guilty walking free than the innocent rotting in prison.
I will follow up on this subject after the SCJN ruling, but if you want to further explore, you can review my article on the other court ruling on “prisión preventiva” earlier this year and also a series on judicial reform I co-authored in 2009.