The trial of Genaro García Luna is approaching crucial moments. The public prosecutor’s office changed course with the announcement that it would prepare the testimony of one of the last key witnesses and would not call any more people to court from next Monday or Tuesday. The turnaround of the US authorities changes everything that was planned: it shortens the planned times, whirls the political debate and forces the parties to make important decisions. The final stretch of the interrogations is marked by two great unknowns: who will be the so-called ace up the prosecutors’ sleeve and what will the former Minister of Public Security decide on the possibility of defending himself on the bench and responding to the allegations of himself .
“It’s his decision,” César de Castro, who is leading the defense, said in a brief interview in New York’s Eastern District Court on Wednesday. De Castro explained that the legal team is analyzing the strategy and hinted that he, himself if he knew, would not reveal anything to the media or his rivals. In the United States, it is rare for a defendant to testify against him in a criminal proceeding, because doing so exposes him to questions from prosecutors and leaves him in a vulnerable position where he risks committing perjury. However, another reading is that the defendant sees the opportunity to speak as an opportunity to tip the jury in his favor and send the message that authorities do not have a strong case. All in all, it would be a big surprise if García Luna testified in court.
There were no hearings on Thursday, Friday and weekends. Behind the scenes, the parties argue about what will be admitted as evidence and what issues witnesses will be allowed to bring up. In the scenario that García Luna testified, the defense wanted to limit the questions that prosecutors can ask. “Be careful what doors you open,” Judge Brian Cogan, who has the final say as trial administrator, told them. Cogan qualified much of the material that prosecutors wanted to bring to the court, such as voices providing context to the war on drugs and general views on drug trafficking, because he felt some statements were repeated. The judge also restricted several materials about the defendant’s lavish lifestyle after he left public service in 2012. This prompted authorities to exclude several witnesses from their list and was interpreted by many in Mexico as a sign of weakness in the case.
“In fact, it’s often a sign of strength, not weakness,” explains Daniel Richman, a former federal attorney in the Southern District of New York and a law professor at Columbia University. Richman points out that prosecutors almost always have to calibrate two things in their strategy during a trial. On the one hand, he is often under pressure from the judges to move the process along quickly and not to bore the jury. “There’s always such tension between the judge and the prosecutors,” he says. On the other hand, they must provide enough evidence to convince the jury. The academic alludes to an English proverb common among US prosecutors: thin to win [adelgaza para ganar]. “The idea isn’t to present a case that’s too ‘fat’ because it can be boring for the jury. If you really want to convince them, you have to be brief and powerful.”
Judge Brian Cogan listens to testimony at Garcia Luna’s trial January 23 in New York. JANE ROSENBERG (Portal)
Cogan’s limitations on the evidence admissible in court have also been controversial in Mexico. “It doesn’t matter that much whether it’s a high-profile case or not. Rather, it has to do with a complex evidence framework that we have here that countries without a jury don’t have,” Richman points out. The former prosecutor points out that the US system takes great care in what information is presented to the jury and how it can be interpreted by the jury. Testimony should be credible and relevant, but the judge is very careful about parts of the testimony that could confuse or distract the jury. There is a wide range of questions that may be asked in questioning and cross-examination, but parties also have a duty to act in good faith and to justify their questions. “Otherwise you run the risk of presenting them with terribly misleading or false information,” explains the scientist. Many exceptions to these rules are discussed and each party strives for a favorable decision as the process progresses.
Although many of the documents describing this fight are classified, other filings show that prosecutors want jurors to see photos of the wealth García Luna amassed while he was a civil servant. Some of these pictures have already been presented to the court, despite the objections of the former secretary’s lawyers. George Dietz, a Justice Department investigator, on Wednesday described photos found on the defendant’s electronic devices, mostly from a residence he owned in Jiutepec, Morelos. The house has a swimming pool, a large garden and is decorated with a white facade and a tiled roof. Héctor Javier Villarreal, Coahuila’s former treasurer, remembered it as “a hacienda” and said there was room for the helicopter that used to bring García Luna ashore.
Other images that prosecutors want to show in court come from the former secretary’s home in Jardines de la Montaña, an exclusive suburb south of Mexico City. It is also said to feature photos of various Ford Mustang cars and Harley Davidson motorcycles. Sergio Villarreal Barragán, El Grande, explained that Arturo Beltrán gave Leyva García Luna one of these motorcycles and that henceforth they would have several meetings to negotiate the protection of his criminal group against bribes. In addition, a painting painted by the accused, his weapon collection and a restaurant are to be uncovered. The former official wanted to use a restaurant to justify his application for US citizenship in 2019, which led to allegations of false testimony. The prosecutor’s application list ends with the invitation and photos of his 50th birthday party to show that he continued to own the Jiutepec house after 2012.
García Luna listens to the questioning of Iván Carrera, a DEA agent, on February 8. Jane Rosenberg (EFE)
Each testimony allows prosecutors to open a door to present evidence. In that case, while Dietz is testifying, prosecutors will try to insinuate that García Luna had more goods and property than his civil servant salary could afford. Aside from asking where his wealth came from, they also want to serve as evidence that García Luna downloaded court documents and followed the trials of Joaquín El Chapo Guzmán and Édgar Veytia step by step to argue that he was aware that he could be arrested. Agent Dietz will return to the stand on Monday to fulfill the task of being a vehicle to present as much evidence as possible.
Immediately afterwards, the so-called “significant witness”, as the US authorities called it, is to be summoned. The testimonies of the witnesses in the questioning and cross-examination lasted a day or two, so it is possible that the person he was representing for the last shot of the prosecutor, after what has been seen in recent weeks.
“One of the hardest parts is getting a cooperating witness to stand,” Richman admits. “The key is for the jury to see it for what it really is. Not as someone who has suddenly become “good,” but as someone who speaks his mind under pressure but is truthful,” he adds.
― And usually the last person you call to testify is your best witness?
– No, not necessarily. Sometimes prosecutors like to walk away with a bomb, but other times they’re just trying to tie up some loose ends.
“As someone who summarizes what others have said?
– If it can be. It may be something you need for your case or to have a stronger burden of proof, even if it’s not that interesting. Actually it depends on many things.
If the prosecution closes, the ball will fall in favor of the defense, who foresaw that they had no intention of calling any more witnesses and that they were only investigating the fact that their client was speaking. The parties are scheduled to deliver their closing arguments mid or late next week: the last opportunity to address the jury before the judge explains the sentencing instructions and deliberates for as long as necessary. There is no set term for them to decide if García Luna is guilty of the five crimes he is charged with: three for drug trafficking, one for organized crime and one for false testimony.
Conspiracies and the dilemma of development workers
The most controversial issue at the trial was the prosecutors’ decision to base their case on the testimonies of cooperating and protected witnesses, including criminals and ex-convicts. The three charges against García Luna for drug trafficking are included in what is called a “conspiracy” in the US legal system. For example, conspiracy to sell cocaine internationally, the second charge against him. “In a lot of countries that don’t exist, conspiracy is a very American crime,” says Richman. The academic explains that bringing people to justice who agree with others to commit a crime is part of a very broad framework. It involves planning and executing an illegal act, more or less like the mastermind of the crime.
In this type of indictment, the testimonies of aides involved in “the conspiracy” are very important, especially when it comes to complex connections, such as the links sought to be established between García Luna and prominent drug traffickers. It starts with the idea that everyone involved can play a different role and respond to a specific part of that plan. Richman says the ways in which attempts are made to prove this type of crime vary widely, but a lot of weight is usually given to the explanations given by some members of the conspiracy. It also tries to supplement their statements with physical evidence: photos, documents or intercepted communications. “The authorities try to back up the statements of the aid workers as much as possible, but there will always be things that are only known because the aid workers said them,” he adds.
According to the scientist, this also explains why defense lawyers tend to attack accomplices with everything and why it is also risky for public prosecutors to invite them to testify: Hardly anyone knows a criminal better than his accomplices. “You don’t always know what information the defense has to attack the collaborator, they don’t tell you where they’re going and it’s possible the other side knows better than you because you assume they do.” were partners in a criminal enterprise,” he explains.
These testimonies are often obtained under promises of benefits such as reduced sentences or visas, although the judge has the final say. The US system uses these collaborative arrangements to build high-profile cases, though the strategy is not without controversy. “We Americans have realized that this is the only way to bring serious criminal cases to justice,” says Richman, assuring that other countries such as Brazil or Japan, which have opposed this type of strategy, are now more open to these covenants criminals track organizations. “These are generally lucrative deals, although they involve risks, and it is important that juries, prosecutors and judges are aware of this and consider the credibility of various witnesses.”
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