Mexico: the traffickers’ judges

Mexico’s justice system reacts oddly when dealing with criminals involved in organised crime, especially drug trafficking. Since drug trafficking is a federal crime, it must be addressed by judges from the federal jurisdiction; state and municipal-level justice systems cannot be involved (nor local governments and local police). This leaves the fight against drug trafficking in the hands of a very few people who are therefore more vulnerable to corruption, as well as to pressure, threats and physical attacks from criminal elements.

Judges involved in drugs trafficking cases do not receive any special protection and are more susceptible to coercion and corruption. Plata o plomo (meaning ‘silver or lead’, in other words what will make a judge comply with a corrupt demand: money or a bullet?) is the question asked in trafficking circles to assess how amenable a judge might be to corruption when it comes to sentencing. This ‘choice’ is repeated at every level of investigation throughout the police and judicial systems. This does not mean that there are not police, prosecutors and judges who are honest and carry out their work efficiently. But in such an environment corruption easily penetrates the system.

José Luis Gómez Martínez, a judge in Mexico’s highest security prison, has handed down numerous decisions in the past few years absolving a number of people linked to the Sinaloa drug cartel. His sentences sparked complaints by the attorney general’s office, which denounced him to the federal judicial council (CFJ), the agency responsible for evaluating judges’ sentences and protecting their integrity, and also started an investigation against him. To date, the CFJ has not found any ‘irregularities’ in the judge’s decisions.

But some irregularities are easy to spot. Judge Gómez Martínez presided in the case against Olga Patricia Gastelum Escobar and Felipe de Jesús Mendivil Ibarra, both accused of harbouring and transporting money belonging to the Sinaloa cartel to drug trafficker Arturo Beltrán Leyva, a close associate of El Chapo, the head of the cartel. The couple were detained while attempting to escape from police with close to US $7 million in cash and US $500,000 worth of jewellery and watches. They were armed.

In April 2005, Judge Gómez Martínez cleared Olga Patricia Gastelum Escobar of wrongdoing in a sentence that was marred by many irregularities, most notably that the public prosecutor’s office (which instigated the case) was notified of the result only 24 hours after the woman was freed from prison. This violated article 102 of the Criminal Procedural Code, which stipulates that decisions cannot be executed without first notifying the public prosecutor. The defendant went free although a separate investigation had been initiated against her. A complaint about the decision was filed with the CFJ, which argued that verdicts of innocence did not need to be notified to the public prosecutor. Although Judge Gómez Martínez was not sanctioned, an appeal against the sentence was brought before the second circuit appeals court, which found that Gastélum Escobar’s criminal liability had clearly been demonstrated. Nonetheless, she remains at liberty.

The scandal does not end there. Despite the appeal court’s decision against Gastelum Escobar and the fact that she had already declared that her partner, Mendívil Ibarra, was a drug trafficker, the same judge considered that he, too, was innocent.2 There are other cases involving Gómez Martínez. In 2004, a group of 18 hit men loyal to the Sinaloa cartel were detained in Nuevo Laredo by the Mexican army. They were carrying 28 long guns, two short guns, 223 cartridges, 10,000 bullets, 12 grenade launchers, 18 hand grenades, smoke grenades, bullet-proof vests and equipment reserved for military use. Gómez Martínez set them free, arguing they were innocent of charges of involvement with organised crime.

The same judge ordered Archivaldo Iván Guzmán Salazar, son of El Chapo, to be set free after he was accused of money laundering and murdering a young Canadian while leaving a bar.3 The case of Gómez Martínez is not exceptional. A judge in Guadalajara, Amado López Morales, decided that Héctor Luis ‘ El Güero’ Palma, one of Mexico’s best known drug traffickers, was no such thing (he called him an ‘agricultural producer’) despite the fact that he was detained in charge of an arsenal of weapons. He decided the crime of amassing weapons should merit only five years in prison. A second judge, Fernando López Murillo, reduced the penalty to two years and also decided that the former commander of the federal judicial police, Apolinar Pintor, who had sheltered El Güero, should be exonerated because he only did it out of ‘friendship’ – and not because he was paid.4

When Arturo Martínez Herrera, leader of a group of hit men known as Los Texas, was detained with 36 long weapons, and 10 kg of cocaine and marijuana, Judge López Morales dismissed the charges. The only sentence he gave was for criminal association, for which he awarded a sentence of two years, commutable for a fine of US $10,000. When the sentence was reviewed, the appeals court condemned Martínez Herrera to 40 years in prison.5

Another notable judge is Humberto Ortega Zurita from Oaxaca. Two men were detained in a car in 1996 with 6 kg of pure cocaine: the judge absolved them declaring that no one could be sure that the cocaine was theirs. Some time later, a woman was detained in a bus with 3 kg of cocaine taped to her stomach. The judge had no doubt: the woman was set free because he considered that ‘she did not carry the drugs consciously’. A short time later, Judge Ortega Zurita ‘committed suicide’ by stabbing himself several times in the heart.6 The Mexican judicial system does not function adequately. But it is also true that there are protections against corruption, and institutions, such as the CFJ, that should bring some order to the chaos.

What is unusual about cases like that of Gómez Martínez is not the quality of his decisions, but the CFJ’s refusal to take any action against him when in most cases the appeals court drastically altered the sentences, denouncing the judge’s ‘ineptitude and lack of knowledge of criminal law’.

The rule of plomo o plata continues to taint the justice system. Some traffickers have been detained for years without receiving a firm sentence, exploiting the deficiencies of the justice system with the sole objective of avoiding deportation to the United States where they would face more serious charges.

Endnotes:

1. Jorge Fernández Menéndez is a radio and print journalist in Mexico, and author of a number of books on drugs trafficking and power in Mexico.

2. An appeals court reversed the decision and sentenced Ibarra to 17 years in prison. See La Jornada (Mexico), 5 October 2006.

3. Office of the Attorney General, Boletín 789/05 at www.pgr.gob.mx/cmsocial/bol05/jul/b78905.htm The PGR successfully appealed against the decision to free Guzmán Salazar.

4. Office of the Attorney General, Boletín 183/97 at www.pgr.gob.mx/cmsocial/bol97/jun/b0018397.htm The day after issuing his decision, López Murillo told the press that the case had made him fear for his life.

5. Office of the Attorney General, Boletín 049/97 at www.pgr.gob.mx/cmsocial/bol97/ene/b0004997.htm Judge Morales was dismissed by the CFJ and prosecuted for collusion with drug traffickers. He is currently in prison.

6. Report of the UN special rapporteur on the independence of judges and lawyers, January 2002, E/CN.4/2002/72/Add.1