Adán Cruz Gallegos, 45, is a Zapotec man from the southern Mexican state of Oaxaca. He has spent seven years in prison while waiting for the courts to decide if he’s guilty of kidnapping two people.
Cruz’s attorney says he was arrested without a warrant on Oct. 4, 2010 on the streets of his hometown, Juchitán de Zaragoza, on the Tehuantepec isthmus some 400 kilometers east of Oaxaca’s capital.
He’s accused of kidnapping a doctor, Amira Sánchez Martínez, on Oct. 14, 2009, and Julio Rasgado on July 27 of the same year.
When prosecutors first opened a case against him, Cruz didn’t have an interpreter. He speaks the Zapotec language, and only a little Spanish. Seven years ago, he signed a confession that his current public defender claims Cruz didn’t write. Instead, his lawyer says, authorities wrote the confession and forced him to sign it.
Cruz’s attorney, who works for the state, asked that his name be withheld, fearing he might lose his federal job.
A medical certification in Cruz’s file states that he was physically beaten in the initial days after his arrest.
Last January, Cruz’s attorney produced several documents to prove his innocence. One is a statement from a hotel manager in Champotón, Campeche, who said Cruz was at the hotel the day Amira Sánchez was kidnapped, far from the crime scene. The hotel manager’s letter is part of criminal case file No. 98-2010 at the Sixth District Court in Salina Cruz, Oaxaca.
A letter also exists from the company where Cruz worked. That letter states that on Oct. 13, 2009, Cruz was working in Seybaplaya, Campeche, a city located 768 kilometers from Juchitán, where the kidnapping occurred.
Exculpatory evidence also exists in the kidnapping of Julio Rasgado. At the time of that kidnapping, Cruz worked for the company Nabor Drilling Perforaciones. Cruz’s file contains official documents from the Maritime Service of Mexico’s state-owned oil company Pemex that confirm that on July 21, 2009, Cruz boarded the [oil] platform Alka Delta, in the city of Carmen, Campeche, where he remained for 28 days. These documents prove Cruz wasn’t in Juchitán on the day of Rasgado’s kidnapping, his attorney said.
The judge hearing the case, Anastacio Ochoa Pacheco, said criminal law prevents a defendant accused of kidnapping and organized crime – as is the case with Cruz – from being released pending a verdict. The judge said that the Mexican Constitution limits preventive detention to one year unless a defendant requires more time to prepare a defense.
“In these types of cases there are always complications and delays,” Ochoa said. “Sometimes there are no interpreters, or the arresting officer doesn’t show up to testify, or there’s no gasoline to transport the prisoner, or there are protests, or it’s hard to find the people you are going to confront. And if we don’t follow due process, they challenge us and we’re delayed for three years. And [Cruz] has presented a lot of evidence – they’re defense strategies.”
Ochoa said he can’t issue a verdict until all of the evidence from both parties is heard and reviewed and other pending expert evidence is completed.
Cruz’s wife, Rosa Ramírez Tolentino, recalls that on the day her husband was arrested, the couple was leaving church after their daughter’s baptism.
“We were planning on hosting a party,” Ramírez said. “The guests were already waiting for us, but we never made it. They arrested him.”
Ramírez has spent the last seven years coming and going, searching for evidence that will prove her husband didn’t participate in the kidnappings.
According to Ramírez, private attorneys she hired took her money and did nothing to help. Her husband also had three public defenders who made no progress on the case. His current public defender is now trying to get him released from prison pending a verdict.
Only the judge can determine if he’s guilty or not. But what is true is that like Cruz 8,000 other indigenous people in Mexico – many who don’t speak Spanish – are imprisoned while waiting for rulings on their cases. The process can take several years, because public defenders are swamped with cases, there aren’t enough attorneys, and those who are working lack the time needed for each case.
The Federal Institute of Public Defense has 25 attorneys and 21 administrative employees to help indigenous defendants. They provide counsel in 34 native languages. But Mexico has 18 million indigenous residents who speak 68 languages, including 364 variations of those languages. In other words, there is only one federal public defender for every 600,000 indigenous residents.
A known problem
The Federal Public Defender’s Office only handles federal crimes, such as drug trafficking and kidnapping, the latter charge being the one that landed Adán Cruz in prison.
Meanwhile, each state has its own public defender’s office, which handles common crime. Those offices are also understaffed, and can’t adequately assist defendants waiting in prison, a reality acknowledged by politicians, authorities and the National Human Rights Commission.
It’s not clear how many public attorneys that speak an indigenous language work in the country’s 32 states. Most of these attorneys work in support roles at agencies like the Instituto Nacional de Lenguas Indígenas (National Institute of Indigenous Languages) or the Comisión Nacional para el Desarrollo de los Pueblos Indígenas (National Commission for the Development of Indigenous Communities, or CDI), as well as at nongovernmental organizations.
The CDI says it needs 500 bilingual attorneys to assist all the country’s agencies. Currently, 198 are registered in the National Registry of Indigenous Attorneys.
The National Registry of Indigenous Language Interpreters and Translators has 600 interpreters and translators, but most of them don’t work for the Mexican justice system. Local and federal prosecutor’s offices lack funds to pay their fees or transportation. This has the effect of isolating indigenous defendants from crucial support.
Mario Torres López, director of the Federal Public Defender’s Office, highlighted several disturbing cases, including men who are imprisoned for environmental crimes after they hunted iguanas to feed their families; indigenous people who were arrested for collecting peyote for personal use; and seniors imprisoned after being tricked into transporting illicit drugs.
In 2016, the Federal Public Defender’s Office assisted 676 indigenous defendants who were sent to prison under the former Penal Justice System. The same year, they provided counsel to 257 others under the new justice model, which aims to prevent people from being jailed for more than two years without a conviction. Some public defense attorneys work up to 150 cases a year, Torres said.
He doesn’t think that’s an unreasonable number of cases for a single attorney.
“The public defenders that we have, totaling a little more than 800, are enough to provide adequate defense services in federal matters,” he said.
A recent report by the National Human Rights Commission noted that 8,412 indigenous defendants were incarcerated in penitentiaries across the country. Of those, 7,728 were charged with common crimes and 684 were under federal jurisdiction.
The lack of public attorneys who speak indigenous languages is the biggest problem for a population that already is vulnerable.
“Due to their monolingual situation, … they don’t understand the extent of the legal circumstances they are facing, combined with the fact that many of them often lack immediate legal counsel,” the commission’s report stated.
Every year, the human rights commission secures the release of people who shouldn’t have been in prison in the first place. Last year, they freed 60 indigenous people, mostly from Veracruz and Chiapas.
In August 2000, a constitutional reform mandated that in all criminal trials and hearings involving indigenous citizens, their customs and culture, including their languages, must be taken into consideration. Nevertheless, 16 years later, the Federal Public Defender’s Office has only 25 attorneys to help them.
Faced with this problem, in 2015, the Mexican Senate asked state authorities to “guarantee the right of indigenous peoples to access justice.” Earlier, in 2013, Sen. Luisa María Calderón Hinojosa presented a bill to require professional accreditation for specialized public defenders in indigenous communities and to guarantee service during all phases of criminal processes. To date, none of that has happened.
The conviction of Adela García
To address the problems with providing counsel to indigenous inmates, lawmakers including Germán Ernesto Ralis Cumplido, of the Citizens’ Movement party, have proposed reforms to the National Penal Procedural Code to require any document defendants must sign to be written in their native language.
That would help prevent tragedies like the one that happened to Adela García Carrizosa, from San Lucas Zoquiapam, Oaxaca.
García was arrested in May 2009 and accused of killing her brother-in-law, Artemio Rosas García, who sexually assaulted her.
For more than three years, García had no idea what she was accused of. On Oct. 3, 2012, she was finally provided an interpreter, according to Gerardo Martínez, an attorney from the Centro Profesional Indígena de Asesoría, Defensa y Traducción (Indigenous Professional Center for Consultations, Defense and Translation, or CEPIADET).
García was read her initial statement, in which she allegedly confessed to helping her husband, Germán Rosas García, kill Artemio Rosas García with a machete and then bury him in a latrine below the house.
“She didn’t know how to read or write,” Martínez said. “She imprinted a fingerprint on blank sheets of paper, and years later, she found out why she is in prison.”
Martínez said García was brought before the prosecutor’s office in Huautla de Jiménez without an interpreter.
“She didn’t understand what they said to her, and because she is monolingual, she also didn’t know what she signed,” he said.
According to García and her attorney’s version of the crime, Germán Rosas returned home during his brother Artemio’s sexual assault on García. A physical altercation ensued, and García fled to a neighbor’s house with her two daughters, aged 7 and 10.
Nevertheless, García was sentenced to 20 years in prison for first-degree murder, and she remains in the women’s prison at Tanivet, Tlacolula, west of Oaxaca’s capital. Because of the distance, she hasn’t been able to see her daughters.
Ralis’ reform bill hasn’t even been discussed in the Chamber of Deputies. Neither has another bill presented by Democratic Revolution Party lawmaker Victoriano Wences Real, who proposed a constitutional reform requiring public defenders to provide counsel in the defendant’s native language.
The case of Oaxaca
In México, the majority of indigenous people in prison are located in Oaxaca, Chiapas and Puebla.
In Oaxaca, 66% of the population is indigenous. CEPIADET estimates that the state’s public defender’s office needs a minimum annual budget of 42 million pesos ($2.2 million) to hire interpreters for all of the indigenous people who are incarcerated. That’s about 3% of the total budget the state’s prosecutor’s office currently has to work with.
CEPIADET Director Tomás López Sarabia said that figure is the minimum that should be requested from Oaxaca’s government, which during the last administration spent 250 million pesos ($13.3 million) on government publicity alone.
Mario Torres López, head of the Federal Public Defender’s Office, said the inequality goes beyond the number of attorneys who speak an indigenous language. Another problem is salary differences between the various public defenders throughout the country.
While federal lawyers have competitive salaries ($2,000 a month), most state attorneys earn less than 10,000 pesos ($500) a month. That discrepancy is one of the pending issues brought up in penal justice reform passed by Mexico in 2008 and enacted last year.
“There’s no uniformity. The only thing discussed by the constitution was that a public defender, either federal or from the federal entities, cannot earn less than the prosecutors from the Public Prosecutor’s Office,” Torres said.
Doroteo Aurelio Vásquez Vásquez, coordinator of the public defender’s office in the city of Tlaxiaco, Oaxaca, said she attends 15 hearings and trials a month. On some days, she’s required to attend hearings for up to three different cases, along with her other work.
Vázquez said that occasionally she’ll spend her own money to attend defendants’ hearings. She also said there’s a need for more technical assistants.
“This is a need in every state. It’s important for the institution to have its own experts, so that they can carry out their work as needed, wherever a public defender takes the case,” she said.
It was this lack of experts that led the families of Adán Cruz and Adela García to come up with their own plans to collect evidence in an effort to prove their loved ones’ innocence.
But those families are still waiting. Both the public defense attorneys and the new evidence have not been enough to force a change.