Appendix D
Guatemalan Judicial Procedure and the Mack Case

This appendix presents an informal outline of the Guatemalan judicial procedure and the phases and steps the Mack case has taken to date. This outline, which was prepared with the help of the Office of Human Rights of the Guatemalan Archdiocese, reflects our best efforts to describe an extremely complicated system. At any point during the various stages of the judicial process, the prosecution and defense parties are allowed to file interlocutory appeals. It is anticipated that this practice may cause further significant delays in the proceedings of the Mack case.

INITIAL INVESTIGATION

The first judiciary step taken in a murder investigation is a judicial recognition of the victim's body by a justice of the peace, who inspects the crime scene and the body for signs of violence and orders an autopsy. The case then passes to a criminal justice of the peace, who collects evidence during a 3-day period and passes the information on to a court of investigation. The court of investigation is responsible for completing the investigation and identifying a suspect or suspects.



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Scientists and Human Rights in Guatemala: Report of a Delegation Appendix D Guatemalan Judicial Procedure and the Mack Case This appendix presents an informal outline of the Guatemalan judicial procedure and the phases and steps the Mack case has taken to date. This outline, which was prepared with the help of the Office of Human Rights of the Guatemalan Archdiocese, reflects our best efforts to describe an extremely complicated system. At any point during the various stages of the judicial process, the prosecution and defense parties are allowed to file interlocutory appeals. It is anticipated that this practice may cause further significant delays in the proceedings of the Mack case. INITIAL INVESTIGATION The first judiciary step taken in a murder investigation is a judicial recognition of the victim's body by a justice of the peace, who inspects the crime scene and the body for signs of violence and orders an autopsy. The case then passes to a criminal justice of the peace, who collects evidence during a 3-day period and passes the information on to a court of investigation. The court of investigation is responsible for completing the investigation and identifying a suspect or suspects.

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Scientists and Human Rights in Guatemala: Report of a Delegation In September 11, 1990, a justice of the peace of the Court of Paz de Turno performed a judicial recognition of the crime of the murder of Myrna Mack. On the same day, for reasons of jurisdiction, the justice of the peace sent the case to the second criminal justice of the peace of the Second Court of Paz Penal. On September 14, 1990, the Second Court of Paz Penal sent the case to the Second Court of Primera Instancia de Instrucción. As a result of procedures outlined in Guatemalan judicial decree no. 67–89, the Second Court of Primera Instancia de Instrucción returned the case to the Second Court of Paz Penal. On October 31, 1990, for reasons of court vacations, the Second Court of Paz Penal sent the case to the Eleventh Court of Paz Penal. On November 11, 1990, the case was returned to the Second Court of Primera Instancia de Instrucción Penal under the guidance of Judge Jorge Alejandro Váquez Rodríguez. In March 1991, Lic. Eduardo Antonio Coromac Ambrosio became the new judge of the Second Court of Instrucción. For 23 days during July 1991, while Lic. Coromac was on vacation, Judge Lica. María Eugenia Villaseñor Velarde of the First Court of Instrucción oversaw the case. It was during this time that the arrest warrant for Noél de Jesús Beteta Alvarez was issued. During late July and early August 1991, while Lic. Coromac was still on vacation, substitute Judge Lic. Oligario Labbé oversaw the case. On September 17, 1991, in response to Helen Mack's petitioning for the withdrawal of Judge Coromac from the case, the judge excused himself from the case. On September 27, 1991, Lica. Carmen Ellguter of the Third Court of Primera Instancia de Instrucción Penal was assigned the case. Noél Beteta was arrested on November 29, 1991, in Los Angeles, California, deported to Guatemala City on December 4, and charged with Mack's murder. In early December 1991, Judge Ellguter went on vacation and the case was overseen briefly by Judge Oscar López Lemus of the Sixth Court of Primera Instancia de Instrucción. THE PREPARATORY OR ''SUMARIO'' PHASE During the 15 days following the arrest of a suspect, a case is in "sumario," an investigative phase in which the judge is responsible for seeing that all possible pieces of evidence are brought to the court. At the end of the sumario phase, the judge must decide whether sufficient evidence exists to

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Scientists and Human Rights in Guatemala: Report of a Delegation carry the case into the next phase, "abre a juicio," or whether the prisoner should be released. Following Beteta's deportation, Judge López withdrew from the case, claiming that the private prosecutors, Helen Mack and Ronalth Ochaeta (director of the Human Rights Office of the Archdiocese of Guatemala), had questioned his impartiality. The case passed temporarily to Judge Leticia Secaira of the Fourth Court of Primera Instrucción Penal. At the end of the sumario phase, on December 18, 1991, Judge Secaira found insufficient indications of guilt to pass the case to the trial court ("juzgado de sentencia"). Thus, the case was passed to Judge Victor Hugo Navarro Solares of the Juzgado Tercero de Primera Instancia Penal de Sentencia. THE INTERMEDIATE OR "ABRE A JUICIO" PHASE The abre a juicio phase theoretically lasts for 5 days, during which all parties have the opportunity to review the entire court file and examine existing evidence indicating guilt or innocence. In the Mack case, the abre a juicio phase lasted several months. On February 17, 1992, Judge Navarro sent the case to the military court in Guatemala City (Auditoria de Guerra), claiming that he lacked jurisdiction over the case because Beteta was a member of the intelligence branch of the Presidential High Command when he allegedly killed Myrna Mack. The prosecution appealed Judge Navarro's decision, the Fourth Court of Appeal supported the appeal, and the case was returned to the civilian court, to Judge Alcides Sagastume. The Mack case moved into the accusatory phase on August 20, 1992. THE ACCUSATORY PHASE If neither party requests the opportunity to present evidence, the judge will rule as to the defendant's guilt or innocence. However, in most cases, one or both parties request an additional 43-day period to present more evidence (an "apertura a prueba"). Each subsequent request for additional evidence must come from one of the parties and may not be at the request of the judge, who at this stage acts primarily as an observer. If, at the end of the 43-day period, the judge decides that there is insufficient evidence for a ruling, he or she submits an "auto para mejor fallar," which presents another opportunity of 3, 8, or 15 days for both sides

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Scientists and Human Rights in Guatemala: Report of a Delegation to present evidence to the court. However, if, at the end of the apertura, the judge decides that there is sufficient evidence to make a ruling, there is a waiting period ("audiencia") followed by an oral or written argument ("vista") by the parties regarding the defendant's guilt or innocence. The judge then has 15 days to reach a verdict. Once the judge rules, the case leaves the court of Primera Instancia and enters the appellate process. According to Guatemalan judicial law, the Mack case will move into the appellate phase before a final decision is made on the case. THE APPELLATE PROCESS Either party can appeal the verdict to the appellate court of Segunda Instancia. Under Guatemalan law, however, even if the case is not appealed, it will be automatically reviewed (a "consulta") by the court of Segunda Instancia. (The court of Segunda Instancia is an appellate court made up of three magistrates who will study the decision.) The judges may decide to accept more evidence (an "auto para mejor fallar") during a 3-or 5-day period. The parties are then given a day in court during which they present their arguments (a "día para la vista"). The court of Segunda Instancia then has 15 days after the arguments in which to affirm or annul the lower court's finding. If the appellate court annuls the lower court's decision, the process returns to that point in the accusatory phase in which the error was made and continues again from there. Moreover, after the appellate court rules, either party may bring a challenge (a "casación"), questioning the validity of a piece of evidence that was brought earlier in the proceeding. The Supreme Court rules on these challenges. If the Supreme Court affirms the challenge, the case is annulled from the time at which the illegal evidence was submitted and must proceed anew from that point.