Mimesis Law
28 May 2020

“Evidence” Obtained Through Torture Spares Mexican Extradition

August 8, 2016 (Mimesis Law) — The U.S. Court of Appeals for the Ninth Circuit has ruled that Jose Luis Muñoz, a Mexican national residing in the U.S., will not be extradited to Mexico because some of the evidence against him was procured through torture abroad. From the Court’s decision:

The issue before us is whether the extradition court properly refused to consider evidence that Rosas’s and Hurtado’s statements—in which they confessed to their involvement in the kidnapping and implicated Munoz—were obtained by coercion, including torture. The extradition court refused to consider evidence of coercion because it was contained in subsequent statements in which Rosas and Hurtado recanted their earlier testimony.

The extradition court should have considered the evidence of coercion because a coerced statement is not competent evidence and cannot support probable cause.

Rosa and Hurtado were cooperating witnesses against Muñoz in Mexico, and probable cause is the standard used by American extradition courts when ruling whether an extradition request is approved, as per the 1913 U.S. Supreme Court decision of Charlton v. Kelly.  Mexico has an extradition treaty with the United States, and like Colombia, it sends its worst ruffians here so that the U.S. Department of Justice may indict them and convince a federal judge to lock them up forever and ever.   This time, the U.S. refused to return the favor, at least when it came to Muñoz.

Using a standard akin to a grand jury proceeding, a U.S. magistrate judge in extradition proceedings is tasked with determining whether an extraditable crime is supported by probable cause. If the magistrate finds probable cause, an order is entered certifying extradition and then it’s up to the U.S. Secretary of State to rubber stamp decide whether to surrender him to the requesting country. American jurisprudence does not require foreign states requesting extradition to litigate their criminal cases in American courts, as only probable cause is required before someone is shipped off to a kangaroo court foreign tribunal.

Muñoz’s case had the unfailing characteristic of a case involving a criminal conspiracy: a rat or two. One of the cooperators, Jesus Hurtado, pointed the finger at Muñoz after undergoing some special treatment at the hands of Mexican law enforcement:

A “cap” was placed over his head, and he was taken to an unknown location. Someone started hitting him in the face, asking him to “tell them the truth.” A plastic bag was placed over his head and tightened until he could not breathe. Hurtado told his captors that he didn’t know anything. He was shown photographs of people but did not recognize anyone. His captors poured water into his nose and mouth, beat him, and questioned him again. According to Hurtado, this went on for several days. He was told more than once that if he did not “cooperate” his daughter would be given to him in “pieces.”

Hurtado’s fellow cooperator against Muñoz, Fausto Rosas, underwent similar treatment involving a bag and asphyxiation before he gave his “statement.” There’s something about bags and interrogation that Mexican police just can’t seem to forego. This is the price we pay when we send our dollars abroad to fight our (drug)wars: it’s a shock all of the sudden when the recipients have different views and standards as to what constitutes due process, torture, and abuse.  Sometimes people end up getting whacked by our client-states’ goons for their purported involvement in drug trafficking, well before they ever see the inside of a courtroom.

Muñoz was implicated in Mexico with the kidnapping of Dignora Hermosillo Garcia and her two daughters for ransom. After Rosa and Hurtado pointed to Munoz as the mastermind of the kidnapping, which left one of Hermosillo’s daughter’s dead, the Mexican deputy district attorney from the city of Tepic issued an arrest warrant for Munoz and Mexico requested his extradition.

The judge presiding over Munoz’s extradition case determined that the evidence of torture was inadmissible because it was “contradictory” — both Rosas and Hurtado recanted their original statements that they had been coerced Mexican police — and not “explanatory.”  In extradition proceedings, allegations deemed “contradictory” are generally inadmissible, as per relevant precedent.  The 9th Circuit didn’t disagree that the statements were contradictory, but it reasoned that the statements could nonetheless be explanatory as well, and therefore admissible:

Rosas’s and Hurtado’s recantations of their prior confessions are, indeed, contradictory. But their claims that their prior statements implicating themselves and Munoz were obtained under duress are not contradictory, but explanatory. Recanting statements contest the credibility of the original statements, presenting a different version of the facts or offering reasons why the government’s evidence should not be believed. Reliable evidence that the government’s evidence was obtained by torture or coercion, however, goes to the competence of the government’s evidence. The Supreme Court has long held that the Due Process Clause of the Fifth and Fourteenth Amendments bars the admission of coerced confessions.

So for now, Muñoz will remain stateside.  He was arrested in 2006, and was released on bail.  But before anyone (federal appellate judge or not) gets accused of being “soft on crime,” if Muñoz doesn’t have legal immigration status, it’s always possible that he may be taken into custody by Immigration and Customs Enforcement and placed in deportation proceedings by the Department of Homeland Security’s Office of the Chief Counsel.  Rest assured that the federal law enforcement net comes in many colors, for better or worse.

Ironically, the 9th Circuit’s en banc opinion was authored by Judge Jay S. Bybee, who as a former U.S. assistant attorney general, drafted a memorandum that provided the rationale for using torture to get information from Al-Qaeda operatives.  Sometimes a bag is not just a bag, folks.

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  • CLS
    8 August 2016 at 3:37 pm - Reply

    Just a sad story that leaves a bad taste in the mouths of anyone who learns of it.
    Thanks for bringing it to the public’s eyes, Mario, regardless of how uncomfortable it makes others.

    • Mario Machado
      8 August 2016 at 4:10 pm - Reply

      You’re welcome Christopher. As I told our esteemed editor, this is one of those posts in which I, in addition to our readers, learned a thing or two while writing it. You know what left a bad taste in my mouth? Re-reading that creepy torture memo I referenced.