Presumed Guilty.
- Roy Catchpole
- May 26, 2020
- 8 min read
Updated: Jul 1, 2020
"That is all I want to say, and that this man is lying"
"I had no idea of anything."
"They just grabbed me, stuck me in the car and said..."
"They said: You did this and that's it."
"And I said: What did I do?"
"How can the police invent evidence..."
"Ignore evidence or even erase it?"
"From the moment they accuse somebody, the prosecution's won."
"That is all I want to say, and that this man is lying"
I guess it is pretty easy for any UK citizen to look across the Atlantic and believe this video.
For some, it is no more than one might expect from Mexico. I could never happen in the UK, which has the finest legal system in the world, relying as it does on the rule of law. "Innocent until proven guilty."
I wonder. What would be the answer if someone seriously put the question:
"it possible that a liar can get through the UK court system - just like in Mexico - from start to finish without being discovered?"
"Is it possible that an innocent person could be sent to prison for ten or more years on the strength of the uncorroborated witness of a single liar?" Even if that person were poor and powerless and alone.
"I had no idea of anything."
It's the early hours of the morning. You and your family are snuggled up in bed. This is not the USSR in the Seventies. This is the rural Dorset, UK in 2012. Or, you and your wife have just arrived home for your evening meal after visiting the local garden centre. You are 70 years old and dying from an undiagnosed terminal cancer. Two detectives accuse you of serious sexual offending. They put you in their car and take you to a holding cell. You wait there for hours. You are them interrogated for hours more. You have no idea of anything. No-one tells you what crime you have committed. You are presumed to be guilty.
"They just grabbed me, stuck me in the car and said..."
"...as things hit home, I collapsed. I was just in despair, and felt hopeless and helpless. I felt as though I was in a hole with no means of getting out, and I was on my knees in the kitchen, sobbing. At that moment I couldn’t see how I could face the future, my friends or family..."
The testimony of Sir Cliff Richard in the UK High Court, describing the police raid on his home - and he was not even there at the time. Nor had he undergone the trauma of arrest, interrogation, or charge. But the impact was enough to reduce him to a physical, emotional and psychological wreck. And he was neither poor, nor powerless, nor alone.
"They said: You did this and that's it."
Powerless. Poor. Alone. Confused and frightened. No financial resources to employ the best legal briefs. In a Mexican interrogation room, this victim of a rule-of-lawless legal system could see no future but one of permanent incarceration for a murder he did not commit. He had a pregnant wife and her supportive family. But they, too, were poor and powerless.
What if?
In the UK, after hours of incarceration and more hours of exhausting interrogation, you are told to go home. It is 3.00 in the morning and there's a cold, heavy skin-penetrating mist in the air. You are exhausted. There is no public transport, and you are alone. You have 30 miles to cover. Your interrogators have gone to their canteen, or to their beds. You are ill and 70 years old. Your wife is at home distraught, and the police have deprived you of your mobile phone, so you have no means of getting help. You are poor, powerless, and alone, confused and frightened. They were saying, "You did this and that's it." You know you are presumed to be guilty.
"And I said: What did I do?"
This poor Mexican trusted the police. He had no reason not to. These people were the law-keepers. They were the people who made sure the population lived in a civilised and quiet way. The people who were the guarantee of this poor man's safety. What had he done? He didn't know. His only plan was to marry his pregnant partner and raise a family. Perhaps he had innocently broken some law? But he was poor and powerless.
You have committed a very grave crime. Probably the worst crime anyone could ever commit. And I said: What did I do? And he said, not fraud, or embezzlement, nor theft. You have not sold drugs to innocent children and ruined their lives, beaten your wife nor falsely imprisoned anybody. You haven't committed treason or killed a child. You are not a terrorist on the streets of London or Manchester. You are not - like them and this poor Mexican boy, a murderer. Because your crime is more wicked than any of these crimes. It is a crime that other prisoners - all these people I have mentioned to you - will condemn you for when we put you in prison. You are a sex-offender, and you are despised as the lowest of the low - even among the scum of the earth. And being a clergyman, well, that makes it even worse. You have betrayed God Himself.
"How can the police invent evidence..."
Easy. They can think it up out of their own heads, or they can infer it from something that was said by someone - a witness perhaps, or from some flimsy, uncorroborated evidence. They can 'wish' it into being or plant it at the scene, or pay their own experts - knowing that you are poor and powerless - who will give their slant on the DNA or physical circumstances. They can even believe the witness without checking the facts and enter it into testimony in court. You are poor and powerless, and there's a place for you in our top security prison. Plead guilty and save the state some money and yourself a few extra years in prison.
It surprises me even now that the general public seem to be content to naively take the police and prosecution simply at their word. At the same time, public confidence in the veracity of police and their investigations appears not to have recovered since the prominent miscarriages of justice centred around the Guildford Four, released in 1989; the Birmingham Six, released in 1991; the Bridgwater Four, released in 1990; the Cardiff Three; the M25 Three and many opther, less publicised appeals. In 1999, thirty convictions were quashed when it became clear that the West Midlands Serious Crime Squad had fabricated evidence, tortured suspects and concocted false confessions. Dozens of similar appeals remain in the pipeline today. https://en.wikipedia.org/wiki/List_of_failed_and_overturned_convictions_involving_the_West_Midlands_Serious_Crime_Squad
The public seem to want to believe the police and prosecution sometimes despite the evidence of their own eyes. I say this because at my trial my false accuser said,
"He has a deep scar across his chest."
When asked to describe it, she signalled with ha hand gesture 'North-to-South.' But there was no 'North-to-South' scar. My defence knew this. So she was asked to indicate again. This time she changed her mind and indicated a 'West-to-East' chest scar. The defence knew this was not the case, so she was asked again. Flustered, she said that the scar (which actually did not exist) was across my stomach. Case, proven, you might have thought. I had no such scar.
Even then, however, when my barrister invited me to bare my torso to the jury, I could see from their response that some of them still wanted to believe that she was telling the truth, even though they could see with their own eyes there was no scar.
I guess this clear lie had to be allowed in the court because the prosecution had missed it when she was making her ranting video-recording for them. To have removed it from the record would have been a clear case of tampering with the evidence. On another occasion, "He made a disgusting gesture at me from his blue car in the street." She said. Despite the fact that I had a red car and could show that I had not been in town that day, I was issued with a police written warning that this could have arrested me and put me in prison for this. On her word alone. She was insane, and the outcome of the trials eventually would prove she was a liar and a fantasist.
Do the police withhold evidence? Somehow, through two trials, the police just couldn't find the record of her previous allegations against an earlier victim, nor the record of her mental instability. They had been lost, or become corrupted. They just couldn't be found. Added to which, er psychological history was privileged personal information
"Ignore evidence or even erase it?"
Mr. Zúñiga is fearful that somebody may take revenge for making this film. So he seeks protection in anonymity while obsessively recording his every activity. He stands in front of security cameras, saves receipts, anything to prove where he was at any moment in case he should ever find himself in front of a judge again.
“I don’t know if it’s a delirium of persecution,” he said. “But getting out of there, you don’t trust the police, you don’t feel calm, out on the street. There are some things you have lost. You get to jail and begin to realise that nobody is interested in what you have to say, Nobody is interested whether you have proof that it wasn’t you. Then you begin to realise that you’re a pattern, a number, a statistic.”
He was sentenced to 20 years in jail based on the testimony of a single 17-year-old eyewitness, a cousin of the victim. The Mexico City judge convicted Zúñiga , and he disqualified the testimony from all the witnesses who said they saw Zúñiga throughout the day of the murder working his market stall.
In my trial, the police were unable to find the trial transcript of allegations she had made against another man, 20 years previously. A man who had been sentenced to 6 years in prison for committing exactly the same offence against her. The same in every detail. Right down to him kicking her dog and threatening to rape a child if she refused to have sex with him. On the first request for this transcript, the prosecution said the transcript had been lost. On the second they said the transcript had become corrupted. On the third, the transcript was being kept in a locked facility to which the prosecution had no access. On the fourth, it was said that records are routinely destroyed after the lapse of a number of years. It was claimed that this is what had happened in this case. Ignore evidence or even erase it? "Is this something she has done before?" asked my defence barrister. The prosecution could not say. Her psychiatric and medical records were privileged information. To provide a record of her previous fantasising and incarceration in many psychiatric wards may prejudice her case and stereotype her.
"From the moment they accuse somebody, the prosecution's won."
Although lucid and intelligent, Mr. Zúñiga soon realised that he was up against a vast and powerful organisation. Introspective in his filmed presentation, he is a sympathetic protagonist. But the film also resonates in its depiction of the police and courts. It lays bare the weak links in Mexico’s effort to build the rule of law and fight organised crime. Even so, Mr. Zúñiga is was a poor and powerless man with no influence in the court. The subsequent film depicting his trauma is only a reflection of an experience that has changed the man for ever.
But there is hope for the future. Things are changing in Mexico. As the reforms are phased in over eight years, Mexico’s federal and state courts are expected to replace their paper-choked procedures with oral trials. The police have been given more clearly defined investigative responsibilities. The changes also add safeguards to guarantee a defendant’s right to due process and the presumption of innocence. http://catcher.sandiego.edu/items/peacestudies/2010-IngraShirk-JRM%20(2).pdf
He cannot return to his old life, fearful that somebody angry about the film might find him. For now, he feels safe, hoping that his brief period of fame might protect him. His concern is to get a high school degree and support his family.
In the UK, any person claiming to have been raped or sexually assaulted is believed. Their testimony is treated as the truth.
There needs to be justice for every victim. Both those who are real victims of sexual assault and rape, and for those who are falsely accused of these vile crimes of violence. But there is a better way of doing this than presuming the accused is guilty before trial. Terminology does matter.
"Believe The Victim (sic)"
Terminology does matter.
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