Justice Champions of Change:
The Lawyers who Sold Their Car to Buy a Camera
In 2008, Mexico’s criminal justice system, which had remained more or less unaltered since the 16th century, suddenly began to change.
Congress rewrote the Constitution to make the shift from “a written-based system to an adversarial, oral-based system in which the prosecution and defense present competing evidence and arguments in open court.” The new system replaces the presumption of guilt with the presumption of innocence. Defendants have the right to a public trial where evidence is presented and challenged, instead of being subject to the unchallengeable paper-based judgements that had been handed down for hundreds of years.
This major reform wouldn’t have happened were it not for two documentary films. Mexican lawyers, Roberto Hernandez and Layda Negrete, made The Tunnel in 2006. This 20-minute exposé juxtaposed video footage of Mexico’s corrupt, unfair, and wasteful criminal justice system with the reformed and much more transparent system adopted a few years earlier by Chile.
When its creators used the film to apply pressure on members of Congress, the wheels of change began to turn.
The sequel was a feature that had a public release in 2008. Presumed Guilty traces the journey through the judicial system of Toño Zúñiga, a young man who repaired computers. His life was destroyed when he was framed for a gang murder in 2005.
Despite powerful evidence of his innocence, he had little hope of overturning his conviction until it was discovered that his lawyer had forged his professional credentials.
Roberto and Layda filmed Toño as he is tried for a second time, in front of the judge who handed down the original guilty verdict. It is an extraordinary movie that takes the viewer on a grueling journey through a system that seems designed to deliver injustice.
Despite being banned within weeks of its release, Presumed Guilty became by far the most popular documentary in Mexico’s history and won multiple international film awards.
To find out more, CIC’s David Steven caught up with Layda and Roberto to find out how they crafted stories of injustice in a way that opens up a path to a more just society. This is the first in a new series on the champions who are changing justice systems, which is contributing to the work of the Task Force on Justice.
But before you read on, make a cup of coffee and sit down to watch The Tunnel. And settle in for the evening with Presumed Guilty. You won’t regret it.
David: What inspired you to make the films?
Layda: I worked at the Centre for Research and Teaching in Economics (CIDE), a research center in Mexico City, and wanted to study the law in action. The regular law school in Mexico analyzes legal statutes, but they never contrast the law with what actually happens in reality. So I started collecting statistics and one of the studies was a survey, in three states, asking prison inmates questions about their experiences from arrest up to their life in prison. And that’s when I met Roberto. He was doing a survey of criminal files, and the inmate survey together with the information from the judicial records produced a good picture of what was going on.
With the results of the survey, we held a meeting with high ranking officials in Mexico City to let them know our findings and to work on policy solutions. It was a mess. They pointed fingers at us saying that we were liars, that we were making up the numbers, that they weren’t reliable, that those statistics didn’t match their experience. They tried to debunk the pattern with a single case, saying, ‘No that is not true, when I was in court yesterday…’ It was very tense, like throwing a smoke bomb into a closed room full of high ranking officials.
So Roberto said, ‘You know what, we should be doing stories. They don’t believe your numbers.’ And he came up with this idea. Let’s use single cases to represent the statistics.
“You know what, we should be doing stories. They don’t believe your numbers.”
Roberto: So I sold my car, bought a camera, and we got access to one of the largest prisons in Mexico City. And we asked the inmates the same survey questions. Was the judge present in your trial? Did you have a defense attorney? What are you accused of? And the answers were, ‘No, I’ve never seen a judge. I don’t have a defense attorney and I’m accused of stealing a plastic mango, or 100 pesos’ or whatever it was. So with that, we put together a 14-minute video.
David: The film is built around the central metaphor of the tunnel. Tell me why you used that.
Roberto: The prison and the courts are connected by a subterranean tunnel. We don’t have enough guards to take you to court. You walk by yourself to the courtroom through a tunnel that looks like a drain. When you emerge, you stand with other inmates and peer through a cage into a trial that is hearing many cases at once. It’s chaotic. You can’t hear anything. You have no idea what’s going on. They were still using dot matrix printers which made a constant noise. And the court files were so thick they had drills in the court room to pierce holes so that you could sew the pages together. It was the noisiest environment. Nobody understood anything.
The worst part for me is that nobody cared what the inmates said had happened. They just made it up. They had this fictitious trial where they would write that all the rights of this person had been respected, and that he had been informed of his right to remain silent with the judge present. But the judge wasn’t present and the prisoner wasn’t informed of anything. They produced forms for the inmates to sign. The inmates had no idea what was going on, but they would still sign them.
David: You also felt that the tunnel showed how the court and the prison were intertwined and that the prosecution and defense were in bed with each other.
Roberto: Yes. They lived in the same space. The prosecutor’s office and the defender’s office were both attached to the tunnel.
Layda: One day we were in court and they said, ‘Let’s stop the hearing.’ The prosecutor had his office — a little cubicle — inside the courtroom, but he would never actually come into the court. But today was his birthday, so he came out. The judge, the defense lawyer, and everyone in court wished him a happy birthday. They had a cake for him.
The defendant was watching from behind bars as the birthday of the man prosecuting him was celebrated by the judge and his own defense. That’s when Roberto said we should bring a camera.
Roberto: Survey results were never going to capture this intertwined chaos. But if we showed it visually, people would understand that the system is completely broken.
David: The Tunnel is carefully designed to point towards a better way of providing justice. You talk about ‘story design’. What do you mean by that?
Roberto: Even though I knew that the Mexican approach was completely wrong, I didn’t know what a proper procedure would look like. It wasn’t until I started visiting courts in other countries that I realized it makes no sense for the prosecutor to have his office space in the courtroom right next to the defender. So the story design comes in when we show what a different approach would look like.
David: So at the climax of the film, you cut to scenes from the courts in Chile. We hear that in Mexico the judge seldom steps into the court room, that the defendant and witnesses are seldom questioned. We see pictures of the insane amount of paper that is generated as arguments are typed out, rather than spoken in court. Then we see what a real court system looks like, where there are oral arguments and a judge — a woman — who explains clearly and carefully to the defendant what is going on.
Roberto: Yes. Ten years ago, Chile had the same system as Mexico, but they had then gone through this judicial reform. The film showed the corruption in Mexico’s system. Its judges don’t show up to the trial. The prosecution service is accepting bribes. We have only people accused of petty crimes in the system so we’re wasting resources. But here’s a country with a similar history which is doing it differently now.
The film ends by saying that Mexico’s Congress had received several proposals for justice reform and they hadn’t discussed a single one. But in the next session after the film was released, Congress discussed a reform initiative and they amended the constitution to include presumption of innocence and adversarial trials — the things that we hoped for. That was our first success in using narrative to propel change.
Congress amended the constitution to include presumption of innocence and adversarial trials. That was our first success in using narrative to propel change.
Layda: The strategy we used made a difference too, of going directly to influencers. We went to each Congress member with our video.
David: How did you reach them?
Roberto: I’m lucky to have the same name as a very rich banker! So we would call the legislator and say, ‘We invite you to a breakfast with Roberto Hernandez!’ And they’d say yes. So I would show up with the projector. And while they were waiting for Roberto Hernandez, I was plugging in cables and somebody would bring chilaquiles for breakfast. And I would press play and shut up.
Layda: And they didn’t dare to leave, ever. Once the breakfast came it was easy, because the video was only 20 minutes long and it was very well crafted.
David: Presumed Guilty is very different from the first film. It’s a feature. It’s much longer. And it’s clearly aimed at a different audience. I don’t suppose you were showing it at breakfasts for politicians. So tell me, what the change was between the first film and the second film?
Roberto: The first film was speech driven — interview footage, no character development, explicitly pointing to a policy solution in Chile. The second film used the narrative tools of fiction. We filmed in real-time without knowing what the ending would be. We followed seven different stories and only Toño’s survived.
Layda: It took five years to make, whereas The Tunnel was about one year.
Roberto: We were also sued multiple times. The claims at some point came to about 3,000 million pesos.
David: You were sued by police and witnesses?
Roberto: We were sued by everybody, but we didn’t lose a single lawsuit.
Layda: Some of our cases reached the Supreme Court and we won all of them.
David: The film starts with Toño in prison. In an overcrowded cell, he sleeps in the gap underneath a bunk bed. Only his dancing and his music — which provides the film’s soundtrack — keep him sane. He is serving a 20-year sentence for murder, but his girlfriend convinces you of his innocence. The forensics have come back negative. His fellow market stallholders provide him with an alibi. The prosecution’s case is flimsy. We then watch his second trial.
Roberto: For this film, we focused on the court records, ridiculing the dictation procedure in the courts. The typist continually slows down the testimony so that she can type it. The trial in the film was a hundred days long, but probably just had ten hours of deposition, because of this woman typing and slowing everybody down. Witnesses would come into the court, wait for an entire day and then they would say, ‘Oh sorry, we didn’t have time today to get to you, so please come back.’ And they made them come back five, six times, so at some point people were saying, ‘Look I’m going to lose my job, I can’t do this anymore.’
Again, we show how it could be done differently, by using videotape records. Not a left or right wing political issue, but a common sense kind of thing. It’s going to force the judge to be present in the trial, paying attention. “Now there’s no written record so either you show up or you don’t find out what happened during the hearing.”
David: Tell me about the scene near the end of the film where the prosecutor submits her closing argument by floppy disk.
Roberto: There are two realities — what happens in the courtroom and what they put down on paper. This woman was in that other world. It was like she was saying to the judge, “OK, I have to present my conclusions. Here’s the floppy disk. You can just copy and paste them into your judgment.” The conclusions would usually read that this guy is guilty beyond doubt. But because of the cameras, the judge is in court. Usually, he wouldn’t be. And I can see on his face that he’s realizing this woman doesn’t understand we’re all pretending to be having a trial for the cameras. So he’s like, “OK, give me the disk, we’ll paste them in.”
I can see on the judge’s face that he’s realizing the prosecutor doesn’t understand we’re all pretending to be having a trial for the cameras.
At this point, Toño had been in prison for two and a half years. We knew he would probably be reconvicted. But this woman has to explain publicly why she’s accusing him. What’s the evidence? What does she really have? It will be quite obvious that there’s nothing. So I was insisting that the defense attorney and Toño ask her to explain herself. And she comes up with this silly answer. “I’m accusing you because it’s my job. I don’t have to explain to you my reasons, it’s just my role, right? I don’t even have to convince myself that you are guilty.”
David: You’ve contrasted your storytelling approach with the data gathering approach you started with, but you still use data in the film. For example, that 80 percent of those convicted in Mexico were never listened to by a judge, or that 70 percent of those in prison — at a cost of $120 per inmate per day — are there for minor crimes like stealing something worth a dollar, or that there are 60,000 unjustified detentions a year.
Roberto: Yes we still used a lot of that. Data saying things like this court rarely hears physical evidence, most of the people end up convicted, even in a case like this. So you see the moment when Toño is convicted. Then you see the statistic and you realize, ‘Oh, this could happen to me.’
David: In Presumed Guilty, we see Toño walk down the tunnel to his trial. Often we watch from a camera that is behind him and understand how distanced he is from the court proceedings. But that changes during the ‘face-off’ when he confronts the witness who accused him and the policeman who framed him. Tell me about these moments of high drama.
Roberto: This was a way to make it evident that the defense doesn’t have any control of the case. They have no chance legally to ask many of the questions they need to ask, because the judge is interfering constantly. In the old Mexican system, they’re now allowed to ask leading questions to a hostile witness so there’s no way to put the witness in a corner. So only by chance, after five hours of questioning, the attorney has this crazy idea and says, ‘Toño, hide behind the wall!’ and he says to the eye witness, ‘Can you describe him?’ That’s a gamble. The guy could have said anything. I think people see that as a moment of victory, but for me this is completely out of control.
And then you have the extreme of the defendant asking questions to the witnesses himself. So we trained him to ask leading questions. Because the face-off is not regulated in the law, it’s usually just a shouting match. But since there are no rules, it’s not forbidden to do what Toño did, which was to say to the witness, ‘Did you know there was a gunpowder test done on me and it came out negative?’
Layda: We gave him a book on litigation and procedures in Mexico, and he studied it and drafted the questions. Then over the phone we would go over the strategy of how to ask the questions. And we knew that if the judge noticed he was asking leading questions, it was going to be tense. So we also trained him in how to confront the judge, shouting things like, ‘Please allow me to finish.’ And he did. We were so lucky because he’s super intelligent. He’s very well read.
Roberto: We made other narrative choices. We chose the defense attorney. We actually did a casting. When I met him, I just said, ‘Hello, what do you think of the justice system?’ And his words were, ‘Estoy hasta la madre’ — I am sick of this shit. We knew he was going to fight, he was going to use this bad language. So I wanted him.
Layda: And he was at the end of his career — he was like, ‘I have nothing to lose, I want to do it.’ Although after the movie he actually re-launched his career.
David: In the first film, the tunnel is the central metaphor, but in the second film you use Toño’s dancing and music. Tell me about that.
Roberto: I laid out a few artistic rules, and one was that I’m going to musicalize the film — with both music and the sound of the dot matrix printers. We put that sound to a beat. The whole sound design was crafted to make the process more incomprehensible. Typically for documentary, they will clean the sound so that it’s perfect. So a guy spent three months making the film sound as if it had been recorded in a recording booth. And I came in, listened to it, and fell asleep. And when I woke up, I said, ‘OK, thank you for your great work, now make it sound dirty.’ He wanted to kill me! He still wants to kill me.
The whole sound design was crafted to make the process more incomprehensible.
We wanted people in the cinemas to be on the edge of their seats. In a theater, you have speakers all around you. But we put sound only in the speaker behind the screen, the rest of them were mute. So you’re leaning forward to hear a film that seems poorly filmed, low resolution, bad sound. It adds to the credibility and to the confusion. Even with the sound there’s this inhumanity.
David: The sucker punch is when Toño is found guilty again. Throughout, you can see the judge resents the whole process and is desperate to hand down a second conviction, but there’s no evidence at all to support it, just a closing argument on a floppy disk.
Roberto: A key moment is when the eyewitness admits that he didn’t see who fired the gun. In reality, when the witness says that, there’s a shouting match. But if I let that happen in the film, you lose sight of the legal point. There’s a witness here that didn’t see what happened. You have to figure out what it means. The audience has to think that for themselves. What should it mean when the witness was your only witness, and he didn’t see who fired the gun? And so I put in the piano and the music to let you think about that moment for a while, creating pauses for people to take in what had happened.
It was the same with the conviction. They just give him a piece of paper. It’s very routine, like, ‘OK, you’re convicted, sign this paper and go.’ Toño just stood there for half an hour, until he realized what had happened and he could cry about it. But it made it very difficult to edit that so you would feel what it’s like. I was just cutting and re-cutting until you could have a sense of what the emotion would be when you’re sent back to prison for 20 years for something you didn’t do.
So the film is a simplification of what’s happened, because there was no narrative sense in the trial. It imposes a narrative sense that wasn’t really there. We made it a better trial than it actually was.
David: After the second verdict, the pressure to free Toño grows. He has married Eva Gutierrez while in prison and we see her in hospital with their new baby. You have joined the defense team to take the case to appeal, where the cameras are locked out. Only one of the three magistrates will talk to you. He has convinced his peers there is reasonable doubt, in part because he has watched video of the trial. It is almost an anti-climax. Until we see Toño leave behind the men he has been imprisoned with for two and a half years and walk free to meet his daughter for the first time. How did audiences react to this emotional rollercoaster?
Layda: We went to Amsterdam, to this very prestigious documentary festival, and we ranked number five in the Audience Award. We started with a movie theater with 30 people, almost empty, but they do audience surveys and they publish the results the next day. So people could see this was a very well ranked movie. And then we started having packed screenings.
Roberto: It was fun. People were throwing popcorn at the screen, at the judge. That’s when we knew we had a story that had some potential to really make it in mainstream theaters. But even though we almost won the Audience Award, we returned to Mexico and re-edited the film. We recut it completely and we simplified the story. We focused on the face-offs, the eyewitness, the arresting officers. We had new music, we made the sound dirtier, we hired a hip hop music editor to make Toño’s music sound more professional.
People were throwing popcorn at the screen, at the judge. That’s when we knew we had a story that had potential to make it in mainstream theaters.
And then we showed it at the Morelia Film Festival in Mexico. And this was a turning point because it’s a festival run by Cinépolis, which owns movie houses in Mexico, India, the US. After we showed the film, a young man in a suit stood up and said, ‘All of Mexico needs to see this.’ As I walked out of the theater, he came running after me. And he said, ‘No, really, everybody should watch this thing.’ He was wearing this badge and I realized it’s Alejandro Ramirez, the CEO of Cinépolis. Even then, it took two more years for them to take the film and put it on cinema screens.
Layda: No distributor wanted to distribute the film. They thought a documentary made in Mexico wouldn’t sell. In the end Cinépolis, which owns theaters but doesn’t do distribution, took on the distribution as their social responsibility project for that year. And their main competitors got behind the film too. Every columnist in Mexico had a private screening with Alejandro in his home, so everybody wrote about it. It was on the radio. The lampposts on Reform Avenue in Mexico City were completely wrapped in publicity for the film. It was as if it was going to be Titanic or Blade Runner or something!
Roberto: On the day of the launch, we went with Toño to a big multiplex. He hadn’t seen the final cut yet. We asked for tickets and it was sold out! And the next screening was sold out too, and the one after that. So they put the film on in another theater in the same complex and that sold out as well. Toño sees all the chairs filled and we end up sitting at the very back.
Layda: It was really moving. Toño couldn’t believe it.
David: You contrast your methods with filmmakers who simply tell a story about how the justice system works, but where there’s no clear ‘so what?’ Your aim is to use narrative to bring public policy alive and to make it possible for change to happen.
Roberto: We were very transparent with audiences about what they were watching. If we had used hidden cameras, you would have seen a completely different and less interesting story. So what we are saying in essence is that it’s OK to intervene. We intervened by filming the trial, choosing the attorney, showing footage to the appellate court, measuring this reality with statistics, and ultimately by taking reform proposals to Congress. And videotaping trials as we did, having an objective record of trial hearings, was itself one of the reform ideas.
Layda: And we got it into the national code. Now all the hearings are recorded.
Roberto: And there is concrete data to show what changed. The proportion of cases where the judge was present in the courtroom has increased from 24 percent to 70 percent. The rate at which hearings were recorded with audio or video equipment rose from 8 percent to 65 percent. The average speed at which cases were resolved has increased by several months, and the proportion of cases where the sentence was clear to the defendant has doubled. So it was effective.
Reality did change as a result of this work.
Photos courtesy of Presume Guilty / Layda Negrete and Roberto Hernández
To read more justice Champions of Change interviews, visit: https://www.justice.sdg16.plus/champions-of-change.
