Judge Brian Cogan gives instructions to the jury in Genaro García Luna’s trial January 16 in New York. JANE ROSENBERG (Portal)
Deliberations begin in the trial of Genaro García Luna. The members of the jury, 12 ordinary New York citizens, have to agree on the guilt or innocence of Felipe Calderón’s Minister of Public Safety. Members must unanimously rule on each of the five charges against the former officer: three for cocaine trafficking, one for organized crime and one for false testimony. “This is one of the greatest responsibilities they will have in their lives,” Judge Brian Cogan said Thursday after instructing them on how to reach their verdict. Jury sessions are closed and the decision may be announced at any time upon prior notice from Cogan.
Until then, the jury had not been allowed to discuss the details of the trial among themselves. The members are now completely cut off from the outside world. A guard took an oath at the end of the last hearing: he must make sure they don’t speak to anyone outside, don’t use electronic devices, and don’t bring them food. It is your only point of contact. It also helps them send notes to Judge Cogan asking him for the documents and other materials they need to make their decision. In an escape room, six deputies are in virtually the same conditions, the only difference being that they cannot comment on the court proceedings. They occur as a substitute in exceptional cases due to force majeure.
The Conspiracies of García Luna
Cogan gave the judges a step-by-step explanation of what to do. Unlike other countries, judges in jury trials have an administrative function. The citizens decide who is to blame, and months later the judge is responsible for pronouncing the verdict. “You are the only judges of the facts presented to you,” he reminded her. “You should be the ones wearing black robes,” he joked.
The judge shortened a course on US criminal law to just over two hours. He told them about the presumption of innocence. He told them that the burden of proof was on the prosecution, that they were the ones who had to prove the accused was guilty beyond a reasonable doubt, “a doubt founded on reason and common sense”. He explained to them that they could only consider testimonies and evidence. He urged them not to be guided by any bias or elements alien to what they have seen over the past four weeks.
He also spoke about the charges and how they should decide on them. This is the most prominent trial of a former Mexican official in the United States, and a direct consequence of his trial in the US system is the type of crimes he is accused of. The charge against García Luna is based on the three charges of drug trafficking. The specific names of these charges are: conspiracy to distribute cocaine internationally, conspiracy to distribute and possess cocaine, and conspiracy to import cocaine.
“In a lot of countries it doesn’t exist, conspiracy is a very American crime,” former prosecutor Daniel Richman, a law professor at Columbia University, said in an interview with EL PAÍS last week. Cogan explained that a conspiracy is “an agreement between two people to do something illegal.” In the United States, this is a crime even if the plan fails or the crime is not committed. In Mexico there is no “conspiracy” as a legal term.
To prove a conspiracy, the judge said, two things would need to be proven. First, it must be proven that “the conspiracy exists” that two or more people agreed to plan the crime. This may be explicit or based on a “mutual understanding” or based on something evident from the physical evidence and testimonies presented by prosecutors. “Actions speak louder than words,” said Cogan.
Second, it must be shown that the defendant “knowingly and intentionally” participated in the conspiracy. This means “with the knowledge that he has done wrong and with the intention of committing the crime”. For example, García Luna has been accused of supporting the Sinaloa cartel in exchange for bribes. Incredible as it may seem, prosecutors had to prove that the Sinaloa cartel existed and that one of its activities was cocaine trafficking. In between, he also had to prove that the accused was part of the conspiracy: that he knew the cartel was involved in drug trafficking, and that he still chose to get involved with them.
All three drug trafficking charges relate to conspiracy to traffic cocaine, but not to the cocaine trafficking itself. In the United States, the charge of conspiracy to distribute drugs does not require the defendant to be caught uploading the packages or the goods takes in hands. Approval is assessed. These were some of the things Cogan explained to the jury to help them make their verdict, but with much more specific detail and at times difficult to understand.
Every crime has limited evidence requirements that are defined to the millimeter. The same thing happens with each of the conspiracies, which must be tried separately, and with the other two charges: organized crime – belonging to an ongoing criminal enterprise – and making false statements on his naturalization application by declaring that he had committed no crime. According to Cogan himself, these last two crimes are somewhat dependent on the other three of drug trafficking. In addition, there are aggravating circumstances and specific defense applications that they must also take into account.
Despite all the technical details, the verdict rests solely with the jury and opens the door to many possible outcomes. García Luna can be found guilty of all crimes or acquitted of all charges. But you can also be convicted on two, three or four counts and be otherwise innocent. If the jury is absolutely unanimous, the trial may be declared a mistrial. Therefore, it is common for members to take enough time to reach a minimum agreement between them and try to avoid this scenario as much as possible. The fate of the former Mexican official rests in the hands of 12 New York citizens.
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