Can Mexico keep its witnesses safe?

Mexico's challenges with faulty testimony and protecting witnesses highlights issues in using the justice system as an effective weapon against organized crime, writes InSight Crime.

• InSight Crime researches, analyzes, and investigates organized crime in the Americas. Find all of Patrick Corcoran's research here.

The controversial and disputed testimony from a notorious protected witness in Mexico reflects the justice system's persistent inability to fully exploit the opportunities presented by turncoat criminals.

The most recent example of this problem is that of Roberto Lopez Najera, whose code name was "Jennifer." As reported by Proceso, Mr. Lopez Najera’s testimony helped advance some of the most important cases of the Felipe Calderón presidency, but the lack of veracity of his claims led them to all fall apart:

"The list of victims of Lopez Najera in Mexico include the ex-commissioner of the Federal Police Javier Herrera, who documented the irregularities in the tenure of Genaro Garcia Luna as the secretary of public security; Noe Ramirez Mandujano, the federal prosecutor who together with his team investigated ex-military officers that worked for SIEDO [the division for organized crime prosecutions] and were allegedly workeing for the Sinaloa Cartel, and General Tomas Angeles Dauahare, former undersecretary of defense. 

"All were absolved after demonstrating their innocence following months or years in prison thanks to the false testimony of Jennifer."

Other similar cases abound. For instance, in December 2012, El Universal reported on the testimony of another witness, known as "El Pitufo," whose declarations helped spur some of the most famous recent prosecutions. Most of these failed and virtually all of them were littered with irregularities. El Pitufo contributed to the Michoacanazo, the celebrated arrest of nearly three dozen state and local officials in Michoacan, all of whom were subsequently released; the arrest of Florence Cassez, the French national and accused kidnapper whose detention under unusual circumstances sparked a lengthy diplomatic row; and the case of Gregorio Sanchez, the eccentric Cancun mayor who was arrested in 2010, while campaigning to be governor of Quintana Roo.

InSight Crime Analysis

Mexico's problems with protected witnesses go beyond faulty testimony in some high-profile cases. One basic issue is the lack of protected witnesses, plain and simple. According to a recent report by Excelsior, the Attorney General's Office (PGR) used just 379 such witnesses during former President Calderon's administration. This number represented a sharp increase (the figure was just 80 in 2006), but in a nation where the government estimates that 500,000 people earn their living from the drug trade, it is a paltry sum. 

This lack of collaboration from criminal turncoats reflects the broader inability of Mexico's judicial system to move beyond the ethos of frontal attack. It also highlights Mexico's ongoing incapacity to use the justice system as an effective weapon against organized crime. For the most part, the judiciary is more like a millstone around the neck of the nation.

Mexico has also proved itself unable to protect the witnesses in its custody on a number of occasions. In one of the most famous examples, two witnesses into an investigation against Ismael "El Mayo" Zambada died in quick succession in late 2009. The first, Reyes Reinado Zambada Garcia, allegedly hung himself, while the second, Edgar Enrique Bayardo del Villar, was shot to death in a crowded Starbucks.

Mexico is not alone in its fraught relationship with protected witnesses. Many critics of the US legal system have argued that prosecutors have become too reliant on such figures, who often have dubious credibility and clear reasons to lie. This has the added consequence of eating into the ability of US officials to pursue alternative methods of investigations, creating a vicious cycle where finding criminals to flip becomes even more important. This was, for example, the basic thrust of the 2007 book Snitch.

But while these complaints against the US system echo Mexico's recent troubles, the problem is far more complicated south of the Rio Grande. If the US has reasons to be concerned about an over-reliance on protected witnesses, at the least the US can point to its ability to successfully prosecute successful cases built around such testimony. It's a controversial tactic that has certain unquestionable benefits. Mexico, meanwhile, must deal with all of the downsides (cases falling apart because of lying witnesses) but none of the benefits (witnesses regularly contributing to successful convictions against dangerous criminals). 

Until this changes, Mexico will continue to do battle with organized crime without what should be one of its chief tools.