US embassy cable - 03GUATEMALA1084

UNCLAS SECTION 01 OF 02 GUATEMALA 001084 
 
SIPDIS 
 
SENSITIVE 
 
HARARE FOR BRUCE WHARTON 
 
E.O. 12958: N/A 
TAGS: PHUM, PREL, KJUS, GT 
SUBJECT: APPEAL OF 2002 MACK CASE SENTENCE 
 
REF: 02 GUATEMALA 2605 
 
1. (U) Summary: On April 23, the Fourth Court of Appeals 
heard the public arguments from both the defense and the 
prosecution for the appeal of the Third Sentencing Court's 
October 3, 2002 decision in the Myrna Mack murder case, in 
which retired Colonel Juan Valencia Osorio was convicted and 
sentenced to 30 years in prison, while retired General Edgar 
Godoy Gaitan and retired Colonel Juan Oliva Carrera were 
acquitted.  The tribunal listened to five hours of oral 
arguments in a courtroom packed with press and interested 
observers, including the Ambassador, and then told the public 
they would announce their decision on May 7.  End Summary. 
 
Mack Team's Arguments 
--------------------- 
2. (U) The public prosecutor Mynor Melgar and private lawyer 
for the Mack Foundation Roberto Romero stated that, 
throughout the course of the September 2002 trial, the 
prosecution proved that Myrna Mack's murder was a political 
crime, that Mack was the object of surveillance before her 
murder, and that the convicted material author, Noel de Jesus 
Beteta, was ordered by his superiors in the Presidential 
Military Staff (EMP) to surveil and eliminate Mack.  Melgar 
and Romero both asked the court to confirm the sentence 
against Valencia Osorio and to apply the conviction and 
prison sentence to Oliva Carrera and Godoy Gaitan because of 
their positions above and below Valencia Osorio in the EMP's 
chain of command. 
 
The Defense's Arguments 
----------------------- 
3. (U) Valencia Osorio's new legal representation, Francisco 
Flores, spent over 90 minutes arguing his appeal before the 
judges, who ultimately requested that he make his comments 
more concise.  Flores questioned the admissibility of the 
evidence in the case, especially the testimony of former 
inmate Jorge Lemus (aka "El Buki") and the tapes he made of 
cellmate Beteta claiming that Valencia Osorio ordered the 
murder.  Flores also questioned the court's decision to lay 
all the blame on Valencia Osorio for what was considered a 
political crime, since he was not singularly responsible for 
designing the GOG's counterinsurgency policy during the 
internal conflict.  Flores argued that the Third Sentencing 
Court made an erroneous application of the law, that 
convictions of this gravity must be based on stronger 
evidence, and that his client should be released.  Lawyers 
for Godoy Gaitan and Oliva Carrera asked the tribunal to 
confirm the Third Court's decision finding their clients 
innocent. 
 
Helen Mack, Juan Valencia Osorio, and Edgar Godoy Gaitan 
--------------------------------------------- ----------- 
4. (U) Helen Mack asked the tribunal (who also presided in 
the Gerardi appeal and decided to annul the Third Sentencing 
Court's 2001 conviction, which was subsequently confirmed by 
the Supreme Court) to act with integrity and independence. 
Mack reminded them that she has worked for justice in this 
case for thirteen years, and that the Inter-American Court 
also requested that Guatemala take this case seriously, after 
years of frivolous dilatory tactics by the defense.  Mack 
asked that the tribunal confirm the sentence against Valencia 
Osorio and to give Oliva Carrera and Godoy Gaitan equal 
punishments because she proved that all three were co-authors 
of the crime. 
 
5. (U) Valencia Osorio argued that he was innocent and that 
Beteta blatantly lied.  Valencia Osorio said that direct 
communication between a Major (Valencia Osorio's rank in 
1990) and a Sergeant (Beteta's rank in 1990) was 
inconceivable and that this proved he did not order Beteta to 
murder Mack.  Godoy Gaitan asked that the tribunal confirm 
the Third Court's decision because he, too, was innocent and 
had been suffering through the harsh conditions and various 
bloody riots in Guatemalan prisons over the past seven months. 
 
Public Presence 
--------------- 
6. (U) The President of the Court said that they would 
release their decision in another public audience at noon on 
May 7.  After the proceedings, the Ambassador was swarmed by 
the press, who noted that the USG has consistently placed a 
high priority on justice for human rights crimes in 
Guatemala.  The Ambassador told the press that this case is 
important for justice in Guatemala and that his presence was 
intended to convey moral support for the participants in the 
judicial process, especially judges and others who had come 
under threat. 
 
Comment 
------- 
7. (U) We will continue to monitor the case closely and show 
public support for the judicial process. 
HAMILTON