US embassy cable - 03GUATEMALA1596

C O N F I D E N T I A L SECTION 01 OF 02 GUATEMALA 001596 
 
SIPDIS 
 
E.O. 12958: DECL: 06/19/2013 
TAGS: PHUM, PGOV, MOPS, PREL, KJUS, GT 
SUBJECT: LAST CHANCE FOR JUSTICE IN MACK CASE 
 
REF: GUATEMALA 1535 
 
Classified By: Human Rights Officer Katharine Read, reasons 1.5 (B and 
D) 
 
1. (C) Summary: On June 19, Helen Mack, the prosecution, and 
the defense presented oral arguments before the Supreme Court 
for the final appeal in the case against the three retired 
military officers allegedly responsible for ordering the 
murder of Myrna Mack in September 1990.  All three officers 
were released from jail by the Fourth Appeals Court on May 7, 
and will continue to remain so unless the Supreme Court 
convicts them and orders their detention.  Representatives 
from fifteen different diplomatic missions were present, 
including 11 Ambassadors whom the Ambassador personally 
recruited to show widespread international support for 
securing justice in Guatemalan human rights cases.  The 
Supreme Court expects a verdict within ten to fifteen days, 
though Mack doubts deliberations will be that swift.  End 
Summary. 
 
Setting the Stage 
----------------- 
 
2. (U) On June 19, the Supreme Court held the public audience 
for the oral arguments in the case against the so-called 
"intellectual authors" of anthropologist Myrna Mack's 
September 1990 murder.  The defendants, (ret.) General Godoy 
Gaitan, (ret.) Colonel Valencia Osorio, nor (ret.) Colonel 
Oliva Carrera, did not attend the proceedings, but were 
represented by their lawyers.  Prosecutor Mynor Melgar, 
lawyer Roberto Romero, and Helen Mack presented the appeal 
(casacion in Spanish) of the Fourth Appeals Court's May 7 
decision, which overturned the conviction they won against 
Valencia Osorio on October 3, 2002. 
 
3. (C) The Ambassador made calls to resident ambassadors 
urging them to attend the trial to demonstrate the 
committment of the international community to securing 
justice in this long delayed case.  Chiefs of Mission from 
the United Kingdom, the Netherlands, Argentina, Sweden, 
Mexico, Germany, Chile, Norway, France, Canada, and Japan, as 
well as representatives from Denmark, Switzerland, and 
MINUGUA attended the trial.  The international community's 
presence was noted in local press and given much fanfare. 
The attendance of a number of Latin American ambassadors -- 
including Mexico -- to a human rights trial in Guatemala was 
historic. 
 
The Lawyers Proceed 
------------------- 
 
4. (U) Prosecutor Mynor Melgar and Mack Foundation lawyer 
Roberto Romero argued that the Fourth Appeals Court emitted 
an erroneous, illegal sentence that was not based on the 
appeals of either the defense of the prosecution.  They asked 
that the Supreme Court uphold the October 2003 conviction of 
Valencia Osorio and also convict Godoy Gaitan and Oliva 
Carrera. 
 
5. (U) The defense for Valencia Osorio argued that the 
October 3, 2002, sentence was contradictory because it did 
not clarify the discrepancy between individual and 
institutional responsibility; while admitting that Valencia 
Osorio transmitted an order to convicted material author Noel 
de Jesus Beteta Alvarez to murder Myrna Mack, the defense 
argued that he was not the "author" of the crime.  Therefore, 
Valencia Osorio's lawyer asked that the Supreme Court confirm 
the May 7, 2003, decision of the Fourth Appeals Court and 
leave his client free. 
 
6. (U) The defense for Godoy Gaitan and Oliva Carrera argued 
that both the Third Sentencing Court and the Fourth Appeals 
Court absolved their clients of guilt and that this Supreme 
Court appeal (casacion) should not apply to either one. 
 
Helen Mack's Final Words 
------------------------ 
 
7. (U) Helen Mack, as the private plaintiff and family 
representative in the case, spoke last.  Mack passionately 
recounted the thirteen-year quest for justice in her sister's 
case, then moved to the need for real reform in Guatemala's 
rule of law and access to justice.  She said the Supreme 
Court had one final opportunity to demonstrate the integrity 
of the Guatemalan judicial system by giving out a just 
sentence, applying the penal code to the credible evidence 
she and her team had presented. 
 
8. (SBU) Sources at the Supreme Court and in the press 
speculate that the Supreme Court will reach a verdict within 
ten to fifteen days, though Romero and Mack expect the judges 
to drag their heels. 
 
Comment 
------- 
 
9. (C) Mack has told us that this is the final stage in the 
legal battle she and her team will fight in Guatemala, while 
the case remains pending in the Inter-American Court.  We 
will continue monitoring both processes with great interest 
and support. 
 
10. (C) The real challenge for the Supreme Court seems to be 
deciding the precedent that their ruling will set.  If the 
judges rule that Valencia Osorio can be held accountable for 
intellectual authorship in the murder of Myrna Mack, this 
could have profound repercussions for other cases against 
high-ranking military leaders involved in ordering or 
transmitting orders for countless murders, massacres, and 
disappearances of civilians during the internal conflict. 
 
11. (C) On the other hand, if the judges decide that material 
authorship alone constitutes guilt, these individual leaders 
will be absolved for acting in line with state policies. 
Such a ruling by the Supreme Court would be a setback for 
domestic justice in human rights cases involving the internal 
conflict, forcing Guatemalan activists to consider other 
avenues for reconciliation and reparations. 
HAMILTON