Cablegate: Cndh and Pgr Square Off Over Brad Will Case

DE RUEHME #3343/01 3171337
R 121337Z NOV 08



E.O. 12958: N/A

1. Summary. Mexico's National Human Rights Commission
(CNDH) and its Attorney General's Office have released two
separate reports on the shooting of Amcit journalist Brad
Will in October 2006 that places the two institutions at
odds. CNDH insists its investigation of forensic evidence
demonstrates that Amcit Brad Will was shot from a distance
of some 35-50 meters, in the course of civil unrest in the
Mexican state of Oaxaca, implying local enforcement
officials were responsible. Prosecutors from the Mexican
Attorney General's Office (PGR) are equally insistent that
the evidence and testimony they have collected suggests
Will was shot from a distance of two to eight meters,
enabling them to identify Juan Manuel Martinez Moreno, a
supporter of the Oaxacan Popular Assembly (APPO) that was
engaged in a skirmish with law enforcement officials and
amongst whom Will was filming, as the shooter. PGR
officials maintain they took into consideration CNDH's
report before presenting their case to the local judge
presiding over the case in Oaxaca. They described the
prospect of an outside investigation of the evidence as
"problematic." The lawyer representing the Will family has
endorsed the investigation conducted by CNDH and announced
his intention to challenge PGR's case against Martinez
before federal authorities. End Summary.

On the One Hand

2. On October 23, Mauricio Farah, the Director of CNDH's
unit that investigates crimes related to human trafficking
and against journalists and human rights defenders, met
with Deputy PolCouns to discuss CNDH's investigation of the
October 27, 2006 shooting of Amcit journalist Brad Will.
He said that CNDH had decided to investigate Will's
shooting becase it considered him a journalist and lacked
confidence in local investigators. He presented a variety
of forensic evidence supporting CNDH's working theory
regarding the location of the person who shot Will.

-- First, CNDH measured the time between when the shots
were fired and when they hit Will. Cross referencing this
"constant" against information from Smith & Wesson, a
manufacturer of 38 revolvers, about the speed a bullet
travels under the conditions that prevailed in Oaxaca at
the time -- temperature, altitude, and wind -- CNDH had
concluded the shooter was located between 35-50 meters from
Will. Note. Both government and independent forensic
examinations had previously determined that Will was shot
by two 38 caliber bullets fired from the same weapon. End

-- Second, CNDH assessed the angle from which the two
bullets entered Will's body. Its experts maintained the
evidence suggested the first entered straight-on implying
the shooter was facing Will. The second entered Will from
the side, occurring as he bent over and turned after being
hit by the first shot.

-- Third, they showed a clip of the tape Will was filming.
At the point when he is shot, the camera pans rapidly and
haphazardly to his right -- the direction from which PGR
asserts the shooter fired -- but the footage CNDH displayed
offered no image of any individual from that direction.

4. Beyond presenting CNDH's evidence that supports its
theory that Will's killer fired upon him from a distance of
35-50 meters in front of him -- which CNDH says implicates
Oaxacan law enforcement officials who allegedly fired on
the protesters amongst whom Will was located -- Farah
called into question PGR's case against Martinez for lack
of any apparent motive. Farah noted that not only was Will
regarded as sympathetic to the APPO protesters, observers
agree that Martinez came immediately to Will's aid after he
was shot and helped carry him to a truck so he could be
transported to a hospital for medical assistance.

5. In releasing its report on September 26, CNDH made
three recommendations which become binding only when the
institution identified accepts the recommendation. It is
extremely rare for an institution to reject a

-- First, CNDH critized PGR for irregularities in its
investigation and called on it to consider the evidence
both CNDH and the NGO Physicians for Human Rights (PHR) had
gathered in separate investigations. (Note: PHR produced
its own report on the forensics of the case that dovetails
with CNDH's report. End Note) PGR rejected this
recommendation (see para. 8.).

-- Second, CNDH called on the Governor of Oaxaca Ulises
Ruiz to authorize the state's Internal Affairs Office to
investigate state ministerial and police staff, including
forensic experts, for negligence in their investigation of

MEXICO 00003343 002 OF 003

Will's death. Ruiz accepted this recommendation.

-- Third, CNDH called on the state Human Rights Commission
to work with local authorities to ensure the municipal
president of Santa Lucia del Camino, Oaxaca faced
administrative disciplinary actions for failing to
obstructing CNDH's investigation. The State Human Rights
Commission has not yet announced whether it plans to accept
this recommendation.

The Other Side of the Story

5. On October 30, Adrian Franco Zevada, PGR's Coordinator
for International Affairs, accompanied Jessica de Lamadrid
Tellez, PGR's Director General for International
Cooperation, and two prosecutors who participated in the
investigation of Will's death provided Deputy PolCouns with
the conclusions of PGR's investigation. According to
Franco, PGR sent officials to Oaxaca within the same week
that Will was killed but acknowledged that Oaxacan
prosecutors enjoyed the lead on the case until April 2007
when PGR decided to initiate its own investigation starting
entirely from scratch. In view of its assuming the lead on
a case several months removed from the time the crime took
place, he lamented that PGR consequently lacked access to
key evidence at the scene of the crime.

6. PGR concluded its investigation in late September
basing its findings primarily on witness accounts and
expert testimony, but also forensic evidence.

-- PGR's expert determined that the shots that killed Will
were fired from a distance of two to eight meters. Franco
did not elaborate on how the expert made that
determination. Disputing CNDH's claim Will was shot by an
individual located behind a truck some 35-50 meters in
front of Will, PGR maintained a copy of Will's video (PGR
was never given access to the original video) shows
apparent members of APPO walking directly in front of the
truck behind which CNDH believes law enforcement officials
shot and killed Will. PGR insists this proves that the law
enforcement officials were not firing from behind the truck
as otherwise the APPO members would have manifested greater
caution and/or the law enforcement officials would have
shot at them or taken them into custody. Instead, they
claim witnesses report that police were firing from the
other side of the street behind a corner located some 60-80
meters from where Will was standing. They maintain this
location would not have offered a clear shot at Will.

-- PGR rests much of its case on testimony from someone in
the vicinity of Will at the time he was shot who maintains
the shots were fired from close-by. This person did
not/not see Martinez shoot Will but did recall that someone
in black clothing was close to Will when he was shot. Film
footage reveals Martinez in black clothing and close to him
when he was shot. Explaining why it took this witness
almost two years to come forward, PGR officials remarked
that the highly charge climate in Oaxaca that remained even
as the violence subided may have intimidated the witness.
They noted that CNDH's report did not take into
consideration this witness's testimony.

-- PGR asserts that Oaxacan law enforcement officials do
not use 38 revolvers, the kind of gun used to shoot Will.
They also maintain a 38 revolver can not fire in quick
enough succession to hit a target twice from a distance and
in a fashion as alleged by CNDH. Finally that point out
that Will fell on this back after he was shot the first
time calling into question CNDH's assertion he was shot in
the side as he fell forward.

7. As to motive, PGR notes that Will's video captures the
voice of someone close to Will saying in Spanish, "I told
you not to film" immediately before Will was shot. PGR
suggests that it is possible APPO did not want those
involved in the skirmish with police to be caught on film,
particularly in view of claims one of those captured on
Will's film is apparently a member of the Popular
Revolutionary Army (EPR). When asked why Martinez would
have come to Will's aid immediately after allegedly
shooting him, PGR officials asserted that the APPO members
involved in violent confrontations with the police have
"interests, not friends." As such, they maintained that
these individuals were more than capable of killing someone
like Will, presumably sympathetic to their cause, if they
could use it to pin responsibility on the police and garner
greater public and international support.

8. Franco defended PGR's decision to reject CNDH's
recommendation. He maintained it had complied with CNDH's
recommendation by taking into consideration all available
evidence, including both the reports by CNDH and PHR.

MEXICO 00003343 003 OF 003

However, inasmuch as CNDH accused PGR of omissions and
essentially called on PGR to agree to conclusions
completely at odds with those drawn by PGR's investigation,
it found it had not choice but to reject CNDH's

Where Do We Go From Here?

9. Mexican law allows PGR to assume the lead on the
investigation of a local crime, but it also dictates a
crime such as homicide be tried in local courts. As a
result, PGR has turned over all of its evidence to local
Oaxacan prosecutors in order for them to present their case
before a local Oaxacan judge. The Oaxacan prosecutors
could well call on PGR prosecutors to assist them in
presenting the case but they will retain the lead on the
10. On October 22, the Oaxacan judge assigned to the case
ruled that evidence was sufficient to detain Martinez
pending trial. Martinez's lawyers have indicated they plan
to lodge legal challenges to the judge's ruling. Local
courts would review any initial appeals but successive
appeals could eventually come before Mexican federal courts
including the Supreme Court. Mexican law dictates a
defendant has a right to a trial within a year of his
arrest but this is not always honored. Further, should
Martinez' lawyers request more time to prepare their case,
that could also become a legal basis for it taking over a
year to bring his case to trial.

PGR Not Looking for Help

11. Franco was aware that Secretary Rice and Mexico's
Secretary of Foreign Relations had discussed the
possibility of an outside international legal authority
reviewing all evidence and offering an independent
assessment. Given the fact that a judge had already ruled
that evidence to detain Martinez and go forward with a case
him, Franco saw a problem with involving outside
authorities at this stage. Further, given the political
sensitivities involved in the case, he conveyed concern
that inviting foreign entities to review the government's
own investigation would only complicate matters.

12. Comment. CNDH's investigation is based largely on
forensic evidence that it interprets to suggest the shooter
fired from 35-50 meters away. It further rejects PGR's
case against Martinez on grounds he came to Will's
assistance immediately after he had been shot and had no
apparent motive to shoot Will. PGR's case is largely based
on expert testimony and an eyewitness who has appeared
almost two years after the shooting. PGR calls into
question CNDH's conclusions, challenging the notion someone
could have shot Will twice with a 38 revolver from the kind
of distance CNDH proposes.

13. In some ways, both sides more effectively refute the
credibility of the other's conclusions than build the case
for its own. Ultimately, any judge presiding over this
case will have to review all of the evidence presented by
not only PGR but also the reports prepared by CNDH and NGO
PHR. In the interim, however, we can expect Martinez's
lawyers will energetically challenge the ability of Oaxacan
legal officials to render a fair and objective ruling. The
tension between CNDH and PGR will also likely serve to
create more controversy around this case. In theory a
review by outside legal observers might contribute to a
more objective assessment of all the evidence. Thus far,
however, PGR officials have signaled reluctance to go down
that road out of concern it will only complicate an already
messy case.

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