TIFF '09: Interview w/PRESUMED GUILTY Directors

Below is an interview with PRESUMED GUILTY directors, Roberto Hernandez and Geoffrey Smith. The film has its final TIFF screening on Saturday, September 19th, 4PM at Jackman Hall-AGO. For my thoughts on this documentary see my Sept. 11th post.

donna g: How did you two meet?

Roberto: Martha Sosa introduced us. She is the famous producer of a famous Mexican film titled "Amores Perros". How she got involved in the film is also quite a story.

Geoffrey: Through Martha Sosa, one of the Producers on the film

donna g: Could you please describe your division of tasks as co-directors?

Roberto: Geoffrey and I worked on the edit of this film for 2 months in Valle de Bravo. Before Geoffrey got involved, I filmed this story with the help of my family. We followed Toño's case for 2.5 years. Between Layda and myself we obtained the access to shoot in Mexico's prisons, and we edited the film into a 90 minute rough cut with editor Felipe Gomez (Historias del Desencanto). But the technical difficulties we faced were enormous (recall the footage was recorded by lawyers), and the film needed one last big push for it to be fully shaped in to the drama we have today. Geoffrey saw our rough cut and came on board to help us do just that.

Geoffrey: My job was to help take a set of challenging and difficult film rushes and help Roberto tell the clearest and most dramatic story.

donna g: How would you define Layda's role in the fimmaking process?

Roberto: In a word? Crucial. Layda and I met in prison, many years ago, while lifting data on the criminal courts. Criminal justice reform in Mexico was her cause before it became my own. She worked undercover as an assistant to a prosecutor in Mexico City and designed groundbreaking inmate surveys with some of her colleagues. She learned that 80% of defendants never see a judge, or that prosecutors are more often in charge of trials than judges themselves. But she was not able to make a political impact with these scary findings, so I talked to her about making a documentary short. Soon after that making El Tunel (The Tunnel) we were on CNN with our statistics and inmates telling their stories. That's how Eva and Tonio's friends found us. Layda was key to this film, because she helped me obtain access to film in the prisons and courts, and her family supported us during many difficult months of shooting. She was also a great fundraiser... and also the mom of our child. Without her the film would not exist. Without her I would not have been able to persevere so fiercely in recording more than 300 hours of footage.

Geoffrey: This is Roberto and Layda's film and they have nursed it through years of hard work. Layda is a formidable talent as she is very perceptive about the real and inherent flaws in the Mexican Judicial system, and is extremely good at articulating them.

donna g: Roberto, you and Layda were already doing stats research on the Mexican prison system, yet, in the film there are moments when you are surprised even shocked by some of the challenges you encountered with this case. Why was that?

Roberto: With a 95% conviction rate, and a judge that had already heard the evidence and convicted Tonio in a previous trial, we knew we were fighting against the odds. But, what else could we do? Isn't hope the last thing that dies? We were also facing a prosecution with no physical evidence and a witness that did not seem credible, so I guess we had reasons to be hopeful.

donna g: Geoffrey, what surprised you about the Mexican judicial system?

Geoffrey:A great number of things. On occasions I simply could not believe what I was seeing in the film rushes. As Layda explains, the trial is really just a formality as everything has been decided beforehand. That is just so different to what I know of the process in the UK and the US, and it gives rise to.

donna g: Tonio's girlfriend, Eva shows such devotion and love for Tonio. Is this the reason you accepted her case? (If, not why did you accept the case?)

Roberto: No, but it was a plus. Indeed it was helpful that Tonio had many friends who offered to help us through the maze of handling a production long distance. But I took the case because from the very first moment we met, I knew Tonio was innocent and his friends and then girlfriend seemed to understand that it was important to try an “out of the box” strategy if he was to have a fighting chance.

Above all, I took the case because I wanted to make a documentary that would help people question their own biases, and I saw an opportunity here. Most people tend to be biased against a person just because the police arrests them. There are studies that show, for example, that people are willing to presume a person guilty just on the basis of the charge. For example, if you are accused of sexually abusing a child, it is virtually impossible to get an impartial jury. This is sound social science, this holds true everywhere in the world, not just in Mexico. Humans have a propensity to think like this. That is why it is important to have criminal procedures that protect us against making mistakes because of biased reasoning. But in Mexico, neither politicians nor policymakers are aware of this biases, much less of the importance of designing procedures that protect defendants against them.

When I saw the evidence against Tonio, I had a lot of background that helped me understand how the police had pinned the crime on him, or how the system was using, actively, every method it could to represent him like a criminal. But, according to our statistics, we were facing a typical investigation by Mexican detectives. The typical investigation lacks physical evidence (92% of charges in Mexico City do not have any). The typical defendant never sees a judge in court. The typical defendant is not arrested with an arrest warrant, etc. All this was just like Tonio's experience of the system. Finally, the most vulnerable defendants are the innocent ones, because they are not prepared to offer a bribe to a corrupt policeman. Those who are innocent tend to think that a real justice system exists in Mexico because they have never been through it before. In contrast, the recurrent offender knows that the system is for sale, and are prepared to pay.


donna g: In the film there are rows and rows, and stacks upon stacks of case files representing people's lives. How did you gain access to this room?

Roberto: This is the room where we were lifting data and collecting it in forms many years ago. In that room, when I saw it, for the first time I had this insight that whatever our statistics found, they would not be as compelling as a single photograph of that room. That's when I first came up with the idea of making the film. When we filmed our first documentary (El Tunel), the one that was aired on CNN, I spent an entire day filming in the archives.

donna g: Did you have any hesitations about filming the Mexican police officers involved in Tonio's case?

Roberto: No. I think that it is fundamental to see their faces. We spent many hours looking at the court records to find out the names of the detectives who arrested Tonio, and then we convinced an attorney, Rafael Heredia, to cite them in court. In Mexico, because the system presumes guilt, detectives are allowed to never show up in court to testify. Rather, they can incriminate someone just by filling out some forms. But Rafael Heredia, who has worked for decades in the system, understood how important it was to bring them to court to testify, and he supported the idea.

donna g: I find the "face to face" process, where the accused faces his accusers, fascinating. Is this something that happens frequently in all cases.

Roberto: Yes and no. Mexicans have a "right" to interrogate their own accusers, and many of them do. I do not think it is a good practice, or a right that should remain in our constitution. But in this case it was our last chance to expose the weaknesses in the case against Tonio, because the system places less restrictions on this unregulated right than on what Tonio's attorney is able to do.

It was unique in this trial that the defendant had been trained with a trial advocacy book to interrogate effectively. We used Duce & Baytelman "Juicio Oral", which is a very good translation to Spanish of the principles of trial advocacy, a book that is now used in Chile to train lawyers in a system that underwent substantial reform very recently. This book was sent to the prison straight to Tonio's hands. And we trained Tonio with this material through several hours, on the phone. Essentially, we wanted Tonio to learn how to ask yes or no questions rather than open ended questions. Any lawyer in North America knows how crucial this is for cross examination. And Layda and I worked with him through his training as much as we could do so, long distance.

donna g: Geoffrey, how was working on this documentary different than working solo on The English Surgeon?

Geoffrey: Roberto is a brilliant partner as he knew all his material backwards, speaks perfect English and is very fast as an editor. We were editing in a divine villa outside of Mexico City which enabled us to just concentrate on the film, and I felt we were able to bring the very best out of each other. It was a special experience and one I would gladly plunge into again..

donna g: Roberto, how were you able to balance your work/family life with making a film that took almost 3 years to complete?

Roberto: I still don't know the answer to that!

donna g: Will the film be released in Mexico, and if so, do you think it will outrage enough people that demands will be made for judicial reform?

Roberto: I would be surprised if the film is not released in Mexico. It has all the ingredients a good film could possibly have. The drama is strong, the story is real. We put all our heart in it. And I think if audiences give themselves a chance to watch this, they will not regret it.

Geoffrey: A big part of why I said yes to taking part in this film was because I believe the film will make a huge impact in Mexico.Roberto, Layda and the producers have a fantastic plan for getting the film lunched there, and as countless Mexican citizens know someone directly or indirectly who has suffered at the hands of the Justice system I know it will prove to be the catalyst for real and lasting change.