Judge Brian Cogan gives instructions to the jury in the trial against Genaro García Luna in New York, on January 16. JANE ROSENBERG (REUTERS)
Deliberations begin in the trial against Genaro García Luna.
The members of the jury, 12 ordinary New York citizens, will have to agree to decide on the guilt or innocence of Felipe Calderón's Secretary of Public Safety.
The members must reach a unanimous decision on each of the five charges against the former official: three for cocaine trafficking, one for organized crime and another for making false statements.
“This is one of the biggest responsibilities they will have in their lives,” Judge Brian Cogan said Thursday after instructing them on how they should deliver their verdict.
The jury sessions are closed and the decision can be made known at any time, prior notice to Cogan.
Up to this point, the jurors had not been allowed to discuss any details of the trial among themselves.
The members are now completely cut off from the outside world.
A guard took an oath at the end of the last hearing: he has to make sure they don't talk to anyone from outside, that they don't use any electronic device and bring them food.
It's his only contact.
He also helps them send notes to Judge Cogan to ask him about the documents and other materials they need to reach his decision.
In an alternate room, six substitutes are practically in the same conditions, with the only difference that they cannot comment on the judicial process.
They enter as a replacement in exceptional circumstances, due to force majeure.
The conspiracies of García Luna
Cogan explained step by step to the jurors what they have to do.
Unlike other countries, judges in jury trials perform an administrative function.
It is the citizens who decide on guilt and months later the judge is in charge of issuing the sentence.
“You are the sole judge of the facts presented to you,” he reminded them.
“You should be the ones wearing the black robes,” she teased.
The judge condensed a course on US criminal law into just over two hours.
He told them about the presumption of innocence.
He told them that the burden of proof was on the Prosecutor's Office, that they were the ones who had to prove that the defendant was guilty beyond a reasonable doubt, "a doubt based on reason and common sense."
He explained to them that they could only take testimonies and evidence into account.
He asked them not to let themselves be guided by any type of prejudice or element foreign to what they have seen in the last four weeks.
He also talked about the charges and how they should decide on them.
This is the highest-profile trial of a former Mexican official in the United States, and a direct consequence of his being tried in the US system is the type of crimes he is accused of.
The accusation against García Luna is based on the three charges for drug trafficking.
The exact names of these charges are: conspiracy for the international distribution of cocaine, conspiracy for the distribution and possession of cocaine, and conspiracy to import cocaine.
"In many countries this does not exist, conspiracies are a very American crime," said former prosecutor Daniel Richman, a Columbia University law professor, in an interview with EL PAÍS last week.
Cogan explained that a conspiracy is "an agreement between two people to do something illegal."
In the United States, this is a crime even if the plan fails, or even if the crime is not committed.
In Mexico there are no "conspiracies" as a legal term.
To prove a conspiracy, the judge said, two things have to be shown.
First, it must be proven that "the conspiracy exists", that two or more people agreed to plan the crime.
This can be explicit or because of a “mutual understanding” or because of something that is inferred from the physical evidence and testimony presented by the prosecutors.
“Actions speak louder than words,” Cogan said.
Second, it must be shown that the defendant "knowingly and intentionally" participated in the conspiracy.
This means "with knowledge that what he was doing was wrong and with the intention of carrying out the crime."
For example, García Luna was accused of aiding the Sinaloa Cartel in exchange for bribes.
Incredible as it may seem, the Prosecutor's Office had to prove that the Sinaloa Cartel existed and that one of its activities was cocaine trafficking.
In between, he also had to prove that the defendant was part of the conspiracy: that he knew that the cartel was engaged in drug trafficking and that he still decided to get involved with them.
All three drug trafficking charges are for
conspiracies
to traffic cocaine, but not for the cocaine trafficking itself.
In the United States, charging someone with conspiracy to distribute drugs does not require that the defendant be caught uploading the packages or putting their hands on the merchandise.
What is judged is the agreement to do so.
These were some of the things that Cogan explained to the jury to deliver his verdict, but with many more specific details and at times difficult to understand.
Each crime has limited proof requirements defined to the millimeter.
The same happens with each of the conspiracies, which have to be tried separately, and with the other two charges: organized crime - belonging to an ongoing criminal enterprise - and making false statements in his naturalization application by declaring that he had not committed no crime.
These last two crimes depend in some way on the other three drug trafficking, according to Cogan himself.
And to that are added aggravating circumstances and specific defense motions that they must also consider.
Despite all the technical details, the verdict rests solely with the jury and opens the door to many possible outcomes.
García Luna can be found guilty of all crimes or acquitted of all charges.
But he can also be convicted of two or three or four charges and innocent of the rest.
If there is outright unanimous agreement among the jurors, the trial may be declared a mistrial.
Therefore, it is common for members to take enough time to reach a minimum agreement between them and try to avoid that scenario as much as possible.
The fate of the former Mexican official is in the hands of 12 New York citizens.
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