Wrestling with Mexican criminal procedure: how law schools in the United States and Mexico can team up to rebuild Mexico's criminal trial.

• Author: Lee, Zachary J.

1. INTRODUCTION II. MEXICO'S CRIMINAL JUSTICE SYSTEM A. Mexico's distinct legal evolution B. The unchecked power of the ministerio publico C. Too much corruption, too little public trust III. THE 2008 REFORMS A. The slow march toward reform B. U.S. influence on the reform process IV. MEXICAN LEGAL EDUCATION A. Obstacles to reform within Mexico B. Obstacles stemming from the United States V. REFORMING MEXICAN LEGAL EDUCATION A. Moving Away from Memorization B. Taking Another Look at Transnational Programs C. Working with U.S. Law Schools VI. CONCLUSION I. INTRODUCTION

   "[Lucha libre] is a contest between two or more wrestlers who compete not as themselves but as characters that they (or their promoters) invent." (1)

   One of the most colorful images associated with Mexico is that of the masked luchador. Inside Mexico, luchadores are superstars, a unique mix of real-life superhero and movie star. El Santo [The Saint] was one of the biggest stars in the history of lucha libre, and his influence over Mexican culture extended far beyond the wrestling rings where he first became famous. He starred in close to sixty feature films in which he battled mummies, vampire women, and Martians--all while wearing his famous silver mask. (2) He took off that mask publicly for the first time in 1984; a week later, he had a heart attack and died. (3) Thousands attended his funeral and watched as he was buried-wearing his mask. (4) El Santo was a cultural icon, (5) but it is impossible to examine his cultural significance without acknowledging that of lucha libre itself.

   Of course, a large part of lucha libre is simple entertainment, "[b]ut what wrestling is above all meant to portray is a purely moral concept: that of justice." (6) The popularity of lucha libre should come as no surprise, then, in a country that has historically struggled to impose justice. (7)

   On June 17, 2008, Mexico took an unprecedented move toward strengthening its justice system by modernizing its trials and implementing true adversarial procedure. (8) Mexican president Felipe Calderon signed into law a constitutional amendment establishing three fundamental changes to Mexican criminal procedure: (1) Trials would be open to the public; (2) Trials would be adversarial in nature, not inquisitorial as had been tradition; and (3) Trials would be based on oral argument, not written memoranda (these changes are, collectively, the "2008 Reforms"). (9) Though these characteristics are taken for granted in U.S. trials, they had been absent from Mexico's "medieval" trial system until President Calderon was able to push through the constitutional reform--something his two predecessors had attempted but failed to do. (10) In those years of failed attempts, Mexican scholars and politicians who continued to push for reform were acutely aware of the U.S. legal system as a model. (11)

   As the most comprehensive legal changes made since Mexico's 1917 Constitution (the "1917 Constitution"), (12) the 2008 Reforms had many catalysts. However, one catalyst in particular stands out: The ever-present threat posed by the drug cartels in Mexico. Their influence is ubiquitous and pervades almost all levels of the justice system. (13)

   Those in a position to put cartel members in jail are faced with a foreboding choice: "plata o plomo" (silver or lead). (14) They can choose to receive either silver, in the form of a bribe, or lead, in the form of a bullet, from the drug gangs. (15) Many officials choose the silver. (16) Public knowledge of the widespread use of bribes has cultivated a general distrust in Mexico's criminal justice system. (17) To combat that, Mexico must foster faith in its legal institutions. (18) The 2008 Reforms represent a significant step in the right direction, but substantial changes must be made to Mexican legal education to ensure the reforms are enacted as planned. (19)

   Mexican legal education is substantially different from legal education in the United States. (20) Many Mexican law schools lack the social justice clinics, law journals, and mock competitions that are common in U.S. law schools. (21) As a result, even before the 2008 Reforms, Mexican law schools were far behind their U.S. counterparts in teaching advocacy skills. (22) Now the reforms have been adopted, Mexico must train thousands of law students and retrain thousands of practicing lawyers by 2016. (23)

   U.S. law schools are uniquely positioned to assist in this transition. (24) Transnational cooperation to improve Mexican law schools will not only assist implementing the 2008 Reforms, but it will also parallel efforts to eliminate the drug cartels. (25) Through the Merida Initiative, the United States has already pledged to support Mexico in its fight against drug gangs by providing equipment and law enforcement training. (26) The shortcomings of Mexican legal education must be addressed if the Merida Initiative is to succeed. (27)

   This paper is separated into four parts following this introduction. Part two is a general overview of Mexico's criminal justice system; part three examines the 2008 Reforms in particular. Part four gives an overview of Mexican legal education, and the fifth part explains the changes that are needed to ensure that Mexican law schools are ready to prepare current and future lawyers for the changes encompassed in the 2008 Reforms. An expanded partnership between Mexican law schools and their U.S. counterparts promises to be especially helpful in the transition to public, adversarial, oral trials. That partnership, both as it already exists and as it should evolve in the coming years, is examined in depth in the fourth section of this paper.

   At the outset, I feel obliged to call attention to one of this paper's shortcomings. As a general rule, I am personally intrigued by almost every facet of Mexican life. With regard to Mexican legal education however, I find myself distinctly in the minority. In 2002, the United Nations recognized a lack of information regarding Mexican law schools, and it urged the Mexican government to undertake the research required to make that information available. (28) Since then, only marginal progress has been made. The leading scholar on the subject admitted plainly in 2008 that "[r]esearch on Mexican law schools is almost nonexistent." (29) At a time when Mexican law schools are facing important changes to the legal landscape, that dearth of research is especially frustrating. I have worked with what sources I could find to paint a comprehensive picture of the current situation of Mexican law schools. With that in mind, I believe that my conclusions (as well as my suggestions for further action) are well researched, but in the end, they are still just that: mine.

2. MEXICO'S CRIMINAL JUSTICE SYSTEM

   "One of the most important features differentiating lucha libre from its Anglophone cousins is the use of masks, not only as an element of the wrestler's costume but as a crucial dramatic element." (30)

   Built around a civil law tradition, Mexico's legal culture is fundamentally different from the U.S. system. The most significant difference, as it is relevant here, is the diminished importance of the judge. (31) Built on that foundation, Mexico's unique history has further weakened the judge's role. (32)

   1. Mexico's distinct legal evolution

      Mexico's judicial system is a reflection of Mexican culture as it has evolved since pre-colonial times, but it is formally rooted in the language of the 1917 Constitution. (33) The U.S. Supreme Court had decided Lochner just twelve years before that document was written. (34) Wary of the power wielded by the U.S. Supreme Court in the Lochner era, the drafters of the 1917 Constitution deliberately created a judiciary that was weaker than the executive and legislative branches of government. (35) This was a direct condemnation of a Mexican Supreme Court that had, before the 1910 Revolution, declared its power of judicial review. (36) In fact, the pre-Revolutionary Mexican Supreme Court used Marbury v. Madison (37) as a model for the concepts of stare decisis and judicial review more than a decade before the U.S. Supreme Court cited to Marbury for those principles. (38)

      Besides establishing a fundamentally weaker judiciary, the 1917 Constitution formally addressed criminal procedure. (39) The drafters specifically intended, for example, to increase public awareness of criminal trials. (40) Without implementing any legislation, however, much of the pre-Revolution procedure continued unchanged. (41) The Mexican Congress passed "extraordinarily defective" enabling legislation in 1934. (42) The gap between that legislation and the original constitutional principles resulted in a hybrid system that gave immense power to the ministerio publico [federal prosecutor] and made the trial itself "a mere formal exercise." (43)

   2. The unchecked power of the ministerio publico

      In this system, the ministerios publicos held considerable sway over the entire criminal proceeding--from the issuance of arrest warrants to the presentation of cases to the judge. (44) The ministerios publicos decided the weight of the evidence during the investigation without giving the defense an opportunity to challenge evidence or cross-examine witnesses. (45) The ministerio publico created a written report (a "dossier") upon which the judge would rely in making his decision. (46) This system may have evolved naturally from the 1917 Constitution's suspicion of an activist judiciary during the Lochner era. (47) However, by taking power away from the judge and placing it in the hands of the ministerio publico, which actually represents the executive branch, (48) this system further weakened judicial independence. (49)

      This produce[d] the atrophy of the criminal prosecution system because it [did] not provide any incentive for carrying out a quality investigation, and one [could] never successfully attack the low quality of the investigation...