The success of these two bilateral investigations are instructive to law enforcement and other government officials when examining ways that U.S. authorities can partner with Mexican authorities to fight transnational organized crime.
Challenges for U.S. government authorities. Lack of trusted, vetted partners. Arguably, the number-one reason that joint prosecutions have failed is the lack of established channels of communication with trusted partners. Justified concerns about corruption compound this inherent mistrust. Without confidence that sensitive information will remain safeguarded, U.S. law enforcement agencies have little confidence in sharing information.
In light of this concern, the United States is investing significant resources to build partnerships with specialized, vetted units of Mexican law enforcement investigators and prosecutors. These investigators undergo rigorous background checks, similar to the scrutiny U.S. federal investigators receive, and are trained in the requirements of the U.S. legal system. But the availability of these units is limited. At this point, there is no regularized, widespread vetting of agency partners in Mexico, and there are insufficient mechanisms for the kind of widespread regular contact between investigators that builds the trust and confidence necessary for successful cooperation.
Lack of investigative support. Further hampering the bilateral investigation of cases is the absence of an institutionalized partnership between the investigator and prosecutor in the Mexican system. In the United States, prosecutors and investigators must work together closely as a team to develop a case that could lead to a conviction. This teamwork often continues until the defendants are convicted. In contrast, the Mexican federal government has no such tradition of partnership between investigators and prosecutors. Once an investigator hands a case to a prosecutor, the job is essentially finished. Prosecutors find themselves building a case from scratch, often developing evidence without the assistance of the investigators. This dynamic fuels distrust between the parties and needlessly stovepipes information to the detriment of the case.
Fundamental differences in procedure. The U.S. criminal justice system revolves around the concept of the trial. The scrutiny of the witnesses, the presumption against hearsay, and the preservation and authentication of evidence guide the actions of the investigators and prosecutors from the time the crime is first reported. On the other hand, the Mexican inquisitorial system relies heavily on paper statements that are reviewed as part of a voluminous file presented to a judge. Because there is no “trial” in the U.S. sense of the word, Mexican prosecutors rely heavily on the development of the written declaration.
This dynamic plays out in a number of significant ways. For example, preserving evidence is of a lower priority in the Mexican criminal justice system than in the U.S. system, but immediately documenting an exhaustive victim interview is paramount. These differences in attitude and approach to the investigation of a case can be fatal if a U.S. prosecutor must rely on evidence found in Mexico in a U.S. judicial proceeding.
Treaties that slow the pace of coperative procedures. Under the Mutual Legal Assistance Treaty, formal methods for obtaining evidence must be followed, but the process can be frustratingly slow and is not conducive to the fast pace of an investigation. The Extradition Treaty between the United States and Mexico also can create some thorny issues regarding which country will proceed with specific charges against a specific defendant. Article 6, which lays out the principle of non bis in idem, prohibits a defendant from being extradited to face charges when he or she has been “prosecuted” in the other country. The term is defined broadly enough that U.S. and Mexican authorities must work together closely, charge by charge, to ensure that joint targets do not face double jeopardy.
Distilling the formula for success. Despite the seemingly insurmountable challenges, several factors pushed these two human trafficking investigations toward successful conclusions in both countries: commitment from key actors; the development of relationships at the working level through training and mentoring; and the use of informal and formal methods of sharing evidence and information.
Commitment from key actors. More than any other factors, political will and commitment to bilateral cooperation are crucial to success. In these two cases, senior leadership within the Mexican attorney general’s office made it clear that the joint investigation was a priority, motivating the Mexican prosecutors to participate at the working level.
There also was a deep commitment to the investigation and prosecution of these cases at the working level. The will to prosecute these cases allowed prosecutors and investigators on both sides to transcend the natural wariness between agencies and led them to take the unprecedented steps of reaching out and establishing mutually beneficial working relationships with one another.
Mentoring and training. Around the same time that investigations were beginning in these cases, U.S. prosecutors were training law enforcement officers and prosecutors in Mexico on how to identify and prosecute human trafficking cases. In addition, the United States offered a series of monthly mentoring sessions for Mexican investigators and prosecutors specializing in antitrafficking efforts, and stationed a legal advisor at the U.S. embassy in Mexico City to focus solely on trafficking-in-persons issues.
The benefits of this training extended beyond the nuts and bolts of building a case. Because the training was conducted by U.S. prosecutors and investigators, it provided a natural opportunity for parties on both sides of the border to develop the relationships and trust that are essential to successful bilateral cooperation.
Ultimately, the key byproduct of these open relationships was the ability to maximize the use of information and evidence to a far greater degree than would have been possible if one country had been operating alone.
Formal and informal information and evidence sharing. The Mutual Legal Assistance Treaty with Mexico provides for each country to assist in the “prevention, investigation, and prosecution of crime,” but the mechanics for doing so can be cumbersome, seriously disadvantaging law enforcement in the face of more adroit criminal networks. In the months it would take to certify copies of witness statements, defendants could easily have emptied their bank accounts of illicit proceeds and swept over evidence connecting them to the crime.
Crucial to the success of these trafficking cases was the recognition that not all evidence had to be shared through formal channels to be helpful. Although evidence shared informally generally cannot be introduced in court, it can be used to pinpoint assets, identify other victims, or create leads for further investigation. The ability for trusted partners to solve problems creatively, across the divide of culture and bureaucracy, led to broad success in these cases.
ABA Criminal Justice Section
This article is an abridged and edited version of one that originally appeared on page 18 of Criminal Justice, Fall 2012 (27:3).
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