In July and August 2019, the American Bar Association’s Center for Human Rights monitored the retrial of Evelyn Hernandez in El Salvador as part of the Clooney Foundation for Justice’s TrialWatch initiative. Ms. Hernandez was prosecuted for aggravated homicide based on an obstetric emergency she suffered while giving birth. Although Ms. Hernandez was acquitted, her retrial was marred by due process violations. The prosecution should not have pursued the case given the lack of evidence substantiating the charges. That the authorities extended Ms. Hernandez’s detention (after she had already spent more than two years in prison as the result of a first trial on the same charges) and put her through a second trial violated her right to liberty, her right to the presumption of innocence, her right to freedom from discrimination, and prosecutorial ethics.
Evelyn Beatriz Hernandez Cruz is a 22-year old woman from an impoverished rural community in El Salvador. In April 2016, Ms. Hernandez - then 18 - experienced severe abdominal pain and diarrhea. She sought relief in the latrine and ultimately delivered a child. Ms. Hernandez has stated that she was impregnated as the result of a sexual assault and was unaware of her condition, instead mistaking the symptoms for stomach troubles.
Ms. Hernandez’s mother found Ms. Hernandez unconscious and covered in blood. She was rushed to the hospital for emergency medical services. Health professionals at the hospital notified the authorities. As a result, Ms. Hernandez was arrested, handcuffed to her hospital bed, and, just several days later, charged with aggravated homicide and transferred to prison to await trial. In July 2017, on the theory that Ms. Hernandez had thrown her living child into the latrine pit upon giving birth, a court in San Salvador sentenced her to 30 years in prison. In October 2017, an appellate court upheld Ms. Hernandez’s conviction. In 2018, the Supreme Court of El Salvador annulled the appellate decision on the basis of insufficient evidence and remanded the case to an appellate chamber, which overturned Ms. Hernandez’s conviction and ordered a retrial before a different judge.
The present report covers Ms. Hernandez’s retrial as well as related investigation and pretrial procedures: it does not address Ms. Hernandez’s first trial or the initial investigation. Notwithstanding this bounded scope, it is clear that Ms. Hernandez’s rights were violated.
First, the evidence presented during Ms. Hernandez’s retrial was grossly inadequate. The only change from the prosecution’s original case was a shift in legal theory. That is, rather than arguing that Ms. Hernandez killed the child (a crime of commission), the prosecution argued that Ms. Hernandez had deliberately failed to provide the child with appropriate care after delivery (a crime of omission).
Medical experts, however, found that the child had died from aspiration of foreign materials, a not uncommon occurrence in childbirth and one that could have resulted in the child’s death almost immediately after delivery. This means that Ms. Hernandez might have been unable to assist in any event. Further, various witnesses testified that the birth had induced severe bleeding and loss of consciousness. Even if there was a chance the child could have lived, the evidence suggests that Ms. Hernandez was incapable of intervening.
Indeed, this was precisely the reason that the Supreme Court annulled the appellate decision upholding Ms. Hernandez’s conviction, finding homicide by commission improbable given her health condition after delivery. Considering that it was equally improbable that Ms. Hernandez could have chosen not to act in her condition, the prosecution’s pursuit of her retrial contravened best practices on prosecutorial ethics.
Second, the authorities arbitrarily detained Ms. Hernandez between the overturning of her conviction and retrial, violating the American Convention on Human Rights and the International Covenant on Civil and Political Rights (ICCPR). Once Ms. Hernandez’s conviction was overturned by the appellate chamber, there was no justification for keeping her in detention: the pretrial detention objectives deemed legitimate by the UN Human Rights Committee and Inter-American bodies - preventing the destruction of evidence, flight, or recurrence of crime - did not apply. Nonetheless, Ms. Hernandez remained in jail for approximately two months after her conviction was overturned - until the court presiding over her retrial ordered her release. This groundless extension of what had already been more than two years in prison additionally violated Ms. Hernandez’s right to the presumption of innocence.
Finally, Ms. Hernandez’s prosecution violated her right to freedom from discrimination, as protected by the American Convention, the ICCPR, and the Convention on the Elimination of Discrimination against Women. As detailed by the Inter-American Commission and Court as well as by the UN Working Group on Arbitrary Detention, discrimination includes when stereotypes infect legal proceedings, leading the authorities to presume guilt and neglect alternate lines of inquiry.
In Ms. Hernandez’s case, the prosecution’s reliance on stereotypes of motherhood resulted in inattention to exculpatory evidence. The prosecution, for example, ignored evidence regarding the cause of the child’s death and Ms. Hernandez’s incapacitation at the time of birth, instead insinuating that a good mother would have saved her baby. The prosecution further inferred homicidal intent from Ms. Hernandez’s alleged concealment of her pregnancy, again in the face of contradictory evidence. This conduct constituted gender-based discrimination.
More broadly, it is marginalized women who bear the brunt of El Salvador’s policy of prosecuting impoverished women for pregnancy complications beyond their control. This policy is in effect, if not by design, discriminatory on the basis of gender and class.
In addressing the court prior to her acquittal, Ms. Hernandez stated: “[I] as[k] for justice, [I am] 22 years old, [I have] many goals … [I] than[k] the Court.” The prosecution’s appeal of Ms. Hernandez’s acquittal has just been rejected by a Cojutepeque court. While the prosecution now has until June 29 to appeal this decision to El Salvador’s Supreme Court, it should decline to do so. Putting Ms. Hernandez through a third trial would be a profound injustice.