Justice in El Salvador: a US State Department view

On May 24, 1984, in the Court of First Instance at Zacatecoluca, El Salvador, a jury of five Salvadorean citizens found five former members of the National Guard guilty of the murder of four American churchwomen. All defendants have been sentenced to 30 years' imprisonment, the maximum penalty under Salvadorean law. The court's decision has been perceived in the United States primarily in terms of its political significance. There has been remarkably little public comment on its legal significance as a potential milestone in the establishment of an effective, functioning system of criminal justice in which the rule of law can help to restrain and displace the political violence that has plagued El Salvador for so many years.

Some of the public commentary on this case has reflected the mistaken assumption that the government of El Salvador, after 31/2 years of inaction, has produced a hasty conviction in response to pressure from the United States government, the Congress, and the families of the victims. There have even been some expressions of uncertainty as to whether the defendants were actually guilty. It is important to know that the guilty have been brought to justice. Even more important for the longer term is that this result has been achieved by Salvadoreans who are committed to making their legal system function effectively.

In the first few months immediately after the murder, in December 1980, during a period when there was far more extremist violence than exists today, there was ample room for concern that there did not exist in El Salvador the will to pursue a serious investigation and prosecution. Fear and a tradition of nonaccountability had long frustrated efforts to bring members of the security forces to justice, and initially prevented effective investigation in this case. In these circumstances, an independent investigation by the US Embassy was necessary to identify the likely perpetrators. Once that was done, the Salvadorean authorities initiated appropriate action. The first arrests were made in late April of 1981. By early 1982 a competent Salvadorean investigation had been completed and the case had been turned over to the civilian courts with sufficient evidence to obtain a conviction.

For the next year, progress in the case was frustrated by the institutional shortcomings in the criminal-justice system that make any prosecution of a major crime in El Salvador a difficult feat. Underpaid and untrained prosecutors failed to organize a coherent presentation of admissible evidence that would withstand judicial scrutiny under a rigid and formalistic procedural system. In El Salvador (as in other countries with legal systems based on the Napoleonic Code), the evidence is placed in the court record under judicial supervision before that record is presented to a jury. The decision to proceed with the jury phase can be appealed. Twice the court record was completed and each time the case was appealed by the defendants. In both appeals the higher court ordered the case returned to the investigative stage because of procedural deficiencies.

Last summer, after the second loss in the appeals court, the government of El Salvador assigned an experienced senior attorney to coordinate the prosecution. Under his leadership, the record was substantially augmented and procedural deficiencies were corrected. The United States provided assistance: Suggestions were made by the Department of State and by former US District Judge Harold R. Tyler Jr., who undertook an independent review of the evidence at the request of the secretary of state; the Federal Bureau of Investigation facilitated the repetition of scientific tests under procedures that made the results admissible in the Salvadorean court. But the plan for bringing this case to a conclusion was developed and carried out by the Salvadorean prosecution team. As a result of their efforts, a much sounder record was closed last October - before the enactment of US legislation conditioning a portion of military assistance funds upon a verdict in this case.

This time, the inevitable appeal by the defendants proved unsuccessful. The appellate court in February upheld the government's position and approved having the case go forward to the jury. This began the countdown of the final steps required by the Salvadorean code. These steps were completed without any unusual delay and the case was finally presented to the jury on May 23.

American observers unfamiliar with civil-law procedure were surprised at the brevity of the jury portion of the proceedings. What we think of as the ''trial, '' the presentation of testimony and other evidence, had already been completed under the Salvadorean system and had been the subject of three separate appeals. Far from being a hasty affair, the jury phase was the culmination of many months of painstaking effort.

The jury was obviously impressed by the strength of the prosecution's case and the weakness of the defense. This is simply a reflection of the weight and probity of the evidence of the defendants' guilt. In his report of Dec. 2, 1983, to the secretary of state, Judge Tyler describes this evidence as ''overwhelming ,'' ''compelling,'' and ''irrefutable.'' The report describes in detail the physical evidence linking the defendants to the contents of the van in which their victims were riding, the testimony of witnesses, including those to whom the defendants made incriminating admissions, and the ballistics and other technical evidence developed by the FBI. Judge Tyler also describes the evidence such as polygraph results which, although inadmissible, corroborated both the guilt of the defendants and the conclusion that they acted on their own initiative, not in response to orders from superiors.

The successful disposition of this case was an important legal achievement. A courageous judge was able to steer the proceedings to a conclusion through a procedural thicket. Competent, determined prosecutors organized and presented the evidence to the jury in a persuasive manner. Security was provided by a newly formed civilian Judicial Protection Unit. And a Salvadorean jury rendered a verdict based on the evidence.

One case does not make an effective legal system. El Salvador remains a country where fewer than 20 percent of the cases presented to juries result in convictions. This one case has been instructive in many ways, however. It has demonstrated techniques for handling a major prosecution, the value of scientific evidence, and the procedural inadequacies of the present code. And it has shown that the law can provide an effective response to lawlessness.

The new administration of President Duarte has made clear its commitment to improving the administration of justice in El Salvador. We can expect to see increased attention in the coming months to more professional investigations, judicial protection, training for judges and prosecutors, improved procedures for judicial selection and court administration, and streamlining of the codes. Results will not come quickly or easily. Yet, those responsible for these efforts will have the experience gained in bringing to justice those responsible for the tragic loss of life of the four American churchwomen. There is reason to hope that this experience will help to place their efforts on a more sure path to greater security under the protection of the law for all who visit or make their homes in El Salvador.

James Michel is deputy assistant secretary for inter-American affairs at the State Department and formerly senior deputy legal adviser.

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